Gerchberg v. Loney

Decision Date25 February 1978
Docket NumberNo. 48241,48241
Citation223 Kan. 446,576 P.2d 593
PartiesRolf GERCHBERG, by his father and next friend, Ralph Gerchberg, Appellant, v. Rodney LONEY, a minor, Roy Loney, Mrs. Roy Loney, and Charles Loney, Appellees.
CourtKansas Supreme Court

Syllabus by the Court

1. In a negligence action involving burn injuries to a five-year-old boy while on the premises of the defendants the record on review is examined and it is held : The plaintiff's evidence was sufficient to submit the case to a jury on the theory of attractive nuisance, and the Court of Appeals properly reversed the judgment for defendants and remanded the case for trial.

2. In an action to recover for physical harm to a five-year-old licensee caused by a known dangerous condition on premises the traditional classification of and duty to a licensee are examined and the same are retained in this state.

John W. Lungstrum, of Stevens, Brand & Lungstrum, Lawrence, argued the cause and was on the brief for appellant.

J. H. Eschmann, of Ascough, Bausch & Eschmann, Topeka, argued the cause and was on the brief for appellees.

FROMME, Justice:

Rolf Gerchberg, a five year old boy, received burn injuries while playing on the premises of the neighbors, Mr. and Mrs. Roy Loney. At the close of plaintiff's evidence the district court directed a verdict in favor of defendants. The Court of Appeals reversed the judgment and remanded the case for trial on the theory of attractive nuisance. See Gerchberg v. Loney, 1 Kan.App.2d 84, 562 P.2d 464.

The plaintiff-appellant urged the Court of Appeals to discard the traditional classification of trespassers, licensees and invitees, and to abolish the distinctions in our law as to the duty of care owed to each class. In place thereof he urged the court to adopt one duty of care owed to all who are on the premises of another, i.e., a duty of reasonable care under all facts and circumstances of the case. The Court of Appeals declined to do so and plaintiff-appellant sought review in this court.

The Court of Appeals determined that the evidence of plaintiff made a submissible case on the theory of attractive nuisance. The defendants-appellees sought review in this court on the attractive nuisance question.

This area of premises law is one in which the opinions of the justices have and continue to differ. See Brittain v. Cubbon, 190 Kan. 641, 647, 378 P.2d 141, and Frazee v. St. Louis-San Francisco Rly. Co., 219 Kan. 661, 667, 549 P.2d 561. The petitions for review were granted and the case has been heard in this court on the record, briefs, supplemental briefs, and with oral arguments as provided in Rule No. 8.03, Rules of the Supreme Court (220 Kan. xlvi).

After careful consideration of the case a majority of the members of this court approve the disposition of the case by the Court of Appeals and approve the opinion as written for the majority. We need not set forth herein our re-examination of the evidence or apply the law to those facts. Suffice it to say, the plaintiff Rolf Gerchberg, a five-year-old boy, received serious burns when he returned to an unattended smoldering fire in a barrel used by the defendants as an incinerator. Rodney Loney, the ten-year-old neighbor boy, had previously been directed to burn papers and had started the fire. Rolf was with him and saw Rodney place a stack of papers near the incinerator and start the fire. After a short while both boys left the premises. The fire had not been extinguished and was still smoldering on the Loney premises when Rolf returned to the barrel. He began putting the papers into the barrel. The fire blazed and his clothing caught on fire. Serious injuries resulted.

We feel the evidence introduced in the trial court made a submissible case on the theory of attractive nuisance. (Carter v. Skelly Oil Co., 191 Kan. 474, 382 P.2d 277.) A possessor of land is subject to liability for bodily harm to children intruding thereon caused by some condition that he maintains on the premises if:

(1) the possessor knows, or in the exercise of ordinary care should know, that young children are likely to trespass upon the premises, and

(2) the possessor knows, or in the exercise of ordinary care should know, that the condition exists and that it involves an unreasonable risk of bodily harm to young children, and

(3) the children because of their youth either do not discover the condition or understand the danger involved in coming into the dangerous area, and

(4) one using ordinary care would not have maintained the condition when taking into consideration the usefulness of the condition and whether or not the expense or inconvenience to the defendant in remedying the condition would be slight in comparison to the risk of harm to children.

The foregoing rules governing the liability of the possessor of premises in cases where a submissible case has been made under the theory of attractive nuisance have been adopted by this court and generally follow the Restatement of the Law, Second, Torts, § 339, p. 205. See Brittain v. Cubbon, supra.

Now let us turn our attention to plaintiff's argument that the traditional classification of trespassers, licensees and invitees should be discarded, and that the distinctions in our law covering the duty of care owed to each class be abandoned in favor of a single standard of reasonable care under the circumstances. Plaintiff contends there is no logical reason for protecting the possessor of premises by requiring his negligence to be wilful, wanton, or in reckless disregard for the safety of the trespasser or licensee before it is actionable.

Under the present law of Kansas a trespasser is one who enters on the premises of another without any right, lawful authority, or an express or implied invitation or license. The possessor of premises on which a trespasser intrudes owes a trespasser the duty to refrain from wilfully, wantonly, or recklessly injuring him. (Frazee v. St. Louis-San Francisco Rly. Co., supra. See also PIK 2d (Civil) 12.20 and 12.21.)

