Hughes v. Star Homes, Inc.

Decision Date16 January 1980
Docket NumberNo. 51152,51152
Citation379 So.2d 301
PartiesLarry HUGHES, Parent of Larry Hughes, Jr., Deceased, a Minor, v. STAR HOMES, INC. and David Pritchett.
CourtMississippi Supreme Court

Williams, Glover & Walton, Ronnie L. Walton, H. Wingfield Glover, Jr., Meridian, for appellant.

Snow, Covington, Temple & Watts, Arlo Temple, Walter T. Rogers, Harvey B. Ray, Warner, Ray & Cobb, Meridian, for appellees.

EN BANC.

SUGG, Justice, for the Court:

Larry Hughes filed suit against Star Homes, Inc. and David Pritchett in the Circuit Court of Lauderdale County for the wrongful death of Larry Hughes, Jr. Plaintiff filed the action under the wrongful death statute, section 11-7-13 Mississippi Code Annotated (1972), for the benefit of all parties entitled to recover for the wrongful death of Larry Hughes, Jr.

The jury returned a verdict for the defendants. Plaintiff appealed and defendants have cross-appealed asserting that they were entitled to a peremptory instruction. We have determined that the defendants were entitled to a peremptory instruction; therefore, it is not necessary to reach the questions presented by the direct appeal.

Larry Hughes, Jr. was ten years of age at the time of his death and lived with his family on a lot adjoining Lots 9 and 10 of Mt. Olive Estates Subdivision in rural Lauderdale County. Star Homes, a Mississippi corporation, was engaged in development of the subdivision and had virtually completed the construction of the houses on Lots 9 and 10. David Pritchett had a contract with Star Homes to install septic tanks for the houses under construction on Lots 9 and 10.

On the day that Larry was killed, Pritchett arrived on the job site between 8:00 and 8:30 o'clock a. m. He made an excavation for a septic tank on Lot 9 and placed the septic tank in the excavation shortly after it was delivered between 9:00 and 10:30 o'clock a. m. The septic tank was made of concrete and was eight feet long, four feet wide, and five feet deep. The cover for the septic tank consisted of four rectangular concrete slabs weighing between one hundred and two hundred pounds. Each of the slabs was two feet wide, four feet long and four inches thick.

It was necessary for the septic tank to be inspected by a representative from the Lauderdale County Health Department. In order to facilitate the inspection, Pritchett removed the two end slabs and stood them on their four inch sides at each end of the septic tank. The two end slabs of the cover then extended two feet above the top of the septic tank permitting a view of the interior. The slabs were firmly in place although not anchored or braced and, according to the evidence, this was the common and accepted practice used to prepare a septic tank for inspection. After inspecting the septic tank on Lot 9 the Health Department representative proceeded to Lot 10 to inspect the septic tank on Lot 10. Pritchett and the inspector met Eugene Skinner, a sales representative of Star Homes, about half way between the houses on Lots 9 and 10. While engaged in a conversation, Larry Hughes, Jr. and his young friend, Steve Brantley, approached within twenty to thirty feet.

Skinner testified that he told the boys there was a rattlesnake in the vicinity in order to persuade them to leave. According to both Skinner and Pritchett, the boys then left proceeding between Lots 9 and 10 toward the road after being warned about the snake. The conversation between Skinner, Pritchett, and the inspector lasted about ten minutes after which Pritchett proceeded to Lot 10 to fill the field lines on Lot 10 with a backhoe. Skinner and the inspector left the premises. A few minutes after the conversation ended, Larry Hughes' mother summoned Pritchett to come to the aid of Larry. Apparently, in the brief time that elapsed from the time Larry was last seen by Skinner and Pritchett, he had returned to the septic tank, climbed in, and in attempting to get out, had pulled one of the concrete covers from its standing position. The cover fractured Larry's skull, resulting in his death later that day.

Steve Brantley testified that he and Larry approached the septic tank and Larry climbed down into the septic tank. When Larry attempted to climb out of the tank, he caught hold of the cover at the end of the septic tank causing it to fall. Steve testified that he did not get into the septic tank with Larry because he was afraid of being injured. Larry and Steve were about the same age and Larry's school records showed that he was of average intelligence. Larry had been admonished by his parents about playing around the construction site and had been injured about a month before his death when he fell through the floor joists in the house under construction on Lot 10.

In order to determine whether the court should have given the peremptory instruction requested by the defendants, we must determine the status of Larry Hughes, Jr., that is, whether he was an invitee, a licensee, or a trespasser, the duty of the defendants to Larry, and whether there was a breach of that duty. If there was no breach of the duty to Larry by the defendants, we must then determine if the facts of this case bring it within the doctrine of attractive nuisance.

