Callahan v. Buttrey

• Court: U.S. District Court — District of Montana
• Writing for the Court: JAMESON
• Citation: Callahan v. Buttrey, 186 F.Supp. 715 (D. Mont. 1960)
• Decision Date: 28 August 1960
• Docket Number: Civ. No. 2032.
• Parties: Gertrude J. CALLAHAN, Guardian of Joe Steven Palm, a Minor, Plaintiff, v. Theodore Vern BUTTREY, Sr., Trustee for Theodore Vern Buttrey, Jr. and Jerrold Scoutt Buttrey; Theodore Vern Buttrey, Jr., and Jerrold Scoutt Buttrey, Defendants.

186 F. Supp. 715

Gertrude J. CALLAHAN, Guardian of Joe Steven Palm, a Minor, Plaintiff, v. Theodore Vern BUTTREY, Sr., Trustee for Theodore Vern Buttrey, Jr. and Jerrold Scoutt Buttrey; Theodore Vern Buttrey, Jr., and Jerrold Scoutt Buttrey, Defendants.

Civ. No. 2032.

United States District Court D. Montana, Havre-Glasgow Division.

August 28, 1960.

John M. Kline, Glasgow, Mont., for plaintiff.

Hall, Alexander & Kuenning, Great Falls, Mont., for defendants.

JAMESON, District Judge.

This is an action for personal injuries sustained by Joe Stephen Palm, a minor, on April 14, 1956, when he fell from the roof of a building in Glasgow, Montana, owned by the defendants. The case was tried to a jury. At the close of the evidence the defendants moved for a directed verdict, which was denied. The jury failed to return a verdict and was discharged. Defendants have moved the court for judgment in accordance with their motion for directed verdict.¹ In determining this motion the evidence must be viewed in the light most favorable to plaintiff.

Joe was seven years old at the time of the accident and lived with his mother and older brother in an apartment on the second floor of defendants' building. The front part of the building has two stories and the rear part one story. The ground floor was occupied by a clothing store, and the second floor has ten apartments. Access to the second floor apartments is by a stairway from the front of the building. A door from the second floor hallway opens onto the roof of the one story rear of the building. This roof has two levels connected by a stairway, with the higher level toward the front of the building and the lower toward the rear. On the lower level defendants maintain clothes lines, garbage cans, and a small building containing laundry equipment, for the common use of the tenants. The rear of the building roof is approximately seven feet above the alley. Approximately four feet from the rear edge of the roof defendants constructed a railing consisting of two horizontal 2 × 4's supported by upright 4 × 4 posts. At the time of Joe's accident the top rail of this railing was approximately 31 inches above the roof and the top of the bottom rail was approximately 16 inches above the roof. Garbage cans were placed on this four-foot wide strip between the railing and the rear edge of the roof, to make them accessible to the garbage collector. There was no gate in the railing, and tenants gained access to the garbage cans by reaching or leaning over the railing.

Joe, his mother and Paul, an older brother, moved into the apartment in March, 1956. Rosalee, a grown sister, was also a tenant in the building, sharing another second floor apartment with a girl friend. Prior to renting the apartment, Joe's mother had inspected the premises and was fully aware of the condition of the roof area. Joe was forbidden to go onto the roof unless accompanied by his brother, mother or some other older person.

On the afternoon of April 14, 1956, Joe was on the roof with his sister Rosalee. They left the roof together, going to their respective apartments. Shortly thereafter Joe returned alone and was seen near the rail by a woman tenant. She was in the washroom when Joe fell from the roof. Apparently there was no one else on the roof, and the only witness to the accident, aside from Joe himself, was Jackie Hebdon, a five year old neighbor.

The recollection of both children is understandably vague and uncertain after the lapse of four years.² They agree that Joe had a water pistol in his hand, and the water pistol was found near Joe in the alley after the accident. According to Jackie, Joe was on the lower level of the roof of defendants' building and Jackie was in her yard directly across the alley. They were playing "cowboys and Indians". Joe was using a "squirt gun" and Jackie was using her "finger or a stick". Joe was trying to hit Jackie with the squirt gun. She saw Joe fall from the roof but could not "exactly remember it all". She thought he got on the fence and fell off.³

Joe testified that he remembered "leaning over the rail squirting my squirt gun at some boys on a motor bike going down the alley". He recalled seeing Jackie and trying to shoot her with his squirt gun, and testified that he "leaned over the railing", but "did not climb up on the railing". He could not recall anything after leaning over the rail until he woke up in the hospital in Great Falls. He testified that he was leaning on the top 2 × 4, with his gun in his hand.⁴

Joe was found lying in the alley below a point just beyond the garbage cans. A few days after the accident, Joe's sister found a sizeable patch of dark brown substance, which appeared to be dried blood, on the edge of the roof and the side of the building above the spot where Joe was found in the alley. A jury might reasonably infer, as plaintiff's counsel contends, that this was Joe's blood. If so, Joe must have struck his head with considerable force on the edge of the roof.⁵ His injury was diagnosed as a comminuted, depressed fracture of the skull.

