Citation324 F.2d 244
Decision Date06 November 1963
Docket NumberNo. 9055.,9055.
PartiesMary Ann BUCKLEY, an infant, under the age of 21 years, who brings this suit by Charles E. Buckley, her father and next friend, Appellant, v. VALLEY CAMP COAL COMPANY, a corporation, Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

Rudolph L. Di Trapano, Cabin Creek, W. Va., for appellant.

Edward W. Eardley, Charleston, W. Va. (Carl F. Stucky, Jr., and Steptoe & Johnson, Charleston, W. Va., on brief), for appellee.

Before SOBELOFF, Chief Judge, J. SPENCER BELL, Circuit Judge, and THOMSEN, District Judge.

SOBELOFF, Chief Judge.

Mary Ann Buckley, an eight year old child, brought this action through her father to recover damages for burns which she suffered in a fire on Valley Camp Coal Company's property. This appeal, taken after judgment upon a jury verdict for the defendant, complains of the District Judge's charge to the jury.

The evidence showed that the defendants owned a vacant lot adjacent to the Buckley residence, the two properties being separated by a wire fence. On the lot, approximately twenty feet from the fence and sixty feet from the plaintiff's home, there had been an outhouse which was razed in January, 1961. The pit was then covered over with a wooden top properly secured.

On the morning of June 1, 1961, two employees of the coal company collected discarded lumber, used mattresses and other refuse and built a bonfire over the covered pit. With typical childish curiosity, the infant plaintiff and her younger brother entered defendant's property and watched the men at their work. The workmen warned the children to remain at a safe distance. After letting the fire burn for a short time, the men decided to leave. On their departure, at approximately 11:30 in the morning, they escorted the children to the Buckley residence and told the mother to keep them away from the fire. About three o'clock that afternoon the little girl was seriously burned by coming into contact with the flames or with the hot debris by falling into the toilet pit which became exposed when the bonfire burned through its wooden cover.

In essence the appellant assigns two errors in the instructions to the jury, namely, that the duty of care owed the plaintiff by the defendant under West Virginia law was incorrectly stated, and that no instruction on contributory negligence should have been given.1

West Virginia law makes no distinction between trespassers and licensees in respect to the standard of care owed them by an owner of land; in either case he need only refrain from inflicting intentional injury.2 As an exception to this general rule and a substitute for the attractive nuisance doctrine, West Virginia has adopted a "dangerous instrumentality rule" which imposes upon landowners a duty to take particular care against dangers arising from the natural curiosity of children when the landowner is operating, storing or keeping inherently dangerous agencies or devices.3 For a child of tender years to become entitled to the greater protection afforded by the dangerous instrumentality exception, it has been said that "the danger of the instrumentality must be hidden, concealed or latent to one who is not familiar with its use."4 To mention a few examples from West Virginia cases, a road scraper parked at a roadside, Rine v. Morris, 99 W.Va. 52, 127 S.E. 908 (1925), scattered blasting powder, Wellman Adm'r. v. Fordson Coal Co., 105 W.Va. 463, 143 S.E. 160 (1928), and a pool of gasoline, Adams Adm'r. v. Virginian Gasoline & Oil Co., 109 W.Va. 631, 156 S.E. 63 (1930), are regarded as inherently dangerous. But a controlled bonfire has been expressly held not to be a dangerous instrumentality.5 Whether or not a smoldering pit should be treated as a bonfire has not been decided.

As to the general duty of landowners the Judge told the jury:

"As I state, the plaintiff here was either a trespasser or a bare licensee. The duty owing to her by the defendant, other than the exception I will give you later, in her posture as either a licensee or a trespasser was the same in either event * * *."

In respect to the duty owed young children by a landowner maintaining a dangerous agency or condition the charge gave the following exposition:

"The law recognizes that with children where a property owner or where any defendant knows that children ordinarily will frequent a certain area, or if he knows that children are present, then the law places upon that defendant responsibility if he, knowing of the presence of the children, maintains an inherently dangerous instrumentality or condition."