The status of a person on the property of another was stated succinctly in Hoffman v. Planters Gin Co., Inc., 358 So.2d 1008, 1011 (Miss.1978), in the following language:

As to status, an invitee is a person who goes upon the premises of another in answer to the express or implied invitation of the owner or occupant for their mutual advantage. Langford v. Mercurio, 254 Miss. 788, 183 So.2d 150 (1966); Wright v. Caffey, 239 Miss. 470, 123 So.2d 841 (1960). A licensee is one who enters upon the property of another for his own convenience, pleasure or benefit pursuant to the license or implied permission of the owner whereas a trespasser is one who enters upon another's premises without license, invitation or other right. Kelley v. Sportsmen's Speedway, Inc., 224 Miss. 632, 80 So.2d 785 (1955).

A landowner owes a licensee the duty to refrain from willfully or wantonly injuring him. Astleford v. Milner Enterprises, 233 So.2d 524 (Miss.1970); Marlon Investment Co. v. Conner, 246 Miss. 343, 149 So.2d 312 (1963); Dry v. Ford, 238 Miss. 98, 117 So.2d 456 (1960). A landowner owes a trespasser the duty to refrain from willfully or wantonly injuring him. McGee v. Charles F. Smith & Sons, Inc., 357 So.2d 930 (Miss.1978); Ausmer v. Sliman, 336 So.2d 730 (Miss.1976); Langford v. Mercurio, 254 Miss. 788, 183 So.2d 150 (1966); Kelley v. Sportsmen's Speedway, Inc., 224 Miss. 632, 80 So.2d 785 (1955). Larry Hughes, Jr. was a trespasser, or at most a licensee. In either status, the duty owed him by the defendants was to refrain from willfully or wantonly injuring him.

In one case, Hoffman v. Planters Gin Co., Inc., 358 So.2d 1008 (Miss.1978), we applied the standard of ordinary and reasonable care rather than the standard of intentional or wanton negligence due a licensee. In that case we held that the owner of premises is liable for injury proximately caused by the owner's affirmative or active negligence in the operation or control of activities which subjects a licensee to unusual danger or increases the hazard to the licensee when the presence of the licensee is known. In Hoffman, we changed the standard of care owing to a licensee but carefully limited the new standard of care to those cases involving injury resulting from active conduct as distinguished from conditions of the premises, or passive negligence.

Larry Hughes, Jr. did not meet his death as a result of active conduct; therefore, the standard of care required of the defendants in this case was not to willfully or wantonly injure Larry. The evidence does not show that the defendants violated this standard.

The next question is whether the septic tank constituted an attractive nuisance. The doctrine of attractive nuisance was established in an attempt to balance two competing equities. First, society has a definite interest in protecting its children and recognizes that most children will trespass on occasion and sometimes are injured when they do so. Second, society must not place upon the owners of premises the unreasonable burden of providing a safe place in which every child may trespass under all circumstances. Harkins v. City of Carthage, 284 So.2d 530 (Miss.1973). The doctrine of attractive nuisance was first enunciated as such by this Court 1 in the case of Lucas v. Hammond, 150 Miss. 369, 116 So. 536 (1928):

The appellant, being a trespasser, is not entitled to recover, unless the case comes within the "attractive nuisance doctrine." This doctrine has been repudiated by a majority of the courts, and "needs very careful statement not to make an unjust and impracticable requirement." United Zinc & Chemical Co. v. Britt, 258 U.S. 268, 42 S.Ct. 299, 66 L.Ed. 615, 36 A.L.R. 28. The tendency of the courts recognizing it is to limit, instead of enlarge, the scope thereof. Compare Sioux City & P. R. Co. v. Stout, 17 Wall. 657, 21 L.Ed. 745, with United Zinc & Chemical Co. v. Britt, supra, and N. Y. N. H. & H. R. Co. v. Fruchter, 260 U.S. 141, 43 S.Ct. 38, 67 L.Ed. 173. See, also, Salter v. Lbr. Co., 137 Miss. 229, 102 So. 268; McComb City v. Hayman, 124 Miss. 525, 87 So. 11; and Totty v. Lee County Gin Co. (Miss.), 110 So. 125. As enforced by this court, the doctrine may be stated as follows:

"One who maintains dangerous instrumentalities or appliances on his premises easily accessible to children and of a character likely to attract them in play, or permits dangerous conditions to remain thereon with the knowledge that children are in the habit of resorting thereto for amusement," and who fails to exercise ordinary care to prevent children from playing therewith or resorting thereto, is liable to a child Non sui juris who is injured thereby, and who did not know and appreciate the danger incurred by him in playing...

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