Loney v. McPhillips

• Decision Date: 18 April 1974
• Parties: Stanley F. LONEY, Personal Representative of the Estate of Robert Loney, Deceased, Appellant, v. B. A. McPHILLIPS, Respondent.
• Court: Oregon Supreme Court

Page 340

521 P.2d 340

268 Or. 378

Stanley F. LONEY, Personal Representative of the Estate of Robert Loney, Deceased, Appellant, v. B. A. McPHILLIPS, Respondent.

Supreme Court of Oregon, In Banc.

Argued and Submitted Nov. 6, 1973.

Decided April 18, 1974.

Wesley A. Franklin, Portland, argued the cause for appellant. With him on the brief were Franklin, Bennett, Ofelt, DesBrisay & Jolles, Portland.

Douglas E. Kaufman, Tillamook, argued the cause for respondent. With him on the brief were McMinimee & Kaufman, Tillamook.

BRYSON, Justice.

This is an action to recover damages for the wrongful death of a 13-year-old boy who drowned while trespassing on defendant's property at Cape Kiwanda on the Oregon coast. Plaintiff's complaint alleged the following material facts:

'II.

'At all times herein mentioned defendant was the owner of certain lands in Tillamook County, Oregon, adjacent to the Pacific Ocean, a portion of which said land is generally known as 'Cape Kiwanda'. That a public highway runs through a portion of Tillamook County near Cape Kiwanda and said cape is readily accessible from the public highway. That becaue of the view from said cape, people and particularly children have trespassed therein for many years last past, which fact was and is well known to defendant. That because of the peculiar formation of a 'cove' at said cape, the tides and the wind, said cape is particularly hazardous at high tide and poses an unreasonable risk of death or serious injury to trespassing children. That because of their youth and inexperience children do not realize the risk involved in trespassing upon the cape and the burden of eliminating the risk is slight.

'III.

'On or about May 30, 1971, the deceased in the company of several other youngsters was trespassing upon Cape Kiwanda when he was suddenly and unexpectedly swept into said 'cove' by a wave and lost his life by downing.'

Plaintiff further alleged that defendant was negligent in failing to erect warning signs and fences at the highway or at the edge of the cove.

Defendant demurred to the complaint on the grounds that it failed to state a cause of action. The trial court sustained the demurrer and plaintiff declined to plead further. The court entered an order dismissing the complaint. Plaintiff appeals from that order. We accept the allegations of the complaint as true.

The plaintiff contends that a possessor of land is subject to tort liability for injuries suffered by a child trespasser due to a natural dangerous condition of the land.

The law of this state concerning the special duty of a land possessor to children is set forth in 2 Restatement (Second) of Torts § 339 (1965):

' § 339. Artificial Conditions Highly Dangerous to Trespassing Children

'A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if

'(a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and

'(b) the condition is one of which the possessor known or has reason to know and which he realizes or should realize will involve 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 with it or in coming within the area made dangerous by it, and

'(d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and

'(e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.'

See Karoblis v. Liebert, 263 Or. 64, 69, 501 P.2d 315 (1972).

The caveat to section 339 provides that '(t)he Institute expresses no opinion as to whether the rule stated in this Section may not apply to natural conditions of the land.' This caveat is explained in comment p to section 339:

'* * * The Caveat leaves open the question whether the rule stated in this Section may not apply to natural conditions of the land. The case law thus far indicates that it does not so apply; but in all of the decided cases the condition has been one, such as a body of water, which the child might be expected to understand and appreciate, as stated in Comment j. In most instances the burden of improving land in a state of nature in order to make it safe for trespassing children would be disproportionately heavy * * *, and for that reason alone there would be no liability. Cases may, however, arise in which there would be no such disproportionate burden, and the natural condition is one which the child could be expected not to understand. The Caveat leaves open the possibility of liability in such a case.'

