Pocholec v. Giustina

Citation224 Or. 245,355 P.2d 1104
PartiesLonnie L. POCHOLEC, Administrator of the Estate of Ronnie Dean Pocholec, Appellant, v. Natalie B. GIUSTINA, Ehrman V. Giustina, Gregory H. Giustina and Giustina Bros. Lumber Co., an Oregon corporation, Respondents.
Decision Date12 October 1960
CourtSupreme Court of Oregon

James A. Pearson, Eugene, argued the cause for appellant. On the briefs were McCoy & Pearson, Eugene.

Windsor Calkins, Eugene, argued the cause for respondents. On the brief were Calkins & Calkins, Eugene.

Before McALLISTER, C. J., and WARNER, SLOAN, O'CONNELL and HOWELL, JJ.

O'CONNELL, Justice.

This is an action to recover damages for the death of Ronnie Pocholec, a nine-year old boy, who drowned in the defendant's log pond. The plaintiff, administrator of the decedent's estate, appeals from a judgment entered upon a verdict for the defendant.

The defendant maintains a log pond at Springfield, Oregon, on land in its possession and under its control. The pond, which covers approximately 20 acres, was constructed by defendant in 1951. It is used as a storage place for logs which are eventually cut into lumber at defendant's mill in Eugene. The pond is enclosed by a dike; the surface is approximately six feet higher than the surrounding ground. A railroad track enters the defendant's property at the west edge of the pond, forming a siding along which railroad cars are brought for loading and reloading. A roadway runs along the other three sides of the pond. Log trucks are unloaded and loaded from this roadway. The McKenzie Highway is about 200 feet to the north of the pond. There is a city street about 90 feet east of the pond. That street runs through a residential area.

The defendant posted warning signs on the four corners of the pond. The signs read, 'Danger, Keep Out, Private Property.' However, probably only one of the signs was up at the time of the accident. The defendant did not maintain a fence around the pond or employ guards to keep children from using it. Defendant's employees had knowledge that children frequently trespassed upon the pond and the land around it. The employees were instructed to tell trespassing children to get off the premises and this was done on a number of occasions. There was evidence that on several occasions children, while playing on the logs in the pond, had fallen into the water and had to be rescued.

On the day of the accident Ronnie Pocholec had gone to the pond with another boy for the purpose of catching frogs. Ronnie went out onto the logs in the pond, apparently to find a frog. He fell into the water and when he came to the surface the logs had drifted out of his reach. He drowned.

Plaintiff's complaint set forth in substance the facts recited above. Defendant's answer was a general denial coupled with the following separate answer and defense:

'That at the time of the accident plaintiff's decedent was aware of the danger alleged. That plaintiff's decedent assumed the risk of said danger in walking out upon the floating logs and failed to use reasonable care in proceeding out into said pond on said logs.

'That plaintiff's decedent was thereby contributorily negligent, proximately causing his death.'

Plaintiff demurred to the separate answer on the ground that it did not constitute a defense. The demurrer was overruled and plaintiff filed his reply. The jury returned a verdict for the defendant. The trial court entered judgment and plaintiff appeals.

Plaintiff's first and third assignments of error may be treated together. Under these assignments it is concluded that the defenses of assumption of risk and contributory negligence are not available to the defendant in this case. It is first pointed out that the trial judge concluded that the pond in question was an 'attractive nuisance' as a matter of law, and that the jury was so instructed. This finding and instruction, it is argued, conclusively establishes that the plaintiff's decedent did not perceive the danger because a condition cannot be regarded as an 'attractive nuisance' unless the injured child fails to perceive the risk. This being so, it would be inconsistent, says the plaintiff, to allow the jury to find that the decedent child was contributorily negligent or that he had assumed the risk because, he contends, both of such defenses are predicated upon the plaintiff's perception of the risk.

