Frankel v. Burke's Excavating, Inc., 16769

• Decision Date: 17 June 1968
• Docket Number: 16770.,No. 16769,16769
• Parties: Alvin H. FRANKEL, Administrator of the Estate of Gregory J. Gallagher, Deceased, Appellant, v. BURKE'S EXCAVATING, INC. Alvin H. FRANKEL, Administrator of the Estate of Alan D. Wylie, III, Deceased, Appellant, v. BURKE'S EXCAVATING, INC.
• Court: U.S. Court of Appeals — Third Circuit

397 F.2d 167 (1968)

Alvin H. FRANKEL, Administrator of the Estate of Gregory J. Gallagher, Deceased, Appellant, v. BURKE'S EXCAVATING, INC.

Alvin H. FRANKEL, Administrator of the Estate of Alan D. Wylie, III, Deceased, Appellant, v. BURKE'S EXCAVATING, INC.

Nos. 16769, 16770.

United States Court of Appeals Third Circuit.

Argued March 5, 1968.

Decided June 17, 1968.

Gordon W. Gerber, Dechert, Price & Rhoads, Philadelphia, Pa., for appellant in both cases.

James J. McEldrew, Cole, McEldrew, Hanamirain & McWilliams, Philadelphia, Pa., for appellee in both cases.

Before HASTIE, Chief Judge, and SEITZ and VAN DUSEN, Circuit Judges.

OPINION OF THE COURT

SEITZ, Circuit Judge.

These diversity actions were brought to recover damages resulting from the tragic deaths of two young boys who fell through the ice on an unused water hole located near the center of defendant-corporation's 44 acre property. These actions were consolidated below and will here be referred to as the "case". The district court deferred ruling on defendant's motion for a directed verdict and submitted the case to the jury on special interrogatories. The jury's answers to the interrogatories compelled entry of judgment for the defendant. Thereafter, the district court denied plaintiffs' motion for a new trial and also noted that, in any event, the defendant's motion for a directed verdict should have been granted. Frankel v. Burke's Excavating, Inc., 269 F.Supp. 1007 (E. D., Pa.1967).

By their evidence the plaintiffs sought to bring their case within the following provisions of the Restatement of Torts, 2d:

"§ 339, Artificial Conditions Highly Dangerous to Trespassing Children

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 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 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."

At the close of the evidence the jury answered special interrogatories in the following manner:

"1. On the date of the accident, was the location of the accident a place where the defendant knew or should have known that young children were likely to trespass? No.

"2. On the date of the accident, did the water hole as it then existed present an unreasonable risk of death or serious bodily harm to young children trespassers? No.

"3. If your answer to question two is yes, did the defendant know or realize or should have known or realized that this unreasonable risk existed? No.

"4. Did the defendant fail to exercise reasonable care to eliminate the danger or otherwise to protect the children? No.

"5. Were the children who drowned unaware of the danger and risk involved in going out on the ice on this pond? Yes."

Since the jury answered four of the interrogatories pertinent to the Restatement Rule in the negative, its action was conclusive in the absence of prejudicial trial error. The plaintiffs' appeal is quite naturally directed to such alleged errors.

The principal alleged evidentiary error, in our view, concerns the district court's rejection of plaintiffs' offer to read into evidence defendant's answers to two of plaintiffs' interrogatories. These interrogatories were as follows:

"25. Describe by date, nature of activity and the names and addresses of all persons participating, each and every activity authorized by defendant on the premises involved in this accident from and after defendant acquired title thereto."

"36. State approximately how many officers, stockholders and employees of defendant passed or entered upon the property involved in this accident:

(a) On an average per day;

(b) On an average per week;

(c) On the particular day of the accident, prior to its occurrence;

(d) During the month prior to the occurrence of the accident in suit."

The trial court sustained defendant's objections to these offers because it felt that the questions spoke generally to the property involved in the accident, and did not make it clear whether plaintiffs were talking about the entire property or just the site of the water hole.

We need not decide whether the ruling was correct, and if not, whether it was harmless in view of other evidence on these points. We say this because the offered material did not relate to the issue to be resolved by the jury in answering interrogatory 2. And the jury answered that interrogatory in the negative. Since plaintiffs had to obtain an affirmative answer to all the interrogatories in order to be successful, the assumed error was...