Christians v. Homestake Enterprises, Ltd.

• Decision Date: 20 May 1980
• Docket Number: No. 79-852,79-852
• Citation: 294 N.W.2d 534,97 Wis.2d 638
• Parties: Rick 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, Merlin Green, Brent Stange, Wisconsin Farmers Mutual Ins. Co., and Michael Gossfeld, Defendants. *
• Court: Wisconsin Court of Appeals

Page 534

294 N.W.2d 534

97 Wis.2d 638

Rick 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 Merlin Green, Brent Stange, Wisconsin Farmers Mutual Ins Co., and Michael Gossfeld, Defendants.^*

No. 79-852.

Court of Appeals of Wisconsin.

Submitted on Briefs Jan. 30, 1980.

Opinion Released May 20, 1980.

Opinion Filed May 20, 1980.

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

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

Before DONLIN, P. J., and FOLEY and DEAN, JJ.

FOLEY, Judge.

Rick Christians was injured in an explosion involving blasting caps stolen by two other boys from property owned by Homestake Enterprises, Ltd. Because the theft involved a trespass by children, the trial court instructed the jury on the attractive nuisance doctrine. Although we agree with Homestake that the attractive nuisance doctrine does not apply to the facts here, we conclude that Homestake was not prejudiced by the instruction. The court's instructions reasonably informed the jury of Homestake's duty as a possessor of land, and the jury's finding of negligence is supported by credible evidence. Homestake has raised additional issues but none provides a basis for setting aside the judgment.

Homestake owned certain property, which it rented to Merlin Green. The rental agreement was terminated when Homestake evicted Green. Although evicted, Green did not take all of his personal property with him leaving, among other things, a box of blasting caps. Homestake did not carefully inspect the property after Green's eviction and had no actual knowledge that blasting caps were on the property. Two young boys, ages fourteen and eleven, trespassed on the property and stole the caps.

After taking the caps, the boys left Homestake's property and met Christians, who was fifteen years old at the time. The boys built a fire and the fourteen-year-old threw the caps into the fire. All three boys scattered, but no explosion occurred. About fifteen minutes later, Christians went over to the fire to build it up, and at that point the caps exploded causing severe injury to his right hand. Christians testified at trial that he felt it was safe to approach the fire because he believed that if the blasting caps were going to explode, they would have already done so.

We agree with Homestake that the doctrine of attractive nuisance is inapplicable to these facts. The doctrine of attractive nuisance arose originally as a method of avoiding the harsh result caused by the traditional immunity granted to the owners or occupiers of land for injuries to trespassers. Where the plaintiff is not a trespasser but rather is injured when someone else removes a dangerous instrumentality from the defendant's land, we are not concerned with the duty owed to a trespasser. There is, therefore, no need to avoid the immunity through application of the doctrine of attractive nuisance. James, Tort Liability of Occupiers of Land: Duties Owed to Trespassers, 63 Yale L.J. 144 (1953).

Homestake instead owed Christians 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). The conduct complained of here is Homestake's failure to inspect its property after it regained possession from Green. A careful inspection of the property would have disclosed the existence of the blasting caps. Had Homestake found the caps, it could have stored them in such a way to prevent easy theft by trespassing children. Had the theft not occurred, Christians would not have been injured.

The first question to be considered is whether Homestake had a duty to inspect its property because without this duty, knowledge of the caps could not be imputed to Homestake. Given the facts known to Homestake, we conclude that it is not unreasonable to hold that Homestake had a duty to inspect. There was testimony that children regularly trespassed on Homestake's property. There was also testimony that Homestake knew that Green had not removed a great deal of personal property, perhaps best characterized as junk. Green asked to remove his property, but Homestake would not allow him to do so. For all Homestake knew, a dangerous condition could have existed even in the absence of the acts that occurred here. Homestake cannot, under these circumstances, escape liability simply by failing to inspect its property.

