Pier v. Schultz

• Decision Date: 26 September 1961
• Docket Number: No. 2,No. 19460,19460,2
• Citation: 177 N.E.2d 264
• Parties: Walter R. PIER, Appellant, v. Howard E. SCHULTZ and Agnes M. Schultz, Appellees. *
• Court: Indiana Appellate Court

Page 264

177 N.E.2d 264

Walter R. PIER, Appellant, v. Howard E. SCHULTZ and Agnes M. Schultz, Appellees.^*

No. 19460.

Appellate Court of Indiana, Division No. 2.

Sept. 26, 1961.

James P. Gleason, Conrad S. Kominiarek, Michigan City, for appellant.

McInerny & Huguenard, South Bend, for appellees.

GONAS, Judge.

The recent opinion handed down by our Supreme Court in the case of Harness v. Churchmembers Life Insurance Company, Ind.1961, 175 N.E.2d 132, does not lighten our difficulty in this matter.

This action was brought by appellant against appellees to recover medical expenses and for loss of services resulting from personal injuries sustained by his minor child.

Appellees filed their motion to require appellant to make the complaint more specific and to state facts to support conclusions. When the motion was overruled they filed their demurrer challenging the complaint as not stating facts sufficient to constitute a cause of action. The demurrer was sustained and the question presented by this appeal is whether the court erred in sustaining said demurrer.

For the purpose of determining this question we must accept all facts well pleaded as being true, Flanagan Indiana Pleading and Procedure, § 146 and authorities there cited.

Since the motion to make more specific, which was addressed to the complaint, was overruled and the complaint was then challenged by a demurrer on the ground that it did not state facts sufficient to constitute a cause of action, which demurrer was sustained, the sufficiency of the complaint must now be determined from facts stated therein and the complaint may only receive support from conclusions that may be inferred from those facts. Davis v. Louisville and Nashville Railroad Co., Ind.App., 1961, 173 N.E.2d 749; Swanson v. Slagal, Administratrix, 1937, 212 Ind. 394, 8 N.E.2d 993; Flanagan, Indiana Pleading and Procedure, § 133.

The complaint alleges that appellees owned two unimproved lots in Michigan City, Indiana, which had become overgrown with second growth trees, bushes, and long grass; that for many days prior to the injuries received by appellant's son, appellees had permitted old building materials, buckets, cans, steel barrels, boxes and parts of a discarded electric motor to accumulate and remain on said lots; that for many days various children in the neighborhood were accustomed to play on these lots, which had become peculiarly attractive to small children in the neighborhood to sport and play upon; that for many days there had laid on the premises a steel barrel, containing a greasy susbtance which was in such condition as to be subject to explosion when ignited; that the above conditions had existed for so long that the appellees knew or should have known of them; that on the day of the son's injuries the son, then nearly nine years and ten months old, and three other children of approximately the same age were playing on appellees' lots when one of the other children dropped a lighted match into the steel barrel which exploded and inflicted the injuries. Various failures of appellees to act are alleged as negligence on their part, that is failure to fence the premises, to warn immature children by watchman or guard, failure to place warning signs, failure to remove the steel barrel, failure to render the barrel nonexplosive, and failure to put a barricade around the barrel so that immature children could not ignite the explosive substance in the barrel. There are further allegations of injury to the son and damage to appellant.

In order to bring a case within the strict application of the attactive nuisance doctrine as it exists in the state of Indiana, the child must have been induced to trespass and be injured by a condition peculiarly alluring to children. Thus, this court stated in Lockridge v. Standard Oil Co., Inc., 1954, 124 Ind.App. 257, 263, 114 N.E.2d 807, 810 (Tr. Den.):

'To render the owner liable, the structure or condition maintained or permitted on his property must be peculiarly or unusually attractive to children. The injured child must have been attracted by such condition or structure. The owner must know, or the facts be such as to charge the owner with knowledge, or the condition and that children are likely to trespass and be injured. The structure or condition must be dangerous and of such a character that the danger is not apparent to immature minds. * * *'

