Crawford v. Pacific Western Mobile Estates, Inc.

• Decision Date: 28 February 1977
• Docket Number: No. KCD,KCD
• Citation: 548 S.W.2d 216
• Parties: Chester D. CRAWFORD, Jr., and Betty M. Crawford, husband and wife, Appellants, v. PACIFIC WESTERN MOBILE ESTATES, INC., and Wilma Gilbert, Respondents. 27991.
• Court: Missouri Court of Appeals

Page 216

548 S.W.2d 216

Chester D. CRAWFORD, Jr., and Betty M. Crawford, husband and wife, Appellants, v. PACIFIC WESTERN MOBILE ESTATES, INC., and Wilma Gilbert, Respondents.

No. KCD 27991.

Missouri Court of Appeals, Kansas City District.

Feb. 28, 1977.

Ralph O. Wright, Gary W. Collins, Kansas City, for appellants.

Paul H. Niewald, Kansas City, for respondents.

Before WASSERSTROM, P. J., and SOMERVILLE and TURNAGE, JJ.

WASSERSTROM, Presiding Judge.

Plaintiffs seek damages for wrongful death of their six year old son, Mark, who drowned in a settlement tank maintained by defendant Pacific Western Mobile Estates, Inc., as part of its sewage treatment plant at Liberty Village Trailer Park in Clay County, Missouri. The jury returned a verdict of $30,000 against both Pacific Western and its resident manager Wilma Gilbert. However, the trial court, pursuant to after trial motions, set aside the verdict and entered judgment for defendants. Plaintiffs appeal. Reversed.

The sole issue presented is whether the evidence established a submissible case of negligence. In making this determination the evidence must be viewed in the light most favorable to the plaintiffs, drawing all favorable inferences on their behalf. Wehrkamp v. Watkins Motor Lines, Inc., 436 S.W.2d 698, 700 (Mo.1969); Boyle v. Colonial Life Ins. Co. of America, 525 S.W.2d 811, 814-15 (Mo.App.1975); Michaud v. Burlingame, 490 S.W.2d 680, 682 (Mo.App.1973); Rawson v. Ellerbrake, 423 S.W.2d 14 (Mo.App.1967).

The tragic accident in question occurred on November 22, 1973. Plaintiffs, together with their son Mark, were residents of Pacific Western's trailer park which accommodated 143 residential trailers. The southwest part of the park was reserved for non-family residents, while the southeast part was reserved for families with children. At the extreme northern part of the trailer park, and closer to the family portion than to the non-family section, Pacific Western maintained a sewage treatment plant of which the settlement tank was a part. The nearest trailer was approximately 200 yards from this sewage treatment facility.

The settlement tank itself resembled a swimming pool; it was approximately 25 feet long and 11 feet wide, with vertical concrete reinforced walls 71/2 feet deep. The water level was maintained at a depth of 6 feet, which means that the surface of the effluent was 11/2 feet below the top ledge of the tank (which is at ground level). There was no ladder or other device which would aid anyone who fell into the tank to climb out. The architect designed the tank with a cypress deck to completely cover the top of the tank. The deck was to rest upon a lip or indentation at either end of the tank and fit flush with the top. Although the tank does have the described lip or indentation, the tank has never been covered since the trailer park was acquired by Pacific Western in August, 1973, and manager Gilbert had never observed nor was she ever told about any covering of any kind.

The architect also designed a fence to be built around the tank, and a six foot tall solid wooden flat fence had been erected and was in place. Adjacent to this wooden fence and borrowing one side thereof, a rectangular area was fenced off with a chain link fence for use as a storage area. The chain link fence had a gate and there was also a gate between the storage area and the tank area. Gilbert testified that these gates were kept locked at all times.

After Pacific Western acquired the trailer park, the previous owner removed approximately 60 trailers from the trailer park, leaving behind on the ground concrete blocks which had been used to support those trailers. Pacific Western's maintenance employees gathered up these blocks and piled them against the wooden fence which enclosed the sewage settlement tank. These blocks were stacked in such a way so that "they were sort of like stairs going up" and reached to within 6 inches of the top of the fence. Although a child could not have gotten over the 6 foot wooden fence otherwise, the "stairway" of concrete blocks could be easily ascended by a child and there remained only a short jump to the ground inside of the sewage tank area.

