Hickey v. Nulty

• Court: California Court of Appeals
• Writing for the Court: KAUFMAN; STONE; DRAPER
• Citation: Hickey v. Nulty, 182 Cal.App.2d 237, 5 Cal.Rptr. 914 (Cal. App. 1960)
• Decision Date: 28 June 1960
• Parties: Lloyd G. HICKEY, Jr., a minor, by and through his Guardian ad litem, Lloyd G. Hickey, Sr., Plaintiffs and Appellants, v. William T. NULTY, Defendant and Respondent. Civ. 19028.

Page 914

5 Cal.Rptr. 914

182 Cal.App.2d 237

Lloyd G. HICKEY, Jr., a minor, by and through his Guardian ad litem, Lloyd G. Hickey, Sr., Plaintiffs and Appellants, v. William T. NULTY, Defendant and Respondent.

Civ. 19028.

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

June 28, 1960.

Hearing Denied Aug. 24, 1960.

J. Adrian Palmquist, Oakland, Francis T. Cornish, Berkeley, for appellant.

Carlson, Collins, Gordon & Bold, Richmond, Appelbaum, Mitchell & Bennett, Oakland, for respondent.

KAUFMAN, Presiding Justice.

Plaintiff, Lloyd G. Hickey, Jr., a minor, through his guardian ad litem, brought this action for personal injuries sustained when he came in contact with a mowing machine operated by the defendant, Tosta, an employee of the defendant, Santos, on a field owned by the defendant, W. T. Nulty. At the close of the plaintiffs' case, the trial court granted a judgment of nonsuit in favor of the defendant Nulty.

The only issue on appeal is the propriety of the judgment of nonsuit in favor of the defendant Nulty, the landowner. Plaintiffs argue that the trial court erred in granting the judgment of nonsuit as the plaintiffs presented sufficient substantial evidence so that the applicability of section 339 of the Restatement of Torts became a question of fact for the jury and that the fact that the defendants, Santos and Tosta, were independent contractors does not affect the liability of the landowner. The defendant Nulty argues that as the employer of an independent contractor, the negligence of the other defendants cannot be imputed to him, and, that under the circumstances of this case, section 339 of the Restatement of Torts is completely inapplicable and only sections 413 and 416 are relevant.

The record here reveals the following: the accident occurred about 5:40 p. m. on April 29, 1958, at which time, the plaintiff was two years and nine months old. On the date of the accident, the defendant Nulty was the absentee owner of a 46 acre tract of unimproved land in the city of Concord in Contra Costa County. This was a portion of the defendant's once larger holding, the balance of which had been subdivided for homes. When the adjoining land was subdivided the defendant filed a map showing that portions of the vacant land had been dedicated for streets. The remainder of the property had been sold by the defendant in 1955 but the title revested in him on March 18, 1958, on default of the buyers. The plaintiff and his parents lived at 4137 Lillian Drive in Concord, on one of the forty-odd homes built on the portion subdivided. Their home adjoined the defendant's unimproved holding; there were no fences.

The vacant land on which the accident occurred had been farmed in past years but had not been planted the year of the accident and bore a volunteer hay crop. Some time in March, 1958, Nulty made arrangements with the defendant Santos for the cutting of the volunteer crop. Nulty agreed to let Santos harvest the crop in return for a 25% share. It is admitted, however, that Santos was not an agent of Nulty but an independant contractor who used his own machines. It is not disputed that Nulty did not know exactly when Santos was going to cut the hay and that he did not warn Santos about the children in the vicinity.

Santos and his employee, Tosta, began to cut the hay about 11:00 a. m. with two tractors mounted with horizontal sickle bars, driven by a power take-off from the tractors. The hay was about 3 feet high. They soon became aware of the children in the area; a boy rode through the field on a bicycle and several other boys sold cold drinks to the two tractor drivers. Other children started from one of the homes into the field and were sent back. Some time in the afternoon, Santos gave a ride to his school-age nephew. On the day of the accident, Santos told the Concord police: 'All day long, while we were cutting hay, we had to keep chasing children from field we were cutting. Several times we stopped mowing machines to tell children to go home.'