Turning then to the particular facts shown in the evidence, the Judge instructed the jury as follows:

"In this case if you were to find that the defendant, acting through its agents, knew of the presence of these small children or had reason to expect that they would be around in this area and that in view of that failed to take precautions which a reasonably prudent man would take to safeguard those children in the knowledge of their presence, if the defendant refused or failed to safeguard them by taking the precautions which a reasonably prudent person would take in light of their presence, then that would be negligence * * * for which the plaintiff would be entitled to recover against the defendant. As I say, that is an exception which the law recognizes in regard to the area of trespassers and licensees."

In a supplemental charge, further explanation of the dangerous instrumentality rule was given:

"I tried to point out to you that an inherently dangerous condition in the context of that particular exception * * * is a condition which by its nature would not warn a child of the possibility of injury to it * * *. So you must bear in mind generally that since the child was a licensee or trespasser that they owed her only the duty of not willfully or wantonly injuring her; but if you find that they knew or should have known of the presence of children, and you further find they had created a dangerous instrumentality which by its nature would not warn of its dangerous propensities to a child, you could inquire into the question of whether they exercised reasonable care to safeguard the child under these circumstances."

While West Virginia cases, as we have seen, deem bonfires not within the "dangerous instrumentality" exception, the trial court evidently adopted the view, favorable to the plaintiff, that a smoldering pit might in some circumstances qualify for the exception. Plaintiff contends that mention of the law governing trespassers and licensees was prejudicial to her, but this contention is easily answered. We think that this rule of law should have been brought to the jury's attention, as well as the law of dangerous instrumentalities. It was necessary to tell the jury about both legal standards so that the appropriate one could be applied by the jury, according to the facts found by it. The court, we think, merely set the general rule and the exception in proper perspective, and properly left it to the jury to draw its own inferences from the basic facts and to determine whether the conditions on the defendant's land did or did not constitute a "dangerous instrumentality" in fact. The jury was instructed that if its resolution of the factual issue was that there was no dangerous condition then it should apply the general trespasser-licensee rule, which accords the plaintiff scant protection; but that if its finding on the facts was otherwise ...

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7 cases
  • Huffman v. Appalachian Power Co.
    • United States
    • West Virginia Supreme Court
    • March 19, 1992
    ...184 W.Va. 663, 668, 403 S.E.2d 406, 411, cert. denied, 502 U.S. 863, 112 S.Ct. 186, 116 L.Ed.2d 147 (1991). See Buckley v. Valley Camp Coal Co., 324 F.2d 244 (4th Cir.1963); Waddell v. New River Co., supra; Simmons v. Chesapeake & O. Ry. Co., 97 W.Va. 104, 124 S.E. 503 (1924). Thus, under o......
  • Miller v. Monongahela Power Co., 19640
    • United States
    • West Virginia Supreme Court
    • February 7, 1991
    ...ordinarily, with regard to a trespasser, a possessor of property only need refrain from wilful or wanton injury. Buckley v. Valley Camp Coal Co., 324 F.2d 244 (4th Cir.1963) (applying West Virginia law). We have consistently recognized and applied the distinctions for liability purposes amo......
  • Presley v. City of Norwood
    • United States
    • Ohio Supreme Court
    • October 31, 1973
    ...Trust Co. v. Glenn (C.A.6, 1954), 217 F.2d 462; United States v. General Motors Corp. (C.A.3, 1955), 226 F.2d 745; Buckley v. Valley Camp Coal Co. (C.A.4, 1963), 324 F.2d 244; Meitz v. Garrison (C.A.8, 1969), 413 F.2d That reasoning is sound, and equally applicable to Civ.R. 51(A). Thus, wh......
  • Wallace v. Ener
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • October 20, 1975
    ...Co., 5 Cir., 1967, 376 F.2d 33 (Petition for Further Rehearing); Sharp v. Root, 5 Cir., 1957, 240 F.2d 519; cf. Buckley v. Valley Camp Coal Co., 4 Cir., 1963, 324 F.2d 244. Appellants' assignments of error in charging the jury which were not raised in conference were the subject of written ......
  • Request a trial to view additional results

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