Nichols v. Consolidated Dairies of Lake County, 9034

• Decision Date: 16 January 1952
• Docket Number: No. 9034,9034
• Citation: 28 A.L.R.2d 1216,125 Mont. 460,239 P.2d 740
• Parties: , 28 A.L.R.2d 1216 NICHOLS et al. v. CONSOLIDATED DAIRIES OF LAKE COUNTY, Inc.
• Court: Montana Supreme Court

Page 740

239 P.2d 740

125 Mont. 460, 28 A.L.R.2d 1216

NICHOLS et al. v. CONSOLIDATED DAIRIES OF LAKE COUNTY, Inc.

No. 9034.

Supreme Court of Montana.

Jan. 16, 1952.

Raymond F. Gray, Ronan, Wellington D. Rankin, Arthur P. Acher, Helena, for appellants.

John D. French, Polson, Smith, Boone & Rimel, Missoula, for respondent.

METCALF, Justice.

The plaintiff, a child of 12 years of age, was injured while playing upon a passenger elevator in defendant's grain elevator. A general demurrer to the second amended complaint filed by his guardian ad litem was sustained without leave to plead further. He has appealed from the judgment of dismissal.

The first two counts of the complaint are based upon an 'attractive nuisance' theory. The attractive nuisance doctrine is recognized by the decisions of this jurisdiction. Gilligan v. City of Butte, 118 Mont. 350, 166 P.2d 797; Martin v. Northern Pac. Ry. Co., 51 Mont. 31, 149 P. 89.

The passenger elevator which allegedly caused plaintiff's injury was located inside the building used as a grain elevator. The passenger elevator consisted of a platform suspended by ropes and was used by the employees to give them access to the grain bins. It was operated by arranging counterbalances approximately to equal to combined weight of the passenger and the elevator cage and then the passenger could pull himself to the top of the building by means of a rope and pulleys.

On the day of the accident the plaintiff stepped on the elevator and the weight of the counterbalances being greater than the combined weight of the boy and the cage, the elevator was pulled to the top of the building and collided with a pulley at the top. The force of the impact broke the rope suspending the cage and it and the boy fell about 50 feet causing the injuries forming the basis of the complaint.

Respondent's brief states the question at issue: 'The question in the instant case insofar as it involves the attractive nuisance doctrine is whether that rule can be extended to include a lift or passenger elevator located inside a grain elevator.' The defendant contends that the instrumentality that caused the injury must be the cause of the allurement or the doctrine does not apply.

In Gates v. Northern Pac. Ry. Co., 37 Mont. 103, 94 P. 751, 755, Justice Smith for a majority of the court laid down the basis for the attractive nuisance doctrine by his analysis of the 'Turntable Cases.' 'It is my judgment that when the owner or occupier of grounds brings or artificially creates something thereon especially attractive to children, as shown by the nature of the thing itself and the fact that a child was, or children were, attracted to it, and leaves it so exposed that they are likely to come in contact with it, either as a plaything or an object of curiosity, and where their coming in contact with it or playing about it is obviously dangerous to them, the person so exposing the dangerous thing should reasonably anticipate the injury that is likely to happen to them from its being so exposed, and is bound to use ordinary care to guard it so as to prevent injury to them.'

In his concurring opinion Justice Holloway outlined the conditions necessary for the application of the doctrine:

'(1) That the injured child was too young and inexperienced to appreciate the danger, and was therefore incapable of contributory negligence. (2) That the injury was caused by an unguarded, dangerous machine, or other dangerous thing peculiarly attractive to children of the class to which the injured one belongs. (3) That the landowner impliedly invited children of that class to come upon his premises. This invitation may be implied from the fact that the landowner knew, or, in the exercise of ordinary care, ought to have known, that such children were in the habit of coming on his premises to play or to gratify their childish curiosity.'

A more recent statement of the facts necessary to satisfy the requirements for application of the attractive nuisance doctrine is found in Restatement, Torts, p. 920, Sec. 339: 'A possessor of land is subject to liability for bodily harm to young children trespassing thereon caused by a structure or other artificial condition which he maintains upon the land, if

'(a) the place where the condition is maintained is one upon which the possessor knows or should know that such children are likely to trespass, and

'(b) the condition is one of which the possessor knows or should know and which he realizes or should realize as involving 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 in it or in coming within the area made dangerous by it, and

'(d) the utility to the possessor of maintaining the condition is slight as compared to the risk to young children involved therein.'

In addition to the necessary allegations on other points the complaint alleges that the plaintiff is a boy of tender years; that the injury was caused by the passenger elevator which was a 'dangerous and unsafe instrumentality;' that the defendant knew that the grain elevator premises were 'peculiarly alluring and attractive to children of tender years' and that prior to the date of the accident the defendant knew or in the exercise of reasonable care and diligence should have known that children were on the premises and playing on and about the passenger elevator that caused the injury. It is further alleged that the defendant permitted children to play upon and with the passenger elevator and failed to secure it so as to prevent children from operating it. Further allegations of...