Martinez v. Louis Lyster, General Contractor, Inc.

Decision Date29 November 1965
Docket NumberNo. 7706,7706
Citation75 N.M. 639,409 P.2d 493,1965 NMSC 140
PartiesMark MARTINEZ, a Minor by Julian Martinez, his father and next friend, Plaintiff-Appellant, v. LOUIS LYSTER, GENERAL CONTRACTOR, INC., a corporation, Defendant and Cross-Defendant Appellee, ATCHISON, TOPEKA & SANTA FE RAILWAY CO., a corporation, Defendant and Cross-Claimant, Third Party Plaintiff, Appellee, v. The CITY OF LAS VEGAS, New Mexico, a Municipal Corporation, Third Party Defendant, Appellee,
CourtNew Mexico Supreme Court

Bigbee & Byrd, John A. Mitchell, Santa Fe, for appellant.

Seth, Montgomery, Federici & Andrews, Fred C. Hannahs, Santa Fe, for appellee Louis Lyster, General Contractor.

Iden & Johnson, R. G. Cooper J. J. Monroe, Albuquerque, for appellee, Atchison Topeka & Santa Fe Railway Co.

Roberto L. Armijo, Las Vegas, for appellee The City of Las Vegas, New Mexico.

COMPTON, Justice.

This is an action recover damages for injuries sustained by a 7-year-old boy in falling from a stack of culvert pipes. Summary judgments were granted for the defendants, and the plaintiff appeals.

Mark Martinez, by his father and next friend, instituted the suit against Louis Lyster, General Contractor, Inc., hereinafter referred to as Lyster, alleged to be the owner of the pipes, and against Atchison, Topeka & Santa Fe Railway Company, hereinafter referred to as Santa Fe, on whose property the pipes were stacked. Thereafter, Santa Fe joined the City of Las Vegas as a third party defendant and cross-claimed against Lyster. Based on the pleadings of the parties, and depositions of Lyster and employees of Santa Fe, the injured boy, his parents and brother, the court concluded, as a matter of law, that Lyster and Santa Fe were entitled to summary judgments.

The three steel, asphalt-covered, culvert pipes in question were 42 inches in diameter and 16 feet long. They were stacked in pyramid fashion with two pipe on the ground adjacent to each other and the third one on top. Thus stacked, the pipes were located on Santa Fe property near its tracks at the intersection of two streets, and at the rear of the backyard of the appellant's home in Las Vegas. They had been in that position, near a pathway used by pedestrians to cross the tracks, for nearly a year preceding the injury involved. The pipes were originally so placed by a supplied at the instance of a contractor for the City of Las Vegas under a pipeline license from Santa Fe to the city, and were thereafter acquired by Lyster from a previous contractor for use in performing a subsequent contract with the city of lay a sewer line beneath the Santa Fe tracks. While Santa Fe gave no specific permission for the pipes to be stacked on its property, yet, with knowledge of their presence, it did not object thereto. The president of Lyster knew that children played on and around the pipes, and employees of Santa Fe knew that children played on its property near the tracks. The record is not clear as to when title or control passed to Lyster.

On July 5, 1963, the appellant, his brother and two friends, were playing the game of 'tag' in and upon the pipes. In order to swing himself from one of the lower pipes across to the other lower one the appellant held onto the top rim of the top pipe. In the course of this maneuver his hands slipped and he fell backwards onto the ground suffering the injuries alleged. The fall resulted from playing on the stack of pipes and not from any defective condition in or any movement of the pipes themselves.

The action was based upon the doctrine of attactive nuisance. The fundamental issue is whether the court erred in concluding, as a matter of law, that the culvert pipes did not constitute an attractive nuisance and that the defendants were not negligent.

The aellant takes the position that this is a proper case for the application of the doctrine of attractive nuisance and that there wre genuine issues of material fact which were erroneously disposed of summarily by the trial court.

