Gerchberg v. Loney, 48241

• Decision Date: 11 March 1977
• Docket Number: No. 48241,48241
• Parties: Rolf GERCHBERG, by his father and next friend, Ralph Gerchberg, Appellant, v. Rodney LONEY, a minor, et al., Appellees.
• Court: Kansas Court of Appeals

Page 464

562 P.2d 464

1 Kan.App.2d 84

Rolf GERCHBERG, by his father and next friend, Ralph Gerchberg, Appellant, v. Rodney LONEY, a minor, et al., Appellees.

No. 48241.

Court of Appeals of Kansas.

March 11, 1977.

Syllabus by the Court

1. A licensee entering upon the premises of another is only entitled to the occupier of the land avoiding willful, intentional or reckless injury to said party.

2. An exception to the general rule in paragraph 1 relates to attractive nuisance.

3. The doctrine of attractive nuisance is based upon the negligence of an occupier of land who fails to protect young children attracted to premises by some dangerous thing or place artificially created and maintained, when said occupier should have anticipated that children would be lured into the danger.

4. An essential element of the doctrine of attractive nuisance is that the danger must be latent or concealed, but a latent hazard extends not only to things hidden from the eye, but to things and conditions hidden from the appreciation of and not understood by children who might be injured. (Following Albanese v. Edwardsville Mobile Home Village, Inc., 215 Kan. 826, 529 P.2d 163.)

5. A motion for directed verdict may not be sustained unless the evidence is insufficient to support a verdict for the party against whom it is directed. In considering its propriety, the evidence, and all inferences that may reasonably be drawn therefrom, must be considered in the light most favorable to that party. (Following Carter v. Food Center, Inc., 207 Kan. 332, 485 P.2d 306.)

6. In a personal injury action wherein a five-and-one-half-year-old boy was seriously burned, the record on appeal is examined, and for reasons set out in the opinion, it is held: The trial court committed reversible error in sustaining defendants' motion for directed verdict.

John W. Lungstrum, of Stevens, Brand & Lungstrum, Lawrence, for appellants.

J. H. Eschmann, of Ascough, Bausch & Eschmann, Topeka, for appellees.

En Banc.

SWINEHART, Judge:

This case was submitted to the trial court by the parties and attorneys stipulating that the court would have before it at the close of plaintiff's evidence those facts found in the depositions of Ralph Gerchberg, Louise Gerchberg, Mrs. Roy Loney, Sr., Cleo Williams; interrogatories of Rodney Loney and Charles Loney; and the affidavit of Rolf Gerchberg. All the documents are of record. Additionally, it was stipulated that the plaintiff, a minor, would testify:

'. . . (H)e was attracted to the Loney property at the time and on the date in question by smoke coming from the open barrel on the Loney property; he initially saw no flames coming from the barrel and he was too short to see into the barrel without standing on his tip toes; upon coming to the barrel he picked up some papers from the stack beside the barrel and put them over the side into the barrel as he had seen Rodney Loney do; although he still saw no flames, he saw an increase in the amount of smoke coming from the barrel; he again picked up papers from the stack beside the barrel, stood on his tip toes to drop them into the barrel and as he dropped the papers into the barrel he saw flames for the first time inside the barrel, coming up the sides of the barrel; and he did not understand the danger involved in the conduct in which he was engaged; and, moreover, with the further exception that additional testimony would be presented concerning the extent, nature and gravity of the injuries and damages alleged to have been suffered by the plaintiff in this matter.'

The trial court then considered the case on these facts and defendants' motion for directed verdict at the close of plaintiff's evidence. The trial court sustained defendants' motion for directed verdict under K.S.A. 60-250. The trial court found the following to be the facts and conclusions of law:

'1. On and prior to March 14, 1970, the Roy Loneys kept a 55-gallon metal barrel which they used as an incinerator and which was located on the Loney side of the concrete paved alley which lies behind the Gerchberg home located at 926 Indiana and the Loney home located at 927 Louisiana.

'2. At all times relevant hereto, Mr. and Mrs. Roy Loney owned a life estate in the property at 927 Louisiana which property was occupied by the Roy Loneys, by their son, Charles Loney, and by his son, Rodney, who is the grandson of the Roy Loneys. All of the Loneys just mentioned are defendants in this case. On March 14, 1970, Rodney Loney was ten years of age.

'3. At all times relevant hereto the home at 926 Indiana was occupied by plaintiff, Rolph Gerchberg, and his parents, Ralph and Louise Gerchberg. On March 14, 1970, plaintiff was five and a half years of age.