Plaintiff contends that 'other Courts have now abandoned any distinction between natural and artificial conditions,' but only two cases are cited--Martinez v. Louis Lyster, General Contractor, Inc., 75 N.M. 639, 409 P.2d 493 (1965), and Lyshak v. City of Detroit, 351 Mich. 30, 88 N.W.2d 596 (1958). These cases do not involve injury due to natural conditions of the land. In Martinez, a seven-year-old boy was injured when he fell while playing on culvert pipes stacked in pyramid fashion. In Lyshak, a seven-year-old boy was injured when struck by a golf ball while he was trespassing on the golf course. The court stated, '(i)n the interests of accuracy, it should be pointed out that the case before us does not involve injury from the mere physical condition of the premises, whether natural or artificial * * *.' In the later case of Swanson v. City of Marquette, 357 Mich. 424, 98 N.W.2d 574, 576--577 (1959), involving injury to a trespassing child from high voltage wires, 'a static condition, artificially created,' the Michigan court adopted 2 Restatement (Second) of Torts, § 339.

Several writers have urged the courts to abandon the distinction between artificial and natural conditions in relation to this special duty to children. See Prosser, Trespassing Children, 47 Calif.L.Rev. 427, 446--47 (1959); Rubin, Torts: Attractive Nuisance Doctrine: Applicability to Natural Conditions, 2 Okl.L.Rev. 537 (1949); and Batson, Trespassing Children: A Study in Expanding Liability, 20 Van.L.Rev. 139, 152--53 (1966), wherein it is stated:

'The expansion of the doctrine to natural as well as artificial conditions would appear reasonable. But, since no case has arisen on the point--and until such a case arises the drafters (of the Restatement (Second) of Torts § 339) are unwilling to express their opinion in anything more than a caveat--this particular suggestion appears to be of little consequence.' Id. at 150.

Other writers and the courts require an affirmative arrangement of the dangerous condition by some non-natural agency. See 2 Harper & James, The Law of Torts 1452--1453 (1956); Green, Landowner v. Intruder; Intruder v. Landowner. Basis of Responsibility in Tort, 21 Mich.L.Rev. 495, 520--21, n. 104b (1923); Annot., 8 A.L.R.2d 1254, § 33 (1949); 65 C.J.S. Negligence § 63(82) (1966) and cases there cited. We find no cases wherein the court has extended the landowner's duty to children under the so-called 'attractive nuisance' doctrine to include natural conditions. ¹

In Pocholec v. Giustina et al., 224 Or. 245, 251--252, 355 P.2d 1104 (1960), we approved the language in 2 Restatement (Second) of Torts, § 339, and Dean Prosser's summary of the law, Trespassing Children, 47 Calif.L.Rev. 427 (1959), which makes no distinction between artificial and natural conditions of the possessor's land. However, in Pocholec the distinction between an artificial and a natural dangerous condition of the land was not before the court. In that case, a nine-year-old boy drowned in an artificial log pond constructed solely for storage of logs at the defendant's mill. We affirmed a judgment entered upon a jury verdict for defendant.

The distinction between artificial and natural conditions of land has been rationalized on several grounds: that children are presumed to appreciate conditions which occur in nature; ² that an extension of liability for natural conditions would impose on the land occupier an affirmative duty in favor of a mere trespasser, which the law is reluctant to do; ³ that as to "common dangers existing in the order of nature, it is the duty of parents to guard and warn their children, and, failing to do so, they should not expect to hold others responsible for their own want of care;" ⁴ and that '* * * the burden of improving land in a state of natural condition in order to make it safe for trespassing children would be disproportionately heavy * * *.' ⁵

Without passing on the validity of these rationales, we believe the distinction between artificial and natural conditions of land, as to trespassing children, can and should be continued in Oregon on the basis of public policy.

The Oregon Blue Book for 1973--74 states, at 160--61:

'Public Lands in Oregon

'With more than half its land held by the federal government, Oregon ranks high among the public land states. Of the 61,664,000 acres of land within its borders, 52% Or 32,089,000 acres, is owned by the United States and another three percent by state and local governments.

'* * *

'The character of the lands in public ownership is important to their present management and to their future significance to the economy of the state. Some of the most valuable timberlands are publicly held, as are much of the low-value grazing lands. Many areas of scenic and recreational interest are owned by federal and state governments. One of the most important to this purpose is the state's ownership of the Pacific Ocean beaches and the beds of other navigable waters. * * *

'* * * Adding to the principal land-management agencies are city-owned areas, reclamation and dam projects, highway rights of way, game reserves, parks and recreation agencies...