Fox v. Fox

• Citation: 729 A.2d 825
• Decision Date: 20 May 1999
• Docket Number: No. 441, 1998.,441, 1998.
• Parties: April FOX, as Guardian of Ashlynn Fox, a minor, Plaintiff Below, Appellant, v. Madlon FOX, an individual and Wallace Fox, an individual, Defendants Below, Appellees.
• Court: United States State Supreme Court of Delaware

729 A.2d 825

April FOX, as Guardian of Ashlynn Fox, a minor, Plaintiff Below, Appellant, v. Madlon FOX, an individual and Wallace Fox, an individual, Defendants Below, Appellees.

No. 441, 1998.

Supreme Court of Delaware.

Submitted: March 16, 1999.

Decided: May 20, 1999.

Eric M. Doroshow and Stephani J. Ballard, Doroshow & Pasquale, Wilmington, Delaware, for appellant.

Robert B. Young, Young & Young, Dover, Delaware, for appellees.

Before VEASEY, Chief Justice, WALSH and HARTNETT, Justices.

WALSH, Justice.

This is an appeal from a grant of summary judgment barring recovery by a minor for injuries sustained when her foot slid under a riding lawnmower operated by her grandmother. The Superior Court, after considering cross-motions for summary judgment, held in a bench ruling that the provisions of 25 Del.C. § 1501, Delaware's premises guest statute, applied and precluded recovery. The plaintiff contends that the Superior Court erred in dismissing her claims based on the attractive nuisance doctrine as a logical extension of this Court's ruling in Porter v. Delmarva Power & Light Co., Del.Supr., 547 A.2d 124 (1988). We agree and hold that the plaintiff's claims based on the attractive nuisance doctrine are controlled by common law principles and not the premises guest statute. Accordingly, we reverse the ruling of the Superior Court that denies a minor licensee the opportunity to state a claim based on the attractive nuisance doctrine and we expressly adopt § 343B of the RESTATEMENT (SECOND) OF TORTS.

We further hold as a matter of law, however, that a riding lawnmower being operated in the usual and ordinary manner does not constitute an "artificial condition upon the land" as required by § 339 of the RESTATEMENT (SECOND) OF TORTS. Accordingly, we remand this action to the Superior Court for further proceedings consistent with this opinion.

I.

The following facts are not in dispute. On the afternoon of May 31, 1996, Ashlynn Fox ("Ashlynn"), just shy of her third birthday, was injured when her foot made contact with the blades of a riding lawnmower. Ashlynn's paternal grandparents, Madlon Fox ("Madlon") and Wallace Fox ("Wallace"), the defendants,¹ were babysitting Ashlynn at their home in Townsend, Delaware. The child had been left with the grandparents by Ashlynn's mother, April, her guardian ad litem in this litigation.

The grandparents decided to mow the grass, using a riding mower. Wallace mowed the front yard, and then Madlon began to mow the back yard. Ashlynn wanted to get on the mower, so Madlon turned the motor off. Then with Ashlynn on her lap, she started the lawnmower and continued to mow the grass. Ashlynn began to fall asleep so Madlon took her into the house, placed her on a sofa, turned on a videotape, and asked Wallace to watch her. Madlon returned to cutting the grass. Shortly thereafter, and unbeknownst to either Madlon or Wallace, Ashlynn apparently got up, went outside, and ran towards the lawnmower. Her right foot slid under the left side of the lawnmower resulting in severe injuries.

II.

We review de novo the Superior Court's grant of summary judgment. Heaney v. New Castle County, Del.Supr., 672 A.2d 11, 13 (1995). We must determine whether the record shows that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Id.

The plaintiff contends that an analysis of the development of Delaware's premises guest statute, vis-a-vis, the attractive nuisance doctrine leads to the conclusion that this Court's holding in Porter that a trespassing child's claims are not barred by 25 Del.C. § 1501 must be extended to children licensees.² Because there is no dispute that Ashlynn was a licensee at the time of the injury,³ plaintiff argues that the premises guest statute should not bar her claims. Additionally, plaintiff argues that since the premises guest statute is in derogation of the common law, absent clear legislative intent to the contrary, the applicable principles of the RESTATEMENT (SECOND) OF TORTS, should be deemed to have survived its enactment. Thus, plaintiff requests this Court to explicitly adopt § 343B of the RESTATEMENT.

Defendants contend that the decisions in Urbanski v. Walker, Del.Supr., 281 A.2d 491 (1971) and Foraker v. Stambaugh, Del.Super., C.A. No. 88C-MR-178, 1990 WL 18328 (Jan. 24, 1990) support the conclusion that plaintiff's claims are barred by 25 Del.C. § 1501. Defendants argue that the purpose and intent of the General Assembly determine the application of the statute and that "[p]rotecting grandparents from claims by a grandchild's mother, who had requested [their aid], is unquestionably exactly what the legislature had in mind." The Superior Court agreed, finding that Foraker was controlling and that § 1501 applied, and granted summary judgment for defendants.

