Garcia v. Soogian

• Court: California Court of Appeals
• Writing for the Court: WARNE; VAN DYEK, P. J., and PEEK
• Citation: Garcia v. Soogian, 319 P.2d 742 (Cal. App. 1958)
• Decision Date: 08 January 1958
• Parties: Dolores GARCIA, a Minor, by Elsie K. Garcia, her Guardian ad litem, Plaintiff and Respondent. v. Harry SOOGIAN, Oliver Bredeson and George Kalajian, Defendants and Appellants. * Civ. 9237.

Page 742

319 P.2d 742

Dolores GARCIA, a Minor, by Elsie K. Garcia, her Guardian ad litem, Plaintiff and Respondent. v. Harry SOOGIAN, Oliver Bredeson and George Kalajian, Defendants and Appellants. ^*

Civ. 9237.

District Court of Appeal, Third District, California.

Jan. 8, 1958.

Rehearing Denied Jan. 29, 1958.

Hearing Granted March 6, 1958.

John James Coffey, Boyes Hot Springs, for appellant.

Cardozo, Trimbur & Nickerson, Modesto, for respondent.

WARNE, Justice pro tem.

This is an appeal from a judgment rendered by the court sitting without a jury in a personal injury action.

The appellants own certain lots in the City of Turlock on which they had intended to build a number of house and in connection with that plan had placed building materials on said premises consisting of various types of paneling, bathtubs, sinks, closets, toilet closets, stoves and various other materials. Some of the panels had glass windows in them and were stacked in piles 24 to 30 inches high. These building materials had been left on the lot approximately two months before the accident. The appellants, at that time, had been temporarily enjoined from proceeding with the construction of the buildings by an injunction issued out of the Superior Court of Stanislaus County.

Approximately at 7:30 o'clock on the evening of June 16, 1954, respondent, then 12 years and eight months old, was playing 'ditch', a form of hide-and-seek with other children around the building materials on said premises, and while doing so attempted to jump over a stack of panels but failed to clear the stack, came down on top of it, fell through the glass part of the panel and cut her ankle severely.

The court, among other things, found that appellants knew and realized that the condition of the panels containing glass involved a reasonable risk of death or serious bodily harm to children; that the appellants knew that children from the immediate neighborhood played upon the premises and around the piles of building materials; that respondent was attracted to the property of the appellants by reason of the location of the building materials. There is substantial evidence to sustain these findings. The record shows that the respondent had not previously played upon these premises and that she did not know it would be dangerous to do so. There is evidence that the panels were not covered by anything, nor were any warning signs posted on the premises. The record also shows that the cost of maintaining the frames in a safe condition would have been slight as compared to the risks to young children since it appears that the frames could have been kept covered with a 'tarp' or by placing some of the other materials on top of the pile.

The principal question presented on this appeal is whether or not the trial court erred in holding that respondent was entitled to recover damages under the doctrine of attractive nuisance.

While the general rule is that an owner owes no duty to trespassers upon his land to put or keep it in a reasonably safe condition for them there are exceptions to this rule. One of the exceptions runs in favor of trespassing children, if their trespass is foreseeable, if the condition of the premises involves an unreasonable risk of harm to them in view of their immaturity, and if the burden of rectifying the condition is slight in comparison with its usefulness and the magnitude of the risk. Marino v. Valenti, 118 Cal.App.2d 830, 842, 259 P.2d 84.

In Restatement of the Law of Torts, Section 339, we find the exceptions stated this way:

'A possessor of land is subject to liability for bodily harm to young children trespassing thereon caused by a structure or other artificial condition which he maintains upon the land, if (a) the place where the condition is maintained is one upon which the possessor knows or should know that such children are likely to trespass, and (b) the condition is one of which the possessor knows or should know and which he realizes or should realize as involving 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 in it or in coming within the area made dangerous by it, and (d) the utility to the possessor of maintaining the condition is slight as compared to the risk to young children involved therein.'

The rule in California is substantially as stated in Restatement. Long .v Standard Oil Co., 92 Cal.App.2d 455, 464-467, 207 P.2d 837; Marino v. Valenti, supra; Large v. Williams, 154 Cal.App.2d 315, 315 P.2d 919; Copfer v. Golden, 135 Cal.App.2d 623, 627-628, 288 P.2d 90.

A duty rested on appellants to protect young and heedless children from themselves and guard them against peril that reasonably might have been foreseen. Whether appellants knew or should have known that children were likely to trespass upon the premises, whether it was inherently dangerous to them if they played or jumped on the frames, whether the appellants should have foreseen such an accident as occurred and whether appellants exercised due care were all questions to be decided by the trial court. Copfer v. Golden, supra; Marino v. Valenti, supra; Roberts v. Del Monte...