Crain v. Sestak

• Decision Date: 27 May 1968
• Court: California Court of Appeals Court of Appeals
• Parties: Steven M. CRAIN, a minor, by John E. Crain, his Guardian ad litem, and John E. Crain, Plaintiffs and Respondents, v. Arthur M. SESTAK, Defendant and Appellant. Civ. 23696.

Page 849

68 Cal.Rptr. 849

262 Cal.App.2d 478

Steven M. CRAIN, a minor, by John E. Crain, his Guardian ad litem, and John E. Crain, Plaintiffs and Respondents, v. Arthur M. SESTAK, Defendant and Appellant.

Civ. 23696.

Court of Appeal, First District, Division 2, California.

May 27, 1968.

Hearing Denied July 24, 1968.

Richard A. Boyd, John E. Whiting, San Francisco, Cyril Viadro, San Francisco, of counsel, for appellant.

Killion & Hayes, Leo V. Killion, Harold R. Hayes, San Rafael, for respondents.

TAYLOR, Associate Justice.

This action for personal injuries sustained by the minor plaintiff, Steven M. Crain (hereafter Steven), was brought by his father, John E. Crain, as guardian ad litem, and also on his own behalf for medical expenses against defendant, Arthur M. Sestak, and his employees. Steven, at the age of 12 years and 7 months, fell from a loose plank in a scaffold in a house being constructed by defendant. At the end of plaintiffs' case, the trial court denied the defense motion for a nonsuit. After the jury returned a verdict in favor of defendant, the trial court granted a new trial on the specific ground that its instruction on assumption of risk constituted an error of law.

On this appeal from the order granting the new trial, defendant Sestak contends that the order should be reversed as the court erred in denying his motion for nonsuit; and alternately, that the jury was properly instructed that Steven assumed the risk of the loose plank. Plaintiffs urge that assumption of risk was not an issue in the case because of defendant's violation of a safety order and the absence of any evidence that Steven had any knowledge of the particular risk.

The relevant facts, many of which are not in dispute, are as follows: defendant, a licensed architect and contractor, and three of his workmen, were engaged in the construction of two houses on contiguous lots in Mill Valley; one faced on Melrose Avenue; the other, No. 307 Ferndale Avenue, across the narrow street from plaintiffs' home at No. 306 Ferndale.

Defendant himself worked chiefly on the Melrose property with apprentice carpenter Garrison, while his carpenter foreman, Lannert, and apprentice carpenter Brady worked on the Ferndale house. Whenever defendant saw children of all ages and sizes around the Melrose site, he would tell them to go away. When so instructed, they usually would not return, though on occasion they did. Lannert and Brady saw children in the vicinity of the Ferndale construction site before March 19, 1964, told them to leave, and also chased them off the lumber stacked in the street near the site. Sestak gave his employees no instructions concerning the preparation of the building sites for the evening other than to pick up the tools.

By March 19, both houses were partially complete. On the Ferndale house, the walls were up, the foundation had been poured, the subfloor built, and the carport framed in and partially decked. The topography of the lot was such that there was a 15-foot drop between the level of the street and the house itself, which was being built on piers at street level. To reach the house during construction, the workmen on the job used two 2 x 12 planks nailed together that led from the street to the door. This walkway was nailed to the bottom of the door opening to the house. Projecting from the house toward the street between the front door and the carport were joists about 4 feet apart. On the day before the accident, the workmen had placed two 8 x 10 planks across the joists at right angles to the walkway in order to create the working platforms needed for the installation of windows. The plank ot the left of the door was nailed to the entryway planks, but the plank to the right of the doorway was not nailed down or secured in any way. This plank extended from the carport joists, over the joists protruding from the front of the house. Between the door frame end of the plank and the walkway to the front door there was a space about the length of a regular sized step or less.

