Copfer v. Golden

• Citation: 288 P.2d 90,135 Cal.App.2d 623
• Parties: Charlene Marie COPFER, a minor, by her Guardian ad litem, Charles W. Copfer, Plaintiff and Respondent, v. Vaughn C. GOLDEN, Gertrude G. Golden, Earl M. Golden and Goldie A. Golden, Defendants and Appellants. Civ. 20978.
• Decision Date: 26 September 1955
• Court: California Court of Appeals

Page 90

288 P.2d 90

135 Cal.App.2d 623

Charlene Marie COPFER, a minor, by her Guardian ad litem, Charles W. Copfer, Plaintiff and Respondent, v. Vaughn C. GOLDEN, Gertrude G. Golden, Earl M. Golden and Goldie A. Golden, Defendants and Appellants.

Civ. 20978.

District Court of Appeal, Second District, Division 3, California.

Sept. 26, 1955.

Milo S. Smith and Glenn A. Wymore, San Pedro, for appellants.

Dunnum & Dunnum, South Gate, and Wm. C. Wetherbee, Los Angeles, for respondent.

VALLEE, Justice.

This is an action for damages for personal injuries sustained by plaintiff while playing on property owned by defendant Vaughn C. Golden. Plaintiff was 6 years of age at the time of the accident. Defendant Gertrude G. Golden was formerly the wife of Vaughn; defendants Earl M. Golden and Goldie A. Golden are his father and mother. The cause was tried by the court without a jury. Findings were waived. Judgment was for plaintiff against all defendants, from which they appeal. The contention is that the evidence is insufficient to support the implied findings for plaintiff.

In 1949 Vaughn and Gertrude as joint tenants acquired a half interest, and Earl and Goldie, also as joint tenants, acquired the other half interest, in lots 33 and 34 in Wilmington. The lots were each 150 feet deep. A building was moved onto the west 50 feet of the lots and made into an apartment house. The east 75 feet was unimproved and remained so. In May 1952 Vaughn and Gertrude separated. In October 1952 they entered into a property settlement agreement by which Gertrude agreed to convey all her interest in lots 33 and 34 and other property to Vaughn for a consideration of about $10,000. On October 10, 1952 all four defendants executed a deed by which they conveyed the east 75 feet of lots 33 and 34 to Vaughn and he assumed payment of an indebtedness against it. He was in sole possession of that property from that time on. On the same day, Vaughn executed a deed by which he conveyed the west 50 feet of lots 33 and 34 to his parents, Earl and Goldie. Gertrude was granted an interlocutory decree of divorce from Vaughn in December 1952 in which the property settlement was approved. The deeds were recorded on May 29, 1953. The east 75 feet of the lots will be referred to as the property or the property in question.

Vaughn was engaged in buying and selling old buildings. Shortly after lots 33 and 34 were acquired in 1949, he began moving various materials, equipment, and machinery onto the property. He moved them on and off in the course of his business. Neither Earl nor Goldie had any interest in his business or in his enterprises; nor did either of them own or use any of the materials, equipment, and machinery that he kept on the property from time to time. Gertrude had no interest in his business or in his enterprises or in any of the personal property after the property settlement agreement; nor did she use any of it at any time.

The accident occurred on May 22, 1953. At that time there was on the property lumber, cement blocks and steps, an old Chevrolet, tires, wheels, pipe, trusses, a hamburger stand for resale, a trailer, a 2-wheeled tubular frame stripped-down trailer, and other material. All of the equipment and material on the property had been moved there by Vaughn and was his property. The tubular part of the stripped-down trailer was a hollow half section of a 12-inch piece of tubing placed over the wheels on each side to make a runway to haul a tractor. Pieces of lumber were tied by wire across the top of the tubular frame trailer and there was some loose lumber on it. Vaughn used it to haul lumber.

Prior to the day of the accident, a number of children lived in the apartment house next to the property in question. That day there were about 13 living there. There was no place for children to play on the west 50 feet of lots 33 and 34 on which the apartment house was located. They, including plaintiff, played on the east 75 feet and on the equipment which Vaughn kept there. He had observed them playing on the equipment from time to time and had told them to leave.

