Laudermilk v. Carpenter

• Decision Date: 21 August 1969
• Docket Number: No. 39296,39296
• Parties: Steven LAUDERMILK, a minor, by George Laudermilk, his guardian ad Litem, Appellant, v. Charles Earl CARPENTER and Sandra Lee Carpenter, his wife, Respondents.
• Court: Washington Supreme Court

Page 92

78 Wn.2d 92

457 P.2d 1004

Steven LAUDERMILK, a minor, by George Laudermilk, his guardian ad Litem, Appellant, v. Charles Earl CARPENTER and Sandra Lee Carpenter, his wife Respondents.

No. 39296.

Supreme Court of Washington, Department 2.

Aug. 21, 1969.

Sullivan, Burton & Meade, Daniel F. Sullivan, Seattle, for appellant.

Thomes D. Loftus, Seattle, for respondents.

ENNIS, Judge. ^*

This is an appeal from a tort action in which a minor boy was denied recovery for serious burns sustained in defendants' backyard. (Henceforth defendants will be referred to in the singular.)

A brief background of the facts are: On January 4, 1964 Steven Laudermilk, then age 4, was burned severely while playing in the backyard of his friend, Michael Carpenter. The fire had been started in an incinerator by Mr. Carpenter's older son, Tony, then age 6. Mr. Carpenter had instructed his son on burning the trash in the backyard and often left Tony to supervise the fire. On this occasion Mr. Carpenter supervised by making visual checks of the fire periodically for about 30 minutes. Mr. Carpenter testified that he never saw his younger son, Michael, or the plaintiff in his backyard. 20 minutes after the fire was started, Tony, with his father's permission, discontinued his supervision and left the backyard with a friend. Young Michael Carpenter and his friend, Steven, were apparently playing in the sandbox in the backyard at the time. The accident occurred about 1 1/2 hours after the fire was started. The only witnesses to the accident were the plaintiff and Michael Carpenter.

The action was brought by Steven's father as guardian ad litem on the theory that defendant was negligent in entrusting fire supervision to his 6-year-old son, and then in leaving it unsupervised when he knew, or should have known, his younger son was playing in the backyard and that often other small children played there. The jury rendered a verdict for defendant and plaintiff has appealed.

Basically the assignments of error raise the issues of whether the trial court (1) erred in failing to find defendant negligent as a matter of law; (2) erred in failing to strike the defense of contributory negligence; (3) deprived plaintiff of the opportunity of adequately presenting his theory of the case to the jury; and (4) erred in excluding the testimony of the minor child Tony Carpenter.

At the outset we point out that this case was tried and submitted to the jury on the theory that defendant owed the plaintiff child the duty of reasonable care. The trial court's instruction No. 6 is as follows:

The owner of land where children are allowed or accustomed to play must use reasonable and ordinary care to avoid injury to a child who may come upon the property.

By reasonable and ordinary care is meant that degree of care which an ordinarily careful and prudent landowner would exercise under the same or similar circumstances or conditions. Negligence may consist in the doing of some act which a reasonably prudent person would not do under the same or similar circumstances, or in the failure to do something which a reasonably prudent person would have done under the same or similar circumstances and conditions.

Plaintiff took no exception to this instruction and, in fact, urged the trial court to adopt this view of the case in the event the court did not direct the verdict in his favor.

Defendant, however, urged at the trial and now on appeal that the trial court should have instructed the jury that plaintiff was a trespasser, or at best a licensee, to whom defendant owed only the duty to refrain from inflicting willful or wanton injury.

At this point a discussion of our holdings in the Helland v. Arland, 14 Wash.2d 32, 126 P.2d 594 (1942); Potts v. Amis, 62 Wash.2d 777, 384 P.2d 825 (1963); and Cox v. Hugo, 52 Wash.2d 815, 329 P.2d 467 (1958) cases, relied on by both parties, is appropriate to avoid confusion as to the status of Washington law in regard to children who are plaintiffs in personal injury actions such as these.

