McGettigan v. National Bank of Washington, 16904.

• Decision Date: 16 May 1963
• Docket Number: No. 16904.,16904.
• Parties: Gertrude McGETTIGAN et al., Appellants, v. NATIONAL BANK OF WASHINGTON and Fred A. Smith & Co., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

115 US App. DC 384, 320 F.2d 703 (1963)

Gertrude McGETTIGAN et al., Appellants, v. NATIONAL BANK OF WASHINGTON and Fred A. Smith & Co., Appellees.

No. 16904.

United States Court of Appeals District of Columbia Circuit.

Argued January 3, 1963.

Decided May 16, 1963.

Petition for Rehearing Denied June 27, 1963.

Mr. Harry W. Goldberg, Washington, D. C., with whom Messrs. Morris Altman, Joseph Gelb and Max M. Goldberg, Washington, D. C., were on the brief, for appellants.

Mr. Paul R. Connolly, Jr., Washington, D. C., with whom Mr. James A. Belson, Washington, D. C., was on the brief, for appellees.

Before EDGERTON, Senior Circuit Judges, and FAHY and WRIGHT, Circuit Judges.

Petition for Rehearing En Banc Denied June 27, 1963.

FAHY, Circuit Judge.

Gertrude McGettigan, individually and as mother and next friend of Charles S. McGettigan, a minor, sued the National Bank of Washington, a corporation, individually and as trustee, and Fred A. Smith & Company, a corporation, for damages alleged to have been suffered by the minor in circumstances to be explained insofar as this can be done on the present record. Following rather full pretrial proceedings, including the taking of depositions, and upon the basis also of allegations in the pleadings, the District Court granted the motion of defendants for summary judgment. Plaintiffs' motion for reconsideration was denied. This appeal was then taken by plaintiffs.

Although there may not now appear to be any "genuine issue as to any material fact," we think defendants were not "entitled to a judgment as a matter of law" and therefore not entitled to summary judgment. Fed.R.Civ.P. 56(c). The pleadings, depositions and other evidentiary matters before the court were sufficient if followed by proof at trial to permit a jury to find the facts now to be outlined. The defendant corporations were responsible, as owner and agent, respectively, for the care of a building near the heart of Washington known as 2413 Pennsylvania Avenue, N. W., held in the name of the bank defendant as trustee. In the rear of the main building was a small structure where the occurrences leading to this case arose. Although some years ago this structure was in good condition it had seriously deteriorated. Doors had disappeared. Windows were out and the glass broken. The structure was open to the elements, and was a hangout for persons of questionable occupations and habits. The interior was cluttered with debris and the roof was insecure. The structure was used at times as a sort of club house for young thieves, who engaged in the practice of stealing flares from various sources, including railroad cars and telephone trucks, and using them for their amusement near the premises. The place was the subject of complaints by neighbors. Beginning in 1955 an employee of the defendant agent made a weekly inspection, which disclosed accumulations of debris. A policeman on several occasions advised the agent of the decrepit condition of the premises, the accumulation of junk, and the presence of vagrants. Although the agent, Smith & Company, agreed to correct the situation, nothing was done prior to the accident soon to be described.¹ No effort was made to close the structure, remove the debris, or restrict its use by children, delinquents and vagrants.

On March 3, 1956, John, eleven years of age and brother of the minor plaintiff, was playing in the structure. He obtained from the trash and junk there a cylindrical, tubular object, which he took to his home nearby, unaware of what it was. And the boy had seen it several times before during the months he played in the structure. His mother either found the object lying in the kitchen or was given it by another son and placed it in a paper bag outside the back door where there was a small porch. The following day, March 4, the minor plaintiff, then nine years of age, was seen by his mother playing with the object, which he had broken in two. Material that looked like sand had come out of it. His mother told the boy to sweep this up. Some minutes later there was an explosion which severely burned the boy. It appears the substance was powder and that the boy applied a lighted match to waxed paper on which he had swept the powder.

It is not alleged that the defendants brought the flare to the premises or knew it was there.

We think the plaintiffs set forth facts which, if proved, would permit a jury to find that defendant landowner and his agent were negligent. This being so, and substantial damages having been alleged as stemming from that negligence, the case should have been submitted to the jury.

