Featherstone v. Berg

• Citation: 28 Utah 2d 94,498 P.2d 660
• Decision Date: 26 June 1972
• Docket Number: No. 12664,12664
• Parties: d 94 Robert O. FEATHERSTONE, a minor, by his quardian ad litem, Lee W. Featherstone, Plaintiff and Appellant, v. Donald F. BERG, Defendant and Respondent.
• Court: Supreme Court of Utah

Page 660

498 P.2d 660 28 Utah 2d 94 Robert O. FEATHERSTONE, a minor, by his quardian ad litem,
Lee W. Featherstone, Plaintiff and Appellant,
v.
Donald F. BERG, Defendant and Respondent. No. 12664. Supreme Court of Utah. June 26, 1972.

Page 661

[28 UTAH2D 94] Macoy A. McMurray, of McKay, Burton, McMurray & Thurman, Salt Lake City, for plaintiff-appellant.

Harold G. Christensen, of Worsley, Snow & Christensen, Salt Lake City, for defendant-respondent.

HENRIOD, Justice:

Appeal from a dismissal of a second amended complaint in a suit brought to recover damages for injuries to a nine-year-old child suffered when he fell from a second-story[28 UTAH2D 95] ledge of a house under construction. Affirmed with costs to defendant.

Plaintiff's complaint obviously was patterned after factual requirements of Section 339, Restatement of Torts, which states in sweeping terms a liability for injuries suffered by curious young children trespassing on another's property. Plaintiff suggests that we adopt the section and make it applicable to almost all such injuries, including those occurring on building construction sites. We are not constrained to respond to such urgence, and prefer to examine each case as it arises in the light of our own previous pronouncements on this and kindred kinds of cases, and of respectable authority of sister states. Some of such cases are collated in Brinkerhoff v. Salt Lake City, 13 Utah 2d 214, 371 P.2d 211 (1962), which see. We believe that our recent case of Taylor v. United Homes, 21 Utah 2d 304, 45 P.2d 140 (1968), reflects our views on cases where children are injured in home construction cases. The facts there almost parallel those alleged here. In that case a ten-year-old girl fell from the second floor of a partially-constructed house. The only substantial difference was that the contractor did not know of any dangerous condition, as is alleged here. We pointed that fact out to make it clear that Section 339 did not apply since one factor necessary to satisfy it obviously was missing. We did not suggest that had it been present we would have arrived at a different conclusion. The necessary implication found in the Taylor case was that, not being a spring-gun case, nor a turntable case, nor an attractive nuisance case, nor a licensee or invitee case, it was a trespasser case in a home construction atmosphere,--the type of case in which the authorities generally deny recovery. ¹ We might have added 'unless the danger...