In Helland v. Arland, Supra, a 5-year-old girl had climbed onto the side of a milk truck. When the driver returned from making deliveries and started to pull away, the plaintiff fell or jumped from the truck and the rear wheel passed over her. It was contended that the girl was a trespasser, or at best a licensee, to whom the driver owed only the duty of refraining from willful or wanton injury. In rejecting this contention, the court cited with approval language from Bjork v. Tacoma, 76 Wash. 225, 228, 135 P. 1005, 1007, 48 L.R.A., N.S., 331 (1913), which described this rule as a 'cruel and wicked doctrine, unworthy of a civilized jurisprudence * * *.' After an extensive quote from the Bjork case, our court said in Helland v. Arland, Supra, 14 Wash.2d at 35, 126 P.2d at 596:

The Bjork case is not determinative of the question now presented because that decision is finally rested on the doctrine of attractive nuisance. But it is authority for the proposition that the driver of the truck owed a duty greater than merely to refrain from inflicting willful or wanton injury. We think 'the more humane rule,' with respect to children who are, and can be, merely technical trespassers, is that of reasonable care. (Italics ours.)

In Cox v. Hugo, Supra, the question of the standard of care owed to a 5-year-old girl under facts similar to those in the case at bar was never raised on appeal. That case went to trial on the theory, acquiesced in by the defendant, that the standard was one of reasonable care. The primary issue considered by the court on appeal was that of the contributory negligence of the child, Deborah Cox, and her parents. We will not discuss that phase of the case here. Plaintiff reasons, and we think correctly, that the Cox case indicates the court recognized the status of the law, in regard to the duty owed small children, was that of reasonable care.

Potts v. Amis, Supra, involves injury to a plaintiff who was an invited guest at the defendant's summer home. While demonstrating a golf swing defendant struck and injured plaintiff with a golf club. Both plaintiff and defendant were adults. It was contended in defense that plaintiff was a licensee to whom the defendant owed only the duty of refraining from willful or wanton injury. After a thorough analysis of the cases and tests dealing with the liability of landowners to invitees, licensees and trespassers, Justice Rosellini pointed out that almost invariably when liability has been denied, it is in cases involving injury as a result of some defect in or condition of the premises, and that the consensus of opinion seems to be that where the activities of a defendant are involved, the test should be one of reasonable care under the circumstances. Justice Rosellini said at 62 Wash.2d 787, 384 P.2d 831:

We need not determine at this time whether the rule applicable to injuries resulting from the condition of the premises should be revised. But we hold that, an owner or occupier of land has a duty to exercise reasonable care to avoid injuring a person who is on the land with his permission and of whose presence he is, or should be, aware. This holding is in accord with the second exception mentioned in the dictum of the Christensen case (Christensen v. Weyerhaeuser Timber Co., 16 Wash.2d 424, 133 P.2d 797). Insofar as McNamara v. Hall, Supra, (38 Wash.2d 864, 233 P.2d 852) Waller v. Smith, Supra, (116 Wash. 645, 200 P. 951) and Schock v. Ringling Bros. & Barnum & Bailey Combined Shows, Supra, (5 Wash.2d 599, 105 P.2d 838) are inconsistent with this holding, they are hereby overruled.

Defendant argues that this case is authority for his position that since the fire in the instant case was a condition of the premises, rather than an activity of defendant, the old rules in regard to trespassers should apply. We do not so precisely read that case. The stronger message to be gleaned from Potts is that an owner or occupier of land under proper circumstances, owes the duty of reasonable care to one whose presence is known to him, be he an invitee or licensee.

We again point out that the Potts case involved adults and did not concern itself with the duty owed to small children. We think it immaterial that a defendant may be the owner of land rather than the owner of a truck (Helland v. Arland, Supra) in connection with his responsibility to small children, and we are satisfied that the trial court properly submitted this case to the jury under its 'reasonable care' instruction set out above. To rule otherwise would violate the principle of 'humaneness' adopted in Helland, supra.

Plaintiff contends that the fact combination in this case required a ruling by the trial court that defendant was negligent as a matter of law. Plaintiff points out that defendant knew that small children often played in his backyard which was equipped with swings and a sandbox. Considering the inherently dangerous and extrahazardous nature of fire, along with the ignorance of small children of such danger, plaintiff contends that failure to provide on-the-spot supervision was a violation of the duty of reasonable care owed to him as a matter of law.

In Gordon v. Deer Park School Dist. No. 414, 71 Wash.2d 119, 426 P.2d 824 (1967), this court dealt exhaustively with the question of the trial court's adjudication of negligence as a matter of law. In that case the court set out nine rules the trial court must consider before making such a ruling. The first four are ordinary rules of negligence upon which the jury was instructed in the instant case. We set out the following five rules therein enunciated at 122--123, 426 P.2d at 826, omitting supporting citations:

(5) Whether one who is charged with negligence has exercised reasonable care is a question of fact for the jury. (citing cases) (6) A trial judge cannot adjudicate a person guilty of negligence as a matter of law unless the following elements...