The appellees, on the other hand, argue that because the facts were undisputed it was for the court to determine, as a matter of law, whether there arose any duty on the part of the appellees to the appellant. Consequently, they assert the court was correct in concluding that the stacked pipes did not constitute an attractive nuisance and that the appellees were not liable for injury to the appellant who fell from such nondefective and stationary objects reached by climbing. In support of their position, the appellees rely strongly on McFall v. Shelley, 70 N.M. 390, 374 P.2d 141, wherein a block wall was held not to be an attactive nuisance in the absence of hidden danger of which the possessor of the property had knowledge.

We do not understand the McFall case, or other cases cited from this jurisdiction, to support the appellees' position that all nondefective and stationary objects or structures upon which a trespassing child climbs and from which he falls are excepted from the application of the so-called doctrine of attractive nuisance.

In Klaus v. Eden, 70 N.M. 371, 374 P.2d 129, this court stated that there is nothing different in the so-called law of attractive nuisance and the general law of negligence, except that involved is a recognition of the habits and characteristics of very young children. This was reiterated in the recent case of Saul v. Roman Catholic Church of Arch. of Santa Fe, 75 N.M. 160, 402 P.2d 48, wherein we also stated that:

'In order to subject a possessor of land to liability for bodily harm to young children trespassing, there must be a concurrence of the following conditions, (1) the place of property must be one upon which the owner knows or should know children are likely to trespass, (2) the condition of the property must be one which the owner knows or should know involves an unreasonable risk of death or harm to such children, (3) the children because of their youth do not discover the condition or realize the risk, and (4) the utility to the possessor or owner of maintaining the condition is slight as compared to the risk of young children involved. Restatement of Torts, Sec. 339; Klaus v. Eden, 70 N.M. 371, 374 P.2d 129; Selby v. Tolbert, 56 N.M. 718, 249 P.2d 498.'

and, further, with reference to attractive nuisance cases therein cited and discussed, including McFall v. Shelley, supra, we said:

'We do not perceive that these cases stand for the proposition that certain conditions or instrumentalities do, or do not, constitute an attractive nuisance. In each of them, the test of foreseeability of harm to a child under the particular circumstances was the crucial consideration.'

It is clear from the above that this court has never sanctioned attempts to place cases involving the doctrine of attractive nuisance in a rigid category on the basis of the type of condition involved. Whether the maintenance of a specific condition can give rise to liability for harm to trespassing children must necessarily turn on the facts of the particular case.

The situation here is factually similar to Saul v. Roman Catholic Church, supra. Questions of fact were present whether Lyster knew that children played on and around the pipes, whether Santa Fe employees knew that children trespassed on its property to play, whether Lyster owned or controlled the pipes and whether the appellees exercised that degree of care for the protection of appellant which the circumstances required. These are not matters of law for the court to dispose of by summary...

To continue reading

Request your trial
4 cases
  • Williams v. Town of Silver City
    • United States
    • Court of Appeals of New Mexico
    • September 22, 1972
    ...basis of the type of condition involved. Its application depends on the facts of the particular case. Martinez v. Louis Lyster, General Contractor, Inc., 75 N.M. 639, 409 P.2d 493 (1965). I believe the doctrine applies to the 'ditch embankment The only question argued is: Does the doctrine ......
  • 1998 -NMSC- 7, Carmona v. Hagerman Irrigation Co.
    • United States
    • New Mexico Supreme Court
    • March 5, 1998
    ...New Mexico have considered the attractive nuisance doctrine on numerous occasions. See generally Martinez v. Louis Lyster, Gen. Contractor, Inc., 75 N.M. 639, 642, 409 P.2d 493, 495 (1965) (reversing trial court's conclusion that culvert pipes do not constitute an attractive nuisance as a m......
  • Latimer v. City of Clovis
    • United States
    • Court of Appeals of New Mexico
    • March 10, 1972
    ...language in Mellas, supra, has been modified by subsequent decisions of the New Mexico Supreme Court. Martinez v. Louis Lyster, General Contractor, Inc., 75 N.M. 639, 409 P.2d 493 (1965) '* * * this court has never sanctioned attempts to place cases involving the doctrine of attractive nuis......
  • Loney v. McPhillips
    • United States
    • Oregon Supreme Court
    • April 18, 1974
    ...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 ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT