Gabel v. Koba, 45--40295--1

Citation463 P.2d 237,1 Wn.App. 684
Decision Date31 December 1969
Docket NumberNo. 45--40295--1,45--40295--1
PartiesMarvin J. GABEL and Josephine Gabel, his wife; and Marvin J. Gabel, as personal representative of Ronald W. Gabel, deceased, Respondents, v. Fred KOBA and Jane Doe Koba, his wife; and Robert M. Koba and Jane Doe Koba, his wife; d/b/a Koba Farms, Appellants.
CourtCourt of Appeals of Washington

Clarke, Clarke, Albertson & Bovingdon, George H. Bovingdon, Seattle, for appellants.

Cushman, Thomas & Holt, R. M. Holt, Issaquah, for respondents.

UTTER, Judge.

Plaintiff Josephine Dominick brought a wrongful death action against defendants to recover for the death of her 4-year-old son who died of injuries suffered in a fire on defendants' farm. The wrongful death action was joined with claims for personal injuries suffered by Marvin Gabel in a previous accident and for the cost of food supplied by plaintiff to defendants' dog. Defendants, hereinafter referred to as Koba, appeal from a jury verdict on all three claims in favor of plaintiffs.

The principal issues in the death action are (1) did the trial court err, as a matter of law, by submitting to the jury the question of whether Donald Gabel was a business invitee, and (2) did the trial court err, as a matter of law, by submitting to the jury the question of whether an abandoned truck on Koba's farm constituted an attractive nuisance.

In determining whether the trial court erred in submitting these issues to the jury, Koba admits the truth of plaintiff's evidence and all inferences that can reasonably be drawn therefrom. The evidence must be interpreted most strongly against Koba and in a light most favorable to plaintiff. Beck v. E. I. Du Pont de Nemours & Co., Inc., 76 Wash.Dec.2d 96, 455 P.2d 587 (1969).

Marvin Gabel was employed by Koba on Koba's farm near Fall City, Washington. Gabel lived on the farm with Josephine Dominick and their children in a house furnished by defendant. On January 1, 1966, Donald Gabel and Ralph Dominick, Josephine Dominick's 12-year-old brother, were playing on an abandoned truck on Koba's farm. A match was lit near the truck's gas tanks, resulting in a fire and explosion. The Gabel boy died of burns. The truck had not been used by Koba since 1963 but gasoline had been put in its tank in August of 1964. The vehicle was not parked with other vehicles in use but was by itself near the county road. Koba had warned plaintiffs to keep their children away from places of danger on the farm.

Josephine Dominick and Marvin Gabel, although the parents of Ronald Gabel, were not married. The court indicated that if the jury found Josephine Dominick to be guilty of contributory negligence which was a proximate cause of the death of her child, she could not recover. Marvin Gabel could not share in an award for his son's death, if the jury found for the plaintiff Josephine Dominick, and his contributory negligence, if any, would not affect Josephine Dominick's right to recover. Koba apparently was not aware of the fact they were not married until the time of trial and had assumed that if Marvin Gabel was contributorily negligent, this would also bar recovery of Josephine Dominick as his supposedly legal wife. Koba claims that he was improperly deprived of a defense due to the deception practiced by the plaintiffs and assigns error to the court's instruction.

The court did not err. Koba proceeded with the trial of the case without objection after he was aware of the true state of the facts. By doing so he waived any objection he may have had. Seth v. Department of Labor & Indus., 21 Wash.2d 691, 152 P.2d 976 (1944).

The case was submitted to the jury on two alternate theories. One theory contended Donald Gabel was a business invitee. In the event the jury did not find he was an invitee, then it was to consider whether the truck was an attractive nuisance.

There was evidence from which the jury could find the terms of Marvin Gabel's employment made it necessary for his children to live on the farm and that the children were invited to live on the premises. If the jury found Ronald Gabel was expected to live with his mother and father on the Koba farm, they were entitled to consider whether they were expressly or impliedly invited onto the farm for a purpose connected with a business interest or business benefit to Koba. If this was found, the jury then was properly instructed Koba owed invitees a duty to exercise ordinary care for their safety which included the exercise of ordinary care to maintain in a reasonably safe condition those portions of the premises which they were expressly or impliedly invited to use or which they might reasonably be expected to use. McKinnon v. Washington Fed. Sav. & Loan Ass'n., 68 Wash.2d 644, 414 P.2d 773 (1966).

