Brittain v. Cubbon

• Decision Date: 26 January 1963
• Docket Number: No. 42626,42626
• Citation: 190 Kan. 641,378 P.2d 141
• Parties: Michael J. BRITTAIN, a minor, by and through Donald J. Brittain and Annette M. Brittain, father and mother, natural guardians, and next friends of said minor, Appellee, v. George T. CUBBON, Appellant.
• Court: Kansas Supreme Court

Page 141

378 P.2d 141

190 Kan. 641

Michael J. BRITTAIN, a minor, by and through Donald J Brittain and Annette M. Brittain, father and mother, natural guardians, and next friends of said minor, Appellee, v. George T. CUBBON, Appellant.

No. 42626.

Supreme Court of Kansas.

Jan. 26, 1963.

Syllabus by the Court.

1. A petition alleged in substance that the plaintiff, a ten-year-old boy, was attracted to the scattered debris of a razed residential building in the city of Wichita and stepped on a nail protruding from a board, thus causing his injury and resulting damage. On appeal it is held the petition states a cause of action under the attractive nuisance doctrine, all as more particularly set forth in the opinion.

2. The attractive nuisance doctrine prevailing in this jurisdiction is based upon the negligence of the proprietor who fails to protect young children attracted to his premises by some dangerous thing or place artificially created, and where he should have anticipated that the children would be lured into the danger. (Following Galleher v. City of Wichita, 179 Kan. 513, 296 P.2d 1062, Syl. 3.)

3. One of the essential elements of the doctrine of attractive nuisance is that the danger present must be of a latent character, but a latent or concealed danger extends to things hidden from the appreciation of persons injured, as well as to things hidden from the eye.

Gerald L. Michaud and Russell Cranmer, Wichita, for appellant.

John Madden and John Madden, III, Wichita, for appellee.

SCHROEDER, Justice.

This is a negligence action based upon the doctrine of attractive nuisance. It is brought on behalf of a ten-year-old child to recover for injuries received on the defendant's premises when the child stepped on a nail and was allegedly injured. The trial court overruled a demurrer to the amended petition, and appeal has been duly perfected from such ruling.

The only question presented is whether the pleading states a cause of action under the attractive nuisance doctrine.

The amended petition alleged that the plaintiff, Michael J. Brittain, is a minor, and at the time of the injuries complained of was ten years of age, and that the cause of action is made for and on his behalf by his father and mother. It is alleged that the defendant is a realtor by occupation and trade and the owner of certain lots, which were described, in the city of Wichita.

Insofar as pertinent to this appeal the amended petition alleged:

'3. * * * that in the Spring of 1958, the Defendant, through his agents servants and employees, started the demolition, destruction and razing of the residence then existing upon the above-mentioned and described real estate; that in so demolishing, razing and destructing said residence thereon, the Defendant, by and through his agents, servants, and employees, left an abandoned excavation, and much debris, including remnants, parts of the demolished foundation, cement blocks, mortar, bricks, glass, nails and stacks of used lumber and planks, all of which were rotten and infected, and which had rusty nails protruding therefrom, and were exceedingly dangerous, when left unguarded by a proper fence enclosure, or unguarded and unprotected by other enclosure. Further the Defendant, then and there negligently permitted to remain the unguarded and unprotected dangerous conditions, without taking any reasonable precautions to guard against the accident liable to ensue thereon.

'4. That the abandoned excavation where the demolished residence and foundation had been situated, was attractive, alluring and inviting, and of such a nature as to invite the intrusion of children, following their natural instincts of curiosity, and as a place to play; that the debris and demolished used materials were so placed and disposed, scattered and piled so as to be readily visible to children from the immediate adjacent lots, homes and public streets, in said area; that said area was densely populated, and was frequented by children; that the dangerous existing conditions thereby created an extremely, alluring, attractive and inviting situation to children of tender years, and all of which conditions did invite, allure and attract said children of tender years from the streets, lots and surrounding homes, as a place to play.

'5. That on and prior to said date of November 1st, 1959, other children of tender years were allured, invited and attracted, and did come on said premises to play, in and about said abandoned excavation, and on said piles of debris and materials, and at frequent times, other children, within the surrounding area, received injuries by reason of the existing dangerous conditions left and maintained by said Defendant.