The tractors drove one behind the other in circles around the field, mowing strips of hay the width of the sickle bar. Some time in the process, they cut three legs off a cat. By the late afternoon, the entire field was mowed except for an area about 75' by 150' located behind the back yard of the plaintiff's home. The accident occurred about 200-225 feet from the rear of the Hickey back yard where the hay was sparse. Santos testified: '* * * Joe was cutting hay ahead of me when he ran mowing machine into little boy laying in hay. Boy was laying down in uncut hay directly in path of mowing machine operated by Joseph Tosta * * *.' Tosta applied the brakes immediately and Santos picked up the boy and carried him to the nearest house which was his home. The boy's right arm was cut off and was found some distance from the scene of the accident. There was a trail of blood behind the sickle.

The boy's parents testified that they had lived in the house at the edge of the defendant's property since July, 1957; that the children of the area played in the defendant's field and had made paths in it on their way to school and church. There was no evidence that the defendant had notice of this fact or that he had been on the property between March 10, 1958, and the date of the accident. On the afternoon of the accident, they were in their back yard with the boy. They were aware that the mowing was in process and did not know that the boy was not in the yard with them until after the accident when Santos brought him through the hole in the hedge.

A nonsuit may be granted only where, disregarding conflicting evidence on behalf of the defendant and giving to the plaintiffs' evidence all the value to which it is legally entitled, therein indulging in every legitimate inference which may be drawn from that evidence, the result is a determination that there is no evidence of sufficient substantiality to support the verdict on any tenable theory of liability. Reynolds v. Willson, 51 Cal.2d 94, 99, 331 P.2d 48.

As a general rule, the owner of land is under no duty to keep his premises safe for trespassers. Peters v. Bowman, 115 Cal. 345, 358, 47 P. 113. The evidence in this case does not suggest that the plaintiff occupied any position other than that of a trespasser. It is argued, however, that when the evidence is viewed in accordance with the above-stated rules relating to nonsuits, the liability of the defendant Nulty under the exception to the general rule, usually referred to as the attractive nuisance doctrine, is clear. The conditions necessary to bring this doctrine into play as stated in section 339 of the Restatement of Torts have been adopted as the law of this state with respect to the liability of a possessor of land for injury to a child trespasser. King v. Lennen, 53 Cal.2d 340, 1 Cal.Rptr. 665; Garcia v. Soogian, 52 Cal.2d 107, 338 P.2d 433; Courtell v. McEachen, 51 Cal.2d 448, 334 P.2d 870; Reynolds v. Willson, 51 Cal.2d 94, 331 P.2d 48.

Section 339 provides as follows:

'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 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.'

Whether there is a concurrence of all the foregoing conditions of factors is generally a question of fact (Copfer v. Golden, 135 Cal.App.2d 623, 288 P.2d 90), since different inferences may be drawn from the evidence as to the existence of one or more of these required conditions. Plaintiffs' argument is, of course, that the jury should have been permitted to decide whether the defendant Nulty was liable. We cannot agree. Assuming arguendo that the boy, because of his tender years, was in fact unaware of the danger, the evidence would nevertheless be insufficient to warrant the liability of the landowner.

Before liability may be imposed under section 339, evidence must be presented which would support a determination that the defendant knew or should have known that children who would not appreciate the danger involved were likely to trespass upon the property. Restatement of Torts 339 (a) and (b). In the instant case, there is no evidence that the defendant Nulty actually knew that children had been accustomed to play in his field. It has never been held that the landowner is required to police his premises or to make any inquiry to discover whether there is a likelihood that children will trespass. 47 Cal.L.R. 427, 451.

Even if the defendant knew that children lived in an area adjacent to his field, he could reasonably assume that youngsters old enough to be allowed to venture unattended would be cognizant of the hazards presented by the mowing machines. Plaintiffs attempt to argue that because of the great danger, the defendant Nulty owed a duty to the boy. However "The presence of danger to an unattended infant is not necessarily a test of anything but the need of parental care. An infant is afraid of nothing and in danger of everything when left to his own devices. The primary duty of care is upon the parents of an infant. (Citing case.) Their neglect will not convert a situation admittedly dangerous to an infant into an attractive nuisance which would not be so classed as to older children." Wilford v. Little, 144...