Davis v. Goodrich

• Decision Date: 03 June 1959
• Citation: 171 Cal.App.2d 92,340 P.2d 48
• Court: California Court of Appeals Court of Appeals
• Parties: Ed DAVIS, by Nina Davis, his Guardian ad litem, and Nina Davis, Plaintiffs and Appellants, v. John F. GOODRICH et al., Defendants, William G. Dickinson and John Mart, Inc., Respondents. Civ. 23503.

Page 48

340 P.2d 48

171 Cal.App.2d 92

Ed DAVIS, by Nina Davis, his Guardian ad litem, and Nina Davis, Plaintiffs and Appellants, v. John F. GOODRICH et al., Defendants William G. Dickinson and John Mart, Inc., Respondents.

Civ. 23503.

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

June 3, 1959.

Arthur J. Crowley, Hollywood, Horace A. Ruderman, Los Angeles, and Julian I. Harmon, Beverly Hills, for appellants.

Callaway, Kirtland & Packard, Henry E. Kappler, Los Angeles, for respondent Dickinson.

Mark E. O'Leary, Santa Monica, for respondent John Mart, Inc.

FOX, Presiding Justice.

Plaintiff, ¹ through his guardian ad litem, appeals from an order granting defendants' motions for nonsuit in plaintiff's action to recover damages for personal injuries.

On January 20, 1955, plaintiff's father took plaintiff and his older brother and sister to a large open field for the purpose of flying kites. This field was about one mile from plaintiff's home. The trip was made by automobile. In the vicinity of this area was a roller coaster which was in disuse. It was a wooden structure; there were no cars thereon and no movable machinery was involved. The structure was surrounded by an open field for one half a mile to the south, two or three blocks to the west, one block to the north (bounded by Washington Boulevard), and one half a mile to the east. The roller coaster was about thirty feet high. There were no fences or other barricades around either the structure or the vacant field. Plaintiff, who was two and one half years old, strayed away from his father and apparently fell from the roller coaster while playing thereon. The nearest residence, identified by distance, a trailer court, was about three blocks to the west. At the conclusion of plaintiff's case, defendants' motions for a nonsuit were granted. Plaintiffs have appealed.

As a general rule, the owner of land is under no duty to keep his premises safe for trespassers. Peters v. Bowman, 115 Cal. 345, 348, 47 P. 113, 598. The evidence in this case does not suggest that plaintiff occupied any position other than that of a trespasser. However, since the case of Barrett v. Southern Pacific Company, 1891, 91 Cal. 296, 27 P. 666, California has recognized an exception to the above rule in the form of the attractive nuisance doctrine. See Puchta v. Rothman, 99 Cal.App.2d 285, 287, 221 P.2d 744. The conditions necessary to bring this doctrine into play are stated in section 339, restatement of Torts. This statement of the attractive nuisance principle has been approved by California decisions. Courtell v. McEachen, 51 Cal.2d 448, 334 P.2d 870; Reynolds v. Willson, 51 Cal.2d 94, 331 P.2d 48. Section 339 provides as follows:

'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 known 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.'

Liability does not attach unless the risk involved is one which, because of his tender years, the trespassing child is incapable of appreciating. In the instant case, there is no claim nor any evidence that this nonoperating roller coaster contained a trap of any sort, was inherently unsafe, or had any loose or moving parts. The sole danger presented was the possibility of injury resulting from a fall from an otherwise safe structure. 'The doctrine has been applied in cases where hidden dangers exist which would be outside the experience of young children, including cases involving drowning under certain conditions, access to dynamite or dynamite caps, movable machinery, high tension wires, and boards piled near where children play, in a manner that is inherently unsafe.' Lopez v. Capitol Co., 141 Cal.App.2d 60, 65, 296 P.2d 63, 65. In Prosser on Torts (Hornbook Series, 1941), at page 622, it is stated that '[a]ny child of sufficient age to be allowed at large may be expected to appreciate the ordinary risks of fire and water, of falling from a height or into an excavation. * * *' In the Lopez case, supra, the court stated at page 65 of 141 Cal.App.2d, at page 65 of 296 P.2d, that '[t]hus far, the doctrine has never been applied in a case involving only an opportunity to climb upon something, the danger of falling being something that is known and realized by all children from earliest infancy, or in a case involving a mere attraction to something as an opportunity to play.' With regard to climbing in general, the court in the Lopez case stated at page 68 of 141 Cal.App.2d, at page 66 of 296 P.2d: 'It can hardly be said, in reason, that this child [seven years of age] was too young to appreciate the danger involved. From the time they are born all children realize the danger of falling and instinctively clutch at something when they feel that danger is near. While the instinct to climb is practically universal, and it is carried on in a venturesome spirit, a consciousness of the risk of falling is always present. Beyond question, the minor plaintiff when climbing this scaffold knew that there was a risk of falling if he was not careful, knew that if he slipped he would fall, and knew that if he fell he might hurt himself.' In Loftus v. Dehail, 133 Cal. 214, 218, 65 P. 379, 380, the court remarked that 'Venturesome boys and even girls, make playgrounds of unfinished buildings, climb perilous heights, and scamper over insecure boards and rafters. If an owner became responsible merely because children were attracted, it would burden the ownership of property with a most preposterous and unbearable weight.' In Severance v. Rose, 151 Cal.App.2d 500, 311 P.2d 866, the plaintiff, age ten, was injured as a result of a fall. At page 502 of 151 Cal.App.2d, at page 867 of 311 P.2d, the court commented: 'The only risk attendant upon its use as a slide when thus resting upon the ground was perfectly obvious, the hazard of falling off the upper end or over either side. No sign warning of this hazard would be necessary for any...