See, also, to the same effect, Indianapolis Water Co. v. Harold, 1908, 170 Ind. 170, 176, 83 N.E. 993; Indianapolis Motor Speedway Co. v. Shoup, 1929, 88 Ind.App. 572, 577, 578, 165 N.E. 246; Davis, Director, v. Keller, 1926, 85 Ind.App. 9, 17, 150 N.E. 70; Holstine v. Director General of Railroads, 1922, 77 Ind.App. 582, 590, 591, 134 N.E. 303. The complaint in this case contains no allegation that the child was induced to trespass by the condition existing on these lots, and, therefore, it does not state facts sufficient to constitute a cause of action under the strict application of the attractive nuisance doctrine, as it exists in this state.

The modern trend is to limit the attactive nuisance doctrine rather than to extend it, and to apply it cautiously. Snyder v. New York Central R. R. Co., 1935, 101 Ind.App. 258, 194 N.E. 796. There may, however, be liability where the instrumentality by which the child was injured is not an 'attractive nuisance', and did not entice the child to trespass; if the dangerous instrumentality is left exposed so that children are likely to come in contact with it, and their coming in contact with it is dangerous to them, the person exposing the dangerous thing should reasonably anticipate the injury that is likely to happen to them from it being exposed, and is under a duty to care for the dangerous instrument so as to prevent injury. Cleveland, C. C., and St. L. Ry. Co. v. Means, 1914, 59 Ind.App. 383, 104 N.E. 785, 108 N.E. 375; Harris v. Indiana General Service Co., 1934, 206 Ind. 351, 189 N.E. 410; Indiana Harbor Belt R. Co. v. Jones, 1942, 220 Ind. 139, 41 N.E.2d 361; Wise v. Southern I. G. & E. Co., 1941, 109 Ind.App. 681, 34 N.E.2d 975; Terre Haute, I & E T Co. v. Sanders, 1922, 80 Ind.App. 16, 136 N.E. 54; Ft. Wayne, etc., Traction Co. v. Stark, 1920, 74 Ind.App. 669, 127 N.E. 460. Most of the Indiana cases have been discussed in comments in the Indiana Law Journal; 8 I.L.J. 508 (1933); 18 I.L.J. 152 (1943); 26 I.L.J. 266 (1951); 32 I.L.J. 76 (1956).

Appellant in this case urges as the law of Indiana, the Restatement Rule as set forth in § 339, Restatement of the Law of Torts, which reads:

'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.'

The Restatement Rule has been regarded in some jurisdictions as a statement of the attractive nuisance doctrine, but has also been applied by the courts in jurisdictions where the attractive nuisance doctrine is not recognized with respect to children trespassing on realty. Under this Rule it is not necessary that the child trespassed because of the attractiveness of the particular condition. 65 C.J.S. Negligence § 28, p. 454. In Neal, Admr. v. Home Builders, Inc., 1953, 232 Ind. 160, 111 N.E.2d 280, 290, 111 N.E.2d 713, a statement of law similar to that of the Restatement Rule was referred to as the attractive nuisance rule as extended in some jurisdictions. The majority opinion in that case did not adopt the extension, but merely decided that if the extension was the law of Indiana, the case did not come within such extension. The Restatement Rule was specifically discussed by our Supreme Court in the very recent case of Harness v. Churchmembers Life Insurance Company, supra. Two of the judges of that court were of the opinion that to adopt the Restatement Rule would be to change the law as it now exists in Indiana. Two other judges were of the opinion that Indiana allows recovery under the Restatement Rule, The fifth judge expressed no opinion on this point but concurred in the result of the opinion of the first two.

In view of the history of the Restatement Rule in the Supreme Court, the opinions of which are binding upon us and the diversity of the positions of the judges thereof, we are reluctant to declare that the Restatement Rule is or is not the law of Indiana.

In Neal, Admr. v. Home Builders, Inc., supra, which was cited with...