Genovese v. New Orleans Public Service

• Decision Date: 10 April 1950
• Docket Number: No. 19384,19384
• Citation: 45 So.2d 642
• Parties: GENOVESE v. NEW ORLEANS PUBLIC SERVICE, Inc., et al.
• Court: Court of Appeal of Louisiana — District of US

Page 642

45 So.2d 642

GENOVESE v. NEW ORLEANS PUBLIC SERVICE, Inc., et al.

No. 19384.

Court of Appeal of Louisiana, Orleans.

April 10, 1950.

Herman and Herman, New Orleans, for plaintiff and appellant.

Alvin R. Christovich, Wm. W. Ogden, New Orleans, for New Orleans Public Service, Inc., defendant and appellee.

John May, John E. Hurley, New Orleans, for Boh Bros. Const. Co., and Travelers Ins. Co., defendants and appellees.

Deutsch, Kerrigan & Stiles and Breard Snellings, New Orleans, for Lang Co., defendant and appellee.

Rosen, Kammer, Wolff, Hopkins & Burke, New Orleans, for Clement Betpouey, Jr. & Co. and Maryland Casualty Co., defendants and appellees.

JANVIER, Judge.

Mrs. Dorothy Adams, divorced wife of George M. Daniels, and wife of Joseph Genovese, as tutrix of her five and one-half year old minor son, James Robert Daniels, brought this suit for damages on her own behalf, and for the use and benefit of her said minor son, against New Orleans Public Service, Inc., Boh Brothers Construction Company, Lang Company, andClement Betpouey, Jr. & Company, and the liability insurers of the last three named defendants. She based her claim on the allegation that her son lost his eye as the result of being hit by a rail spike, thrown at him by another minor, Junior Cecil Prowell, age five.

The cause of action is based on the alleged fact that the various defendants (not including the insurers) were responsible for the presence of the rail spike which constituted an 'attractive nuisance,' and which, with numerous others, was left on one of the streets of New Orleans where the various defendants were engaged in removing tracks of New Orleans Public Service, Inc.

While Article 2317 of the Civil Code is not referred to in the petition, it is contended that the said defendants are liable not only because the spikes constituted attractive nuisances but also because of the mere fact that they owned or controlled the said spikes, it being argued that because of this, liability results since that article provides that: 'We are responsible, not only for the damages occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody. * * *'

It is charged that New Orleans Public Service, Inc. was making preparation for the substitution of busses to take the place of rail street cars on Jackson Avenue, and that it had entered into a contract with the firm of Boh Brothers Construction Company to remove the tracks and cross-ties, and that this defendant and the other contractors named were engaged in various phases of this work, including the re-surfacing of Jackson Avenue, the putting in of drainage, etc.

It is especially alleged that large quantities of rail spikes were removed from the cross-ties, and that those spikes were not taken from the street and that some of them were being used by some of the contractors as stakes outlining the work which was being done on Jackson Avenue and on Rousseau Street which crosses Jackson Avenue. It is not alleged in detail just what particular part of this work each of the defendants was engaged in performing.

The negligence charged against the defendants is that they permitted these spikes to remain on the street where they might be played with by the young children of the neighborhood, in spite of the fact that to the knowledge of the various defendants, the spikes were inherently dangerous, and in spite of the fact that the defendants had been warned that the children were making use of them as toys, improvising javelins and spears which they threw at one another, and that they used them as hammers. It is alleged that the children were not of sufficient age to realize the danger of making such use of these spikes, and that on various occasions these dangerous practices were called to the attention of the agents or employees of the several contracting defendants.

It is especially charged that one of the children of the neighborhood, young Prowell, with one of these spikes struck petitioner's son in the right eye, so badly damaging it that it became necessary that it be removed.

All of the defendants filed exceptions of no right of action and no cause of action based on two grounds,--(1) that there was no actionable negligence in leaving such spikes on the streets, for the reason that such spikes are not within the category of things inherently dangerous which may be called attractive nuisances, and (2) that the accident to plaintiff's son was not the proximate result of the fact that the spikes were left on the street, but was the direct result of an unforeseen and unforeseeable intervening act of a third person.

