Dennis v. Odend'Hal-Monks Corp., Record No. 2722.
Decision Date | 06 December 1943 |
Docket Number | Record No. 2722. |
Citation | 182 Va. 77 |
Court | Virginia Supreme Court |
Parties | LEWIS S. DENNIS, AN INFANT, ETC. AND JOHN LEWIS DENNIS v. ODEND'HAL-MONKS CORPORATION. |
Present, Campbell, C.J., and Hudgins, Gregory, Browning, Eggleston and Spratley, JJ.
1. NEGLIGENCE — Essentials of Liability — Injury Not Reasonably Foreseeable. — It is not negligence to fail to take precautionary measures to prevent an injury which, if taken, would have prevented it, when the injury could not reasonably have been anticipated and would not have happened but for the occurrence of exceptional circumstances.
2. NEGLIGENCE — Essentials of Liability — Reasonable Anticipation of Consequences. — If an occurrence is one that could not reasonably have been expected the defendant is not liable. Foreseeableness or reasonable anticipation of the consequences of an act is determinative of defendant's negligence.
3. NEGLIGENCE — Essentials of Liability — Wholly Improbable Casualties. — One is liable for only those consequences' which, in the light of attendant circumstances, could reasonably have been anticipated by a prudent man, but not for casualties which, though possible, were wholly improbable.
4. NEGLIGENCE — Duty to Trespassers — Children of Immature Years. — The rule that a property owner owes no duty to trespassers has no application where children of immature years are concerned.
5. NEGLIGENCE — Duty to Trespassers — Child Who Secured Acid from Truck — Case at Bar. — The instant case was an action to recover for personal injuries sustained by an infant three years of age, who drank muriatic acid from a soft drink bottle placed in the body of defendant's truck, which was parked near a sand pile where children congregated and played, while the operator was doing some construction work on a nearby building. The trial court sustained defendant's demurrer to the notice of motion.
Held: That no negligence was disclosed and there was no error in the action of the trial court.
Error to a judgment of the Circuit Court of the city of Norfolk. Hon. Allan R. Hanckel, judge presiding.
The opinion states the case.
Martin & Martin and Smith & Smith, for the plaintiffs in error.
Rixey & Rixey, for the defendant in error.
The plaintiffs in error, who were the plaintiffs in the trial court, sued the defendant in error, Odend'Hal-Monks Corporation by notice of motion for judgment, for damages resulting from personal injuries sustained by Lewis Sterling Dennis, an infant under the age of twenty-one years.
John Lewis Dennis, father of said infant, sued separately for damages on account of medical and other expenses incurred by him in the treatment of the infant plaintiff.
These actions were consolidated under the provisions of section 5331(a) of the Code of Virginia, and by consent were considered as one case.
The defendant demurred to the notices of motion, original and amended, which was sustained, and the actions were dismissed on December 30, 1942. By writ of error granted the case is before us.
The sole question to be considered is whether the notices of motion stated a cause of action. If they did the demurrers should have been overruled. If they did not the court was right in sustaining them.
The facts, as stated in the notices of motion and which are admitted by the demurrers, are as follows, quoting from the plaintiffs' petition:
The plaintiffs contend that the facts stated and admitted by the demurrers constitute negligence on the part of the defendant, which consisted in leaving its truck parked on the side of the street, near a sand pile, where children congregated and played, with workmen's tools, and a Pepsi-Cola bottle, containing muriatic acid, bearing the Pepsi-Cola label, in the body of the truck, the bottle, with its contents, constituting an attractive article to children and accessible to them. The defendant urges that the conditions created by this state of facts are not negligence.
The trial court, in sustaining the demurrers, took the position that the happening complained of could not reasonably have been expected; that foreseeableness or reasonable anticipation of the consequences of an act is determinative of the question of negligence.
The court made its written opinion a part of the record, in which it cited cases from this court...
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Dennis v. Odend'hal-monks Corp.
... ... The court made its written opinion a part of the record, in which it cited cases from this court as authority for its position. The case of Virginia Iron, ... ...