Helguera v. Cirone

• Court: California Court of Appeals
• Writing for the Court: KAUFMAN
• Citation: Helguera v. Cirone, 3 Cal.Rptr. 64, 178 Cal.App.2d 232 (Cal. App. 1960)
• Decision Date: 23 February 1960
• Parties: John HELGUERA, Jr., a Minor, by and through his Guardian ad Iitem, Jennie Helguera, and Jennie Helguera, Plaintiffs and Appellants, v. Joseph B. CIRONE, Defendant and Respondent. Civ. 18723.

Page 64

3 Cal.Rptr. 64

178 Cal.App.2d 232

John HELGUERA, Jr., a Minor, by and through his Guardian ad Iitem, Jennie Helguera, and Jennie Helguera, Plaintiffs and Appellants, v. Joseph B. CIRONE, Defendant and Respondent.

Civ. 18723.

District Court of Appeal, First District, Division 2, California.

Feb. 23, 1960.

W. Frank Butters, San Jose, for appellants.

L. A. Fonnesbeck, Sunnyvale, for respondent.

KAUFMAN, Presiding Justice.

Plaintiffs brought this action for damages for personal injuries sustained by their 7 year old son when he fell from a defective scaffolding on a building owned and constructed by the defendant. A general demurrer to the first amended complaint was sustained without leave to amend, and plaintiffs have appealed from the ensuing judgment.

The allegations of the complaint may be summarized as follows: On or about April 6, 1958, defendant owned and was constructing a building at 149 Sutter Street in San Jose. A scaffolding along one side of the building was placed in close proximity to an overhang which protruded from the front of the building. The platform of the scaffold at the juncture with the overhang was defective and loose and there was no guard rail along the scaffold. Under the juncture of the scaffold and the overhang, there were open holes and excavations littered with rubbish and debris, which were an invitation to the minor children of the neighborhood, including the minor plaintiff, who entered thereon and played. The complaint further alleged that the premises were so negligently and carelessly owned, constructed and maintained by the defendant that they were dangerous to children playing thereon as was known or should have been known to the defendant but not the 7 year old plaintiff, and were an attractive nuisance. The usefulness of maintaining the scaffold, etc., was slight as compared with the risk involved, and reasonable safeguards could have been provided at small cost. The first and second causes of action of the first amended complaint are based on the theory of attractive nuisance; the third and fourth on the theory of liability in the case of habitual or constant trespass on a limited area and defendant's maintenance of a concealed danger or trap. The only question on this appeal is whether the first amended complaint states a cause of action against the defendant.

The rule set forth in section 339 of the Restatement of Torts has been adopted as the law of this state with respect to the liability of a possessor of land for injury to a child trespasser. Courtell v. McEachen, 51 Cal.2d 448, 334 P.2d 870; Reynolds v. Willson, 51 Cal.2d 94, 331 P.2d 48; Garcia v. Soogian, 52 Cal.2d 107, 338 P.2d 433. Section 339 of the Restatement reads: '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 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.'

The precise question here presented has not been determined in this state. In Pennsylvania which also has adopted the criteria of section 339, it has been consistently held that in situations involving a fall from a stationary object, the third condition was not been met. Kravetz v. B. Perini & Sons 3 Cir., 1958, 252 F.2d 905; McHugh v. Reading Co., 1943, 346 Pa. 266, 30 A.2d 122, 145 A.L.R. 319.

Defendant here similarly argues that the trial court properly sustained his demurrer because conditions (c) and (d) of the above quoted section have not been met. Defendant also contends that Puchta v. Rothman, 99 Cal.App.2d 285, 221 P.2d 744, establishes the rule in this state, that the attractive nuisance doctrine does not apply to buildings under construction. In the Puchta case, a 10 year old child fell into a concealed hole on the second floor of a building in construction after the defendant had removed a barricade which prevented access to the second floor. This court in affirming a judgment for the defendant sustaining a general demurrer without leave to amend, distinguished buildings in construction from other attractive nuisance cases and said at pages 289 and 290 of 99 Cal.App.2d, at page 747 of 221 P.2d: 'In applying the rule our courts draw the line at a situation where the protective measure would destroy or impair the usefulness of the property itself.'

