Miller v. Guernsey Const. Co., 58-371
| Decision Date | 14 May 1959 |
| Docket Number | No. 58-371,58-371 |
| Citation | 112 So.2d 55 |
| Parties | Nora Bob MILLER, a minor by her father and next friend, Robert R. Miller, and Robert R. Miller, Appellants, v. GUERNSEY CONSTRUCTION COMPANY, Inc., a Florida corporation, and Guernsey Investment Co., Inc., a Florida corporation, Appellees. |
| Court | Florida District Court of Appeals |
R. C. Lohmeyer, Miami, and Montague Rosenberg, Miami Beach, for appellants.
Hill, Welsh, Cornell, Ross & Pyszka, Miami, for appellees.
The plaintiffs, a minor and her father, appeal from a summary final judgment in a personal injury action. The complaint alleged that the ten year old plaintiff was attrached to a house being constructed by the defendants and was seriously injured when she fell while walking upon the floor joists. It further charged the defendants with negligence in permitting the floor joists to remain uncovered without providing a method for the protection of children from injury thereupon. After answers in which they admitted control of the premises and denied negligence, the defendants moved for a summary judgment based upon the pleadings, depositions and admissions on file, The trial judge found that the attractive nuisance doctrine was not applicable to the admitted facts in this case. The sole question upon this appeal is whether the trial judge was correct in this conclusion of law. The appellant attempts to present an additional question as to the propriety of summary judgment because the judge, 'took the question of negligence from the jury.' This latter question is not involved since the complaint does not state a cause of action unless the attractive nuisance doctrine is applicable. Summary judgment is proper when the doctrine is invoked and is inapplicable. Lomas v. West Palm Beach Water Co., Fla.1952, 57 So.2d 881.
The theory of plaintiff's case was that a building under construction is per se an attractive nuisance. This view is not in accord with the weight of authority in this country. See cases cited in annotation beginning at 44 A.L.R.2d 1253. See also 2 Harper and James, Torts, § 27.5 (1956); 1 Shearman and Redfield, Negligence § 31 (Rev. ed. 1941). It is not supported by a decision in this state.
The Supreme Court of Florida has upon several occasions found that an attractive nuisance existed upon premises where a building was in the process of construction. See Atlantic Peninsular Holding Co. v. Oenbrink, 133 Fla. 325, 182 So. 812 (); Johnson v. Wood, 155 Fla. 753, 21 So.2d 353 (); Carter v. Livesay Window Co., Fla.1954, 73 So.2d 411 (); ...
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