McGill v. United States

• Decision Date: 15 July 1952
• Docket Number: Civ. A. 10904.
• Citation: 105 F. Supp. 719
• Parties: McGILL et al. v. UNITED STATES.
• Court: U.S. District Court — Eastern District of Pennsylvania

105 F. Supp. 719

McGILL et al. v. UNITED STATES.

Civ. A. 10904.

United States District Court E. D. Pennsylvania.

July 15, 1952.

Joseph S. Lord, III, Philadelphia, Pa., for plaintiffs.

Gerald A. Gleeson, U. S. Atty., Philadelphia, Pa., Thomas J. Curtin, Asst. U. S. Atty., Phildelphia, Pa., for defendant.

CLARY, District Judge.

This is an action against the United States to recover damages for personal injuries. Robert McGill, a minor, on the 30th day of August, 1949, fell from the walkway of a Coast Guard tower, located adjacent to the boardwalk in the Borough of Avalon, State of New Jersey. The land upon which the tower was erected was owned by the Borough of Avalon which granted permission to the United States Coast Guard to build the tower. The tower was easily accessible by means of a walkway leading directly from the boardwalk. The walkway led to a set of steps going up the inside of the tower to a lookout house on the top. Around the lookout house was a catwalk, in one part of which was an opening leading to an auxiliary ladder or flight of steps. It was at this point that the minor plaintiff, then seven years old, fell.

In June of 1946 the Coast Guard stopped using the tower, it being deemed unnecessary to continue it in operation for Coast Guard purposes. At that time a chain was placed across the walkway entrance from the boardwalk and signs prohibiting trespassing were posted. Both chain and signs were stolen within a short time. Thereafter the only signs remaining were notices that the property belonged to the United States. From time to time, from 1946 to 1949, children used the lookout tower as a playground, climbing up and down the tower, and using the catwalk around the lookout house as an observation post. The evidence disclosed that this was an open and notorious use by children, particularly in the summer months. The evidence fails to disclose, however, that any actual notice was given to the Coast Guard of the use made of the tower by the children. The Coast Guard undertook to periodically inspect the tower to see that it was in good condition and repair but did nothing to secure the tower to prevent access to it by children. The use of the tower as a playground was so open and notorious that the United States Government should have had notice of the fact of its use in that respect.

On August 30th, 1949, Robert McGill, then seven years of age, accompanied by his brother, Stewart McGill, then ten years of age, and another youngster of like age, came down the boardwalk and approached the tower. At that time the boardwalk was in a state of disrepair in front of the entrance to the tower. The boardwalk itself had been barricaded by the Borough of Avalon on each side of the tower to prevent its use. Disregarding the barricades all three children climbed into the tower. They had started from the other end of the town and it was the first time that any of them had seen the lookout tower. They made an ascent and descent in safety but on the second trip to the catwalk, the younger boy, Robert McGill, fell as he attempted to get down through the manhole to the auxiliary ladder or steps. He struck three iron girders in his descent and was picked up at the foot of the tower on the beach and taken to Surf Hospital in Sea Isle City, New Jersey. It was four days before he fully regained consciousness. After nine days in the Surf Hospital, he was taken by ambulance to the Memorial Hospital in Philadelphia, Pennsylvania. He suffered a severe concussion of the brain, fracture of the skull on the right parietal area, laceration of the scalp, greenstick fracture of clavicle, fracture of the pelvic bone and fracture of the right femur. In the Surf Hospital a pin was put through his ankle and traction applied without appreciable results. At the Memorial Hospital a bone operation was performed on the right femur, a plate inserted, and a body cast applied on September 12, 1949. On October 14, 1949, the cast was removed and x-rays made at the time showed good position and alignment. He made normal progress in recuperation but has not and will not regain full normal function of the leg for a period of some five additional years. It is the expectation of the attending surgeon at the time that recovery should be complete. At the present time he is not able to engage in the full activities of a youngster of his age.

As a result of the accident, the parents incurred expenses of $329 at the Surf Hospital, $226.60 at the Memorial Hospital, and Dr. Lehman's surgeon fee $250, or a total of $805.60. The injuries sustained by the child were serious, painful, and the results have lasted for a period of approximately three years and will continue for an additional period of five years. The minor child sustained damages as a result of these injuries in the amount of $10,000.

The foregoing may be taken as my Findings of Fact in this case.

Discussion.

A review of the law of the State of New Jersey discloses that New Jersey has explicitly rejected the "attractive nuisance" doctrine. Delaware, L. & W. R. R. Co. v. Reich, 61 N.J.L. 635, 40 A. 682, 41 L.R.A. 831 (1898); Friedman v. Snare & Triest Co., 71 N.J.L. 605, 61 A. 401, 70 L. R.A. 147 (1905).

The case of Delaware, L. & W. R. Co. v. Reich, supra, involved an accident to a young child injured while upon a turntable of the railroad company. The turntable was located upon the private property of the railroad, near a public street, and was entirely unprotected and unguarded. Children of all ages frequently congregated upon the premises to play upon the turntable. The court held that under New Jersey law a landowner is under no obligation to a mere licensee or to a trespasser to keep his premises in a safe condition; and the fact that the licensee or trespasser is an infant of tender years affords no reason for modifying this rule, and charging the landowner with a duty which otherwise would not exist. The court further stated that a landowner erecting upon his premises, for beneficial use, a structure which happens to be attractive to children, does not by such action extend an invitation to children to enter thereon.

The case of Friedman v. Snare & Triest Co., supra, involved an accident to a child of tender years, who was injured while playing upon building materials (iron girders) placed upon the street abutting the defendant's property. The girders were required as building material for the repair of the...