McFall v. Shelley

• Decision Date: 15 August 1962
• Docket Number: No. 6886,6886
• Parties: Steven Robert McFALL, by his next friend, Donald C. McFall, Plaintiff-Appellant, v. Rosa SHELLEY, Defendant-Appellee.
• Court: New Mexico Supreme Court

Page 141

374 P.2d 141

70 N.M. 390

Steven Robert McFALL, by his next friend, Donald C. McFall Plaintiff-Appellant, v. Rosa SHELLEY, Defendant-Appellee.

No. 6886.

Supreme Court of New Mexico.

Aug. 15, 1962.

Key, Cohen & May, Albuquerque, for appellant.

Rodey, Dickason, Sloan, Akin & Robb, James C. Ritchie, Robert M. St. John, Albuquerque, for appellee.

CARMODY, Justice.

In this action, which was tried to the court sitting without a jury, the plaintiff sought damages resulting from one of the blocks in the defendant's wall falling upon him as he let himself down from the wall. The trial court entered judgment for the defendant, and plaintiff has appealed.

The accident occurred on September 2, 1954, and suit was filed about five years thereafter. The plaintiff, Steven McFall, was at the time some five years of age and lived in the house next door to the defendant's house, both properties being owned by the defendant. On the date in question, Steven saw a cat on the roof of the defendant's house and got up on the wall in front of the house, 'scooted' down the wall to where it was against a tree, and then stood up and found that he could not reach the cat, so he started to get down. In so doing, he hung by his hands from the top of the wall and some of the blocks came loose, as a result of which he fell to the ground and one of the blocks fell on his leg, breaking it and causing serious and permanent injuries.

The suit was filed for the plaintiff by his father as next friend. The court, after hearing all of the evidence, entered judgment in favor of the defendant, having theretofore made its findings of fact and conclusions of law.

The real question involved is whether, under the circumstances of this case, the so-called attractive nuisance doctrine applies.

There is no question but that this court is committed to the doctrine that a rule of negligence liability should be more strictly applied to the case of young children than other trespassers. This is the miscalled attractive nuisance doctrine. Selby v. Tolbert, 1952, 56 N.M. 718, 249 P.2d 498. See, also, Barker v. City of Santa Fe, 1943, 47 N.M. 85, 136 P.2d 480; Cotter v. Novak, 1953, 57 N.M. 639, 261 P.2d 827; Mellas v. Lowdermilk, 1954, 58 N.M. 363, 271 P.2d 399; and Foster v. United States, 183 F.Supp. 524 (D.C.N.M.1959), aff'd without opinion, 280 F.2d 431 (10th Cir.1960). By implication in the above cases, we have generally accepted the doctrine as set out in Sec. 339 of Restatement of Law of Torts, with the additional qualification that the rule is not necessarily limited to the possessor of land. New Mexico also follows what is apparently the majority rule, which does not require that the child be actually attracted to the premises by the artificial condition itself. Selby v. Tolbert, supra.

There appears to be no conflict in the reported cases that a property owner is not responsible when a child falls from a wall and is injured, absent any hidden defect therein. One of the very early cases dealing with this subject is Kayser v. Lindell, 1898, 73 Minn. 123, 75 N.W. 1038 (case 2), which held that the property owner was not responsible where a child fell off of a retaining wall. In the course of that opinion, the Minnesota Supreme Court stated that, in effect, a property owner is not bound to guard every stairway, cellarway, retaining wall, shed, tree, and open window on his premises, so that a child cannot climb to such place and fall off. This same general holding has been followed in all of the cases where there was no hidden defect. See, Schiavone v. Falango, 1962), 149 Conn. 293, 179 A.2d 622; Neal v. Home Builders, Inc., 1953, 232 Ind. 160, 111 N.E.2d 280, 713; McHugh v. Reading Co., 1943, 346 Pa. 266, 30 A.2d 122, 145 A.L.R. 319; and, see, Anno., 145 A.L.R. 322.

The trial court made a finding, which is in no sense attacked, that the defendant had no knowledge, nor had she received any information, that small children were playing about or climbing upon the wall. The plaintiff makes some effort to attack certain other findings of the trial court, although the attack leaves much to be desired, but the above finding is binding upon us. We have examined the transcript and there is not one word of testimony with respect to other children, or the plaintiff himself, ever having played or climbed upon the wall. The plaintiff attempts to minimize this deficiency by the argument that it is well known that children climb upon walls; whether this is an attempt to have us take judicial notice of this fact is not so stated, but it is doubted that, even if most people know that children do climb upon walls, such knowledge could be imputed to the defendant under the proof offered in this case.

The plaintiff does attempt to attack one of the findings of the trial court, to the effect that the defendant had not received any information, nor did she have actual knowledge, that the wall, or any part of it, was defective or in a state of disrepair. Plaintiff would seem to urge that the fact that a portion of the wall fell down, it therefore follows that defendant must have known the wall was defective and that actual knowledge is immaterial. In this regard, plaintiff, in effect, would contend that it is the duty of the possessor of land to inspect or police it, in order to discover whether there is any condition which will be likely to harm trespassing children. We are cited no case supporting this assertion, and, insofar as we can determine, the cases are to the contrary. Thompson v. Alexander City Cotton Mills Co., 1914, 190 Ala. 184, 67 So. 407; Pierce v. United Gas & Elec. Co., 1911, 161 Cal. 176, 118 P. 700; Kotowski v. Taylor, 1921, 1 W.W.Harr. 430, 31 Del. 430, 114 A. 861; Mayfield Water & Light Co. v. Webb's Adm'r, 1908, 129 Ky. 395, 111 S.W. 712, 18 L.R.A.,N.S., 179; Von Almen's Adm'r v. City of Louisville, 1918, 180 Ky. 441, 202 S.W. 880; Jones v. Louisville & N. R. R. Co., 1944, 297 Ky. 197, 179 S.W.2d 874, 152 A.L.R. 1259; Witte v. Stifel, 1894, 126 Mo. 295, 28 S.W. 891; Ann Arbor R. R. Co. v. Kinz, 1903, 68 Ohio St. 210, 67 N.E. 479; Riebel v. Land Title Bank & Trust Co., 1941, 143 Pa.Super. 136, 17 A.2d 742; Rush v. Plains Township, 1952, 371 Pa. 117, 89 A.2d 200; Selve v. Pilosi, 1916, 253 Pa. 571, 98 A. 723; Pietros v. Hecla Coal & Coke Co., 1935, 118 Pa.Super. 453, 180 A. 119; Cooper v. Overton, 1899, 102 Tenn. 211, 52 S.W. 183, 45 L.R.A. 591. We note plaintiff's reliance on Wood v. Sloan, 1915, 20 N.M. 127, 148 P. 507, L.R.A.1915E, 766, and Barakos v. Sponduris, 1958, 64 N.M. 125, 325 P.2d 712, but neither of these cases is authority for the contention made here.

According to the evidence, there was no showing whatsoever of the condition of the wall prior to the accident, other than the statement of the father of Steven that it appeared to be in the same condition now as before, except for the part that had been repaired after the accident. This will be mentioned again in the discussion of another of the plaintiff's points of error, but, for present purposes, all that was shown by the evidence is that the wall would still be in the same condition that it was on the day of the accident except for the actions of Steven.

It would seem that it is too much to expect that every person owning a structure must anticipate and protect himself against every conceivable form of infant's play or exploration. While it may not be true in all parts of the United States, at least in the Southwest, walls have been in common usage since before the days of Coronado; they are almost as numerous as...