Davis v. Cunningham

• Court: Nebraska Supreme Court
• Writing for the Court: Heard before WHITE; NEWTON; BRODKEY; CLINTON
• Citation: Davis v. Cunningham, 241 N.W.2d 343, 196 Neb. 8 (Neb. 1976)
• Decision Date: 28 April 1976
• Docket Number: No. 40258,40258
• Parties: Philip M. DAVIS, by Steven Paul Davis, his father and next friend, Appellant, Cross-Appellee, v. Ivan CUNNINGHAM, Appellee, Cross-Appellant.

Page 343

241 N.W.2d 343

196 Neb. 8

Philip M. DAVIS, by Steven Paul Davis, his father and next friend, Appellant, Cross-Appellee, v. Ivan CUNNINGHAM, Appellee, Cross-Appellant.

No. 40258.

Supreme Court of Nebraska.

April 28, 1976.

Syllabus by the Court

1. It is generally conceded that the liability of a possessor of land for injuries to infants is the same whether or not the child is a trespasser.

2. The attractive nuisance doctrine requires that the condition resulting in injury must be one that involves an unreasonable risk of death or serious bodily harm to a child, and one which should be foreseen.

3. A property owner is not an insurer of the safety of persons who may come upon his land as invitees, licensees, or trespassers, nor is he under a duty to make his land child-proof.

4. The attractive nuisance doctrine does not apply to machinery in a static condition unless there is evidence that the machinery is enticing and inherently dangerous to indiscriminating children of tender years.

5. In its application the principles of the attractive nuisance doctrine should not be extended.

Philip T. Morgan, Fullerton, for appellant.

James A. Beltzer, Luebs, Tracy, Dowding, Beltzer & Leininger, Grand Island, for appellee.

Heard before WHITE, C.J., and SPENCER, BOSLAUGH, McCOWN, NEWTON, CLINTON and BRODKEY, JJ.

NEWTON, Justice.

In this action recovery is sought for personal injuries sustained by Philip M. Davis, a 3-year-old boy, on his grandfather's farm. Verdict and judgment were for plaintiff for $1,800. Plaintiff has appealed on the ground the verdict was inadequate and the defendant grandfather has cross-appealed on the ground that negligence does not appear. The judgment is reversed and the cause dismissed.

Defendant's daughter Lana, with her new baby and son Philip, were visiting in defendant's farm home. Also in the farm home were Lana's brothers and sisters, including Julie 12 years of age and Matt who was 8. Lana gave permission for the three children to go out and play in the sprinkler with the understanding that Julie and Matt would supervise Philip. Julie and Matt knew of the potential dangers in playing with farm machinery. On the farm lot adjacent to the lawn was a machine referred to as an irrigation ditcher. It was constructed on two small wheels with a tongue at the front end and a V-shaped blade at the rear. It was evidently more or less balanced on the two wheels as the tongue was down on the ground but Philip managed to pull the blade portion down and the tongue up. The ditcher weighed about 800 pounds and was heavier in the rear or blade portion. Philip's father, who is not a farmer, had observed the machine as it was sitting the day before the accident but thought nothing of it. Philip ran over, swung on a cross rod between the V-shaped blades, and pulled it down on himself. Julie and Matt lifted the machine off Philip. Philip was injured and removal of a kidney was necessary.

The judgment is obviously inadequate in view of the injuries Philip received, but the primary question is that of liability. It is generally conceded that the liability of a possessor of land for injuries to infants is the same whether or not the child is a trespasser. The rule generally followed is that found in Restatement, Torts 2d, s. 339, p. 197. It was followed in Gubalke v. Estate of Anthes, 189 Neb. 385, 202 N.W.2d 836. The rule is as follows: "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."

For liability to attach, All phases of the rule must be present. The condition must be one which involves 'an unreasonable risk of death or serious bodily harm' to a child, and one which should be foreseen. (Emphasis supplied.)

The condition or instrumentality in question must be one that is inherently or unusually dangerous to children. As was stated in Gubalke v. Estate of Anthes, supra: 'The question we must answer is whether the condition was one which offered an unreasonable danger of serious bodily injury to children and a danger which was reasonably to be anticipated by the defendants. If not, then there is no jury question and no liability.'

In the present instance we are dealing with an ordinary, stationary, and innocuous farm implement. It obviously is not an inherently or unusually dangerous object. The same is true of an ordinary farm tractor although a child may climb up on it, fall off, and break his neck. As was stated in Gubalke v. Estate of Anthes, supra, quoting Prosser, Law of Torts (4th Ed.), s. 59, p. 369: "The stress here is upon 'unreasonable.' There is virtually no condition upon any land with which a child may not possibly get himself into trouble. He may choke to death upon a green apple, pick up a stick and poke it into his eye, or have his skull fractured by a rock found and thrown by his companion. Unless the possessor is to shoulder the impossible burden of making his land completely 'childproof,' which might mean razing it to the bare earth, something more is called for than the general possibility of somehow coming to some harm which follows the child everywhere throughout his daily existence." 'The owner of real property is not an insurer of the safety of persons who may come upon his land as invitees, licensees or trespassers, nor is he under a duty to make his lawn 'child-proof. " Martinelli v. Peters, 413 Pa. 472, 198 A.2d 530.

We said in Haden v. Hockenberger & Chambers Co., 193 Neb. 713, 228 N.W.2d 883: 'The attractive nuisance doctrine does not apply to machinery in a static condition unless there is evidence that the machinery is enticing and inherently dangerous to indiscriminating children of tender years.'

It is said that the ditch digger was dangerous because the heavier end was left tilted in the air. Children might well have pulled it down may times without sustaining a serious injury. For that matter, the older children playing on the premises might well have tilted the other end up had it been left with the tongue up and the heavier blade down. Had that occurred, could it still be said that the defendant should have foreseen the likelihood of an accident? Foreseeability is an essential element of the rule. Unless the situation presents an abnormal or unusual danger, the ordinary reasonable person would not sense nor foresee any danger.

The attractive nuisance doctrine is an aberration or abnormality in the law of negligence and departs from the usual rules. As a result it is considered that it should not be extended in its application although this has occurred in a number of jurisdictions. As stated in 65 C.J.S. Negligence, s. 63 (73), p. 810: 'The tendency of the courts is to limit rather than to extend the attractive nuisance doctrine.' See, also, Brown v. Reliable Iron Foundry, Inc., 174 Cal.App.2d 294, 344 P.2d 633; Appling v. Stuck (Iowa), 164 N.W.2d 810; Hanners v. City of Ashland (Ky.App.), 331 S.W.2d 729; Beasley v. Guerriero (La.App.), 123 So.2d 774.

Under the circumstances of this case, it is difficult to believe that a reasonable person would have foreseen or anticipated danger to the child or an accident involving 'serious bodily harm.' Ordinarily under such circumstances the child either would not be injured or would suffer nothing worse than a minor bruise. Neither the child's grandfather nor father foresaw any danger of injury to the child from the static ditcher.

The judgment of the District Court is reversed and the cause remanded with directions to dismiss.

REVERSED AND REMANDED WITH DIRECTIONS TO DISMISS.

BRODKEY, Justice (concurring).

I concur in the result reached in the majority opinion in this case, and in the discussion therein so far as it pertains to the...