'6. That for several months prior to the date the Plaintiff minor child sustained injuries, as hereinafter mentioned, the Defendant knew of the existence of said dangerous conditions, and knew of the fact that children of tender years were being invited, allured and attracted to said premises, to play, and more specifically said Plaintiff child, and in the exercise of ordinary care did know, or should have known of such conditions and circumstances in time, in the exercise of due caution, to have remedied and corrected the dangerous existing conditions mentioned, or to have taken reasonable precaution to protect said Plaintiff child, and other children from injuries on said premises, prior to the said injury complained of herein, by fencing, guarding or patroling said premises, by proper enclosures, or by erecting proper warning signs.

'7. That at and prior to the time of the accident hereinafter complained of, Plaintiff minor child of the age of ten years, was in the exercise of ordinary care for his own safety, for one of his age, experience, intelligence, capacity and discretion, was a strong, healthy, and able bodied child, having every reason to anticipate and expect to have a fine, healthy, happy and useful life.

'8. That on or about the 1st day of November, A.D., 1959, said Plaintiff child saw said alluring and attractive conditions on said premises, and being attracted, went on said premises to play, and while playing in and around said premises, which was in the process of being torn down, said Plaintiff minor child stepped upon a remnant part of a plank or board which had rusty nails protruding therefrom and which were unnoticeable, due to the other scattered debris that was strewed and laying about, and a nail pierced through said minor child's shoe, and through the arch and instep of his foot inflicting serious painful and permanent injuries to said child.'

The amended petition then alleged that the plaintiff developed tetanus or lockjaw and suffered painful and permanent injuries and damages, which were alleged to be the direct and proximate result of the acts of commission and omission, and the negligence of the defendant.

On demurrer to a petition the plaintiff is entitled not only to the benefit of facts well pleaded, which must be taken as true, but to all reasonable inferences that may be derived therefrom. (Galleher v. City of Wichita, 179 Kan. 513, 296 P.2d 1062; Cassity v. Brady, 182 Kan. 381, 321 P.2d 171; and Farmers & Merchants Bank v. Copple, 190 Kan. 170, 373, p.2d 219, and cases cited therein.)

In cases of this type the court is not concerned with what the proof may show, but whether the allegations of the petition are sufficient to withstand an attack by a demurrer.

The appellant contends the amended petition has graphically portrayed the patently and obviously dangerous character of the v. Copple, 190 Kan. 170, 373 P.2d 219, and the essential elements of the doctrine of 'attractive nuisance' on which the petition is based, i. e., that the danger of the condition or instrumentality producing the injury sustained must be latent or hidden before the doctrine may be invoked.

It has been said the owner of a thing dangerous and attractive to children is not always and universally liable for an injury to a child tempted by the attraction. His liability bears a relation to the character of the thing, whether natural and common, or artificial and uncommon; to the comparative ease or difficulty of preventing the danger without destroying or impairing the usefulness of the thing, and, in short, to the reasonableness and propriety of his own conduct, in view of all surrounding circumstances and conditions. As to common dangers existing in the order of nature, it is the duty of parents to guard and warn their children, and, failing to do so, they should not expect to hold others responsible for their own want of care. But, with respect to dangers specially created by the act of the owner, novel in character, attractive and dangerous to children, easily guarded and rendered safe, the rule is, as it ought to be, different. (See Tavis v. Kansas City, 89 Kan. 547, 553, 132 P. 185.)

The above rule was approved by reference in Gilliland v. City of Topeka, 124 Kan. 726, 262 P. 493, and quoted in Zagar v. Union Pacific Railroad Co., 113 Kan. 240, 214 P. 107; Smith v. United Power & Light Corp., 142 Kan. 723, 51 P.2d 976; and Galleher v. City of Wichita, supra.

Following prior decisions in the Galleher case it was held:

'The attractive nuisance doctrine prevailing in this jurisdiction is based upon the negligence of the proprietor who fails to protect young children attracted to his premises by some dangerous thing or place artifically created, and where he should have anticipated that the children would be lured into the danger.' (Syl. 3.)

An exhaustive review of attractive nuisance cases has been undertaken in the recent decisions of Galleher v. City of Wichita, supra; and Shank v. Peabody Cooperative Equity Exchange, 186 Kan. 648, 352 P.2d 41, where the rules are stated and their...