Greene v. Di Fazio

• Decision Date: 23 May 1961
• Citation: 171 A.2d 411,148 Conn. 419
• Court: Connecticut Supreme Court
• Parties: William D. GREENE, Administrator (ESTATE of Maurice S. GREENE) v. Pasquale DI FAZIO et al. Supreme Court of Errors of Connecticut

Page 411

171 A.2d 411

148 Conn. 419

William D. GREENE, Administrator (ESTATE of Maurice S. GREENE) v. Pasquale DI FAZIO et al.

Supreme Court of Errors of Connecticut.

May 23, 1961.

Kevin T. Gormley, New Haven, with whom, on the brief, was Martin E. Gormley, New Haven, for appellants (defendants).

Clarence A. Hadden, New Haven, with whom were David C. Hadden, New Haven, and, on the brief, William L. Hadden, New Haven, and Joseph N. Perelmutter, Seymour, for the appellee (plaintiff).

Before BALDWIN, C. J., and KING, MURPHY and SHEA, JJ., and ALCORN, Superior Court Judge.

MURPHY, Associate Justice.

Maurice Greene, the plaintiff's decedent, was nine years old when he fell from the second story into the cellar of a house being constructed by the defendants. He was attempting to walk across a plank laid over an open stair well, to reach a ladder running to the first floor. He died as a result of the injuries sustained. The jury returned a verdict for the plaintiff to recover damages for the boy's death. The trial court refused to set the verdict aside. The defendants have appealed from the judgment rendered on the verdict. Error has been assigned in the failure of the court to set aside the verdict and in denying the defendants' motion for judgment notwithstanding the verdict. The same principles are to be applied in the review of the court's action on each motion. Maltbie, Conn.App.Proc. § 208.

The defendants alleged contributory negligence and assumption of risk as special defenses. They claim that under the facts in this case each applied as a matter of law. The facts, which are not disputed, may be summarized as follows: The defendants were engaged in the construction of a number of houses in a housing project in Seymour. On September 19, 1958, about 7 p. m., Maurice, a bright, intelligent boy, called from a window on the second floor of a partly completed two-story house to a thirteen-year-old boy, a neighbor, who was walking outside. Maurice said that he was afraid to come down. The neighbor entered the house through a first-floor doorway and climbed a ladder placed in the stair well between the first and second floors. He saw Maurice standing a step or two from the opening on the second floor. The upper end of the ladder was resting against a permanent beam which extended across the center of the stair well. A plank adjacent to the ladder spanned one-half of the opening--a distance of about four feet--from the beam to the flooring of the second floor. Maurice, after saying that he was afraid to cross, started over the plank toward his friend on the ladder; he took about two steps and fell through the opening into the cellar. He had covered about one-third of the distance of four feet when he fell. It was getting dark, but the friend standing on the ladder could see Maurice and what was on the second floor. He did not know what caused Maurice to fall. After the accident, the plank was found with one end resting on the first floor and the other end leaning against the beam at the second-floor level.

The defendants concede that there was sufficient evidence from which the jury could have concluded that the defendants knew or reasonably should have known that children in the neighborhood were in the habit of entering the buildings and playing in and about them after the workmen had left. This case is therefore distinguishable from Attardo v. Ambriscoe, 147 Conn. 708, 166 A.2d 458, a somewhat similar case, in which the action of the trial court in setting aside a verdict for the plaintiff was sustained because there was no evidence from which the jury could have found that the defendant had either actual or constructive knowledge that children played on the property.

Maurice was a trespasser on this property. One in possession of property ordinarily owes no duty to trespassers, either infant or adult, to keep the property in a reasonably safe condition for their use, since he may properly assume that they will not be there. When, however, as in this case, the possessor knows or should know that children are in the habit of trespassing on a part of the property on which he maintains a condition which is likely to be dangerous to them, he may be held liable for harm resulting to them therefrom. Wolfe v. Rehbein, 123 Conn. 110, 113, 193 A. 608. In that case, we adopted the rule which is stated in the Restatement, 2 Torts § 339. It subjects the possessor of property to liability for harm caused to young children trespassing thereon by a condition which he maintains if (a) he knows or should know that young children are likely to trespass; (b) the condition is one of which he knows or should know and which he realizes or should realize involves an unreasonable risk of serious injury to such children; (c) the children because of their immaturity 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 the children.

In addition to the facts which have been stated heretofore, there was evidence that the door and window openings of the house had not been barricaded, that the property was unguarded, and that on the outside of the house there was a ladder, extending from the ground to a scaffolding at the second-floor level, which other boys in the neighborhood had ascended and descended and by means of which they had entered and left the house through the window openings off the scaffolding. The defendants argue that provisions (b), (c) and (d) of the rule have not been met and that therefore the jury should not have found against them. No error has been assigned by them in the charge to the jury. It must therefore be assumed that the jury were properly instructed on the applicable principles of law and that they followed those principles. Salvatore v. Hayden, 144 Conn. 437, 440, 133 A.2d...