We disagree that this Court's decision in Urbanski dictates the result here. While that case did address the application of the premises guest statute⁴ in the context of a case involving a ten year old social guest, our focus was upon a challenge to the validity of the statute, and not upon the application of the doctrine of attractive nuisance per se, an issue that had not been raised. Urbanski, 281 A.2d at 492.

Nor are we persuaded by the Superior Court's holding in Foraker that a minor who was injured while playing on a rope swing on defendant's land was barred from recovery by § 1501. Foraker, 1990 WL 18328 at *1-2. The court held that minors who are social guests were not exempt from the statute⁵ and that, although this Court in Porter had held that trespassing children could make an attractive nuisance claim, Delaware had not adopted § 343B of the RESTATEMENT. Id. at *2; see also Degnars v. Biddle, Del.Super., C.A. No. 94C-09-034-WTQ, 1996 WL 945014 at *2-3 (Dec. 17, 1996) (denying summary judgment based on the existence of material issues of fact regarding whether minor injured while riding ATV was a social guest and whether lane on property was a dangerous condition, but seemingly following Foraker); Sartin v. Caine, Del.Super., C.A. No. 90C-10-180, 1992 WL 423929 at *3 (Jan. 8, 1992) (finding that plaintiffs were estopped from asserting attractive nuisance for failure to plead that theory prior to trial and stating that "[a]dditionally the theory ... [did] not apply ... because it affords relief only to trespassing children").⁶ Delaware's premises guest⁷ statute, 25 Del.C. § 1501, provides:

No person who enters onto private residential or farm premises owned or occupied by another person, either as a guest without payment or as a trespasser, shall have a cause of action against the owner or occupier of such premises for any injuries or damages sustained by such person while on the premises unless such accident was intentional on the part of the owner or occupier or was caused by the wilful or wanton disregard of the rights of others.

After recognizing that § 1501, being in derogation of the common law, was subject to strict construction against the party for whose benefit the law was passed, in Porter we held that the premises guest statute was not a bar to recovery by a trespassing child whose claims were premised upon the provisions of the RESTATEMENT (SECOND) OF TORTS § 339⁸ (1965), frequently referred to as the attractive nuisance doctrine.⁹ Porter, 547 A.2d at 128-29; see Hoesch v. National R.R. Passenger Corp. (Amtrak), Del.Supr., 677 A.2d 29, 32 (1996)

.

In Porter we recognized Delaware's "long adherence" to the "humanitarian doctrine" espoused in § 339 and the recognition "that a child of tender years is not to be held to the same level of foreseeability or appreciation of danger as an adult." 547 A.2d at 129. We concluded that the General Assembly did not intend to eliminate the doctrine of attractive nuisance with its passage of the premises guest statute. Id.

We are now required to address the applicability of § 343B to the doctrine of attractive nuisance. Section 343B of the RESTATEMENT (SECOND) OF TORTS (1965) provides that "[i]n any case where a possessor of land would be subject to liability to a child for physical harm caused by a condition on the land if the child were a trespasser, the possessor is subject to liability if the child is a licensee or an invitee." Comment a to § 343B expressly states that the section is "concerned chiefly" with the attractive nuisance doctrine. Simply stated, § 343B indicates that a child licensee or invitee is entitled to at least as much protection as the child trespasser and the "possessor of the land is no less obligated to anticipate and take into account [the child licensee's or invitee's] propensities to inquire into or meddle with conditions which he finds on the land, his inattention, and his inability to understand or appreciate the danger, or to protect himself against it." RESTATEMENT (SECOND) OF TORTS § 343B, cmts. b, c (1965).

Many jurisdictions have recognized the applicability of the attractive nuisance doctrine to children licensees and invitees, formally adopting § 343B, or employing the inherent logic of that section in other contexts. See, e.g., Collier v. Necaise, Ala. Supr., 522 So.2d 275, 278 (1988); Robles v. Severyn, 19 Ariz.App. 61, 504 P.2d 1284, 1287-88 (1973); Courtell v. McEachen, 51 Cal.2d 448, 334 P.2d 870, 875-76 (1959); Rubio v. Davis, 231 Ga.App. 425, 500 S.E.2d 367, 370 n. 3 (1998); Biggs v. Brannon Square Assoc., Ga.Ct.App., 174 Ga. App. 13, 329 S.E.2d 239, 241 (1985); Sampson by Sampson v. Zimmerman, 151 Ill.App.3d 396, 104 Ill.Dec. 349, 502 N.E.2d 846, 848 (1986)

; Johnson v. Pettigrew, Ind. Ct.App., 595 N.E.2d 747, 750 (1992); Grimes v. Hettinger, Ky.Ct.App., 566 S.W.2d 769, 772 (1978); Jones v. Billings, Me.Supr., 289 A.2d 39, 43 (1972); Gilbert v. Sabin, 76 Mich.App. 137, 256 N.W.2d 54, 58 (1977); Peterson v. Richfield Plaza, Inc., 252 Minn. 215, 89 N.W.2d 712, 717 (1958); Salanski v. Enright, Mo.Supr., 452 S.W.2d 143, 145 (1970);...