It is clear that a careful inspection of the property would have disclosed the presence of the blasting caps. Upon recognition of a duty to inspect, the question is therefore whether Homestake was negligent in failing to properly remove or store the caps. It is widely recognized that where blasting caps or some other highly dangerous instrumentality is involved, a landowner must exercise a high degree of care in their use or storage. McGettigan v. National Bank of Washington, 320 F.2d 703 (D.C.Cir. 1963); E. I. du Pont de Nemours & Company v. Edgerton, 231 F.2d 430 (8th Cir. 1956); Luhman v. Hoover, 100 F.2d 127 (6th Cir. 1938); MacNeil v. Perkins, 84 Ariz. 74, 324 P.2d 211 (1958); Reynolds v. Salmonson, 148 Cal.App.2d 895, 307 P.2d 672 (1957); Parzych v. Town of Branford, 20 Conn.Supp. 378, 136 A.2d 223 (1957); Vills v. City of Cloquet, 119 Minn. 277, 138 N.W. 33 (1912); Stevens v. Missouri Pacific Railroad Company, 355 S.W.2d 122 (Mo.1962); Boyer v. Guidicy Marble, Terrazzo & Tile Co., 246 S.W.2d 742 (Mo.1952); Taylor v. Southern Bell Telephone and Telegraph Co., 258 N.C. 766, 129 S.E.2d 512 (1963); Lone Star Gas Co. v. Parsons, 159 Okla. 52, 14 P.2d 369 (1932); Fehrs v. City of McKeesport, 318 Pa. 279, 178 A. 380 (1935); Lawrence v. King, 184 Tenn. 151, 197 S.W.2d 548 (1946); Dezendorf Marble Company v. Gartman, 161 Tex. 535, 343 S.W.2d 441 (1961); Winter v. Unaitis, 124 Vt. 249, 204 A.2d 115 (1964). This higher degree of care is required because the risk of harm is greater and the likelihood of harm more foreseeable when an inherently dangerous instrumentality is involved.

Considering that Homestake knew or should have known that children played on its property and would therefore have had easy access to the dangerous blasting caps, a jury could well find that Homestake's failure to take any steps to discover and secure the caps foreseeably created an unreasonable risk of harm. The jury, therefore, could and did find that Homestake was negligent.

Even if negligence is found, however, Homestake contends that the negligence was not causal because the intervening act of the two boys in stealing the caps was the real cause of the accident. The determination of whether an intervening act constitutes a superseding cause is a question of law. United States Fidelity & Guaranty Co. v. Frantl Industries, Inc., 72 Wis.2d 478, 241 N.W.2d 421 (1976).

Whether an intervening act constitutes a superseding cause depends on whether the intervening act is one that the actor could have reasonably anticipated in the course of ordinary human experience and should have guarded against. Stewart v. Wulf, 85 Wis.2d 461, 271 N.W.2d 79 (1978). As we have already stated, it was reasonable to decide, as the jury apparently did here, that Homestake could have anticipated the intervention of the boys. In fact, had Homestake not negligently allowed the caps to remain on its property, the boys could not have stolen them. The intervening act is interwoven with and indeed arises from the original negligence. See Restatement (Second) of Torts §§ 443, 449 (1965). We conclude that the intervening theft of the caps is not a superseding cause so as to relieve Homestake of liability.

Homestake argues that even if its negligence is found to be a cause of Christians' injury, it should, as a matter of public policy, be relieved of legal responsibility. Homestake contends that public policy should preclude recovery in this case based on the six factors enumerated in Coffey v. City of Milwaukee, 74 Wis.2d 526, 247 N.W.2d 132 (1976). The Wisconsin Supreme Court has said: "The cases in which a causally negligent tort-feasor has been relieved of liability are infrequent and present unusual and extreme considerations." Stewart, supra, 85 Wis.2d at 479, 271 N.W.2d at 88. No unusual or extreme considerations have been presented here.

In a case where a defendant is to be relieved of liability on public policy grounds, the question is whether the defendant should be liable for the particular harm done to the particular plaintiff. A defendant is relieved from liability because it would be unjust to expect the particular defendant to assume responsibility for the act done or because it would be unjust to allow recovery for the type of accident involved. Stewart, supra. Conversely, the issue in this case is one of who is more negligent in causing the accident: Homestake, Christians, Green, or the boys who stole the caps. The injury that occurred here is of the type that can be expected to occur when blasting caps are left unguarded in an area where children play. It is not particularly shocking that a careless possessor...