Kirschner by Kirschner v. Louisville Gas & Elec. Co., 86-SC-1001-DG

• Decision Date: 21 January 1988
• Docket Number: No. 86-SC-1001-DG,86-SC-1001-DG
• Citation: 743 S.W.2d 840
• Parties: Christopher KIRSCHNER, An Infant by His Father and Next Friend, Gary E. KIRSCHNER, and Gary E. Kirschner and Linda Kirschner, Individually, Movants, v. LOUISVILLE GAS & ELECTRIC COMPANY, Respondent.
• Court: United States State Supreme Court — District of Kentucky

Page 840

743 S.W.2d 840

Christopher KIRSCHNER, An Infant by His Father and Next Friend, Gary E. KIRSCHNER, and Gary E. Kirschner and Linda Kirschner, Individually, Movants, v. LOUISVILLE GAS & ELECTRIC COMPANY, Respondent.

No. 86-SC-1001-DG.

Supreme Court of Kentucky.

Jan. 21, 1988.

Edgar A. Zingman, Virginia H. Snell, Mary E. Barrazotto, Wyatt, Tarrant & Combs, Louisville, for movants.

John W. Bilby, Mark S. Fenzel, Jeffrey D. Thompson, Middleton & Reutlinger, Louisville, for respondent.

STEPHENSON, Justice.

In this lawsuit for personal injury, the trial court granted summary judgment to Louisville Gas & Electric Company. The Court of Appeals affirmed. We granted discretionary review and affirm.

The factual situation, as described by the Court of Appeals, is as follows:

Christopher Kirschner was a highly intelligent, active fifteen-year-old who had just begun his freshman year in the honors program at Trinity High School and had made the honor roll. He led an active extracurricular life, both inside and outside of school.

The events leading up to Chris' being injured began on September 15, 1983. His activities on this date when he arrived home from school were his usual having something to eat, doing his homework, and then going outside to be with friends until dark. On this occasion, as Christopher Kirschner and his friends had often done in the past, they went to an open field near his neighborhood to play. He and his friends were not the only children who played regularly in the field. All of the other children in the neighborhood played in that area.

LG & E owned an easement across the open field for the distribution of electricity and transmission of electricity by means of high-voltage transmission wires strung overhead from a tower in the field, then onward to other distant towers. The tower in question was located near an entrance to the field and was of the usual open "Eiffel Tower" looking type secured to a concrete base. There is no dispute but that LG & E owned so much of the property as was covered by their electrical transmission easement and that it owned and maintained the tower itself.

One of the four legs of the tower was equipped with ladder-like spikes protruding on opposite sides for the purpose of climbing the tower. The lower rungs could be reached by standing on the concrete base. There was no fence or other structure surrounding the tower. The four-tower legs beginning at the base and continuing up to a level of 66 feet form a hollow, open-pyramid shape with cross-supporting beams. Upward from the 66-foot level, they form a hollow square and continue in this shape to the top. At the 66-foot level, the cross girders forming the perimeter of the square are close enough to each other so that a platform could be formed by placing plywood across the outer girders. Also, at this level is the first of five sets of cross arms to which are attached the transmission lines carrying LG & E's high-voltage electricity.

On the day before the accident, Christopher Kirschner and his friends had hauled a piece of plywood from some distance to this field and up the tower to the 66-foot level and formed a platform with it. They returned the next day, the date of the accident, and climbed the "ladder" girder leg to the platform. At the first cross member above the concrete base directly in front of the ladder rungs is a plainly visible warning sign containing on three separate lines the words, "DANGER HIGH VOLTAGE" underneath each other. The top word, "DANGER," was in red capital letters on white; the next word "HIGH," in black on white; as well as the bottom word, "VOLTAGE," which also had a sharp accent mark over its first and last letter.

Once having settled in on the plywood platform, Christopher Kirschner spotted several young ladies from the neighborhood approaching on one of the many pathways through the open field, and he waved to them. In doing so, he did not touch any of the high-voltage transmission lines which were perhaps six feet away. The record is not clear as to the exact distance. At this point, electricity from the transmission lines arced, striking Christopher Kirschner and causing severe injuries to him.

With all of the activity in the field around the tower, there is nothing in the record to show directly or by inference that any other children had climbed the tower or that LG & E had any notice directly or by inference that anyone had done so.

The trial court granted the motion for summary judgment on the basis that Kirschner was a trespasser.