Plaintiff, with her parents and younger brothers and sisters, moved into the apartment house in February 1953. On May 22, 1953 plaintiff was severely injured while playing with three other small children on the property in question. There was evidence from which the court could have inferred that she was playing on the tubular frame trailer at the time she fell and was injured on the tubular part of the trailer.

The principles of law controlling decision of the case against Vaughn C. Golden and those controlling the decision of the case against the other defendants are not the same and they will be considered separately.

The Case Against Vaughn C. Golden

One who maintains upon his property a condition, instrumentality, machine, or other agency which is dangerous to children of tender years by reason of their inability to appreciate the peril therein, and which is one he knows or should know and which he realizes or should realize involves an unreasonable risk of death or serious bodily harm to such children,--is under a duty to exercise reasonable care to protect them against the dangers of the agency. Thus one is negligent in maintaining an agency which he knows or reasonably should know to be dangerous to children of tender years at a place where he knows or reasonably should know such children are likely to resort or to which they are likely to be attracted by the agency unless he exercises reasonable care to guard them against danger which their youth and ignorance prevent them from appreciating. If, to the knowledge of the owner, children of tender years habitually come on his property where a dangerous condition exists to which they are exposed, the duty to exercise reasonable care for their safety arises not because of an implied invitation but because of the owner's knowledge of unconscious exposure to danger which the children do not realize. See cases collected 34 West's Cal.Dig., Negligence, k23(1) p. 95, k39, p. 130; Prosser on Torts, 609, § 77; 1 Shearman & Redfield on Negligence, 78, § 31; 65 C.J.S., Negligence, §§ 28, 29, p. 453; 38 Am.Jur. 802, § 142; annotations: 36 A.L.R. 34, 39 A.L.R. 486, 45 A.L.R. 982, 53 A.L.R. 1344, 60 A.L.R. 1444, 145 A.L.R. 322, 152 A.L.R 1263, 1268, 3 A.L.R.2d 758; 10 So.Cal.L.Rev. 214; 19 Cal.L.Rev. 86; 41 Cal.L.Rev. 138; 21 Mich.L.Rev. 495, 505. Children of tender years have no foresight and scarcely any apprehensiveness of danger, a circumstance which those owning instrumentalities potential for harm must bear in mind; for it is every individual's duty to use toward others such due care as the situation then and there requires. Div.Code, § 1714. 'The known characteristics of children, including their childish propensities to intermeddle, must be taken into consideration in determining whether ordinary care for the safety of a child has been exercised under particular circumstances.' Crane v. Smith, 23 Cal.2d 288, 297, 144 P.2d 356, 361. Of course, if adults or children of such age as to ordinarily be capable of discerning and avoiding danger are injured while trespassing upon the property of another, they may be without remedy; while under similar circumstances children of tender years would be protected.

The Restatement says:

'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 intermeddling 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.' ¹

Rest., Torts, § 339. See 65 C.J.S., Negligence, § 28, p. 454. The rule in California is substantially as stated in the Restatement. Long v. Standard Oil Co., 92 Cal.App.2d 455, 464-467, 207 P.2d 837; Marino v. Valenti, 118 Cal.App.2d 830, 842, 259 P.2d 84.

Dean Prosser says:

'Where the trespasser is a child, one important reason for the general rule of non-liability is lacking. Because of his immaturity and lack of judgment, the child is incapable of understanding and appreciating all of the possible dangers which he may encounter in trespassing, and he cannot be expected to assume the risk and look out for himself. While it is true that his parents or guardians are charged with the duty of looking out for him, it is obviously neither customary nor practicable for them to keep him under observation continually, or follow him wherever he may go. If he is to be protected, the person who may do it with the least inconvenience is the one upon whose land he strays, and the interest in unrestricted freedom to make use of the land may be required, within reasonable limits, to give way to the greater social interest in the safety of the child.'

(Prosser on Torts, 617, § 77.)

A duty rested on defendant Vaughn C. Golden to protect the young and heedless from themselves and guard them against perils that reasonably could have been foreseen. The trial court was warranted in finding that the circumstances here called the duty into play. The question whether injury to a child legally incapable of negligence will import negligence to the owner or possessor of the injuring instrumentality depends on the circumstances of each case and is peculiarly one for the trier of fact. It was for him to say whether the tubular frame trailer was a dangerous...