Buckley v. VALLEY CAMP COAL COMPANY
Citation | 324 F.2d 244 |
Decision Date | 06 November 1963 |
Docket Number | No. 9055.,9055. |
Parties | Mary 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. |
Court | United 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.
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:
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 a supplemental charge, further explanation of the dangerous instrumentality rule was given:
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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...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......
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...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......
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