LG & E also relied upon KRS 381.232 as a bar to recovery. Kirschner asserts that KRS 381.232 is contrary to the Constitution of Kentucky, Sec. 54, in that it eliminates a cause of action existing at the time of the adoption of the present Constitution in 1891 or is more restrictive than a cause of action embodied in the common law in 1891. The statute provides:

The owner of real estate shall not be liable to any trespasser for injuries sustained by the trespasser on the real estate of the owner, except for injuries which are intentionally inflicted by the owner or someone acting for the owner.

"Trespass" is defined in KRS 381.231(1) as follows:

A "trespasser" means any person who enters or goes upon the real estate of another without any right, lawful authority or invitation, either expressed or implied, but does not include persons who come within the scope of the "attractive nuisance" doctrine.

We are of the opinion that the phrase "injuries which are intentionally inflicted" represents a codification of the common law recognized before the adoption of the present constitution. In construing this phrase, we hold that intentionally inflicted means inflicted by willful, wanton, or reckless conduct. This type of conduct has been defined in Prosser & Keeton on the Law of Torts, 5th Ed. (1984), Chapt. 5, Sec. 34, pp. 212-213 as:

...They apply to conduct which is still, at essence, negligent, rather than actually intended to do harm, but which is so far from a proper state of mind that it is treated in many respects as if it were so intended....

The usual meaning assigned to "willful," "wanton," or "reckless," according to taste as to the word used, is that the actor has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow, and which thus is usually accompanied by a conscious indifference to the consequences....

In support of his assertion that the statute is unconstitutional, Kirschner relies on Bransom's Administrator v. Labrot, 81 Ky. 638, 5 Ky.Law Rep. 827 (1884), and Louisville and Nashville Railroad Co. v. Popp, 96 Ky. 99, 27 S.W. 992 (1894).

Both of these cases are inapposite; both involve small children and are more an application of what is now the "attractive nuisance" doctrine. When addressing the issue here, Bransom's Adm'r, in dicta, stated that "the owner has no right to wantonly injure even an actual trespasser."

Kentucky Central R.R. Co. v. Gastineau's Adm'r., 83 Ky. 119 (1885), contains a comment on the state of the law as to trespassers as follows:

It is not required to anticipate the intrusion of others; and one who enters upon them without right, does so at his peril; and, in case of injury, cannot recover, unless it was wantonly inflicted after the danger was discovered. Its duty to such a person or a trespasser is merely negative--it must not, when it knows of the peril, act maliciously or with a disregard of obvious consequences. It is not required to use care to anticipate and discover the peril to such a person, but only to do so after the discovery of the danger. Until then no legal duty is imposed upon it, because no one, by a wrongful act, can impose a duty upon another.

The opinion also contains an observation on what is now the attractive nuisance doctrine:

Undoubtedly children of tender years should not be treated strictly as trespassers, when guided by childish instincts they stray upon the track or into the yard of a railroad.

We do not have that issue in this case.

The quote from Kentucky Central R.R. Company would seem to be even more severe than the duty imposed on a landowner by the terms of the statute.

The citation of pronouncements by this court on pre-1891 cases has not covered a definitive statement on the state of the pre-1891 law on the duty, if any, owed to a trespasser by a property owner. It is incumbent on Kirschner to show us that the statute is more restrictive than the state of the law in 1891, and he has not.

Our research has not improved upon the research of counsel. Turning to post-1891 cases, we find Johnson v. Paducah Laundry Company, 122 Ky. 369, 92 S.W. 330 (1906). On the theory that the 1906 court is more versed in long-standing common law rules prior to 1891 than are we, this statement is found:

In the case before us the plaintiff's own testimony shows that he deliberately and purposely left the highway for the purpose of walking across the lot to take his uncle out of sight of the street. He was willfully using the defendant's property for his private purposes without any invitation from the defendant, and without its consent. So far as he is concerned, it is immaterial how far the vat was from the highway. He was not a traveler on the highway at all when he fell into the vat. He was then a trespasser on appellant's lot, having intentionally left the highway for purposes of his own. The case would not be essentia]ly different if there had been no highway adjoining the lot. It is insisted, however, that the owner of this uninclosed lot in a city ought to know that trespassers are liable to come upon it, and that a vat of boiling water is a thing so dangerous that it is negligence in the owner not to guard it as to one who falls into it in the dark. The general rule is that the owner of private grounds is under no obligation to keep them safe...