Johnson v. Wood
| Decision Date | 16 March 1945 |
| Parties | JOHNSON v. WOOD. |
| Court | Florida Supreme Court |
Appeal from Circuit Court, Duval County; Miles W. Lewis, judge.
Laura H. Hyde and John E. Lake, both of Jacksonville, for appellant.
Gov. Hutchinson, of Jacksonville, for appellee.
This case stems from the attractive nuisance, otherwise known as the turntable doctrine. The trial court sustained a demurrer to the amended declaration; the plaintiff declining to plead further, final judgment was entered for the defendant and plaintiff appealed.
Did the amended declaration state a cause of action is the question with which we are concerned.
The trial court in sustaining the demurrer to the declaration appears to have relied on Fitzpatrick v. Rose Donahue Realty Company, 151 Minn. 128, 186 N.W. 141, 36 A.L.R. 20; Hall v. New York Telephone Co., 214 N.Y. 49, 108 N.E. 182, L.R.A.1915E, 191; and Zartner v. George, 156 Wis. 131, 145 N.W. 971, 52 L.R.A., N.S., 129. These cases and many others have been read and, if it was charged that they confused the issue, we would not dispute the charge.
In fact, some legal philosopher said a little while ago that . A study of any liberal anthology of the law on the subject of attractive nuisances will support the philosopher's cogitation. In view of this situation, it will not be out of place to brush aside some of the cobwebs that have been woven into the legal reasoning on the subject.
The cases treating it fall in two classes, those in which the attractive nuisance is placed along or near a public highway, byway playground, or other place where children of tender years frequent and those placed or located on private property or in more remote places where children are not expected to visit without permission and may be termed trespassers if they do. Some of the cases apply different rules of negligence of both classes. In the latter class of cases recovery has been limited to gross negligence.
This case falls within the first class. It is alleged that the appellant is a child five or six years old, that the defendant is a building contractor engaged in the construction of buildings near the corner of Buckman and 13th Street in Jacksonville, that he kept a mortar box in which there was a mixture of lime, sand and other ingredients which was unguarded and unprotected that the mortar box was near the street and a path which had been frequently used by children for ten years, that the defendant knew, or by the exercise of ordinary caution should have known, that the mortar box and contents would be attractive to children, yet he negligently failed to exercise due caution to protect, guard, or fense said mortar box, that on or about the 11th day of December, 1943, appellant, a minor of five years of age, ignorant of the danger therein and while in company with other children of about the same age, was lured to the mortar box and one of her companions threw some of its contents in her face and eyes, whereby she lost the sight of one eye and her hearing was injured, that her injuries are permanent and she claims damages therefor.
It will thus be seen that this is not an attempt to apply the attractive nuisance doctrine to an accident arising where the agency that caused it was set up on private premises where children are not expected to go but one where it was set up near a path and public highway where they were known to frequent. In such a case, the test of the sufficiency of the declaration is not whether it shows that adults of experience would be attracted to the agency and be injured but whether it shows that children of tender years would be attracted by it. In other words, the key to determination is the experience and keenness of the normal child rather than that of the normal adult.
It is a well known fact that a mortar box will lure children of tender years while it would repel those of more mature years. A child beginning to toddle will walk deliberately into the fire, off the balcony, or out the door; one two or three years old will put his hand into a live electric fan, on a hot stove or into the machine...
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