Brannon v. Harmon

• Decision Date: 29 September 1960
• Docket Number: No. 35145,35145
• Citation: 355 P.2d 792,56 Wn.2d 826
• Court: Washington Supreme Court
• Parties: Ira BRANNON, Individually, and as Guardian ad Litem of Ward Brannon, Appellant, v. D. B. HARMON and Jane Doe Harmon, his wife; Bill Olels and Jane Doe Olels, his wife, and their respective marital communities, Respondents.

Page 826

56 Wn.2d 826

355 P.2d 792

Ira BRANNON, Individually, and as Guardian ad Litem of Ward Brannon, Appellant, v. D. B. HARMON and Jane Doe Harmon, his wife; Bill Olels and Jane Doe Olels, his wife, and their respective marital communities, Respondents.

No. 35145.

Supreme Court of Washington, Department 2.

Sept. 29, 1960.

Pomeroy & Harris, Francis N. Cushman, Seattle, for appellant.

Knapp & Knapp, Brethorst, Fowler, Bateman, Reed & McClure, Seattle, Frank Payne, Seattle, of counsel, for respondents.

FINLEY, Judge.

This is an action for personal injuries suffered by the plaintiff's infant son. On the afternoon of Saturday, July 20, 1957, the child, then three and one-half years of age, slipped and fell into a smoldering rubbish fire, located on a certain unimproved tract of land just north of Seattle. The defendants Harmon are the owners of the land upon which the accident occurred. Defendant Olels (whose wife was joined as an additional defendant merely to bind the marital community) is a contractor, who, at the time of the accident, was employed by the Harmons to clear and excavate the tract in order to facilitate its development as residential property. The smoldering debris into which the child fell was created by Olels as an incident to the clearing operation. During the weekdays, when work was in progress in the area, a fire was kept burning continuously in order to dispose of stumps, logs, and other similar materials. As the weekend holidays approached, the fire was not extinguished, but was allowed to die down; and, in order to keep it under control, the burning debris was mixed with and partially covered over by surrounding natural soil. It is undisputed that the area was left unguarded and unattended over the weekend period during which the accident occurred.

The theory of plaintiff's complaint is basically one of negligence; i. e., that the defendants Harmon, as owners of the land, and the defendant Olels, as the contractor engaged to clear the land, owed to the injured child a duty to use reasonable care in conducting the debris-burning operation, and that this duty was breached when the fire was left burning and unattended over the weekend. Plaintiff concedes that, at the time of the accident, the child was technically a trespasser (toward whom a landowner or occupier ordinarily owes no duty except to refrain from wanton or willful harm). However, the plaintiff seeks to establish a duty of reasonable care by invoking the attractive-nuisance doctrine (i. e., an exception to the general rule relating to trespassers).

In the trial court the defendants (contending that the attractive-nuisance doctrine was not applicable under the facts involved in the instant case) moved for a summary judgment. Affidavits and depositions were submitted by each of the parties. The defendants' motion was granted, and the plaintiff's complaint was dismissed with prejudice. This appeal followed.

The test to be applied in ruling on a motion for summary judgment is concisely stated in Rule of Pleading, Practice and Procedure 56, RCW Vol. O, as follows:

'(c) * * * The judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law * * *.'

The defendants-respondents have conceded that, because of the tender age of the injured child, the child is not chargeable with contributory negligence. The single question to be determined on this appeal is whether, on the basis of the facts in the record (pleadings, depositions and affidavits), it should be said, as a matter of law, that the attractive-nuisance doctrine is not applicable; i. e., that the respondents, as a matter of law, owed no duty of reasonable care to the trespassing child.

The leading case in this jurisdiction relative to the attractive-nuisance doctrine is Schock v. Ringling Bros. and Barnum & Bailey Combined Shows, 1940, 5 Wash.2d 599, 105 P.2d 838, 842. In the Schock case the court commented in general terms regarding the doctrine as follows:

'That doctrine, which has been variously termed the 'attractive nuisance,' 'attractive agencies,' 'attractive instrumentalities,' 'torpedo,' or 'turntable' doctrine, may be generally stated thus: One who maintains or creates upon his premises, or upon the premises of another, or in any public place, an instrumentality or condition which may reasonably be expected to attract children of tender years, and to constitute a danger to them, is under a duty to take the precautions that a reasonably prudent person would take, under similar circumstances, to prevent injury to such children.'

The court then reviewed a number of earlier decisions and therefrom derived a list of some five factual considerations, each of which was said to be a requisite for application of the attractive-nuisance doctrine in a given case. These considerations were enumerated...