Cargill, Incorporated v. Zimmer

• Decision Date: 28 March 1967
• Docket Number: No. 18461.,18461.
• Citation: 374 F.2d 924
• Parties: CARGILL, INCORPORATED, a Foreign Corporation, Appellant, v. Francis ZIMMER, Special Administrator of the Estate of Francis Zimmer, Jr., Deceased, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

374 F.2d 924 (1967)

CARGILL, INCORPORATED, a Foreign Corporation, Appellant, v. Francis ZIMMER, Special Administrator of the Estate of Francis Zimmer, Jr., Deceased, Appellee.

No. 18461.

United States Court of Appeals Eighth Circuit.

March 28, 1967.

COPYRIGHT MATERIAL OMITTED

Francis M. Smith, of Woods, Fuller, Shultz & Smith, Sioux Falls, S. D., for appellant.

Carleton R. Hoy, of Davenport, Evans, Hurwitz & Smith, Sioux Falls, S. D., for appellee.

Before BLACKMUN, MEHAFFY and LAY, Circuit Judges.

LAY, Circuit Judge.

The appellant seeks relief from a jury verdict and judgment in favor of the plaintiff-appellee, by reason of the alleged wrongful death of Francis Zimmer, Jr., age 12 years and 3 months. The verdict was in the sum of $15,482.00. Appellant owned property in Sioux Falls, South Dakota. At the property site were four steel grain storage tanks with a building and elevator immediately adjacent to them. Sometime prior to the accident in question, the feed merchandising operation was closed down and the silos were in minimal use.

Each of the steel silos was 35 feet in diameter and 72 feet high. At the top of the four silos is a "catwalk" and on the sides are steel ladders leading up to the top. Some of these ladders extend all the way to the ground, but the one in question was a ladder which commenced at a point approximately 7 feet from the ground. On December 23, 1963, the decedent and his friend, David Boever, age 14, had been playing at the public park immediately to the west of the defendant's premises. Falls Park is described as being directly west of the silos. It was shown children played in the park the year around. At approximately 3:30 p. m., the boys went to the northeast silo. The photographs show a small "no trespassing" sign at the bottom of one of the tanks. There was no fence around the property. David Boever testified that they had climbed the ladders before to see if there were any pigeons at the top. The boys played on the premises at least once a week and no one had ever warned then against it. That afternoon the Boever boy boosted decedent onto the ladder and Francis proceeded to climb to the top. David Boever stated that he felt it was a pretty risky climb and that he told Francis that he did not want to go up because of it. Francis wanted to go up and check to see if there was anything up on top. After Francis got to the top, the Boever boy started to leave, heard a noise and turned around and saw him fall. The ground area below the silos was icy and slippery, but no one made any observation as to whether there was ice on the ladder or tank. The temperature was not proven but a police officer testified that it was a fairly warm day.

It was admitted by Cargill's plant manager that employees had occasionally found boys on their property. Pigeons frequented the buildings. The custodian of the property had been told to make the area as pigeon tight as possible, but this did not relate to the "head house" of the steel tanks but only to the elevator. The General Manager stated that:

"The reason we told him the custodian to do this was that we knew there was a problem with pigeons and problems with young boys and the pigeons."

It was shown that any fence put up would not have interfered with any function for which the property was being used at the time of the accident. He advised the management that he was having a lot of trouble with visiting children but they did not send him any extra help.

The boy's father testified that Francis Zimmer, Jr., was a very active boy. He had observed him in the past climbing trees and on occasion had reminded him about the dangers of climbing.

The trial court submitted to the jury: (1) the contributory negligence of the decedent under the South Dakota comparative negligence statute;¹ (2) the decedent's assumption of risk;² and (3) the issue of liability under the attractive nuisance doctrine in South Dakota and the Restatement of Torts, § 339.³

Appellant brings this appeal by reason of the lower court's refusal to grant a judgment notwithstanding the verdict. Appellant contends that the plaintiff's decedent was a trespasser on defendant's premises at the time of the accident, and that there was no breach of duty owed plaintiff's decedent by the defendant.

The five grounds set out by the Restatement of Torts, Second, § 339, as instructed upon by the trial court, are as follows:

"A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if

"(a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and

"(b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve 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 intermeddling with it or in coming within the area made dangerous by it, and

"(d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and

"(e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children."

The question of the utility and the use of reasonable care to eliminate the danger were clearly submissible issues under the facts presented. And it is undisputed that appellant was aware of the children playing on the land and about the buildings. Appellant, however, argues with singular persuasion that the appellee has failed as a matter of law to prove (1) that the defendant created unreasonable risk (section b) and (2) that the decedent was not fully appreciative of the risk involved in climbing (section c). It is contended as a prerequisite to liability there must be a latent condition upon the land which imposes liability only by reason of appellant's superior knowledge of the danger presented to trespassing children. See the many cases collected in Schilz v. Kassuba, Inc., 27 Wis.2d 390, 134 N.W.2d 453, 456-457. South Dakota has adopted similar reasoning in the few existing cases in that state involving the attractive nuisance doctrine. See Morris v. City of Britton, 66 S.D. 121, 279 N.W. 531; McCleod v. Tri-State Milling Co., 71 S.D. 362, 24 N. W.2d 485; and Kuhn v. Watertown Cement Products Co., 75 S.D. 491, 68 N.W. 2d 241. The Supreme Court of South Dakota said in Morris v. City of Britton, supra, 279 N.W. at 533:

"* * * liability is denied for the reason that the danger inherent in water when contained in a pond or pool is or should be obvious to a child, and such pond or pool does not, therefore, constitute `an unreasonable risk of death or serious bodily harm\' to trespassing children. This reason, we believe, also finds expression in the Restatement in the comments to the rule above set out. * * *" (Emphasis supplied)

All of the South Dakota child trespasser cases involve drownings in ponds or excavations, with the exception of Kuhn. There are no "fall" cases in South Dakota. However, the majority of courts throughout the country have looked upon "a fall" as being obvious to a child similar to the danger that is inherent in a pond or pool of water. Perhaps the best recognition of this rule is found in the Pennsylvania case of McHugh v. Reading Co., 346 Pa. 268, 30 A. 2d 122, 123, 145 A.L.R. 319, wherein the court 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 venturesome type."

Complementing this rule is the principle of law recognized in Hocking v. Duluth, Missabe & Iron Range Ry. Co., 263 Minn. 483, 117 N.W.2d 304, at 317.

"It seems to be well established in the law that liability does not attach to an owner or occupant for an injury to a trespassing child who climbs upon or jumps or falls from a nondefective and stationary structure, at least where the structure is useful and properly located."

Appellee's response to appellant's position is untenable. Argument is made that appreciation or knowledge of the decedent and his awareness of the obvious danger is only evidence of contributory negligence and should be determined under the comparative negligence statute in South Dakota. This approach completely overlooks that the plaintiff bears the burden of proving the five elements of the Restatement rule predicate to recovery. Appellee fails to recognize that as a prerequisite of proving an "unreasonable risk" there must be shown a nonobvious condition not otherwise appreciated by the child. This is essential to show the defendant has breached a duty. This was true under the older attractive nuisance cases as it is under the Restatement. Denial of liability under the attractive nuisance doctrine in the Morris,McCleod⁴ and Kuhn cases was not premised on a finding of contributory negligence.⁵ Recovery was denied because of the absence of proof of negligence since the condition involved was as obvious to the child as it was to the defendant. Analysis of the cases further demonstrates that the requirement of proving "an unreasonable risk" is premised on the defendant's foreseeability that the condition itself will not be obvious to a child. See ...