Gagnier v. Curran Const. Co., 11388

Decision Date19 August 1968
Docket NumberNo. 11388,11388
Citation443 P.2d 894,151 Mont. 468
PartiesAndre GAGNIER and Emma Gagnier, Plaintiffs and Respondents, v. The CURRAN CONSTRUCTION COMPANY, a Montana Corporation, John H. Buck and William F. Curran, Jr., Defendants and Appellants.
CourtMontana Supreme Court

Karl R. Karlberg, argued, Missoula, for appellants.

Dexter L. Delaney, argued, Sherman V. Lohn, argued, Missoula, for respondents.


This appeal is from a jury verdict for damages resulting from the death of a child. The jury awarded an amount of $35,661 of which $25,000 was for punitive or exemplary damages.

On September 24, 1963, Renee Gagnier, aged 9, and a playmate, Christine Byington, were suffocated at a cave-in of an excavation on property owned by the Curran Construction Company, appellant herein. The property involved was located in a new residential subdivision near the city of Missoula. The subdivision at the time of the accident was partially built with many homes finished and occupited; some in the process of being built. The defendant company employed John H. Buck as its supervisor of construction on the project and he is an appellant in this action.

The appellants, in constructing the residence where the accident occurred, subcontracted the excavation work for the the basement foundation, a cesspool and septic tank, and waterline to the Liberty Construction Company. On September 19th the work was done and in accord with custom and policy, the cesspool, septic tank and waterline trenches were backfilled the same day as excavated. The foundation excavation was from four and one-half to five and one-half feet deep and at the time of the accident had been open for five days. During that time, from the 19th to the 24th, another subcontractor had put in the foundation forms, poured the concrete and had pulled the forms.

The two children were found at about 9 p.m. buried in a cave-in of the north bank of the waterline located at the front of the property. The backfill in the waterline trench was to ground level at a point within 8 to 10 feet from the basement excavation, and from that point sloped at an incline to the floor of the foundation excavation. The work of the foundation subcontractor had been completed prior to the finding of the childing in the north bank of the waterline ditch remaining above the incline of the backfill material. The children were covered with one and one-half to two feet of heavy clay.

On the day of the accident Renee Gagnier had attended school. She came home with Christie Byington and, after changing her clothes, asked her mother for permission to play with Christie, who up until a short time before had lived in the Gagnier neighborhood. Christie's family had recently moved into the new subdivision, some one-half mile from the Gagnier home; it was there the children went to play sometime after 4 p.m.

Renee was told to be home at 6 p.m. and when she did not return at that time her mother began to look for her. A check at the Byington home revealed Christie was not at home so the parents and neighbors began the search that ultimately resulted in finding the children, some three hours later.

The ground at the scene of the accident was of heavy clay which enabled the digging of excavations with near-perpendicular walls. The evidence indicated these clay walls supported substantial weight before the cave-in, including concrete trucks, form trucks and workmen. There was no indication from the evidence introduced that the appellants had any problems with prior cave-ins, although they had constructed a good many homes.

Considerable testimony was given concerning whether or not the appellants had knowledge of the fact that children were playing around the excavation. The respondents introduced into evidence photographs showing children's footprints on the loose dirt and around the excavation. These photographs were taken the night of the accident and the next day, but there was no proof of when the footprints were made. Appellants admitted that children were attracted to areas where home construction was going on, but denied knowledge that children were seen playing around the excavation where the accident occurred. Appellant Buck, the supervisor in charge, on cross-examination testified:

'Q. Prior to September 24, 1963. A. I don't recall ever having the personal knowledge that children were playing there before September 24, 1963, at 113 Wapikiya.'

During the period from September 19th to September 24th, after the excavation work and partial backfill of the septic tank and waterline ditch, Mr. Buck testified he was certain that he had visited the site many times on supervision duties. Concerning the day before the accident, the 23rd, the following questions and answers were recorded:

'Q. But my question was, were you there September 23rd? A. I am sure I was there September 23rd.

'Q. But your testimony is you didn't notice any indication that children were playing there? A. No, I didn't notice any indication that children were playing there at all.'

During the course of the trial respondents introduced considerable evidence pertaining to the lack of warning and precautionary signs at the scene of the accident. In rebuttal the appellants showed by a preponderance of evidence that in the Missoula area it was neither the custom nor practice of the house building trade to barricade foundations or excavations for homes on private property.

The appellants set forth the following issues on appeal; (1) The court erred in failing to grant defendants' motion for directed verdict after plaintiffs' case in chief; (2) The court erred in failing to grant defendants' motion for a directed verdict after the close of trial; (3) The court erred in failing to grant defendants' motion for judgment notwithstanding the verdict; (4) The court erred in failing to grant defendants' motion for new trial on each of the following grounds:

a. There was insufficient evidence to justify the verdict, and it is against the law.

b. The trial court erroneously instructed the jury in regard to the attractive nuisance doctrine.

c. The court erroneously instructed the jury that they could find exemplary damages against the defendants.

d. The court erroneously instructed the jury in regard to damages to the plaintiffs arising out of the wrongful death of plaintiffs' child.

e. The court erroneously refused defendants' offered instructions nos. 7, 9, 10, 15 and 17.

f. The court erred in giving instructions nos. 17 and 18, to which the defendants objected.

g. The court erroneously admitted into evidence over defendants' objections photographs of barricades at a public roadway and commercial construction site as a standard in regard to residential construction on private property.

For our consideration and because of the disposition of this appeal we will join the issues into two principal considerations:

1. Whether or not, under the facts set forth here, the court erred in instructing the jury on the attractive nuisance doctrine.

2. Should exemplary damages have been considered in this case?

The so-called attractive nuisance doctrine is no stranger in Montana for it first appeared before this Court in the case of Driscoll v. Clark, 32 Mont. 172, 80 P. 1 (1905). As this doctrine was developed by the case law of this state this Court adopted as part of the doctrine the Restatement of Law, Torts 2d, Section 339. See Nichols v. Consolidated Dairies of Lake County, Inc., 125 Mont. 460, 239 P.2d 740. Section 339, Torts 2d, of the Restatement provides:

'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 of 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 possession of maintaining the condition and the burden of eliminating the danger are slight as 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.'

With this as a guide for our consideration it is clear that for the respondents to prevail in this case it is necessary they prove by a preponderance of the evidence each and every element above set forth in the Restatement.

A. The respondents rest their case upon this Court's ruling in the case of Gilligan v. City of Butte, 118 Mont. 350, 166 P.2d 797. In that case this Court took from an Indiana case, City of Indianapolis v. Emmelman, 108 Ind. 530, 9 N.E. 155, a definition of what constitutes an artificial condition: 'Whoever * * * does anything in, or immediately adjacent to, a public street, calculated to attract children of the vicinity into danger, which they cannot appreciate, owes the duty of protecting them by suitably guarding the source of danger * * *'.

With this quote from the Indiana case we do not disagree, under the fact situation of that case, nor under the fact situation of the Gilligan case, but here we find it to be inapplicable. In the City of Indianapolis case the city excavated in the bed of a street just off from a street intersection where children played; the excavation was full of water and left unguarded, resulting in the death of a child who fell into it. In the Montana case Gilligan v. City of Butte, supra, a five year old child was...

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