Cotter v. Novak, 5654
| Decision Date | 06 October 1953 |
| Docket Number | No. 5654,5654 |
| Citation | 261 P.2d 827,57 N.M. 639,1953 NMSC 93 |
| Parties | COTTER v. NOVAK. |
| Court | New Mexico Supreme Court |
Joseph L. Smith, Lorenzo A. Chavez, Arturo G. Ortega, Albuquerque, for appellant.
Gilbert, White & Gilbert, Sumner S. Koch, Santa Fe, for appellee.
While Judith Kay Cotter, a six year old child, was staying with her family at a trailer park in Albuquerque, New Mexico, operated by the defendant for the purpose of renting to guests such as the Cotter family, she engaged in play with other children of similar age near some lumber and cans of nails which the defendant had knowingly permitted to remain on the premises after a tool shed had been torn down. While so playing, one of the children placed a nail in a dart gun and discharged it into Judith's left eye, with the result the eye was blinded.
Upon defendant's motion the complaint of the plaintiff as father and next friend of the injured child alleging the foregoing facts was dismissed for failure to state a claim upon which relief could be granted. The plaintiff, appealing, contends the complaint alleges a cause of action in negligence under either the theory of 'attractive nuisance' or violation of duty owed by the defendant to Judith as a business invitee or tenant; while the defendant says the leaving of an accumulation of nails exposed on the premises did not create a dangerous condition which he was under a duty to either correct or give notice thereof to his tenants, and, further, that if he could be said to be negligent, such negligence was not the proximate cause of the unfortunate injury.
In the view we take of the case it is unnecessary to consider the question of causation because the facts alleged in the complaint taken as proved, are insufficient to show negligence on the part of the defendant under any theory.
In Krametbauer v. McDonald, 1940, 44 N.M. 473, 104 P.2d 900, 905, this Court quoted with approval the following general definition of negligence from the Restatement of the Law of Torts, Sec. 284, to-wit:
'Negligent conduct may be either:
'(a) an act which the actor as a reasonable man should realize as involving an unreasonable risk of causing an invasion of an interest of another, or
'(b) a failure to do an act which is necessary for the protection or assistance of another and which the actor is under a duty to do.'
The defendant was under a duty to exercise reasonable care to keep his premises in a reasonably safe and suitable condition, or to warn his invitees or business visitors of dangers thereon of which he knew or should have known about in the exercise of reasonable care. See De Baca v. Kahn, 1945, 49 N.M. 225, 161 P.2d 630; 65 C.J.S., Negligence, Sec. 45b; 38 Am.Jur., Negligence, Sec. 96; 2 Restatement of the Law of Torts, Sec. 343.
It is also the correct rule that the owner or operator of premises is under a higher duty with respect to children who are invitees to protect them from dangers about the premises because of their youth and inexperience and inability to appreciate a condition of danger which might be obvious to an adult. 38 Am.Jur., Negligence, Sec. 137; 65 C.J.S., Negligence, Sec. 52; and see also, Comment b under Sec. 342, 2 Restatement of the Law of Torts, where the same principle is discussed with respect to children who are licensees. And we are in agreement with ...
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Webb v. US, Civ. No. 90-C-625G
...risk of injury to himself or another and which such a person, in the exercise of ordinary care, would not do. See Cotter v. Novak, 57 N.M. 639, 261 P.2d 827, 828 (1953) (citation 10. In airplane tort cases, the pilot and FAA personnel, including FSS specialists and controllers, are burdened......
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Robey v. Parnell
...on his theory that knowingly is a lesser standard than that of negligence. To support his argument, Plaintiff cites Cotter v. Novak , 1953–NMSC–093, 57 N.M. 639, 261 P.2d 827. In Cotter , the plaintiff, a young child, was injured when another child discharged a nail into the child's eye usi......
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...v. Tolbert, 1952, 56 N.M. 718, 249 P.2d 498. See, also, Barker v. City of Santa Fe, 1943, 47 N.M. 85, 136 P.2d 480; Cotter v. Novak, 1953, 57 N.M. 639, 261 P.2d 827; Mellas v. Lowdermilk, 1954, 58 N.M. 363, 271 P.2d 399; and Foster v. United States, 183 F.Supp. 524 (D.C.N.M.1959), aff'd wit......
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