'4. For some time prior to March 14, 1970, plaintiff frequently played with Rodney in the Loney backyard. In order to get out of his backyard plaintiff would either climb the fence by which it was enclosed or he could exit through a gate to the driveway and then through the carport to the alley.

'5. On March 14, 1970, Mrs. Loney asked Rodney to burn the papers which had been accumulated in a box at the Loney home and when Rodney went to the incinerator carrying the box of papers, plaintiff came over and helped and watched Rodney burn papers for a while and then left to go with his mother to pick up a friend, Mark Albertson, who was coming over to plaintiff's home to play. As plaintiff's mother drove into the alley with plaintiff to go after plaintiff's friend it was about 10:30 a. m. and smoke was coming from the Loney's incinerator. When plaintiff's mother returned with plaintiff and his friend Mark, she drove into the Gerchberg driveway off of Indiana Street and parked in the carport near the alley where she and the boys got out of the car following which she told them to play in the Gerchberg yard and went on into the house. Shortly after plaintiff left the Loney incinerator to go after his friend, Rodney left the Loney place with his father. At the time Rodney left with his father the paper placed in the incinerator by Rodney had burned down but was still smoking.

'6. About thirty minutes after plaintiff and his friend Mark arrived at the Gerchberg home on March 14, 1970, plaintiff decided to go back to the Loney incinerator after noticing smoke coming therefrom. Upon coming to the barrel used as an incinerator plaintiff tried to look in and by standing on his toes could see no flame. Plaintiff then picked up some papers from the box beside the barrel and put them over the side into the barrel as he had seen Rodney do. This produced more smoke but no flame after which plaintiff again picked up papers from the box beside the barrel, stood on his tip toes to drop them into the barrel and as he did this he saw flames for the first time inside the barrel, coming up the sides of the barrel.

'7. Shortly after plaintiff saw flames coming up the sides of the barrel, the grass in the Loney backyard and plaintiff's trousers caught fire. Plaintiff then ran to the back screen door of the Loney home and shouted fire, fire, fire. At this time no one was at the Loney home except Mrs. Loney. Mrs. Loney was and is an elderly lady whose left eye had been removed and whose vision out of her right eye was so impaired that she could 'see only about five feet and see who people were.' When Mrs. Loney heard plaintiff at the door she grabbed a mop or a broom and left the kitchen via the back porch for her backyard. Prior to this Mrs. Loney asked plaintiff who started the fire and plaintiff said 'I did, Mrs. Loney, I did.' On the day in question Roy Loney was out of the state on a preaching mission for his church.

'8. When Mrs. Loney reached her backyard there were many small fires throughout the grass in that area and she set about trying to put them out not observing that plaintiff's trousers were on fire or that he needed help. About this time Mr. Williams, who was working on a project in his backyard, which is immediately north of Gerchberg's, heard plaintiff cry out and observing smoke and fire, Mr. Williams hurried to the Loney backyard where he quickly removed the burning trousers from plaintiff at about which time plaintiff's mother arrived on the scene, and with Mr. Williams' help, carried plaintiff into the Gerchberg home. Neither Mrs. Gerchberg nor Mr. Williams said anything to Mrs. Loney nor did she speak to them while plaintiff's trousers were being removed and plaintiff was being carried out of the Loney backyard. Mrs. Loney had been unaware that plaintiff's trousers were on fire or that plaintiff needed help until she saw Mr. Williams and Mrs. Gerchberg in her backyard.

'9. Through the years many of the residents in the 900 block of Indiana and Louisiana including the Loneys had used incinerators of the type used by the Loneys along the alley for the purpose of burning trash. However on and for some time prior to March 14, 1970, the Gerchbergs and the Williamses had not burned trash on their premises. The Ordinances cited and relied upon by counsel are incorporated herein by reference thereto. On and prior to March 14, 1970, plaintiff and other children in the neighborhood had been welcome to play with Rodney in the Loney yard.

'10. How the fire got out of the incinerator and into the grass and onto plaintiff's pants is not clear. Plaintiff says the wind blew burning trash from the barrel which ignited the grass and his pants and, although most of the evidence places the wind velocity in the moderate category, it is likely that the burning papers got out of the barrel initially by plaintiff removing them as a reaction to the flame which he saw as he was putting more papers in when the first paper he had inserted had only increased the amount of smoke. In any event after the burning paper got out of the barrel it set fire to the grass, the remaining unburned paper in the box which Rodney had carried out, and the sticks which were used to stir the paper...