Klaus v. Eden

• Citation: 1962 NMSC 106,374 P.2d 129,70 N.M. 371
• Decision Date: 14 August 1962
• Docket Number: No. 6964,6964
• Parties: Bernard KLAUS, individually; Bernard Klaus, Administrator of the Estate of John Mike Klaus, deceased; and Dorothie Marie Klaus, a minor, by Bernard Klaus, her next friend, Plaintiffs- A v. C. R. EDEN, C. R. Eden Construction Co., and Charles P. Harrington, Defendants-Appellees.
• Court: Supreme Court of New Mexico

Page 129

374 P.2d 129

70 N.M. 371

Bernard KLAUS, individually; Bernard Klaus, Administrator of the Estate of John Mike Klaus, deceased; and Dorothie Marie Klaus, a minor, by Bernard Klaus, her next friend Plaintiffs- A v. C. R. EDEN, C. R. Eden Construction Co., and Charles P Harrington, Defendants-Appellees.

No. 6964.

Supreme Court of New Mexico.

Aug. 14, 1962.

Shipley, Seller & Whorton, Alamogordo, for appellants.

W. C. Whatley, L. E. Oman, Las Cruces, for appellees.

MOISE, Justice.

At about 9:00 a. m. on August 6, 1959, a week day, the defendant C. R. Eden, who was President of the defendant C. R. Eden Construction Co., landed his Bonanza airplane at a small unattended or 'week-end' airport in Alamogordo, New Mexico, after a flight from Albuquerque. Defendant construction company was engaged in building houses in Alamogordo, and defendant C. R. Eden had landed at this airport some 100 times over the last several years.

The plane had a single door and standard equipment. When the door is closed the handle is flush with the door on the outside. To get hold of it, a small knob on one end of the handle must be pushed, whereupon the handle pushes up, and it can be gotten hold of. Then it must be jerked to open the door. The handle on the inside is designed very much like a car door handle, except there is a button in the head of the handle which must be pressed to release a catch and make the handle operable. If the button is not pushed the handle will not engage the latch. As was defendant Eden's custom when parking during the day, he did not lock the door with a key. When parking at night he would lock the plane to protect it from vandals. An affidavit in the file indicates that pilots when parking at 'week-end' airports customarily locked the doors of their planes to protect them from trespass, theft and vandalism. To permit moving the plane under such circumstances the brake is not set, and the wheels are chocked, or the plane tied down.

The airport was operated by defendant, Charles P. Harrington. It had no attendants and offered no services except on weekends. It was available for landing, parking and taking off every day of the week. It was located at the northerly city limits of Alamogordo. A highway bounded it on the west and there was another road running along the south. Adjoining the airport on the east are located the Otero County Fair Grounds which were utilized as a recreation area for the general public. It consisted of fair ground building, a roping arena, livestock stalls, and a section where there were public rides, games and food and drink concessions which were open daily. There was no fence separating the fair grounds and the airport, and the country was open, leved and unobstructed. It was approximately one-quarter mile from the fair ground buildings to the place where defendant Eden parked his plane.

On the day in question John Mike Klaus, aged 8, and his siter, Dorothie Marie Klaus, aged 7, were playing in their fenced back yard located somewhere between a half mile and a mile from the airport, when about 8:15 or 8:30 a. m., their step-mother became aware that they had left the yeard. It appears they had gone to look for a neighbor's dog, had wandered to the amusement area of the fair grounds and from there to the airport where they got into defendant Eden's plane, closed the door and then couldn't open it to get out. Eden, upon his return to the plane about 4:30 p. m. found John Mike dead and Dorothie Marie so affected from being in the extremely hot, closed plane as to require hospitalization and medical treatment. This was the first time that the children had ever wandered away from home to the fair grounds or airport, and there is no proof that any other children had ever been seen around the airport.

The trial court sustained a motion for summary judgment in behalf of defendant, Eden, and defendant, C. R. Eden Construction Company, from which ruling this appeal is prosecuted. Plaintiff's position is that defendants are liable under the attractive nuisance doctrine.

Appellants argue that the doctrine of attractive nuisance has been recognized in New Nexico since 1943 and our decision in Barker v. City of Santa Fe, 47 N.M. 85, 136 P.2d 480, and they place particular reliance on Selby v. Tolbert, 56 N.M. 718, 249 P.2d 498. This was a case in which an 8-year old child was injured while playing around a burned out semitrailer which had been placed upon a dolly, braced by beams, and left by defendants on a vacant lot situated directly across the street from a church. Several children crossed the street from the church and were playing near the trailer when plaintiff, attracted by the melted remnants of the red tail light, touched it and the trailer tipped over onto him, breaking his leg. Judgment in his favor was affirmed.

In the course of its opinion, this court reviewed the origin and development of the attractive nuisance doctrine, and noticed that several states do not recognize it. The court further indicated its acceptance and approval of the Restatement of Torts, Sec. 339, which it described as an 'attempt to clarify the rules.'

In the case of Cotter v. Novak, 57 N.M. 639, 261 P.2d 827, we noted the decision in Selby v. Tolbert, supra, and pointed out that whereas there is nothing inherently dangerous about a trailer, the decision there turned on the fact that the manner of parking created a dangerous condition which might be attractive to playing children and which defendants should have foreseen as reasonable men.

In Mellas v. Lowdermilk, 58 N.M. 363, 271 P.2d 399, we again had occasion to quote from page 925 of the Restatement of Torts, Sec. 339, and to refer to Selby v. Tolbert, supra. We called attention to the rule that cases are to be construed on a basis of the facts involved therein, and that the manner of parking the trailer resulted in hidden dangers not apparent to the child who was injured.

Additionally, appellants argue that the facts in the instant case are analogous to those in Railroad Company v. Stout, 17 Wall. 657, 84 U.S. 657 (1873), which was the first of the 'turntable cases' in which a recovery was allowed to a child who trespassed on railroad property and was injured while playing with a turntable. Points of similarity are called to our attention. The distance of appellant's home from the amusement park is approximately the same as the distance of the plaintiff's home from the depot in Stout. The turntable was some 1/4 mile from the station house and it was not enclosed or visibly separated from the adjoining property; in the instant case the plane was parked approximately 1/4 mile from the amusement park which was not visibly separated from the airport. In both cases, travelled...