Moran v. Delaware Racing Ass'n
| Citation | 218 A.2d 452,9 Storey 250,59 Del. 250 |
| Parties | , 59 Del. 250 Milton L. MORAN, as next friend for Daniel W. Moran, a minor, and individually, Plaintiff, v. DELAWARE RACING ASSOCIATION, a Delaware Corporation, Defendant. |
| Decision Date | 24 March 1966 |
| Court | Delaware Superior Court |
Harold Leshem, and Sidney Balick, Wilmington, for plaintiff.
F. Alton Tybout, Wilmington, for defendant.
Daniel W. Moran was 15 years old at the time of the accident which gives rise to this law suit. He was a 10th grade student doing well in school. On June 17, 1962, Daniel and two friends were driven by Daniel's uncle to a place near White Clay Creek. The boys then crossed the Pennsylvania Railroad tracks and went onto the land of Delaware Racing Association to swim near an old dam on the White Clay Creek at a location known locally as 'Little Falls.' Below the dam at 'Little Falls' was a small rocky pond about 6 or 6 and 1/2 feet deep and several feet wide in a wooded area some distance from the nearest road.
Daniel had been there to swim three or four times and was familiar with the depth of the water and with the environs of the pond. Each time he went there he had seen others swimming and picnicking at the same location. He noticed that others would dive into the pond either from the top of the dam or from a level stone area or platform formed by an old stone wall at the end of the dam. Daniel knew how to swim and had been swimming and diving for a number of years.
After swimming in the pond and conversing with his friends, Daniel climbed on the stone platform with the intention of diving from the platform into the pool. The stone platform appears to be about ten feet above the surface of the pond. The platform is reached by a path in the woods which leads up to the back of the level area. When Daniel was two or two and a half feet from the edge of the level area or stone platform and before he started his dive, he slipped and fell off of the level area as if from a small cliff. He suffered serious injuries which have left him paralyzed from the waist down. Daniel stated afterward that if he had actually made his dive he believes such dive would have been made in safety.
Daniel did not seek nor obtain permission from the owners of the area to swim there. He did not see any 'No Trespassing' signs although he did observe a 'No Dumping' sign. He did not know who owned the area in question.
Defendant had bought the area in 1957 and had left it without new improvements. It had not in any way altered the Little Falls area. Defendant says that according to tradition in the area, the dam was built to form a mill race in about 1850 and has long been in disuse.
Defendant had posted 'No Trespassing' signs in that general area and had replaced such signs from time to time when they disappeared or were torn down. There is no evidence that any such signs were in evidence on the day of the accident. Inspection of the area would have revealed that people were swimming and picnicking there and that there were no signs forbidding trespassing.
The injured boy and his father seek to collect damages from Delaware Racing Association on the theory that the Association, as land owner, was negligent in one or more of the following particulars:
1. Failure to take reasonable precautions to prevent entry to the area where the injury occurred.
2. Failure to post signs or warnings.
3. Failure to erect barriers or fences.
4. Failure to maintain a guard or watchman at the location.
5. Failure to warn of hidden dangers.
There is no evidence of a hidden danger or that the accident was caused by a hidden danger so the fifth specification of negligence may be disregarded. It is apparent, however, that defendant did not take effective means to prevent trespassing or to warn trespassers. The question to be determined on defendant's motion for summary judgment is whether the evidence before the Court when viewed most favorably to the plaintiff could form a legal basis of liability on defendant's part. This in turn depends on what duty, if any, defendant had in respect to high school aged youths whom it knew or should have known were trespassing or acting as if they were a gratuitous licensee on its land in the vicinity of Little Falls.
Defendant has moved for summary judgment on the record contending that the record reveals no negligence on its part which proximately caused the injuries.
In general, land owners owe no duty to trespassers. If liability exists in this case, it would be predicated upon special rules such as those stated in one of the following sections of the Restatement of Torts (2nd edition).
' § 335. Artificial Conditions Highly Dangerous to Constant Trespassers on Limited Area
A possessor of land who knows, or from facts within his knowledge should know, that trespassers constantly intrude upon a limited area of the land, is subject to liability for bodily harm caused to them by an artificial condition on the land, if
(i) is one which the possessor has created or maintains and
(ii) is, to his knowledge, likely to cause death or seriously bodily harm to such trespassers and
(iii) is of such a nature that he has reason to believe that such trespassers will not discover it, and
of the condition and the risk involved.'
' § 339. Artificial Conditions Highly Dangerous to Trespassing Children
A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if
(a) The place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and
(b) The condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and
(c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and
(d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and
(e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.'
Section 335 deals with the liability of landowners to constant trespassers in respect to highly dangerous artificial conditions. Its scope is not limited to children. For purposes of this decision, I will assume that the stone wall and high level area or stone platform...
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Space v. National RR Passenger Corp.
...of Delaware, as in nearly every state, a landowner has no duty of non-negligence to trespassers. See Moran v. Delaware Racing Association, 9 Storey 250, 218 A.2d 452, 453 (Del.Super.1966). Nonetheless, it was established at common law that a landowner would be liable for an injury inflicted......
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Schorah v. Carey
...liability under Section 339 of the Restatement of Torts, Second, which has been adopted in the State, see Moran v. Delaware Racing Association, Del.Super., 218 A.2d 452 (1966); Beaston v. James Julian, Inc., Del.Super., 10 Terry 521, 120 A.2d 317 (1956), and which was in effect at the time ......
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Johnson v. Delmarva Power & Light Co.
...The section cited by plaintiff has been accepted as the law of Delaware by this court in the case of Moran v. Delaware Racing Association, 218 A.2d 452 (Del.Super.1966). Accordingly, the merit of plaintiff's case in determining the appropriateness of defendant's motion will be tested agains......
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