Pier v. Schultz
| Decision Date | 14 May 1962 |
| Docket Number | No. 30254,30254 |
| Citation | 182 N.E.2d 255,243 Ind. 200 |
| Parties | Walter R. PIER, Appellant, v. Howard E. SCHULTZ and Agnes M. Schultz, Appellees. |
| Court | Indiana Supreme Court |
James P. Gleason, Conrad S. Kominiarek, Michigan City, for appellant.
William F. McInerny, South Bend, for appellees.
This case comes to us on petition to transfer from the Appellate Court under § 4-215, Burns' 1946 Repl. See: Pier v. Schultz (Ind.App., 1961), 177 N.E.2d 264.
This is an action to recover damages for medical expenses and loss of services resulting from personal injuries sustained by appellant's son.
Appellees filed a motion to require appellant to make the complaint more specific by stating specifically the facts in support of the conclusions therein stated. The motion was overruled. Appellees then filed a demurrer, challenging the sufficiency of the complaint to stae a cause of action. The demurrer was sustained. The appellant refused to plead over and judgment was entered against him and this appeal followed.
The question presented by this appeal is whether the court erred in sustaining the demurrer. In determining this question, we must accept all facts well pleaded as being true. Flanagan, Wiltrout & Hamilton Indiana Trial and Appellate Practice § 146, and authorities there cited.
The essential allegations in the complaint are as follows: Appellees owned two unimproved lots in Michigan City, Indiana, which had become overgrown with secondgrowth trees, bushes and long grass. For many days prior to the injuries received by appellant's son, the exact number of days being unknown to the appellant, appellees had permitted old building materials, backets, cans, steel barrels, boxes, and parts of a discarded electric motor, to accumulate and remain on said lots; that various children in the neighborhood were accustomed to play on these lots which had become particularly attractive to small children to sport and play thereon; that there had lain on the lots a steel barrel containing a greasy substance, the exact nature of which is unknown to the appellant, in such condition as to be subject to explosion with great force and violence when ignited; that appellant does not know whether appellees had actual knowledge of the facts alleged but that such condition had existed for such a length of time that the appellees should have known of them. That the son [then nearly nine years and ten months old], and three other children of approximately the same age, were playing and sporting upon appellees' lots when one of the other children dropped a lighted match into the steel barrel which exploded with great force and violence and inflicted the injuries complained of.
The appellant, in alleging negligence by the appellees, points to various alleged failures by the appellees as the proximate cause of the injuries, such as failure to fence the premises and to warn immature children by a watchman or guard, or to take precautions to keep them off the premises; failure to place warning signs; failure to remove the steel barrel; failure to render the barrel non-explosive, and failure to put a barricade around the barrel so that immature children could not ignite the explosive substance in the barrel.
Since it is not alleged that the instrumentality, of which appellant complains, was of such character that its presence upon the property of appellees created a condition comparable to an entrapment, and since it is not alleged that the appellees, as owners of the property, committed any positive act or exercised any positive control over the instrumentality, regardless of its character, and since it affirmatively appears from the complaint that the person injured was either a trespasser or a mere licensee by permission upon the property of appellees, the complaint does not state facts sufficient to constitute a cause of action under the general rules of negligence. 1
We next consider whether the complaint stated facts sufficient to constitute a cause of action within the attractive nuisance doctrine of the law of torts. The courts of this state have consistently held that in order for the doctrine of attractive nuisance to apply, the following facts must be made to appear: (1) The structure or condition complained of must be maintained or permitted upon the property by the owner or the occupant thereof. (2) It must be peculiarly dangerous to children and of such a nature that they will not comprehend the danger. (3) It must be particularly attractive to children and provide a special enticement for children to play or sport thereon. (4) The owner must know, or the facts alleged must be such as to charge him with constructive knowledge, of the existence of such structure or condition, and that children do or are likely to trespass upon his property and be injured by such structure or condition. (5) The injury sustained must be the natural, probable and foreseeable result of the original wrong complained of. Indianapolis Water Co. v. Harold (1908), 170 Ind. 170, 83 N.E. 993; Indianapolis Motor Speedway Co. v. Shoup (1929), 88 Ind.App. 572, 165 N.E. 246. See also: Neal, Adm'r v. Home Builders, Inc. (1952), 232 Ind. 160, 111 N.E.2d 280; Lockridge v. Standard Oil Co. Inc. (1953), 124 Ind.App. 257, 114 N.E.2d 807.
In determining the sufficiency of the allegations of the complaint, we are, in this case, confronted by the fact that appellees filed a motion to make the complaint more specific, by particularly stating the facts in support of the conclusions alleged in the complaint. The motion specifically made reference to the alleged conclusion, among others, that appellees 'knew or should have known' of the condition complained of. The motion was overruled, when it should have been sustained. Under these circumstances the action of the court must be deemed a decision of the court, procured by, and binding upon, the appellants, that all the facts relied upon by them to support said conclusion were already stated in the complaint, and no facts, not therein pleaded, will be implied from said conclusion to sustain the complaint on demurrer or considered in determining the sufficiency of the complaint. Terre Haute, etc., Traction Co. v. Scott (1926), 197 Ind. 587, 150 N.E. 777, 43 A.L.R. 1029.
Under the pleadings in this case, the facts alleged are not sufficient to state a cause of action within the attractive nuisance doctrine for several reasons. We seriously question whether the mere fact that a steel barrel with a greasy substance in it is left upon a vacant lot with other debris is sufficient cause to charge the owner of the lot with negligence, much less liability...
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Slusher v. State
...Ind. 49, 55 N.E. 1021; and "(3) the entrapment-affirmative control of the instrument test, arising from language in Pier v. Schultz (1962), 243 Ind. 200, 182 N.E.2d 255." Fort Wayne National Bank v. Doctor, supra, 149 Ind.App. at 374-75, 272 N.E.2d at 882; see also, Xaver, supra, 391 N.E.2d......
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...they argue are in conflict with these principles: Neal v. Home Builders, Inc. (1953), 232 Ind. 160, 111 N.E.2d 280; Pier v. Schultz (1962), 243 Ind. 200, 182 N.E.2d 255; and Pierce v. Walters (1st Dist. 1972), 152 Ind.App. 321, 283 N.E.2d 560. We can not Neal v. Home Builders, Inc., supra, ......
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Fort Wayne Nat. Bank v. Doctor, 1269A247
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