Christians v. Homestake Enterprises, Ltd.

Decision Date11 May 1981
Docket NumberNo. 79-852,79-852
Citation101 Wis.2d 25,303 N.W.2d 608
PartiesRick CHRISTIANS, a minor, by his guardian ad litem, Howard A. Davis, and Geraldine Hammer, Plaintiffs-Respondents, Philip Christians, Plaintiff, v. HOMESTAKE ENTERPRISES, LTD., and Royal Globe Insurance Co., Defendants- Appellants-Petitioners, Merlin Green, Brent Stange, Wisconsin Farmers Mutual Ins. Co., and Michael Gossfield, Defendants.
CourtWisconsin Supreme Court

James C. Herrick, Jr. (argued) and Herrick Law Office, S. C., Fond du Lac, on brief, for defendants-appellants-petitioners.

William M. Cannon (argued) and Habush, Habush & Davis, S. C., Milwaukee, on brief, for plaintiffs-respondents.

ABRAHAMSON, Justice.

This is a review of a decision of the court of appeals entitled Christians v. Homestake Enterprises, Ltd., 97 Wis.2d 638, 294 N.W.2d 534 (Ct.App.1980), which affirmed a judgment of the circuit court for Dodge county, Henry G. Gergen, Jr., Circuit Judge, against landowner Homestake Enterprises, Ltd., awarding damages to the plaintiff who was injured by the explosion of blasting caps which were removed from defendant Homestake's property by trespassing children. Although the plaintiff was not one of the trespassing children we conclude, as did the trial court, that the attractive nuisance doctrine 1 is applicable to the instant case. Because of error in the jury instructions, we reverse the judgment and remand the case to the circuit court for a new trial.

I.

The incident giving rise to this lawsuit involved a small part of a farm which at the time of injury was owned and occupied by Homestake. This part of the farm and the buildings had previously been leased to a tenant and his family as a residence. The tenant, by occupation, was a welder, but he engaged in several trades. The tenant had brought onto the farm tools, four trucks, trailers, cars, iron, lumber and a steel box containing blasting caps. The tenant had previously done blacktopping, seal-coating, and heavy construction and had used blasting caps in his business; during his tenancy, however, he was not involved in a business in which blasting caps were a necessity, and he never did any blasting during that time. During the tenancy the tenant had allowed the Beaver Wrecking Company to use the barn to store material, including large amounts of army surplus merchandise. The tenant was evicted on May 8, 1973 but did not remove his non-household belongings upon eviction. He testified that Homestake did not allow removal thereafter.

The steel box containing blasting caps and numerous caps lying near the box outside the barn were observable from a minibike trail which had been created on the land by trespassing neighborhood children.

George Hickey, the secretary of Homestake, visited the land several times both before and after the eviction. Prior to the incident in which plaintiff was injured Homestake had inspected the property. Homestake knew that the farm was cluttered with the tenant's belongings and knew that children frequently trespassed on the land. There was testimony that Homestake had never been advised that there were blasting caps on the part of the farm the tenant had leased, and Homestake's witnesses claimed that Homestake did not know of the presence of the steel box or the blasting caps. There was also testimony that indicated that people in the area knew of the existence of the blasting caps.

On August 1, 1973, two boys, ages fourteen and eleven, trespassed on the property and took with them several blasting caps. Sometime later that day, the two boys met Rick Christians, the plaintiff, who was fifteen years of age. The plaintiff agreed to meet the boys later at the site of their "fort." When he arrived, a campfire was burning. The fourteen-year-old threw the caps into it and all three boys ran away from the fire. No explosion occurred. There was evidence that as long as ten or more minutes had elapsed after the caps were thrown into the fire; that the flames had disappeared; that the fire was smoldering; that the plaintiff had returned to the fire; and that when the plaintiff extended his hand toward the fire, the caps exploded, and plaintiff's hand was severely injured.

At trial plaintiff testified that he had been warned that blasting caps could be dangerous and that he knew there were blasting caps in the fire. However, he also testified that he did not appreciate the extent of the danger and that he had thought it was safe to approach the fire when he did because he believed that the caps would already have exploded if they were going to do so.

Plaintiff's suit proceeded initially on two theories, attractive nuisance and common law negligence. After hearing the evidence, the trial court rejected the common law negligence theory on the ground that the children involved were trespassers. The trial court further concluded that the attractive nuisance doctrine was applicable. The trial court gave a modified Jury Pattern Instruction 1011, Wis. J I Civil relating to attractive nuisance. The modification related to Homestake's knowledge of the blasting caps on its land. 2 The jury found for the plaintiff and assessed damages at $75,000 for personal injuries, $25,000 for impairment of future earning capacity, and $1,709.60 for past medical expenses.