The Puchta case was followed in Lopez v. Capitol Co., 141 Cal.App.2d 60, 296 P.2d 63, in which a 7 year old child was injured when he climbed and fell from a scaffolding erected on a public sidewalk while the defendants were doing certain remodeling on the first story of a 10 story office building.

Recently, however, the law of this state relating to attractive nuisances has been modified. In Woods v. City and County of S. F., 148 Cal.App.2d 958, 307 P.2d 698, it was held that the fact that machinery and equipment are located in a building under construction does not as a matter of law eliminate the attractive nuisance. The court pointed out that it does not require a very fertile imagination to conceive of a construction case where the facts would meet all four requirements of section 339, and that the distinction between construction and other cases lay in condition number four of the Restatement, and said in 148 Cal.App.2d at page 965, 307 P.2d at page 702:

'There is no reason why a condition within or appurtenant to a building under construction which presents a great risk to children but which could be easily remedied or protected against at relatively little cost should not come within the doctrine. We do not believe that Puchta v. Rothman is authority for an inflexible rule that all cases concerning buildings under construction are excluded from the attractive nuisance doctrine. Rather, each case must be judged in the light of its own peculiar facts according to the four conditions laid down by section 339 of the Restatement of Torts.'

This construction was approved by the Supreme Court in Garcia v. Soogian, 52 Cal.2d 107, 338 P.2d 433, where the court stated that there is no inflexible rule which would exclude liability in every case involving building materials or buildings under construction, and each such case must be judged on its own facts. The court held that under the circumstances of the particular case, the 12 year old plaintiff understood the danger, and pointed out that what is important is whether the danger of any particular condition is fully understood by the child as the ability to appreciate danger waries with the age of the child.

In King v. Lennen, 53 Cal.2d 340, 1 Cal.Rptr. 665, our Supreme Court reiterated the rule announced in Garcia v. Soogian, 52 Cal.2d 107, 338 P.2d 433, that the question of liability must be decided in the light of all circumstances and not by arbitrarily placing cases in rigid categories on the basis of the type of condition involved. The court then proceeded to change the previous rule with respect to swimming pools and held that a complaint stated a cause of action against the owner of a swimming pool in which a 1 1/2 year old child drowned. The court said in 53 Cal.2d at page 344, 1 Cal.Rptr. 665:

'A number of cases decided before Garcia v. Soogian, supra, 52 Cal.2d 107, 338 P.2d 433, and Courtell v. McEachen, supra, 51 Cal.2d 448, 334 P.2d 870, reasoned that the 'attractive nuisance' doctrine does not apply unless the dangerous condition is uncommon and different from natural conditions which exist everywhere and that a body of water, natural or artificial, is a common danger and therefore, as a matter of law, will not subject the possessor to liability for the drowning of a trespassing child, even if that child is too young to appreciate the danger. (See, e. g., Knight v. Kaiser Co., 48 Cal.2d 778, 782, 312 P.2d 1089; Melendez v. City of Los Angeles, 8 Cal.2d 741, 745, 68 P.2d 971; Doyle v. Pacific Elec. Ry. Co., 6 Cal.2d 550, 552, 59 P.2d 93; Peters v. Bowman, 115 Cal. 345, 350-351, 355-356, 47 P. 113, [598, 56 Am.St.Rep. 106]; Van Winkle v. City of King, 149 Cal.App.2d 500, 506, 308 P.2d 512; Wilford v. Little, 144 Cal.App.2d 477, 480-482, 301 P.2d 282; Lopez v. Capitol Co., 141 Cal.App.2d 60, 65-67, 296 P.2d 63; Lake v....