Hunter v. JC Turner Lumber Company, Civ. A. No. 744.

• Decision Date: 27 September 1960
• Docket Number: Civ. A. No. 744.
• Parties: Eddie Wesley HUNTER, Sr., and Eddie Wesley Hunter, Jr., a minor, by and through his next friend and father, Eddie Wesley Hunter, Sr., Plaintiffs, v. J. C. TURNER LUMBER COMPANY, a New York corporation, Defendant.
• Court: U.S. District Court — Northern District of Florida

187 F. Supp. 646

Eddie Wesley HUNTER, Sr., and Eddie Wesley Hunter, Jr., a minor, by and through his next friend and father, Eddie Wesley Hunter, Sr., Plaintiffs, v. J. C. TURNER LUMBER COMPANY, a New York corporation, Defendant.

Civ. A. No. 744.

United States District Court N. D. Florida, Tallahassee Division.

September 27, 1960.

J. B. Hodges, Lake City, Fla., John L. Westberry, Perry, Fla., for plaintiffs.

A. Frank O'Kelley and Charles Friend, Keen, O'Kelley & Spitz, Tallahassee, Fla., for defendant.

CARSWELL, Chief Judge.

This action was brought in behalf of plaintiff's minor son alleging that the boy was injured when he fell from a stack of defendant's lumber. The complaint embraces the classic elements of the attractive nuisance doctrine; the boy was using ordinary care for his own safety for one of his age, experience, intelligence and capacity; he was attracted and lured to defendant's lumber yard; he did not know the dangers of climbing upon stacks of lumber. There are allegations of defendant's negligence and failing to warn the boy of the danger of coming in close proximity to the stacks, and in failing to guard or protect the premises so as to prevent him from coming within the immediate vicinity.

Florida subscribes to the attractive nuisance doctrine and permits thereunder recovery for a child of tender years even though he be a trespasser on defendant's property and despite conduct on the child's part which would clearly be contributory negligence, and a resulting bar if committed by an adult. See 23 Fla.Jur. 304, Negligence, Section 63; 38 Am.Jur. 803, Negligence, Section 142.

Based upon affidavits and depositions of each of the parents and of the son, the defendant moved for summary judgment on the grounds that it affirmatively appears that this minor was of sufficient age, intelligence, and experience to comprehend and appreciate the danger inherent in climbing upon stacks of lumber, and that he was, in fact, specifically warned of this particular hazard prior to his injury.

The admitted facts show that the minor reached his thirteenth birthday one month after the date of injury. He was in the 8th grade in school, and his marks in class were average. He indulged in the normal interests of thirteen year old boys. His parents state that he suffered neither memory lapses nor other mental defects, and from his own deposition it is clear that he understood the questions propounded to him by counsel. His answers were responsive and showed no lack of intelligence on his part. The depositions further show that, although he was obedient, the boy had been warned on many occasions by his mother, father and others of the danger incident to playing in the lumber yard. These dangers included the possibility of the stacks falling upon him and also his falling from the stacks while climbing. He explained the warnings and dangers which had been previously pointed out to him.

It is to be noted that the boy fell from the stack. No lumber fell upon him, nor did the stack cave in upon him or beneath him. There is no contention here that there was anything defective in the stacking or nature of the lumber itself which might be considered a hidden defect to trap the unwary.

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