Koba maintains he discharged his duty to exercise ordinary care by his warning. Does giving a warning to parents discharge the duty to exercise ordinary care, as a matter of law, where children are in the group classified as invitees? The primary legal responsibility for the protection of young children rests on their parents. Mail v. Smith Lumber & Shingle Co., 47 Wash.2d 447, 287 P.2d 877 (1955). However, as noted in Prosser, Law of Torts § 59 (3d ed. 1964):

While it is true that his parents or guardians are charged with the duty of looking out for him, it is obviously neither customary nor practicable for them to follow him around with a keeper, or chain him to a bedpost.

In determining whether a warning to parents is sufficient, as a matter of law, to discharge the duty to use ordinary care, it would seem a jury should consider whether a landowner can be oblivious to the impossibility of even the most conscientious parents to control the conduct of their minor children at all times.

Another element to be considered by the jury in determining whether ordinary care was exercised by the landowner is the necessity for the condition created when compared to the expense, difficulty and ability of guarding against any risk it poses to others. Brown v. Intercoastal Fisheries, 34 Wash.2d 48, 207 P.2d 1205 (1949). The jury would be entitled to determine whether there is a necessity for keeping gasoline in a truck which was no longer used and weigh this against the difficulty and expense involved in draining the gas tank. In light of these considerations the determination of whether an oral warning to the mother constituted ordinary care is a question for the jury.

Koba asserts the warning to the mother and her subsequent failure to keep her child away from the scene of the accident constituted negligence as a matter of law on her part. The mother did not deny the warnings and indicated she knew the children should stay away from places where they could be hurt, and had taken measures to see they did and instructed them to stay in the yard. No authority has been cited which would indicate the failure of the mother to keep the child within her yard is contributorily negligence, as a matter of law. The question of the mother's contributory negligence presented a factual question for the jury.

Koba contends the attractive nuisance issue should not have been submitted to the jury. Those factors necessary to constitute an attractive nuisance are set out in Schock v. Ringling Bros. & Barnum & Bailey Combined Shows, 5 Wash.2d 599, 105 P.2d 838 (1940). To make the doctrine applicable, the following elements must be present: (1) the instrumentality or condition must be dangerous in itself, that is, it must be an agency which is likely to, or probably will, result in injury to those attracted by, and coming into contact with, it; (2) it must be attractive and alluring, or enticing, to young children; (3) the children must have been incapable, by reason of their youth, of comprehending the danger involved; (4) the instrumentality or condition must have been left unguarded and exposed at a place where children of tender years are accustomed to resort, or where it is reasonably to be expected that they will resort, for play or amusement, or for the gratification of youthful curiosity; and (5) it must have been reasonably practicable and feasible either to prevent access to the instrumentality or condition, or else to render it innocuous, without obstructing any reasonable purpose or use for which it was intended.

Viewing the facts in a light most favorable to the mother, the jury was entitled to find there was gasoline in the gas tank at the time of the accident.

There is a conflict of authority on the question of whether an abandoned automobile with gas in its tank is, as a matter of law, an instrumentality or condition which is dangerous in itself, that is, one which is likely to, or probably will, result in injury to those attracted by and coming into contact with it. The cases of Shapiro v. City of Chicago, 308 Ill.App. 613, 32 N.E.2d 338 (1941) and Parnell v. Holland Furnace Co., 234 App.Div. 567, 256 N.Y.S. 323 (1932) hold this is a matter to be submitted to the jury as a question of fact. Hornsby v. Henry, 68 Ga.App. 171, 22 S.W.2d 326 (1942) holds to the...

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  • Martini ex rel. Dussault v. State, 28894-0-II.
    • United States
    • Court of Appeals of Washington
    • 14 d3 Abril d3 2004
    ...of, or ground to realize, the danger. C. McCormick, Evidence, § 167 (1954); 5 R. Meisenholder, Wash. Prac. § 6 (1965); Gabel v. Koba, 1 Wash.App. 684, 463 P.2d 237 (1969).[59] In Gabel v. Koba,60 some children were playing near a truck on the defendant's farm. One lit a match, the truck's g......
  • Martini v. State, No. 28894-0-II (Wash. App. 4/14/2004), 28894-0-II
    • United States
    • Court of Appeals of Washington
    • 14 d3 Abril d3 2004
    ...or ground to realize, the danger. C. McCormick, Evidence, sec. 167 (1954); 5 R. Meisenholder, Wash. Prac. sec. 6 (1965); Gabel v. Koba, 1 Wn. App. 684, 463 P.2d 237 In Gabel v. Koba,60 some children were playing near a truck on the defendant's farm. One lit a match, the truck's gas tank exp......
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    ...Casey, DSHS, and the State. While the costs associated with discovery depositions are not ordinarily a taxable cost, Gabel v. Koba, 1 Wash.App. 684, 463 P.2d 237 (1969), there are exceptions to that rule. When defendants prevail, the costs incurred in taking depositions in support of their ......
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