Pardue v. City of Sweetwater

• Citation: 390 S.W.2d 683,54 Tenn.App. 286
• Parties: Glen Joseph PARDUE, Jr., b/n/f v. CITY OF SWEETWATER. Glen Joseph PARDUE v. CITY OF SWEETWATER.
• Decision Date: 14 January 1965
• Court: Court of Appeals of Tennessee

Page 683

390 S.W.2d 683

54 Tenn.App. 286

Glen Joseph PARDUE, Jr., b/n/f v. CITY OF SWEETWATER.

Glen Joseph PARDUE v. CITY OF SWEETWATER.

Court of Appeals of Tennessee, Eastern Section.

Jan. 14, 1965.

Certiorari Denied by Supreme Court May 3, 1965.

Yancey, Butler, Ball & Kidwell, Knoxville, for plaintiff in error, City of Sweetwater.

Crawford & Crawford, Maryville, and Billy R. Ridenour, Sweetwater, for defendants in error, Glen Joseph Pardue and Glen Joseph Pardue, Jr.

COOPER, Judge.

Referring to the parties as they appeared below, the plaintiff Glen Joseph Pardue, Jr., an infant, instituted this action by next friend seeking to recover damages for personal injuries sustained when he fell from a water tank erected and maintained by the defendant, City of Sweetwater. His father, the plaintiff Glen Joseph Pardue, brought suit to recover damages for the loss of his son's services, and to recover expenses incurred in treating his son's injuries. The jury returned verdicts of $10,000.00 for the minor plaintiff, and $500.00 for his father. These verdicts were approved by the trial court and, on the overruling of defendant's motions for a new trial, this appeal in error resulted.

The record shows that the parties stipulated that the City of Sweetwater erected and maintained a water tank, 60 feet high, in or near a residential area in the City of Sweetwater. A metal ladder was attached to the side of the tank and extended from its top to within three feet of the ground. The ladder was in good condition, and there were no defects in its construction. The parties further stipulated that the City property was unfenced and unprotected and that the City of Sweetwater by the exercise of reasonable care should have known that children played around and upon the water tank.

On June 26, 1962, the minor plaintiff, aged 11 years and 8 months, in company with three other boys went onto the City property to play around the defendant's water tank and to climb it.

After his playmates had climbed the tank and descended, Glen, Jr., climbed about half-way up the ladder, started down and fell, receiving serious injuries to his arms and back.

The plaintiff was unable to testify how he fell, or what caused him to fall. He did state, however, that just prior to the fall, one of his friends informed him that the police were coming. On examination, Glen, Jr., stated that he could not say whether or not this information caused him to hurry his descent or caused him to fall.

The record further shows that on several occasions prior to his fall from the tank, the minor plaintiff had been warned by his parents of dangers incident to climbing trees and elevated structures. Plaintiff's mother testified that plaintiff was of normal intelligence and appeared to understand the warning and to appreciate the fact that climbing was dangerous. The plaintiff also testified that he understood his parents' warning, and appreciated the danger of falling from 'trees and everything,' but didn't realize it was dangerous to be on the tower as he had not been warned against climbing it.

The theories on which the plaintiffs sought to recover were that the tank and the area around it became a playground for children requiring the defendant to take reasonable precautions for their safety and that, under the circumstances, the doctrine of attractive nuisance applied.

The attractive nuisance doctrine, as recognized by the Courts of Tennessee, is based upon the theory that one, who maintains upon his premises an agency or condition which is dangerous to children of tender years by reason of their inability to appreciate the danger, and which may reasonably be expected to attract children to the premises, is under a duty to exercise reasonable care to protect them against the dangers of the attraction. McCulley v. Cherokee Amusement Co., 182 Tenn. 68, 184 S.W.2d 170; Ray v. Hutchison, 17 Tenn.App. 477, 68 S.W.2d 948; see also Williams v. Town of Morristown, 32 Tenn.App. 274, 222 S.W.2d 607, and 36 A.L.R. 136. In adopting the attractive nuisance doctrine, the Supreme Court of this State limited its application to those situations where the child was enticed or lured to the defendant's premises by the instrumentality or condition causing the harm. Kelley v. Tennessee Electric Power Co., 7 Tenn.App. 555; Gouger v. Tennessee Valley Authority, 188 Tenn. 96, 216 S.W.2d 739, 6 A.L.R.2d 750. Otherwise, the elements necessary for recovery are those shown in Sec. 339 of the Restatement of Torts.

The harshness of the requirement of enticement has been alleviated partially by the so-called 'playground theory', as voiced in Gatlinburg Construction Co. v. McKinney, 37 Tenn.App. 343, 263 S.W.2d 765. See also Wade, Torts--1954 Tennessee Survey, 7 Vand.L.Rev. 967; Noel, Attractive Nuisance Doctrine in Tennessee, 21 Tenn.L.Rev. 658, 661.

The basis of the playground theory, as set out in the Gatlinburg case, 'is that if an owner of land knows that children of tender years habitually play upon his land to the extent that it becomes known as a playground for children, he is bound to exercise ordinary care to see that his premises are reasonably safe for the purpose and is duty bound not to permit them to be exposed to a known danger. See also 65 C.J.S. Negligence Sec. 40, p. 505; Ann. 8 A.L.R. (2d) 1285; Restatement of Torts, Section 339.

'Refinements of the rule set forth in these authorities limit its application to situations where the landowner knows or, by the exercise of reasonable care, should know that children of immature years are habitually trespassing upon his land to use it as a playground, under conditions other than natural, which the landowner knows or should know involve an unreasonable risk of bodily injury and which children because of their youth will fail to discover and appreciate. To bring property within the rule its use as a playground must be generally known in the immediate vicinity and not be merely occasional or intermittent.

'We think factors to be considered in determining liability under the rule include the slight value and utility to be derived by the owner in maintaining the condition or the small cost of removing the danger, as compared to the likelihood and seriousness of injury to young children, and the prescence or absence of guards, fences and warnings.'

As noted by Dean Wade, in Torts--1954 Tennessee Survey, 7 Vand.L.Rev. 967, the two doctrines when combined approximate the majority interpretation of the attractive nuisance doctrine as expressed in Section 339 of the Restatement of Torts, wherein the element of attraction is important only in so far as it may mean that the trespass of the child is to be anticipated. (See also Prosser on Torts, 3rd Ed., Sec. 59, pp. 374 et seq.)

There the rule is announced that '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.' Sec. 339 of the Restatement of Torts.

In argument, the defendant conceded that the stipulations and evidence would support a finding that it had reason to anticipate the presence of the defendant and other children on the premises where the tank was located, and that it could have made it more difficult for the plaintiff to climb the tank at little cost and without destroying its utility. However, the defendant strongly urges that the evidence shows that the condition created by the erection of the tank, with its ladder, was...