These exceptions were sustained and the suit was dismissed. Plaintiff has appealed.

We repeat that the contention of plaintiff is that the petition states a cause of action for either or both of two reasons--(1) that, under the circumstances recited, the spikes constituted attractive nuisances, and (2) that in any event there is liability because of the effect of Article 2317 which, counsel for plaintiff contend, creates liability for damage caused by 'the things which we have in our custody.' The point sought to be made in this second contention is that the mere fact of ownership or control of an object, which causes damage, fixes liability for anything which may be caused by the use of the said object and this, regardless of whether the said object is inherently dangerous.

We find no force whatever in this second contention and shall eliminate it from further consideration by merely stating that obviously there can be no liability which results from mere ownership of a perfectly harmless object unless, for some peculiar reason of which the person who owns it or controls it should have knowledge, there is liability because of some peculiarly dangerous characteristic which is not understood by the person who may come into contact with it. As a matter of fact it is our thought that the doctrine of attractive nuisance is itself based on such a premise as that which is found in Article 2317, and surely there is no liability under the attractive nuisance doctrine when the object owned or controlled has not in it some quality which may make it dangerous if used in a particular way by some one who may not be familiar with it, or may not have sufficient intelligence to under stand the probable danger which may result if it is so used.

We conclude then that unless the doctrine of attractive nuisance is applicable to the facts alleged in the petition, there can be no liability in any or all of the defendants merely because of the allegation that any or all of them owned or had custody of the spikes.

Counsel for the various defendants argue that in Louisiana and in most, if not all other jurisdictions, it has been held almost universally that the attractive nuisance doctrine has no application unless the object, which is pointed to as the attractive nuisance, has a latent characteristic which constitutes a hidden or not appreciated danger. They contend that the doctrine is only applied in such cases as that of an engine or a machine which may be set in motion by a child, a dynamite cap, gun powder, a turn table, poisons of various kinds, etc. They say that such objects as hammers, nails, spikes, baseball bats, pebbles and rocks have no hidden dangers and that no objects such as these can be characterized as attractive nuisances. Counsel seek to illustrate the distinction between those two groups of objects, one of which is represented by the hammer, the other by the dynamite cap. They say that if a child picks up a hammer and, with it, strikes another, there is no liability under the attractive nuisance doctrine, but if the child uses the hammer to strike a dynamite cap and, as a result of the resulting explosion, some one is injured, there may be liability under the doctrine, not because of the use of the hammer, which is not inherently dangerous and has no characteristics of an attractive nuisance, but because by the use of the hammer the dynamite cap was exploded, which dynamite cap obviously has hidden dangerous characteristics concerning which a young child certainly would have no knowledge.

Counsel for plaintiff counter with the contention that even if this may be ordinarily a sound argument, nevertheless there are other situations in which, by the doctrine of attractive nuisance, there may be created liability. They say that, if a perfectly harmless object is customarily used in a way which is dangerous to children and this use is, or ought to be known, there is liability in one who permits such objects to remain where children may obtain possession of them.

Counsel for defendant point to various text-writers and various cases as supporting the view that there can be no liability unless the object from which the danger results has inherently dangerous characteristics. They cite American Jurisprudence, Volume 38, Verbo Negligence, section 149, page 815:

'The character of the instrumentality by which the injury complained of was received is of great importance in determining liability under the attractive nuisance doctrine.

* * *

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'* * * The fact that a thing is attractive to children is not of itself a ground for invoking the attractive nuisance doctrine. Clearly, not everything which may possibly excite the curiosity of a child amounts to an attractive nuisance. If everything containing some element of danger to a boy, of which a plaything possibly can be made by him, amounts to an attractive nuisance, there is almost no limit to the application of the doctrine. * * * The tendency of the courts is to exclude from the application of the attractive nuisance doctrine things not in their nature dangerous or peculiarly alluring or attractive to children, natural conditions, common or ordinary objects such as walls, fences, and gates, simple tools and appliances, and...