Negligence is "conduct * * which falls below the standard established by law for the protection of others against unreasonable risk of harm." Restatement, Torts § 282 (1934); 2 Harper & James on Torts 896 (1956). And the standard of conduct to be applied is that of the reasonable man in like circumstances. See Prosser on Torts 124 (1955). Whether a defendant has acted as a reasonable man in the circumstances is said to depend upon whether his conduct — act or omissions — created an unreasonable risk of harm toward a plaintiff. This principle is sometimes stated in terms of duty, viz., whether the defendant had a duty to use care toward plaintiff, and if so whether it was breached by the conduct complained of. See Winfield, "Duty in Tortious Negligence," 34 Columbia L.Rev. 41 (1934). The ultimate question is whether defendant can fairly be said to be responsible for the injuries complained of.² If reasonable men could not differ in answering that question the court, it is said, should not allow the jury to speculate about it; but if reasonable men could differ and draw different inferences from the facts or find one set of facts when two are offered and from those found could conclude that defendant's conduct was negligent, then the jury ought to be permitted to answer the ultimate question. Grand Trunk R. Co. of Canada v. Ives, 144 U.S. 408, 12 S.Ct. 679, 36 L.Ed. 485 (1892).

Defendants are in the position of an owner or occupier of land, for whom the common law created something of a special status. He was not liable at common law for injuries to a person coming on his land unless such person was an invitee, guest or licensee. If he were a trespasser he could not hold the landowner or occupier liable for his injuries. See Green, "Landowner v. Intruder; Intruder v. Landowner. Basis of Responsibility in Tort," 21 Mich.L.Rev. 495 (1923). But the law has not remained static in this area. Just as it has advanced in recognition of the need for greater protection to both persons and property from the affirmative acts of another, making negligence the central basis for civil liability,³ it also has tended to bring the landowner or occupier within similar rules, leaving his status less privileged than it was previously. This has been especially evident in the case of children of tender years.

This brings us to the case of Sioux City & Pacific R. Co. v. Stout, 84 U.S. (17 Wallace) 657, 21 L.Ed. 745 (1873). A six year old child was playing on an unguarded, unlocked railroad turntable which when set in motion caught and crushed his foot. The Court, seemingly treating the child's presence and that of other children on defendant's land in the past as but one of the circumstances in which it was to be decided whether the landowner's conduct was proper, said:

"If from the evidence given it might justly be inferred by the jury that the defendant, in the construction, location, management, or condition of its machine had omitted that care and attention to prevent the occurrence of accidents which prudent and careful men ordinarily bestow, the jury was at liberty to find for the plaintiff."

84 U.S. at 661, 21 L.Ed. 745. From this beginning the courts have fashioned a concept called attractive nuisance, under which the status of an intruding child is like that of an invitee rather than a trespasser. In other words the principles of negligence become relevant notwithstanding the child came upon the owner's land without permission. But there was under the earlier approach of the doctrine the requirement of an allurement as well as the tests of negligence. This ceased to be a serious obstacle to recovery, however, when courts began to abandon the fiction of an invitation by allurement and recognized — as the Restatement has — another basis for the result reached in such cases as Stout, namely, the value of the lives of children to society. See, e. g., Wolfe v. Rehbein, 123 Conn. 110, 193 A. 608 (1937); Drew v. Lett, 95 Ind. App. 89, 182 N.E. 547 (1932). And compare Best v. District of Columbia, 291 U.S. 411, 54 S.Ct. 487, 78 L.Ed. 540 (1934), Sioux City & Pacific R. Co. v. Stout, supra, and Eastburn v. Levin, 72 App.D.C. 190, 113 F.2d 176 (1940), with United Zinc & Chemical Co. v. Britt, 258 U.S. 268, 42 S.Ct. 299, 66 L.Ed. 615 (1922), and Branan v. Wimsatt, 54 App. D.C. 374, 298 F. 833 (1924).

In Best v. District of Columbia, supra, the dangerous condition which caused the child's death was a hole in the defendant's wharf and not the piles of sand upon which children had previously played. And in Eastburn v. Levin, supra, this court said:

"The underlying question is whether it is better to let occupants arrange their premises in total disregard of neighboring children, or to require them to take such precautions as a normal person would when their premises are attractive and insidiously dangerous to children too young to look out for themselves and when the intrusion of such children is likely. On the one side is the occupant\'s interest, and the general interest, in the profitable use of land. On the other is the child\'s interest, and the interest of his parents and of society, in life and limb and in compensation for their injury."

72 App.D.C. at 192, 113 F.2d at 178. The emphasis here is upon a balancing of several interests in the light of conduct that threatens harm,...