Hayes v. Criterion Corp., 75--1573
| Decision Date | 06 October 1976 |
| Docket Number | No. 75--1573,75--1573 |
| Citation | 337 So.2d 1026 |
| Parties | Leayres HAYES, as Administrator of the Estate of Bruce L. Hayes, Deceased, Appellant, v. The CRITERION CORPORATION (formerly known as Lamonte-Shimberg Corporation) et al., Appellees. |
| Court | Florida District Court of Appeals |
Bill Wagner of Wagner, Cunningham, Vaughan, May & Genders, Tampa, Robert Orseck of Podhurst, Orseck & Parks, and Susan Goldman, Miami, for appellant.
John R. Bush, of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellee Lamonte-Shimberg Corp.
Timothy F. Prugh and Benjamin H. Hill of Shackleford, Farrior, Stallings & Evans, Tampa, for appellee Hillsborough County.
This is an appeal from a judgment entered upon a directed verdict for the defendants in a wrongful death action.
The accident which resulted in the death of Bruce Hayes occurred in a drainage ditch adjacent to a subdivision in which Bruce lived. The defendant, Criterion Corporation, had constructed the ditch at the time of developing the subdivision and then dedicated it to the public. The defendant, Hillsborough County, had accepted the ditch for purposes of maintenance. Criterion Corporation owned land on both sides of the ditch, but the land beyond the ditch was entirely unimproved at the time the accident occurred. Criterion had erected a chain link fence between the subdivision and the ditch, but there was no fence on the opposite side of the ditch facing the open field.
The ditch was anywhere from four to seven feet deep. Due to erosion, one side of the ditch consisted of loose dirt and at certain points the side slightly overhung at the top. At the time of Bruce's death, the ditch contained little or no water. By climbing over the fence or by going around it at the point where it intersected a street, children from the subdivision from time to time played in the open field and dug in the ditch. While there was no evidence that any of the defendants' employees had seen children in the ditch, Criterion's construction manager admitted that children did sometimes dig in the various drainage ditches in Criterion's land development projects. Criterion had some protable construction trailers located within view of the ditch.
On the day of the accident, several children had been digging in the ditch. Some of the older children had dug a tunnel about five feet deep. When the tragedy occurred, Bruce, who was nine years old, and his eight year old friend, George, were the only children remaining in the ditch. According to George, Bruce was digging with a shovel in a tunnel which had already been started by some of the other children. It is not clear whether this was the five foot tunnel described by the other boys, but in any event, the tunnel in which Bruce was digging was large enough to hold three boys. George suddenly looked up and saw the dirt above Bruce collapse over him. Despite his efforts, he was unable to pull Bruce free from the dirt, and Bruce was suffocated. George said that the side of the ditch did not overhang at the point where Bruce was digging in the tunnel.
The dispositive issue on this appeal is whether the drainage ditch constituted an attractive nuisance. Our examination of the record, including the pictures of the ditch, and our study of the law leads us to the conclusion that the ditch was not an attractive nuisance.
In Cockerham v. R. E. Vaughan, Inc., Fla.1955, 82 So.2d 890, our Supreme Court adopted the following rule prescribed by Section 339 of the Restatement of Torts as applicable to the doctrine of attractive nuisance: 1
'A possessor of land is subject to liability for bodily harm to young children trespassing thereon caused by a structure or other artificial condition which he maintains upon the land, if
'(a) the place where the condition is maintained is one upon which the possessor knows or should know that such children are likely to trespass, and
'(b) the condition is one of which the possessor knows or should know and which he realizes or should realize as involving an unreasonable risk of death or serious bodily harm to such children, and
'(c) the children because of their youth 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 young children involved therein.'
In Edwards v. Maule Industries, Inc., Fla.App.3d 1962, 147...
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