Motes v. Matthews
| Decision Date | 07 November 1986 |
| Citation | 497 So.2d 1121 |
| Parties | Charles MOTES v. Billy J. MATTHEWS, et al. 85-598. |
| Court | Alabama Supreme Court |
John Oliver Cameron, Montgomery, for appellant.
Henry C. Chappell, Jr., of Rushton, Stakely, Johnston & Garrett, Montgomery, for appellees.
This is a father's suit for the wrongful death of his 12-year-old son, Gregory, which occurred on premises owned by defendants Billy J. Matthews and James E. Matthews, and which had been excavated by defendant Matthews Brothers Construction Company, Inc. The trial court granted the defendants' motion for summary judgment. The father appeals. We reverse and remand.
Our law provides that an occupier of land owes to trespassers only the duty not to willfully or wantonly injure them (Lovell v. Southern Ry. Co., 257 Ala. 561, 59 So.2d 807 (1952)), or put traps or pitfalls in their way (Gandy v. Copeland, 204 Ala. 366, 86 So. 3 (1920)), to warn them of danger actually known by the occupier to exist on the premises after he has knowledge of their presence (Golson v. W.F Covington Mfg. Co., 205 Ala. 226, 87 So. 439 (1920)), and to use due care after discovering their peril (Birmingham Ice & Cold Storage Co. v. Alley, 247 Ala. 503, 25 So.2d 37 (1945)). This duty is hereinafter referred to as the "conventional duty."
A trespasser, for purposes of civil liability, can be, among others, (1) a felon who enters the land for the express purpose of doing physical harm to the occupier or to the occupier's property, or (2) a curious or adventuresome child who enters the property intending no harm to anyone, or anything, but merely to gratify his childish curiosity and childish sense of play. The duty which we have imposed upon occupiers of land under the conventional theory may be too heavy when applied in the case of criminal trespassers. That question is not before us.
Our humanitarianism and our instinctive beliefs that adults have an obligation to protect and nurture the community's children have caused us at times to ameliorate the harshness of the rule regarding an occupier's conventional duty to a trespasser, when the trespasser is a child, and thereby to give primacy to child safety rather than to unrestricted property rights.
R. Clifford Fulford, Esq., in his scholarly and highly entertaining article, "The Tort Liability of Possessors of Property to Trespassing Children in Alabama," 11 Ala.L.Rev. 1 (1958), traces this State's rebellion from the harshness of the application of the occupier's conventional duty to trespassing children through the turntable cases, to the attractive nuisance cases, to the court-imposed limitations on the attractive nuisance cases (which virtually reinstated the conventional duty), and finally to a return to the straight negligence approach of the turntable cases. Mr. Fulford summarizes 34 cases decided by Alabama appellate courts between 1892 and 1958. His research reveals that the theories applied by those courts varied on a case to case basis among the following: conventional duty, attractive nuisance doctrine, and straight negligence. In reference to the indiscriminate choice of a theory or theories to fit a particular case, Mr. Fulford wrote: "In this respect, the Alabama appellate courts have been not unlike the young lady who, having accepted her first proposal, puts off the marriage to see whether there is a better prospect but is afraid to cancel the engagement because her first choice might, after all, be the best." 11 Ala.L.Rev. at 9. In the 28 years since Mr. Fulford's article, we have made "the bride-to-be" a virtual Miss Haversham, for we still have no uniformity in our approach to a case such as the one now before us, which involves a trespassing child. In some cases we have applied the conventional duty. Alabama Great Southern R. Co. v. Green, 276 Ala. 120, 159 So.2d 823 (1964); Earnest v. Regent Pool, Inc., 288 Ala. 63, 257 So.2d 313 (1972). In other cases we have applied the attractive nuisance doctrine. City of Dothan v. Gulledge, 276 Ala. 433, 163 So.2d 217 (1964). In some cases we have acted as if both of those theories governed the occupier's duty to trespassing children. See, Mullins v. Pannell, 289 Ala. 252, 266 So.2d 862 (1972).
Chief Justice Heflin, writing for the Court, in Tolbert v. Gulsby, 333 So.2d 129, 135 (Ala.1976) (), "for clarity and certainty's sake now and in the future," adopted § 339, Restatement (Second) of Torts (1965) (straight negligence), as controlling, regardless of whether the children are licensees or trespassers. However, we have continued to apply the conventional theory, see Foster v. Alabama Power Co., 395 So.2d 27 (Ala.1981), as well as the attractive nuisance doctrine, see Massey v. Wright, 447 So.2d 169 (Ala.1984). This has created confusion among the bench and bar.
The attractive nuisance doctrine is not applicable in cases where one seeks to impose liability upon an occupier of property for the death of or injury to a trespassing child. Likewise, the conventional duty is not applicable in such cases, except where physical harm to a trespassing child is caused by a natural condition upon the property. When physical harm to a trespassing child is caused by a natural condition upon the property, the conventional duty which an occupier owes to a trespasser is the only duty owed to the trespassing child. In all other cases, the duty which an occupier of property owes to a trespassing child is set forth in § 339, Restatement (Second) of Torts:
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...defined in § 339(c), whose natural proclivity for wonder and adventure often exceeds their sense of impending danger. See Motes v. Matthews, 497 So.2d 1121 (Ala.1986). Whether a particular plaintiff falls within this class will ordinarily present a jury question. See Lyle v. Bouler, 547 So.......
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...owners to exercise reasonable care in order "to give primacy to child safety rather than unrestricted property rights." Motes v. Matthews, 497 So.2d 1121, 1122 (Ala.1986). "A possessor of land owes a duty to exercise reasonable care to eliminate an artificial condition on land that poses a ......
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