Jones v. Robbins

• Decision Date: 14 January 1974
• Docket Number: No. 53451,53451
• Citation: Jones v. Robbins, 289 So.2d 104 (La. 1974)
• Parties: Willie Leon JONES et al. v. Henry ROBBINS et al.
• Court: Louisiana Supreme Court

Page 104

289 So.2d 104

Willie Leon JONES et al. v. Henry ROBBINS et al.

No. 53451.

Supreme Court of Louisiana.

Jan. 14, 1974.

Rehearing Denied Feb. 15, 1974.

Godfrey & O'Neal, Hodge O'Neal, III, Many, for plaintiffs-applicants.

Colvin, Hunter & Brown, D. Scott Brown, Mansfield, for defendants-respondents.

BARHAM, Justice.

The plaintiff, Willie Leon Jones, is the father of the minor child, Candy Jones. The defendants, Henry Robbins and George Robbins, are the owner and the manager, respectively, of Robbins Gulf Service Station in Mansfield, Louisiana. This delictual action has been instituted to recover damages incurred when four year old Candy suffered burns caused by gasoline she ignited, gasoline which had been obtained from George Robbins at the Robbins Station by her half-sister.

At three o'clock on the afternoon of June 9, 1971, Penny Wyatt, the half-sister of the child who was badly burned, went to the Robbins Service Station and attempted to obtain, in a small glass container, a small quantity of coal oil or gasoline. She was told that gasoline could not be placed in the glass container. The number of return trips by Penny to the station is disputed, but, at any rate, upon the second or third visit to the service station, the six year old Penny carried a plastic container. Penny either purchased four cents worth of gasoline from George Robbins, or was given a small quantity of gasoline which was placed in the plastic container. The defendant, George Robbins, says that, at the time, Penny told him that her mother wanted the gasoline. The child disputes this.

Penny took the plastic container of gasoline back to her yard, where she and other children in the family played, and placed it on the rim of a well. She claimed that she had paint on her hands and that she had obtained the gasoline to wash the paint from her hands. After she had completed her hand-washing with the gasoline, her nine year old sister, Zelma Wyatt, came out of the house nearby and washed her hands in the gasoline, pretending that she had paint on her hands. At about this time (approximately an hour and a half had elapsed from the first attempt to obtain the gasoline) the four year old half-sister of these two children, Penny and Zelma, approached the well where the children had been washing their hands in the gasoline. The four year old half-sister, Candy, had found a match previously. She struck it and threw it into the gasoline, whereupon the contents of the plastic container burst into flame and, as one of the children described it, the flames grabbed Candy's legs and her dress was ignited. Candy ran towards the street, and a young male neighbor, Wayne Howard, and a mature female neighbor, Roxy Ann Brown, caught the child and extinguished the fire by throwing dirt on the burning dress. Roxy Ann Brown then carried Candy to her mother in the house. It was apparent that she was badly burned. The child's father returned from work almost immediately after the occurrence and the child was hurriedly carried to the hospital for treatment. It was then approximately five o'clock.

Under this set of facts, we are required to determine whether the defendants should respond in damages for the injury suffered by the four year old child, who was badly burned when she ignited the gasoline obtained from the defendants by her six year old half-sister.

We first inquire whether there is a causal relationship between the burning of the child, Candy, and the sale of the gasoline by one of the defendants to the six year old half-sister. Was the sale of the gasoline by George Robbins a cause in fact of the burns received by Candy? Did the defendant's act in making a sale of gasoline to a six year old child have something to do with the harm that was suffered by her four year old half-sister? Quickly, and without difficulty, we find that the sale of gasoline by George Robbins to the six year old Penny was a cause in fact of the injuries suffered by Candy. It was this defendant who placed the gasoline in Penny's possession and it was that gasoline which burst into flame and burned the four year old Candy when she threw a match into it.

Next, we are required, before making a determination of negligence and liability, to ascertain whether the defendants owed a legal duty which encompassed the particular risk that caused the harm to Candy. Hill v. Lundin, 260 La. 542, 256 So.2d 620 (1972); Pierre v. Allstate Insurance Co., 257 La. 471, 242 so.2d 821 (1970). Our inquiry in this case is bifurcated. We must first determine if the defendants owed a particular duty not to sell gasoline to a six year old child under the particular facts of this case. Gasoline, while not classified as an ultra hazardous substance, is still a dangerous, highly inflammable, and explosive substance. Even when handled by knowledgeable people, it often causes harm because the special care required with its use is not taken. There is little reason to believe that incompetent persons would treat gasoline differently than they would treat water, milk or other liquids which have no dangerous propensities for exploding or becoming ignited. As a general statement, it may be said that the vendor of gasoline has the duty not to place it in the hands of those who, by reason of age or other disabilities, are unaware of the special propensities of the material, and of the precautionary measures which must be taken when using or storing it. Under the particular facts of this case, when a six year old child comes alone to a service station attendant and procures gasoline, without any adult solicitation or any adult supervision, it may be said that the attendant has breached a duty imposed by a standard of care owed to at least the one to whom he has dispensed the gasoline.

The second part of the question, and the more serious issue, is whether or not this duty not to place gasoline in the hands of an incompetent six year old child encompassed the risk of harm which came to her four year old half-sister. More simply stated, is the risk that Penny's four year old half-sister wuld throw a lighted match into the gasoline, encompassed within the duty of the attendant not to place the gasoline in the hands of the six year old?

One of the reasons for imposing a duty that gasoline should not be placed in the hands of a child of tender age is the knowledge that such a person is likely to engage in play with the highly flammable and explosive substance. Children have a great propensity for engaging in group play. A small child of six routinely engages in play with children of her own age, or those slightly younger or older. It is a breach of duty to permit another person to use a thing or engage in an activity which originally was controlled by the actor if the actor knows, or should know, that the third person is likely to use the thing or to engage in conduct with it in such a manner as to create an unreasonable risk of harm to others. Restatement of Torts, Second, § 308. Thus, it is a breach of duty to others to place loaded firearms, poisons, or explosive substances in the hands of young children or other mental incompetents. The act of placing the gasoline in the hands of this incompetent child carried with it full realization, or at least a requirement to realize, that the conduct of the small child with the dangerous substance involved an unreasonable risk of harm to others. Particularly included within the risk of harm to others is the fact that, with the expectation of child group play, an easily associated risk is that some other incompetent, by reason of tender age, would misbehave or would misuse the gasoline.*

It was totally within the range of the attendant's realization of the consequences of his act that not only might harm result from misuse of the gasoline by the six year old Penny, but that other children of tender age might engage in conduct while playing around and with the gasoline so as to cause it to ignite or explode. The risk that the four year old half-sister would be injured through the possession of the gasoline by the incompetent six year old is exactly the kind of risk which the legal duty we have imposed on the attendant was designed to protect against. The duty not to place gasoline in the hands of an unsupervised incompetent six year old was designed not only to protect that child, but also to protect those whom she would...