Mathis v. Swanson

• Decision Date: 21 April 1966
• Docket Number: No. 37348,37348
• Court: Washington Supreme Court
• Parties: Daniel MATHIS, a minor, by his Guardian ad Litem, Ethel Mathis, Appellant, v. Carl O. SWANSON and Ruth E. Swanson, his wife, and Charles H. Swanson and Helen R. Swanson, his wife, doing business as Swanson Brothers, a partnership, Swanson's Food of Aberdeen, Inc., a corporation, Dan Henry and Jessie M. Henry, his wife, and Robert G. Henry and Ethel M. Henry, his wife, doing business as Lamb Construction Co., a partnership, Respondents.

Page 424

68 Wn.2d 424

413 P.2d 662

Daniel MATHIS, a minor, by his Guardian ad Litem, Ethel Mathis, Appellant, v. Carl O. SWANSON and Ruth E. Swanson, his wife, and Charles H. Swanson and Helen R. Swanson, his wife, doing business as Swanson Brothers, a partnership, Swanson's Food of Aberdeen Inc., a corporation, Dan Henry and Jessie M. Henry, his wife, and Robert G. Henry and Ethel M. Henry, his wife doing business as Lamb Construction Co., a partnership, Respondents.

No. 37348.

Supreme Court of Washington, En Banc.

April 21, 1966.

Gladys Phillips, Aberdeen, for appellant.

Schumacher & Charette, John W. Schumacher, Aberdeen, Kahin, Horswill, keller, Rohrback, Waldo & Moren, David F. Hiscock, Seattle, for respondents.

OTT, Judge.

This action, predicated upon the attractive nuisance doctrine, was commenced by Ethel Mathis, as guardian ad litem for her son, Daniel Mathis, aged 13, who was injured while on the property of the defendants, when his brother, walking on a steel I beam, caused it to fall on Daniel's foot. The defendants were the owners of Swanson's Market in Aberdeen and the owners of the Lamb Construction Company, which was in charge of remodeling the market.

The defendants were granted summary judgment of dismissal, and plaintiff appeals.

The facts, as shown by the pleadings, affidavits, depositions, and photographs, are substantially as follows:

During the remodeling project, five carrier loads of steel I beams were delivered to the premises on April 26, 1961, and placed near the public sidewalk. No barricade was placed between the I beams and the sidewalk. Four of the I beams were laid parallel on carrier blocks and rested on their flanges, in an upright position. Each beam weighed 1,870 pounds, was 34 feet long, with 7 1/2-inch flanges and and an 18-inch web between the flanges.

Sunday afternoon, April 30, 1961, Daniel Mathis and his two brothers, aged 10 and 11, were walking on the sidewalk adjacent to the market and noticed the steel girders on the premises. While Daniel was walking on the premises, between the north wall of the market and the four I beams resting on their flanges, his 11-year-old brother walked upon the flange of the I beam nearest Daniel, causing it to tip and fall, injuring Daniel's foot.

In granting respondents' motion for summary judgment, the trial court held, as a matter of law, that the doctrine of attractive nuisance was not applicable to these facts. The propriety of this ruling is the sole issue involved in this appeal.

The elements of the doctrine of attractive nuisance are as follows:

To make the doctrine applicable to a given case, all of the following elements must be present: (1) The instrumentality or condition must be dangerous in itself, that is, it must be an agency which is likely to, or probably will, result in injury to those attracted by, and coming in contact with, it; (2) it must be attractive and alluring, or enticing, to young children; (3) the children must have been incapable, by reason of their youth, of comprehending the danger involved; (4) the instrumentality or condition must have been left unguarded and exposed at a place where children of tender years are accustomed to resort, or where it is reasonably to be expected that they will resort, for play or amusement, or for the gratification of youthful curiousity; and (5) it must have been reasonably practicable and feasible either to prevent access to the instrumentality or condition, or else to render it innocuous, without obstructing any reasonable purpose or use for which it was intended. Schock v. Ringling Bros. and Barnum & Bailey Combined Shows, 5 Wash.2d 599, 616, 105 P.2d 838 (1940),...