There is no evidence that the rail broke or gave way or that it was defective in any manner. Taking into consideration the height of the railing and Joe's height, there are only two possible explanations of his fall into the alley: (1) That he climbed over or through the railing; or (2) that he climbed on top of either the railing or garbage cans and then fell to the ledge of the roof and to the alley below. If we assume that the spot observed by his sister was Joe's blood, then the second explanation is the more reasonable.

The roof area, laundry facilities and garbage cans were under the control of the defendants and maintained by them for the common use of the tenants. While the defendants did not expressly consent to children playing on the roof, there was evidence from which the jury could have found that children of tenants and their guests often did play on the roof, and that defendants' agent had knowledge thereof. We must assume accordingly for the purpose of this opinion that the defendants knew that children frequently played on the roof. There was no evidence that other children had climbed on or over the railing.

It is plaintiff's primary contention⁶ that whether Joe was an invitee, licensee or trespasser, defendants may be found liable under the rule set forth in Restatement, Torts § 339, which reads:

"A possessor of land is subject to liability for bodily harm to young children trespassing thereon caused by a structure or other artificial condition which he maintains upon the land, if (a) the place where the condition is maintained is one upon which the possessor knows or should know that such children are likely to trespass, and (b) the condition is one of which the possessor knows or should know and which he realizes or should realize as involving an unreasonable risk of death or serious bodily harm to such children, and (c) the children because of their youth do not discover the condition or realize the risk involved in inter-meddling in it or in coming within the area made dangerous by it, and (d) the utility to the possessor of maintaining the condition is slight as compared to the risk to young children involved therein."

In Nichols v. Consolidated Dairies of Lake County, 1952, 125 Mont. 460, 239 P.2d 740, 742, 28 A.L.R.2d 1216, the Supreme Court of Montana quotes section 339 with approval as a "statement of facts necessary to satisfy the requirements for application of the attractive nuisance doctrine".⁷

It is well settled that to subject a defendant to liability under section 339, each of the four conditions must be established. Here the evidence is sufficient under clause (a). Does it meet the requirements of clauses (b), (c) and (d)?

The roof area was protected by a railing four feet from its edge, with 2 × 4's 16 inches and 31 inches high. Can it be said that this presented a "condition involving an unreasonable risk of death or serious bodily harm" to children, and that a seven year old boy because of his youth did not "discover the condition or realize the risk involved in intermeddling in it or in coming within the area made dangerous by it"? On the contrary, Joe was fully aware of the edge of the roof and the drop into the alley. It was clearly visible, and the presence of the railing prevented his coming too near the edge through inadvertence. He had been warned by his mother to keep away from the roof except when accompanied by an older person, although this fact in itself would not prevent recovery.

Nor can there be any doubt that a seven year old boy of Joe's intelligence realized the danger of falling and the possibility of resulting injury. As the Supreme Court of Pennsylvania, in McHugh v. Reading Co., 1943, 346 Pa. 266, 30 A.2d 122, 123, 145 A.L.R. 319 well said: "No danger is more commonly realized or risk appreciated, even by children, than that of falling; consciousness of the force of gravity results almost from animal instinct. Certainly a normal child nearly seven years of age—indeed any child old enough to be allowed at large—knows that if it steps or slips from a tree, a fence, or other elevated structure, it will fall to the ground and be hurt. It may be that some children, while realizing the danger, will disregard it out of a spirit of bravado, or because, to use the language of the Restatement, of their `immature recklessness,' but the possessor of land is not to be visited with responsibility for accidents due to this trait of children of the more venture-some type."⁸

Joe's situation is covered precisely by the comment on clause (c) of section 339, which reads:

"e. A possessor of land is * * under a duty to keep so much of his land as he knows to be subject to the trespasses of young children, free from artificial conditions which involve an unreasonable risk of death or serious bodily harm to them. This does not require him to keep his

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