On appeal the court of appeals held the doctrine of attractive nuisance inapplicable on the ground that the plaintiff was not a trespasser. The judgment, however, was affirmed, the court of appeals holding that Homestake owed the plaintiff the same duty that any owner of land owes a nontrespasser. The court of appeals reviewed the evidence and concluded that there was credible evidence to support the findings of the jury. The court of appeals further concluded that public policy did not justify relieving Homestake from liability. We reverse the decision of the court of appeals and remand the cause for a new trial.

II.

The first issue is whether the trial court erred in concluding that the "doctrine of attractive nuisance" applies to this case rather than the common law of negligence.

A cause of action in negligence sets forth four elements: (1) A duty of care on the part of the defendant; (2) A breach of that duty; (3) A causal connection between the conduct and the injury; and (4) An actual loss or damage as a result of the injury. 3

The defendant persuaded the trial court that the plaintiff was a trespasser and that the defendant could not be found liable to the plaintiff under the common law doctrine of negligence because the possessor of land does not have a duty to a trespasser to exercise ordinary care to put the land in a safe condition. The possessor's duty to the trespasser is to refrain from wilfull and intentional injury; the possessor is not obliged to refrain from activities that might cause injury, although in some circumstances there may be a duty to warn known trespassers of highly dangerous conditions. Antoniewicz v. Reszczynski, 70 Wis.2d 836, 842, 236 N.W.2d 1 (1975).

Because the trial court characterized the plaintiff as a trespasser, the trial court concluded that the defendant's liability was governed by the doctrine of attractive nuisance. The attractive nuisance doctrine, sometimes referred to as the turntable doctrine, is one of the first and best known departures from the strict common law rule that the possessor of land owed no duty of care to trespassers. 2 Harper & James, The Law of Torts sec. 27.5 (1956). 4

The court of appeals, on the other hand, concluded that the plaintiff was not a trespasser and that Homestake owed the plaintiff "the same duty that any owner of land owes a nontrespasser. This duty is to exercise ordinary care and is breached if Homestake's conduct foreseeably created an unreasonable risk of harm. Ollerman v. O'Rourke Co., 94 Wis.2d 17, 288 N.W.2d 95 (1980).... Homestake's duty was properly stated (by the trial court) to require the exercise of ordinary care to discover and to correct any dangerous condition involving unreasonable, foreseeable risk of harm." 97 Wis.2d at 641, 646, 294 N.W.2d 534. This definition of duty applied by the court of appeals conforms to this court's definition of duty in the usual negligence case. This court has said that "The duty of any person is the obligation of due care to refrain from any act which will cause foreseeable harm to others even though the nature of that harm and the identity of the harmed person or harmed interest is unknown at the time of the act.... A defendant's duty is established when it can be said that it was foreseeable that his act or omission to act may cause harm to someone." A. E. Investment Corp. v. Link Builders, Inc., 62 Wis.2d 479, 484, 214 N.W.2d 764 (1974). See also Coffey v. Milwaukee, 74 Wis.2d 526, 536, 247 N.W.2d 132 (1976); Ollerman v. O'Rourke, 94 Wis.2d 17, 46, 288 N.W.2d 95 (1980); Schilling v. Stockel, 26 Wis.2d 525, 531-33, 133 N.W.2d 335 (1965); Campbell, Wisconsin Law Governing Automobile Accidents Part I, 1962 Wis.L.Rev. 240.

The court of appeals erred, however, in equating the duty of a possessor of land to nontrespassers with the duty applicable in the usual negligence case. In cases involving an owner of land, we are concerned with legal relationships between plaintiffs and defendants for which separate sets of rules have been developed. Traditionally, the possessor's liability to persons on and off the land has been governed by a particularized set of rules limiting liability to specified instances. See, e. g., ch. 13, Liability for Condition and Use of Land, 2 Restatement (Second) of Torts, pp. 167-298 (1965). This court has said that cases involving a possessor of land, although also involving concepts of negligence law, are "not of the mainstream of negligence law in Wisconsin." A.E. Investment Corp. v. Link Builders, Inc., 62 Wis.2d 479, 486, 214 N.W.2d 764 (1974); Ceplina v. South...

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