Jesko v. Turk

• Decision Date: 24 May 1966
• Citation: 219 A.2d 591,421 Pa. 434
• Parties: Neil Thomas JESKO, a minor, by Betty Ann Jesko, his mother and natural guardian, and Betty Ann Jesko, in her own right, Appellants, v. Abe TURK and Norman Sife, t/d/b/a Ellis Construction Company.
• Court: Pennsylvania Supreme Court

219 A.2d 591

421 Pa. 434

Neil Thomas JESKO, a minor, by Betty Ann Jesko, his mother and natural guardian, and Betty Ann Jesko, in her own right, Appellants, v. Abe TURK and Norman Sife, t/d/b/a Ellis Construction Company.

Supreme Court of Pennsylvania.

May 24, 1966.

James R. Duffy, McArdle, Harrington, Feeney &amp McLaughlin, Pittsburgh, for appellant.

Kim Darragh, Meyer, Darragh, Buckler, Bebenek & Eck, Pittsburgh for appellee.

Before MUSMANNO, JONES, COHEN, EAGEN, and O'BRIEN, JJ.

OPINION OF THE COURT

COHEN Justice.

On March 12 1961, minor plaintiff, who was then 9 1/2 years old, suffered an injury when, while climbing a 12 foot high, partially erected concrete-block wall of a building being constructed by defendants, he fell to the ground. As he neared the top he felt that the blocks beneath his feet were loose. He took another step or two and began to descend. As he did, a concrete block fell from beneath him. He managed to catch himself by grabbing the top of the wall and attempted to get a toe hold in an effort to steady his balance. However the blocks gave way and he was thrown to the ground. Minor plaintiff had observed other children playing on and around the building previously, but had never done so himself.

Plaintiffs sued the property owner and the contractors. A compulsory nonsuit was entered in favor of the property owner, but the trial court entered jdugment in favor of minor plaintiff and his mother against the contractors. On appeal, 207 Pa.Super. 174, 215 A.2d 274, the Superior Court reversed and granted judgment n.o.v. in favor of defendant-contractors. From that decision we granted allocatur.

Section 339 of the Restatement of Torts, Second provides:

' § 339. Artificial Conditions Highly Dangerous to Trespassing Children.

'A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if

(a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and

(b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve 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 with it or in coming within the area made dangerous by it, and

(d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and

(e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.'

This section eliminates the limitation of the original section of the Restatement to 'young' children, and by the addition of clause (e) indicates that liability under section 339 is predicated on negligence; accordingly, a possessor of land is not liable if he has exercised reasonable care under the circumstances. Restatement of Torts, Second, § 339, Reporter's notes. We believe that the new section 339 represents a wise revision of the original section, and we hereby indicate our approval thereof and adopt it as the law of this Commonwealth, even as we formerly adopted the earlier section in 1949 in Bartleson v. Glen Alden Coal Co., 361 Pa. 519, 64 A.2d 846 (1949).

All five requirements of section 339 must be satisfied if a possessor of land is to be held liable. Clause (d) requires a weighing of the interests involved--the cost of 'childproofing' versus the danger of harm to children. Plaintiffs have not satisfied...