Defendant and his workmen usually worked from about 8:00 a.m. to 4:30 p.m. About 5:15 p.m., Steven and a 7-year-old neighbor, Debbie Harris, stopped at the Ferndale house to look for electric outlet plugs and round wooden tarpaper cylinders. Steven followed Debbie over the walkway to the front door opening and went inside. After looking around for a while, Steven went out the door opening and walked the length of the plank to the right of the doorway to the window. He then turned around and walked back toward the front door. As he got to the end of the plank, it went down and the other end went up like a teeter-totter. Steven and the plank fell the 15 feet to the ground below, and Steven sustained the injuries that are the subject of this action. ¹ The next morning, the plank and some bloodstains were found on the ground below the right side of the front door. At the time of the accident, Steven was 12 years and 7 months old. He was a normal boy of average intelligence and activity and not unusually mischievous.

As Steven was admittedly a trespasser on the property, the case was submitted to the jury pursuant to section 339 of the Restatement of Torts, commonly known as the attractive nuisance doctrine. ²

The applicable principles as set forth in the amended edition of the Restatement of Torts, section 339, provide: 'A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if (a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and (b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve 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 with it or in coming within the area made dangerous by it, and (d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and (e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.' Defendant contends that his motion for a nonsuit should have been granted as there was no evidence to meet the requirements of clauses (a) and (b) of section 339.

As to clause (a), defendant argues that he did not know or have reason to know that children were likely to trespass on the Ferndale property. We cannot agree. It is readily apparent from the statement of facts above that defendant was aware of the fact that children were in the neighborhood and likely to trespass. Sestak and his workmen had observed children around both construction sites and chased them away. Although there is no direct evidence that the children had crossed the walkway that led into the Ferndale house and climbed around, defendant testified that he was aware of the possibility of children playing on the construction site and that this was likely to happen, particularly after he and his workmen left for the day. Thus, he knew the children in the neighborhood were likely to come on the building site. In discussing the precautions taken to keep children off the premises, he indicated that he tries to keep them out when the building is enclosed, but 'before that time it isn't very fruitful.' There is no question that there was evidence to satisfy the requirements of clause (a) of section 339.

As to clause (b), defendant argues that he had no reason to know that the loose plank constituted an unreasonable risk of harm to a boy of Steven's age. Defendant, citing Garcia v. Soogian, 52 Cal.2d 107, 338 P.2d 433, and O'Keefe v. South End Rowing Club, supra, argues that he cannot be held to a knowledge that a boy of Steven's age would fail to recognize the danger of walking on the plank.

In Garcia, the Supreme Court held, as a matter of law, that a normal child of 12 would appreciate the danger of jumping over a pile of building materials and thus the case was not within the rule of section 339. Although the particular holding of Garcia would appear to favor defendant's position here, the case was among the first to relax the prior inflexible attractive nuisance rules that classified paticular conditions as attractive nuisances and eliminated others such as building materials. The rule announced in Garcia was that each case must be judged in the light of its own peculiar facts according to the condition laid down by section 339 of the Restatement of Torts.

In O'Keefe, the Supreme Court affirmed a nonsuit as to a 15 1/2-year-old boy who knew he was diving into shallow water. The court pointed out at 64 Cal.2d page 741, 51 Cal.Rptr. page 542, 414 P.2d page 838, that the attractive nuisance doctrine imposes on the possessor of land only 'a limited obligation to the child, falling short of a duty to prevent all foreseeable harm to him, but requiring reasonable care as to those conditions against which he may be expected to be unable to protect himself.' It was noted that whether or not such an obligation or duty should be imposed on the possessor depends on number of variable factors and that the question of liability must be decided in the light of the circumstances and not by arbitrarily placing cases in rigid categories on the basis of the type of condition involved, without giving due consideration to the effect of all of the factors in a particular situation. The court then continued that the age of the minor was a most obvious and significant fact, noting 64 Cal.2d at page 744, 51 Cal.Rptr. page 543, 414 P.2d page 839. 'What might constitute an attractive nuisance to a seven year old child would be immaterial as applied to a fourteen year old high school student.'

Here, the uncontroverted...