Holland v. Niemi

Citation345 P.2d 1106,55 Wn.2d 85
Decision Date12 November 1959
Docket NumberNo. 35011,35011
CourtUnited States State Supreme Court of Washington
PartiesArvin HOLLAND, Individually, and as guardian ad litem for Bradley Holland, a minor, Appellant, v. John S. NIEMI and Cleta Niemi, husband and wife, Respondents.

Jack L. Burtch, Aberdeen, for appellants.

J. K. Hallam, Aberdeen, for respondents.

OTT, Judge.

The trial court sustained a demurrer to the amended complaint and entered judgment of dismissal, with prejudice, upon the ground that the amended complaint did not state a cause of action. Plaintiff appeals. The amended complaint reads as follows:

'Comes now the plaintiff, and for a cause of action against the above-named defendants, complains and alleges:

'(1) That the plaintiff is the duly appointed, qualified and acting Guardian Ad Litem of Bradley Holland, a minor.

'(2) That at all times material herein, the defendants were and now are husband and wife, constituting a marital community under the laws of this state, and residents of Grays Harbor County, State of Washington.

'(3) That plaintiff believes, and therefore alleges that at all times material herein the defendants were the owners of the premises located at 512 First Avenue in Aberdeen, Washington, and plaintiff alleges that at all times material herein said defendants had exclusive possession and control of said premises.

'(4) That on or about the 16th day of July, 1957 the defendants had a large skiff on their said premises, which the defendants had situated so that it was leaning against a concrete wall, resting upon one side, and with the bottom of the boat extending outwardly from the wall. That said boat was leaning in almost an upright position and was very unstable and very likely to topple over without much force. That the side of the boat which was touching the ground was rounded so that very little of the boat actually was touching the ground, thus making its position even more precarious. That said boat was readily visible and apparent from a public alley adjoining said premises, and was in a location which was readily accessible by small children. That small children habitually played in the area where the boat was located, to the knowledge of the defendants. That said boat was attractive to small children as a plaything, and by reason of the precarious position in which it had been situated by the defendants, was extremely dangerous to children. That the defendants knew, or in the exercise of reasonable care should have known the dangerous condition which was created by the position of the boat in respect to children playing in the neighborhood and in that area.

'(5) That on the 16th day of July, 1957 Bradley Holland was a minor of the age of five years, who resided with his father, the plaintiff, and his mother at the family home at 1308 Arnold Avenue, Aberdeen, Washington. That the location of the family home was in the same neighborhood as the residence of the defendants. That on the 16th day of July, 1957 said Bradley Holland, in the company of other children, went onto the defendants' premises, and while there was severely injured when the defendants' boat fell upon him.

'(6) That by reason of the negligence of the defendants and the attractive nuisance created by them, Bradley Holland sustained a very severe spiral oblique fracture of the shaft of the right femur, together with bruises and contusions over the body generally. That said monor was hospitalized from July 16th, 1957 to August 14th, 1957, and was for most of said period of time under traction and continual medical treatment. That said minor suffered severe pain and discomfort while undergoing medical treatment and hospitalization, and for a substantial period of time thereafter. That following his discharge from the hospital, Bradley was compelled to wear a cast on his right leg for a period of approximately two weeks, and thereafter to use a wheelchair for a period of approximately eight days. That said minor has at all times since suffered limitation of motion of the right leg and a limp. That by reason of said disability, pain, suffering and discomfort, said minor has been damaged in the sum of $2,500.00.

'(7) That by reason of the aforesaid injuries, Arvin Holland as the father of said child, incurred reasonable and necessary medical expenses on behalf of said minor, as follows:

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6 cases
  • Ochampaugh v. City of Seattle, 45492
    • United States
    • United States State Supreme Court of Washington
    • January 5, 1979
    ...5 Wash.2d 599, 105 P.2d 838 (1940), and since restated in Mathis v. Swanson, 68 Wash.2d 424, 413 P.2d 662 (1966), Holland v. Niemi, 55 Wash.2d 85, 345 P.2d 1106 (1959), and McDermott v. Kaczmarek, 2 Wash.App. 643, 469 P.2d 191 (1) The instrumentality or condition must be dangerous in itself......
  • Haddad v. First Nat. Stores, Inc.
    • United States
    • United States State Supreme Court of Rhode Island
    • August 4, 1971
    ...588, 383 S.W.2d 291; Brittain v. Cubbon, 190 Kan. 641, 378 P.2d 141; Walker v. Sprinkle, 267 N.C. 626, 148 S.E.2d 631; Holland v. Niemi, 55 Wash.2d 85, 345 P.2d 1106. We believe, however, that liability under the rule should not be predicated upon the inherent danger of the condition or obj......
  • Schneider v. City of Seattle
    • United States
    • Court of Appeals of Washington
    • September 17, 1979
    ...without obstructing any reasonable purpose or use for which it was intended. See Ochampaugh v. Seattle, supra; Holland v. Niemi, 55 Wash.2d 85, 345 P.2d 1106 (1959); Schock v. Ringling Bros. and Barnum & Bailey Combined Shows, 5 Wash.2d 599, 105 P.2d 838 (1940). See also Restatement (Second......
  • McDermott v. Kaczmarek
    • United States
    • Court of Appeals of Washington
    • May 11, 1970
    ...his death. There was no evidence upon which the trier of fact could find that element No. 1 was established. Accord, Holland v. Niemi, 55 Wash.2d 85, 345 P.2d 1106 (1959); Mail v. M. R. Smith Lumber & Shingle Co., 47 Wash.2d 447, 287 P.2d 877 (1955). In one of life's earliest lessons, a chi......
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