Henson ex rel. Hunt v. Int. Paper Co.

• Decision Date: 27 August 2007
• Docket Number: No. 26374.,26374.
• Citation: 650 S.E.2d 74
• Court: South Carolina Supreme Court
• Parties: The Late Terry HENSON, by Harriet HUNT, his Aunt and Appointed Guardian ad Litem and Personal Representative, Petitioner, v. INTERNATIONAL PAPER COMPANY, Georgetown Steel Corporation, The City of Georgetown, and Georgetown County, Defendants, Of Whom International Paper Company is, Respondent.

650 S.E.2d 74

The Late Terry HENSON, by Harriet HUNT, his Aunt and Appointed Guardian ad Litem and Personal Representative, Petitioner, v. INTERNATIONAL PAPER COMPANY, Georgetown Steel Corporation, The City of Georgetown, and Georgetown County, Defendants Of Whom International Paper Company is, Respondent.

No. 26374.

Supreme Court of South Carolina.

Heard June 8, 2006.

Decided August 27, 2007.

Rehearing Denied September 19, 2007.

Gregg E. Meyers, of Charleston, for Petitioner.

Andrew K. Epting, Jr., and Amanda R. Maybank, both of Pratt-Thomas Epting & Walker PA, of Charleston, for Respondent.

Chief Justice TOAL:

In this civil action, the court of appeals held that a claim for attractive nuisance requires the injured child to be attracted onto the defendant's property by the nuisance which causes him or her injury. Although we agree with the disposition reached by the court of appeals, we disagree with the rule found both in its opinion and in our precedent. Accordingly, we affirm the court of appeals' decision, but modify it as outlined below.

FACTUAL/PROCEDURAL BACKGROUND

International Paper Company (IPC) owns and operates a canal that runs twenty-seven miles through Georgetown County. The canal diverts water from the Pee Dee River through a system of pump stations, pipes, and trenches, and ultimately delivers the water to IPC's plant in the city of Georgetown. The canal's depth is between twelve and twenty feet, and at points near the pump stations, the canal has a considerable current. Allegedly, the opaqueness of the diverted river water makes neither the canal's depth nor its current apparent from a visual inspection.

The tragic events underlying this legal action occurred in 1998. The record reveals that on the day in question, ten-year-old Terry Henson and his older brother went to the home of a friend where they agreed to accompany a companion to a go-cart "dirt jumping hill" near the city of Georgetown. Apparently, the boys ventured by the canal in their journey.

As the boys walked along the canal, they came upon what the parties refer to as a "pipe bridge." The record indicates that the "pipe bridge" is simply a large pipe spanning the canal for the purpose of allowing drainage to pass from the surrounding land on one side of the canal to the other. Metal bracing on part of the pipe gives the pipe the appearance of a bridge.

After the boys used the pipe to cross the canal, they discovered a discarded cast net lying on the ground. Though neither he nor his older brother could swim, Terry decided to enter the water. Terry held on to one end of the cast net while his friends held on to the other end, and after being in the water for a relatively short period of time, Terry attempted to grab the metal pipe supports and lift himself out of the water. In this process, Terry slipped and fell back into the water. As Terry fell, his friends lost hold of their end of the cast net. Sadly, Terry drowned.

Petitioner instituted this wrongful death action alleging causes of action for negligence, attractive nuisance, and unguarded dangerous condition.¹ At the conclusion of Petitioner's case in chief, the trial court directed a verdict in favor of IPC on the cause of action for attractive nuisance. In support of this decision, the court stated "the case law indicates that the reason they needed to have gone [to the canal] was that they were attracted by [the canal] ... the evidence in this case is clear they went there for another purpose and then went to [the canal]."

At the trial's conclusion, a jury found both IPC and Terry negligent in causing Terry's death. Specifically, the jury attributed twenty-five percent of the fault to IPC, and seventy-five percent of the fault to Terry. The jury determined Petitioner's total damages were $400,000, however, the trial court instructed the clerk to stop reading the verdict once the clerk stated that the jury had allotted seventy-five percent of the negligence to Terry.

Petitioner appealed, arguing that the trial court erred in directing a verdict on the cause of action for attractive nuisance.² The court of appeals affirmed the trial court's decision; reasoning that because Terry was attracted onto IPC's property by a "dirt jumping hill" and not by the canal, Petitioner could not claim that the canal was an attractive nuisance. Henson v. Int'l Paper Co., 358 S.C. 133, 139-40, 594 S.E.2d 499, 502 (Ct.App.2004). Additionally, the court of appeals held that any error in directing a verdict as to attractive nuisance was harmless because Petitioner retained causes of action for negligence and unguarded dangerous condition. Id.

