Hartsock v. Forsgren, Inc.

• Decision Date: 25 February 1963
• Docket Number: No. 5-2918,5-2918
• Citation: 236 Ark. 167,365 S.W.2d 117
• Parties: Norma Evelyn HARTSOCK, Individually and as Next Friend, Appellant, v. FORSGREN INCORPORATED, Appellee.
• Court: Arkansas Supreme Court

Page 117

365 S.W.2d 117

236 Ark. 167

Norma Evelyn HARTSOCK, Individually and as Next Friend, Appellant, v. FORSGREN INCORPORATED, Appellee.

No. 5-2918.

Supreme Court of Arkansas.

Feb. 25, 1963.

Sexton & Morgan, Ft. Smith, for appellant.

Shaw, Jones & Shaw, Ft. Smith, for appellee.

GEORGE ROSE SMITH, Justice.

This is an action brought by the appellant, individually and as the next friend of her minor son, Billy Avery Faulkner, to recover damages for personal injuries suffered by the child. The circuit court sustained a demurrer to the complaint and dismissed the suit. The only question is whether the plaintiff's pleading states a cause of action for negligence.

The complaint avers that the defendant, in the course of its business, maintained a large tank for the storage of tar. Despite repeated protests (presumably by the plaintiff or other neighbors), the defendant allowed the tar to spill over, so that it flowed from the defendant's premises into an area where the plaintiff's son and other members of the public were accustomed to walk and play.

On July 7, 1961, Billy Avery, then nine years old, walked into the tar to such a depth that his feet were covered up to his ankles. When the child reached his home his parents, 'upon seeing the tar on his feet and recognizing the necessity that all of the same promptly be removed therefrom, did attempt to remove the same in the most prudent and careful manner possible by taking said child into the middle of their back yard to remove said tar by the use of gasoline, the only effective cleaning substance available at the time.' While the parents were so engaged a second child ran into the yard and unexpectedly exploded a cap-pistol cap, creating a spark that ignited the gasoline fumes and resulted in serious burns to Billy Avery's legs.

The circuit court was right in sustaining the demurrer, for the facts do not show that the child's injuries were proximately caused by negligence on the part of the defendant. We reach this conclusion whether we devote out attention primarily to the question of negligence or to that of proximate cause. The two things, as we observed in Hill v. Wilson, 216 Ark. 179, 224 S.W.2d 797, shade into each other. We need not now attempt to draw fine lines of distinction.

To be negligent a person must be in a position to realize that his conduct involves a hazard to others. In the Hill case we described a negligent act as 'one from which an ordinary prudent person in the actor's position--in the same or similar circumstances--would foresee such an appreciable risk of harm to others as to cause him not to do the act, or to do it in a more careful manner.' Later, in Collier v. Citizens Coach, Co., 231 Ark. 489, 330 S.W.2d 74, we added: 'Foreseeability is an element in the determination of whether a person is guilty of negligence and has nothing whatever to do with proximate cause.' Moreover, when the voluntary acts of human beings intervene between the defendant's act and the plaintiff's injury, the problem of foreseeability is still the same: 'Was the third person's conduct sufficiently foreseeable to have the effect of making the defendant's act a negligent one? Harper & James, The Law of Torts, § 20.5; Rest., Torts, § 447.

This defendant, in allowing tar to overflow into an area used as a playground, could be charged with the duty of...