Kravetz v. B. Perini & Sons

• Decision Date: 11 February 1958
• Docket Number: No. 12287.,12287.
• Citation: 252 F.2d 905
• Parties: Jack KRAVETZ, a Minor by Saul Kravetz, Parent and Natural Guardian, and Saul Kravetz, in His Own Right, Appellants, v. B. PERINI & SONS, a Corporation.
• Court: U.S. Court of Appeals — Third Circuit

252 F.2d 905 (1958)

Jack KRAVETZ, a Minor by Saul Kravetz, Parent and Natural Guardian, and Saul Kravetz, in His Own Right, Appellants, v. B. PERINI & SONS, a Corporation.

No. 12287.

United States Court of Appeals Third Circuit.

Argued December 6, 1957.

Decided February 11, 1958.

P. J. McArdle, Pittsburgh, Pa., for appellants.

Arthur M. Grossman, Pittsburgh, Pa. (Gary F. Sharlock, Pittsburgh, Pa., on the brief), for appellee.

Before McLAUGHLIN, KALODNER and STALEY, Circuit Judges.

KALODNER, Circuit Judge.

This is an appeal from an Order of the United States District Court for the Western District of Pennsylvania granting defendant's motion for an involuntary dismissal of plaintiffs' action for damages.

The sole issue presented is whether sufficient evidence had been adduced by plaintiffs on the score of defendant's liability to warrant submission to the jury under applicable Pennsylvania law.

The facts as adduced by the plaintiffs' testimony may be summarized as follows:

Jack Kravetz, eight and one-half year old minor plaintiff, a normal boy of average intelligence, was injured on January 27, 1953 while taking a short-cut home from a friend's home through the unfinished Penn-Lincoln Parkway in Pittsburgh, Pennsylvania.

The section of the Parkway in question includes the Squirrel Hill Interchange with its maze of ramps and overpasses at the west entrance of the Squirrel Hill Tunnel. Plaintiffs' home is located on the perimeter of this complex of roadways on Beechwood Boulevard near Forward Avenue. Beechwood Boulevard is parallel to the new highway at this point and runs in an east-west direction. Forward Avenue passes beneath the Parkway and forms the stem of a T intersection with Beechwood. These streets provided the most direct route from the neighborhood schools and the Squirrel Hill business district to plaintiffs' home. The record also indicates that this route was the one customarily taken by the children in the area prior to the initiation of work on the Parkway.

Plaintiffs contend that defendant, the construction company in control of this portion of the project, destroyed all safe passages to and from the neighborhood schools and forced the children to seek more hazardous paths through the construction area. In this respect, there was testimony that the sidewalks on the west side of Forward Avenue and the north side of Beechwood Boulevard had been permanently eliminated; that the remaining sidewalks and roadways were torn up, muddy and heavily traveled during the course of construction; and that as a result of these conditions the streets were rendered inconvenient and dangerous for young children.

Defendant, on the other hand, contends there was no clear testimony that Beechwood Boulevard or Forward Avenue were unsafe for pedestrian travel at the time of the accident. Plaintiffs introduced four reports of inspections made by O. D. Berry for the Bureau of Public Roads of the United States Department of Commerce which indicate that the major construction work had been completed several months prior to the mishap. Coupled with this evidence was the testimony of several of the neighborhood children which established at least three different routes through the project. Most of them presented no danger. Unfortunately the minor plaintiff chose a hazardous path.

He turned off Forward Avenue before he reached the Beechwood Boulevard intersection and followed a path along the ramp cutting diagonally through the project from Forward Avenue to Beechwood Boulevard. At a point along the ramp approximately 75 feet from Forward Avenue, the minor plaintiff mounted a retaining wall one and one-half feet wide and rising in height from four feet three inches to 25 feet three inches. He successfully traversed the entire length of the wall, about 475 feet, but was seriously injured when he fell a distance of 25 feet as he attempted to step onto the curbing of an overpass from a concrete crossbeam which intersects the retaining wall and crosses the roadway.

The law in Pennsylvania governing the liability of a possessor of land for injuries suffered by trespassing children was first stated in Thompson v. Reading Railroad Co., 1942, 343 Pa. 585, 23 A.2d 729. It was there held that the rule embodied in Section 339 of the Restatement of Torts supplanted the older playground and attractive nuisance doctrines. This rule has been adopted in its entirety in Pennsylvania and has been consistently followed in numerous decisions.¹ To the extent that earlier cases conflict with § 339, they have been expressly overruled. Bartelson v. Glen Alden Coal Co., 1949, 361 Pa. 519, 64 A.2d 846.

Section 339 provides:

"A possessor of land is subject to the liability for bodily harm to young children trespassing thereon caused by a structure or other artificial condition which he maintains upon the land if (a) the place where the condition is maintained is one upon which the possessor knows or should know that such children are likely to trespass, and (b) the condition is one of which the possessor knows or should know and which he realizes or should realize as involving 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 in it or in coming within the area made dangerous by it, and (d) the utility to the possessor of maintaining the condition is slight as compared to the risk involved to young children involved therein."

The record establishes that the minor plaintiff was a trespasser at the time of his injury² and that the defendant was a possessor of land within the meaning of the Restatement Rule.³ Therefore, in order for plaintiffs to prevail, they must meet each of the four conditions enumerated above. Dugan v. Pennsylvania R. R. Co., 1956, 387 Pa. 25, 127 A.2d 343. We agree with the District Court that the evidence intended to satisfy conditions (c) and (d) was insufficient to warrant submitting the case to the jury.

In granting the motion to dismiss, the District Court relied on McHugh v. Reading Co., 1943, 346 Pa. 266, 30 A.2d 122, 145 A.L.R. 319. There, the decedent, a six year old girl, fell to her death as she descended from a perch atop an ornamental cornice which capped a 24 foot concrete abutment supporting one of defendant's railroad bridges in the City of Philadelphia, and it was contended that the scroll formation lured the children into climbing and that the railroad should have taken steps to safeguard against such an accident. In denying recovery, the Supreme Court of Pennsylvania held that liability to trespassing children was "limited to accidents arising from latent dangers, such as unguarded machinery, live wires, pits or open trap doors" as distinguished from stationary objects. This distinction was based on the condition of liability set forth in § 339(c) of the Restatement that "the children because of their youth * * * do not realize the risk involved." In the comment on this clause the Restatement states that the rule "does not require him (the possessor of land) to keep his land free from conditions which even young children are likely to observe and the full extent of the risk involved in which they are likely to realize. The purpose of the duty is to protect children from dangers which they are unlikely to appreciate and not to protect them against harm resulting from their own immature recklessness in the case of known danger."⁴

In applying this statement of the law to the facts of the McHugh case, Mr. Justice Stern (later Chief Justice) stated (346 Pa. at page 269, 30 A.2d at page 123):

"No danger is more commonly realized or risk appreciated, even by children, than that of falling; consciousness of the force of gravity results almost from animal instinct. Certainly a normal child nearly seven years of age — indeed any child old enough to be allowed at large — knows that if it steps or slips from a

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