This Court granted certiorari to review the court of appeals' decision, and Petitioner raises the following issues for review:

I. Did the court of appeals err in reasoning that attractive nuisance requires the injured party to be attracted onto the defendant's property by the very temptation which causes injury?

II. If the court of appeals erred in directing a verdict as to attractive nuisance, was the error harmless?

LAW/ANALYSIS

I. Elements of Attractive Nuisance

Petitioner argues that attractive nuisance should not require that the thing alleged to be the nuisance be the instrumentality which attracts a child onto the defendant's property. We agree.

Although the common law generally imposes no duty on a landowner to protect a trespasser from hidden dangers, see Nettles v. Your Ice Co., 191 S.C. 429, 436, 4 S.E.2d 797, 799 (1939), consideration of the proclivities and instincts of children has long provided an exception to this point in premises liability. As this Court has stated:

[O]ne who artificially creates upon his premises any dangerous thing which from its nature has a tendency to attract the childish instincts of children to play with it is bound, as a mere matter of social duty, to take such reasonable precautions as the circumstances admit of, to the end that they may be protected from injury while so playing with it, or coming in its vicinity.

Franks v. S. Cotton Oil Co., 78 S.C. 10, 15, 58 S.E. 960, 961 (1907) (citing SEYMOUR D. THOMPSON, 1 COMMENTARIES ON THE LAW OF NEGLIGENCE IN ALL RELATIONS § 1024 (2d ed.1901) [hereinafter THOMPSON ON NEGLIGENCE]). In South Carolina, this consideration of children's susceptibility to fail to perceive the risks of encountering dangerous instrumentalities or conditions has evolved into two exceptions to the common law's general preclusion of a trespasser's ability to maintain a cause of action for premises liability. These exceptions have commonly been termed "attractive nuisance" and "unguarded dangerous condition."

Attractive nuisance doctrine provides that where the owner or occupier of land brings or artificially creates something which, from its nature, is especially attractive to children, he is bound to take reasonable pains to see that the dangerous thing is so guarded that children will not be injured in coming into contact with it. Franks, 78 S.C. at 15, 58 S.E. at 961. South Carolina courts first recognized attractive nuisance in the "turntable cases." These cases held that infants could recover damages from railroad companies for injuries caused by the failure to lock or properly guard railroad turntables. Bridger v. Asheville and Spartanburg R.R. Co., 25 S.C. 24 (1886).

At one time, the United States Supreme Court suggested that the dangerous condition or instrument must have attracted the child onto the defendant's property in order to hold a party liable under a theory of attractive nuisance. United Zinc & Chem. Co. v. Britt, 258 U.S. 268, 276, 42 S.Ct. 299, 66 L.Ed. 615 (1922).³ Although the majority of our attractive nuisance jurisprudence pays little attention to the reasons for an injured child's presence on the property, IPC correctly argues that this concept, sometimes referred to as the "property line" rule, eventually crept into this Court's jurisprudence. See Kirven v. Askins, 253 S.C. 110, 117, 169 S.E.2d 139, 142 (1969); Daniels v. Timmons, 216 S.C. 539, 550-51, 59 S.E.2d 149, 155 (1950); and Hancock v. Aiken Mills, 180 S.C. 93, 104, 185 S.E. 188, 193 (1936). See also Miller v. Perry, 308 F.Supp. 863 (D.S.C. 1970). This case requires us to determine whether this creeping was justified, and whether our jurisprudence should provide a home for the property line rule. We conclude that both answers are "no."

A close examination of the property line rule's origins is instructive. Because trespassers were generally barred from recovering from a landowner, attractive nuisance doctrine needed to either amend trespasser liability doctrine for children or create a status for these children other than that of a trespasser. Early case law in this area illustrates that courts solved this dilemma by providing that one who creates an artificial condition on his land that is dangerous to children yet, at the same time, attracts them onto his land to "play in, swim in, or wade in" it, has granted a child an "implied license" to enter his property. Miller, 308 F.Supp. at 865; see also Britt, 258 U.S. at 276, 42 S.Ct. 299 (stating "[t]here can be no general duty on the part of a land-owner to keep his land safe for children, or even free from hidden dangers, if he has not directly or by implication invited or licensed them to come there."). Viewed through this lens, the property line rule appears justified given that a landowner cannot have extended an implied invitation to enter his property to the child who trespasses for a purpose other than to pursue amusement with the thing that ultimately causes him injury.

In South Carolina, however, the usefulness of this distinction is severely weakened after examining attractive nuisance's companion doctrine of unguarded dangerous condition. Quite unlike its counterpart, unguarded dangerous condition disregards the element of attraction; both to the property and to the danger. See Everett v. White, 245 S.C. 331, 335, 140...