A licensee is one who enters or remains on the premises of another by virtue of either the express or implied consent of the possessor of the premises, or by operation of law, so that he is not a trespasser thereon. The possessor of premises on which a licensee intrudes owes a licensee the duty to refrain from wilfully or wantonly injuring him. (Graham v. Loper Electric Co., 192 Kan. 558, 561, 389 P.2d 750; Weil v. Smith, 205 Kan. 339, 469 P.2d 428. See also PIK 2d (Civil) 12.10 and 12.11.) The parties agree that Rolf Gerchberg was a licensee under the facts of this case.

Under the law in this jurisdiction a social guest has the status of a licensee and his host owes him only the duty to refrain from wilfully, intentionally, or recklessly injuring him. (Ralls v. Caliendo, 198 Kan. 84, Syl. P 1, 422 P.2d 862; Duckers v. Lynch, 204 Kan. 649, 465 P.2d 945.)

An invitee is one who enters or remains on the premises of another at the express or implied invitation of the possessor of the premises for the benefit of the inviter, or for the mutual benefit and advantage of both inviter and invitee. The possessor of premises on which an invitee enters owes a higher degree of care, that of reasonable or ordinary care for the invitee's safety. This duty is active and positive. It includes a duty to protect and warn an invitee against any danger that may be reasonably anticipated. (Weil v. Smith, supra, Syl. P 3; Graham v. Loper Electric Co., supra, p. 563, 389 P.2d 750. See also PIK 2d (Civil) 12.01A and 12.02.)

Under the law in this and other jurisdictions a child may be presumed conclusively incapable of contributory negligence. (Williams v. Davis, 188 Kan. 385, 390, 362 P.2d 641.) Children are not held to the same strict accountability to appreciate a danger and to care for themselves as persons of full age. (Weber v. Wilson, 187 Kan. 214, 220, 356 P.2d 659.) Therefore the attractive nuisance exception has been recognized to accommodate for a child's incapacity to understand and appreciate the possible dangers to which he may be attracted. The exception is not new in Kansas and was recognized as early as 1878 in the case of K. C. Rly. Co. v. Fitzsimmons, 22 Kan. 686, 31 A.R. 203.

The traditional classification of trespassers, licensees and invitees and the distinctions as to the duty of care owed to each came to this country with the common law and has been applied generally in this country. This system of classification which began in England was first discarded by that country in 1957 by way of a statute which imposed the same duty of care to licensees and invitees. The statute declared that the possessor of premises owes the same "common duty of care" to both, with reasonable care modified according to the circumstances of the entry. (Occupiers' Liability Act, 5 & 6 Eliz. 2, c. 31. Discussed in Prosser, Law of Torts, 4th Ed., Ch. 10, § 62, p. 398.)

In considering the question of whether this state should discard all classifications and distinctions two things should be noted concerning the change in England. First, the change to a common duty of reasonable care did not extend to trespassers and second, the use of a jury in negligence actions had virtually disappeared in England and these actions were being tried to the court.

In the nine or ten states in this country which have discarded the traditional classifications it was concluded that their courts were confused by the classifications and would be better able to instruct their juries in premises cases if the standard of reasonable care were required under all circumstances. It was generally agreed in those states that a jury should determine the circumstances which would relieve a possessor of premises from liability to a trespasser, an invitee and a licensee. We doubt the validity of those conclusions. It should be kept in mind that in England negligence cases are tried to the court without a jury. This is not so in the...

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  • Heins v. Webster County, S-94-713
    • United States
    • Nebraska Supreme Court
    • August 23, 1996
    ...lower the standard of care that is now owed to invitees and produce inconsistent, unpredictable rules of law. See Gerchberg v. Loney, 223 Kan. 446, 576 P.2d 593 (1978). Furthermore, the Gerchberg court opined that to abolish the classifications would give unbridled discretion to the The mos......
  • Beck v. Kansas Adult Authority
    • United States
    • Kansas Supreme Court
    • March 27, 1987
    ...upon the premises of which the Medical Center knew, or should have known by the exercise of ordinary care. See Gerchberg v. Loney, 223 Kan. 446, 576 P.2d 593 (1978). Before a governmental entity can be liable for damages, there must be (1) a negligent or wrongful act or omission by one of i......
  • Kessler v. Mortenson
    • United States
    • Utah Supreme Court
    • December 5, 2000
    ...(abolishing the invitee-licensee distinction but retaining "uninvited licensee" and trespasser distinctions); compare Gerchberg v. Loney, 223 Kan. 446, 576 P.2d 593 (1978) (citing section 339 of the Restatement (Second) of Torts, but setting forth a four-pronged rule similar to the first Re......
  • Bowers v. Ottenad
    • United States
    • Kansas Supreme Court
    • December 5, 1986
    ...County Community Jr. College, 230 Kan. 502, 638 P.2d 914 (1982); Zuther v. Schild, 224 Kan. 528, 581 P.2d 385 (1978); Gerchberg v. Loney, 223 Kan. 446, 576 P.2d 593 (1978); Frazee v. St. Louis-San Francisco Rly. Co., 219 Kan. 661, 549 P.2d 561 (1976). We see nothing to be gained by rehashin......
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1 books & journal articles
  • Landowners Beware the Current Status of Premises Liability in Kansas
    • United States
    • Kansas Bar Association KBA Bar Journal No. 64-01, January 1995
    • Invalid date
    ...P.2d 561 (1976). [FN4]. 254 Kan. at 503; Grabam v. Loper Electric Co., 192 Kan. 558, 561, 389 P.2d 750 (1964). [FN5]. Gerchberg v. Loney 223 Kan. 446, 449, 576 P.2d 593 (1978), quoted in Jones, 254 Kan. at 503. [FN6]. 254 Kan. at 502. [FN7]. 254 Kan. at 509-10. The Court's prediction that t......

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