Idzi v. Hobbs, G-203

• Decision Date: 29 June 1965
• Docket Number: No. G-203,G-203
• Citation: 176 So.2d 606
• Parties: E. Daniel IDZI, a minor, by his father and next friend, Edward D. Idzi, and Edward D. Idzi, individually, Appellants, v. C. A. HOBBS, Appellee.
• Court: Florida District Court of Appeals

Page 606

176 So.2d 606

E. Daniel IDZI, a minor, by his father and next friend, Edward D. Idzi, and Edward D. Idzi, individually, Appellants, v. C. A. HOBBS, Appellee.

No. G-203.

District Court of Appeal of Florida, First District.

June 29, 1965.

Rehearing Denied July 23, 1965.

Harrell, Caro, Middlebrooks & Wiltshire, Pensacola, for appellants.

Beggs, Lane, Daniel, Gaines & Davis, Pensacola, for appellee.

WIGGINTON, Justice.

Plaintiff has appealed a final judgment entered in favor of defendant pursuant to its motion for judgment in accordance with his motion for directed verdict made at the close of the evidence. Appellant contends that the evidence adduced at the trial created jury issues on all material facts, and that the court erred in concluding as a matter of law that plaintiff had failed to establish the issue of liability.

Plaintiff minor child was five and one-half years old at the time he received the injuries which resulted in the damages for which this action was brought. Defendant, a residential builder, cleared from a lot owned by him in a subdivision the trees and underbrush preparatory to commencing construction thereon of a dwelling. Defendant was aware that many children living in the neighborhood of his vacant lot frequently utilized it as a playground. On the critical date defendant stacked the cut underbrush and trees in a pile some six feet high, twenty feet in diameter, around which he built a mound six to eight inches high for the purpose of containing the fire he intended to set. He set the pile of brush afire about nine-thirty in the morning of a clear day, and remained on the premises until about one-thirty or two o'clock in the afternoon when he departed therefrom. Before defendant left the scene the underbrush had been almost completely burned, coals were burning brightly beneath the trunks of the several trees which had been placed on top of the brush pile, and very little flame from the fire was visible. No one was left to attend the fire after defendant departed. He testified, however, that even though no children were playing in the vicinity of the lot when he left, nor had any been in that area during the day, he nevertheless assumed that children would or might come upon the lot to play.

At about four o'clock in the afternoon after defendant departed the scene, plaintiff minor child, accompanied by a companion, went upon defendant's lot to play. He later told his father and another witness that he was standing on one of the logs trying to put out the fire when he slipped from the log and fell into the coals, severely burning his hands. It was for the damages resulting from the injuries thus sustained by him that plaintiff brought suit.

At the conclusion of the evidence defendant moved the court for a directed verdict, on which motion ruling was reserved. The jury was unable to agree upon a verdict and a mistrial was ordered by the court. It was then that defendant moved for final judgment in accordance with his motion for directed verdict, which motion was granted and judgment entered. It is from that judgment that this appeal is taken.

In the case of Cockerham v. R. E. Vaughan, Inc. ¹ The Supreme Court considered an appeal in an action for damages suffered as a result of injury sustained by an infant who fell in a hole which had been dug by the defendant contractor for installation of a septic tank. The basis of the action was the attractive nuisance doctrine. The court held that the rule of liability applicable to a possessor of land in a suit brought pursuant to the attractive nuisance doctrine is summarized in Section 339, Restatement, Torts (1934), which section is referred to in comment h., under Section 384. The rule quoted with approval by the court is 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 he 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.''

In a subsequent case involving a suit brought under the attractive nuisance doctrine this court relied upon and followed the rule of law approved by the Supreme Court in the Cockerham case as quoted above. ² This rule was also later followed and applied by the Second District Court of Appeal in Tampa Electric Company, Inc. v. Lariscy. ³ We adhere to the foregoing rule as the law of this state.

Reverting to subparagraph (c) of the foregoing rule it appears that before a possessor of land may be held liable for damages suffered by minor trespassers upon his property which is caused by a structure or other artificial condition maintained upon the land, the evidence must establish that the injured child, because of his youth, did not discover the condition or realize the risk involved in intermeddling in it or coming within the area made dangerous by it. Relating that provision of the rule to the facts disclosed by the evidence in this case we find from the testimony of the child's father, who is also joined as a plaintiff, that prior to the time of injury the minor plaintiff was instructed about and understood the danger of fire; and, from what the child later told him he had no question in his mind but that the child knew of the existence of the fire when he proceeded to play in and around it with a...