Brown v. Knight
| Decision Date | 18 July 1972 |
| Citation | 285 N.E.2d 790,362 Mass. 350 |
| Parties | Susan BROWN et al. 1 v. Joan KNIGHT. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Frank P. Hurley, Boston, for defendant.
Edward R. Butterworth, Lynn (Arthur J. Palleschi, Lynn, with him), for plaintiffs.
Before TAURO, C.J., and REARDON, QUIRICO, BRAUCHER and HENNESSEY, JJ.
On July 14, 1967, the minor plaintiff, Susan Brown, went to a picnic conducted at a municipal picnic ground by the defendant as proprietor of a summer school. A playmate pushed Susan into a hot outdoor fireplace, and this is an action of tort for the resulting personal injuries and consequential damages. After jury verdicts for the plaintiffs, the defendant excepts to the denial of her motion for directed verdicts, arguing that the accident was unforeseeable, that the defendant did not violate any duty of care owed to Susan, and that the proximate cause of the injuries was the conduct of the playmate.
We summarize the evidence favorable to the plaintiffs. At the time of the accident Susan was four years and seven months old, a paying pupil at the defendant school and entirely in the custody of the defendant and her assistants. The defendant had conducted a kindergarten since graduating from a teachers' college in 1955, had operated a day camp for six years, and was operating the summer school for the third summer. There were forty-three other pupils of the defendant at the picnic where, under the supervision of the defendant and her assistants, they cooked food on open fireplaces, played organized games, and had occasional 'horseplay.' Most of the pupils were much older than Susan, the usual age being seven to eight years old, with some as old as ten. Only four were four years old, including Susan and the playmate who pushed her. The defendant testified to the tendency of her pupils to 'fool around' and 'play,' which included 'shoving or jostling.'
Of the three fireplaces used for cooking, two were largely enclosed by sides, had high grilles which 'came up to the children's noses,' and had fire areas above the ground. The defendant testified that it would have been hard for a child to fall into that type of fireplace. The third fireplace, the one involved in Susan's accident was lower and smaller, consisting of an iron grille and a dirt base with the fire area on the ground. The defendant, upon arrival, had surrounded this fireplace with a double row of fieldstones. When asked whether 'as a matter of fact you knew that an open fire on the ground in a situation like this with forty or fifty children was a very dangerous and hazardous situation,' the defendant answered, 'Yes.'
At the moment of the accident the children were being assembled for the bus to carry them home. The fires in the two larger, higher fireplaces had been extinguished, but the defendant had left the one in the lower fireplace going to keep stew and hot chocolate available to any children who might want some on leaving. The way taken by the children from a play area to the assembling point led Susan and her playmate past this low fireplace. The defendant saw these two leave the play area and start along this route, but was not watching them as they came to the fireplace. The playmate testified that the six children ahead of them were 'pushing and fooling.' As they passed the low fireplace, the playmate pushed Susan, causing her to fall into it and to be injured. The defendant testified that she was fifteen feet away from that fireplace when the accident occurred. She also testified, 'I could have stood further over than I did,' and answered 'yes' to the question whether 'that would have given her (Susan) a lot more protection.'
Susan's age would warrant a jury in finding that she was too young to be capable of taking care of herself. Clark v. Martin, 261 Mass. 60, 63, 158 N.E. 265; Sample v. Melrose, 312 Mass. 170, 173--174, 43 N.E.2d 665. The jury would also be warranted in deciding that the 'horseplay' which preceded the accident was conduct foreseeable by the defendant. 'The law, as well as adults, makes allowances for the impulsiveness...
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