A number of children lived in the trailer park with their parents, and they customarily played throughout the trailer park. There were no warning signs posted anywhere on the grounds to alert parents of any dangerous condition inside the wooden fence, nor were the tenants notified of the existence of the treatment facility. Mark's father testified that he did not know what was inside the fence until after the fatal accident. A neighbor who had lived in the court testified that she also was unaware of the sewage facility inside the fence until after the accident.

On the afternoon of the accident a number of children, aged six to ten, among whom Mark was one, were playing in the trailer park in the vicinity of the wooden fence described and they were seen playing on the concrete blocks piled next to the wooden fence. At about 3:30 an older boy walking by was hailed by the children and was told that someone was in the sewage tank. He climbed the blocks, but could see nothing but a ball floating on the surface of the murky effluent. Other children went to notify Mark's father, who was working beside his trailer, that someone was in the sewer. Mr. Crawford, unaware of the existence of a sewage treatment facility on the grounds, headed toward a storm sewer next to the street, but was corrected by the children. Mr. Crawford and a neighbor who had been summoned probed the pool with a rake and a two by twelve board and succeeded in locating and removing Mark's submerged body. Attempts at resuscitation were unsuccessful. In the course of these rescue attempts, Mr. Crawford saw a wooden ladder-like contraption lying across the width of the tank and which served as a bridge. Also lying across the width of the tank was a metal latticework which Mr. Crawford testified would probably not have borne the weight of a grown man but which might have borne the weight of a small child. Mr. Crawford also noticed small hand prints on one side of the concrete tank on the 11/2 foot vertical concrete wall above the surface of the effluent.

Defendants argue vigorously that defendants owed the deceased boy no duty which can be the foundation of recovery, because he was a trespasser when he entered the fenced area. Plaintiffs do not deny the classification of their son as a trespasser, ¹ but contend that the landowner nevertheless owed their son a duty of reasonable care under the standards of Section 339, 2 Restatement of the Law, Torts. Defendants deny that the facts here meet those requirements. The issue in this case accordingly narrows to the question of whether plaintiffs have brought this situation within the scope of the § 339 doctrine.

Section 339 of the Restatement (1965 Revision) ² provides as follows:

" § 339. Artificial Conditions Highly Dangerous to Trespassing Children

"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."

( a) Reason to anticipate presence of children. Treating these five requirements in order, the first question is whether defendants knew or had reason to know that children were likely to enter the fenced area. Defendants lay great stress upon the fact that the record contains no evidence that any children had ever before been in the sewage-treatment facility. That, however, misses the point. Merely because children had not trespassed in the past does not relieve the landowner from liability if there is some reasonable expectation that they might trespass. Spur Feeding Company v. Fernandez, 11 Ariz.App. 263, 463 P.2d 847 (1970). Nor must the evidence include proof that children had previously ventured directly into the hear of the hazard itself. As stated in a case decided even before the formulation of § 339, Starling v. Selma Cotton Mills, 168 N.C. 229, 84 S.E. 388, 389 (1915): "But in this case these children were not trespassers. They were five or six years old, and were at their usual playground, where they went every day, which fact was necessarily known to the management of the mill. This playground was in the immediate proximity to the reservoir and to the mill, and the officials knew the danger to the children of the children falling in there either in their play or in attempting to get water to drink, as this little boy did." See also Page, The Law of Premises Liability, § 2.12, p. 19.

The evidence here shows that many of the families in the trailer court had young children who played all over the trailer court. There was evidence that children played on a retaining wall which, in the words of one resident of the trailer court "is not too awful far" from the stockade picket fence surrounding the sewage plant, and that the fence with vertical stakes pointed at the top looks like "on old Indian fort." There was evidence that there was a basketball and other toys in the storage area which were open to view through the chain link fence and which could also serve to attract the...