Concrete Const., Inc., of Lake Worth v. Petterson

Decision Date12 June 1968
Docket Number36852,Nos. 36764,s. 36764
Citation216 So.2d 221
PartiesCONCRETE CONSTRUCTION, INC., OF LAKE WORTH, a Florida corporation, Nathan Adler and Louis Zehnle, Individually, and doing business as Brazillia Apartments, Petitioners, v. Bruce N. PETTERSON, a minor, by and through his Next Friend, Natural Guardian and Father, Birger Petterson, and Birger Petterson, Individually, Respondents.
CourtFlorida Supreme Court
& Pomeroy, for Concrete Construction, Inc., of Lake Worth

Jones, Adams, Paine & Foster, West Palm Beach, for Nathan Adler and Louis Zehnle, individually, and d/b/a Brazillia Apartments.

Cone, Wagner, Nugent, Johnson, McKeown & Dell, Ft. Lauderdale, for respondents.

ADAMS, Justice.

In this case we granted certiorari to review a judgment of the Fourth District Court of Appeal, 202 So.2d 191.

The action was brought to recover damages to a minor child. The essence of the suit charges that:

Plaintiff, Bruce Petterson, eleven years old, and a friend entered onto property which was owned by defendants and on which a building was under construction. The plaintiff found some .22 caliber cartridges that were used in a ram-jet instrument designed to drive screws into concrete walls. Plaintiff took some of the cartridges home with him, and he was injured the following day when one of the cartridges exploded. The suit is against the landowners and the contractor.

This action was predicated upon liability under the theory of attractive nuisance. The statement as well as the application of this concept of liability has been fraught with difficulty from the earliest appearance in this Court. See the well considered opinion, concurring and dissenting opinions in Stark v. Holtzclaw, 90 Fla. 207, 105 So. 330, 41 A.L.R. 1323. See also Peters v. City of Tampa, 115 Fla. 666, 155 So. 854.

The law is a science and to apply it we must fix and recognize the status of the parties involved in order to determine the degree of care of one to another. The child who enters upon another's property in response to a special attraction is classified as an implied invitee, and in such status the owner of the premises owes a duty to exercise reasonable care and caution which a prudent person would and should exercise not to injure the child intruder. See Tucker Brothers, Inc. v. Menard, Fla., 90 So.2d 908; Ansin v. Thurston, Fla.App., 98 So.2d 87; Adler v. Copeland, Fla.App., 105 So.2d 594; Miller v. Guernsey Construction Co., Fla.App., 112 So.2d 55; Edwards v. Maule Industries, Inc., Fla.App., 147 So.2d 5.

So the first prerequisite of plaintiff's case is an allegation of the something which allured the child else he had no status calling for reasonable care. Plaintiff here relies upon the premise that any building under construction is such as to allure a child. On this we must declare the District Court in conflict with Miller v. Guernsey Construction Co., supra, wherein it was held that a building under construction is not per se an attractive nuisance. In the absence of the alluring character to attract the child, he would enter as a trespasser and in that case the duty of care would differ in that it would require a showing of gross negligence or wanton or willful injury. Thus the status of the child, whether invitee or trespasser, becomes material: for while an invitee may recover for simple negligence--that is failure to exercise reasonable care and prudence for the child's safety--the trespasser can only recover by establishing gross negligence. Gross negligence simply defined is failure to use slight care.

A portion of the opinion under review challenging our attention reads as follows:

'* * * Before Florida adopted Restatement, § 339, Cockerham v. R. E. Vaughan (Inc., Fla., 82 So.2d 890), supra, a requirement of the doctrine of 'attractive nuisance' was premised upon an allurement or attraction to the child to the land. This factor is now eliminated from the Restatement of Torts.'

Although we often cite the Restatement in such instances as appropriate, we have never adopted it in the sense of altering basic elements in a cause of action. Since this Court first approved this so-called attractive nuisance doctrine in Stark v. Holtzclaw, supra, we have steadfastly held that it must be alleged that defendant allured the youthful plaintiff upon the dangerous premises, for without such showing plaintiff could not attain a status of implied invitee, which status entitles him to recover based upon simple or ordinary negligence.

Our next and final conclusion is in accord with the Circuit Judge in holding the explosion too remote in point of time and location to allow the claim to stand for trial. After the child has satisfied his curiosity and departed from the premises he ceases to be an invitee and his act in exploding the cartridge afterwards upon his own premises is too remote to allow recovery against his would-be host. To recognize liability under such circumstances would be nothing short of making the defendant an insurer of the child's safety at a time and place where defendant would have no knowledge or authority to supervise the child.

The writ having been issued the judgment of the District Court of Appeal is quashed.

It is so ordered.

CALDWELL, C.J., and THOMAS and ROBERTS, JJ., concur.

DREW, J., dissents with opinion.

THORNAL and ERVIN, JJ., dissent and concur with DREW, J.

DREW, Justice (dissenting):

The district court in this attractive nuisance case held that plaintiffs should have been granted leave to amend their complaint, that amendment would not necessarily involve a fatal departure from the stated facts, and that the trial court erred in dismissing with prejudice and in finding that the complaint showed lack of proximate cause as a matter of law because the explosion and injury did not occur until after the...

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23 cases
  • Cassel v. Price
    • United States
    • Florida District Court of Appeals
    • April 7, 1981
    ...necessity to invoke the doctrine. Crutchfield v. Adams, 152 So.2d 808, 810 (Fla. 1st DCA 1963); and see Concrete Construction Inc. of Lake Worth v. Peterson, 216 So.2d 221 (Fla. 1968). We concede that it would be improper to judge defendants' liability in this case solely on attractive nuis......
  • S.W. v. Towers Boat Club, Inc., Supreme Court Case No. 12SC391
    • United States
    • Colorado Supreme Court
    • December 23, 2013
    ...This further distinguishes these opinions from an out-of-state case also cited by the court of appeals, Concrete Constr., Inc., of Lake Worth v. Petterson, 216 So.2d 221, 222 (Fla.1968), in which the Florida Supreme Court suggested that a child “who enters upon another's property in respons......
  • SW v. Towers Boat Club, Inc.
    • United States
    • Colorado Court of Appeals
    • April 26, 2012
    ...from other jurisdictions that treat children enticed by an attractive nuisance to trespass as invitees); accord Concrete Constr., Inc. v. Petterson, 216 So.2d 221, 222 (Fla.1968) (under attractive nuisance doctrine, a “child who enters upon another's property in response to a special attrac......
  • Estate of Starling, In re, 82-1457
    • United States
    • Florida District Court of Appeals
    • May 10, 1984
    ...the land by the condition or structure that injured him. Johnson v. Bathey, 376 So.2d 848 (Fla.1979); Concrete Construction, Inc. of Lakeworth v. Petterson, 216 So.2d 221 (Fla.1968). The source of this requirement is apparently the much criticized opinion by Justice Holmes in United Zinc & ......
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