The inconsistency exists only if it is assumed that the court, in describing the condition as an 'attractive nuisance,' intended to embrace within the definition of that term all of the elements establishing the defendant's liability, including the child's lack of appreciation of the risk of the danger. It is not quite clear from the trial judge's treatment of the matter what meaning he intended to attach to the term 'attractive nuisance.' It seems, however, that he merely meant to say that the pond in question was a dangerous condition, attractive to children generally, but that he was leaving the question of the defendant's liability to depend upon the jury's determination of whether Ronnie Pocholec realized the risk involved in playing upon the pond. If this was all that was meant, there would have been no error in letting the jury decide that plaintiff's decedent fully realized the risk and knowingly encountered it, or that he was negligent in some particular in subjecting himself to a danger which he should have realized.

The alleged inconsistency relied upon by the plaintiff vanishes if the so-called 'doctrine of attractive nuisance' is looked upon, not as a separate and self-contained category of tort law, but simply as a part of the law of negligence generally.

After a careful study of the matter, we are convinced that the proper solution of the legal problems arising out of the trespass of children must rest upon the same general principles of liability as are involved in any other case in which a defendant creates an unreasonable risk of harm to a child. The Restatement of Torts, § 339 so considers this area of the law. 1 The views there expressed are adopted, with some refinements, in an excellent treatment of the entire matter by Dean Prosser in a recent article. Prosser, Trespassing Children, 47 Calif.L.Rev. 427 (1959). He summarizes the law as follows, at page 469:

'A possessor of land or a chattel is subject to liability for physical harm to children trespassing thereon, caused by a condition of the land or chattel, if

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

'(b) the condition is one of which the possessor knows or has reason to know, and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and

'(c) the children because of their youth do not discover the conditions or realize the risk involved in intermeddling in it or in coming within the area made dangerous by it, and '(d) the utility of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and

'(e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.'

This statement represents our view of the law and we adopt it. Consistent with this view the jury is entitled to find that although the defendant created an unreasonable risk of harm to those children who, as a class, do not ordinarily realize the risk involved in exposing themselves to the dangerous condition, nevertheless, the particular child for whose injury recovery is sought may be barred from recovery, either because he fully realized the risk and consciously encountered it or because, while he may not have realized the danger involved in exposing himself to the condition, he failed to exercise the care which children of his age, intelligence and experience are required to exercise for their own protection. And, where a child understands some but not all of the dangers involved, this may be found to be sufficient to have alerted him to discover the other hazards, with the consequence that his failure to do so would constitute a failure to exercise due care. The duty which defendant owes to trespassing children is phrased objectively in terms of his duty to children as a class; the obligation which a child has to protect himself is his own individual obligation, judged by a partially subjective standard of conduct. 2 Harper and James, Torts, § 16.8, p. 924 (1956); Prosser, Torts (2nd Ed.), p. 128 (1955). There is, therefore, no disharmony in permitting the jury to find first that defendant was negligent as determined by the above adopted tests taken from Dean Prosser's article, and yet find that the particular child injured had, because of his own fault, forfeited his right to recover. If we were to say that contributory negligence was not available to the defendant in the present case, logically we would have to exclude the defense in every negligence case in which a child was the plaintiff.

The view we have adopted has not received a universal endorsement by the courts. In Larnel Builders, Inc. v. Martin, Fla.1959, 110 So.2d 649, it was held that the theory of contributory negligence is incompatible with the attractive nuisance doctrine. The court said, at page 650:

'The concepts are closely related but, in the final analysis, irreconcilable. One of the conditions essential to operation of the attractive nuisance doctrine is that the injured party because of the incapacities of age, etc., does not in fact 'realize the risk involved in intermeddling' or in coming within a hazardous area. By proceeding upon this theory then, as did the plaintiff in this case, one assumes the burden of showing that the individual involved was of such age and incapacities, as a child of 'tender years,' that he would not be held accountable for his own...

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    • June 23, 1998
    ...in which the plaintiff may not be contributorily negligent, it would be important to keep the issues distinct. [Pocholec v. Giustina, 224 Or. 245, 355 P.2d 1104, 1108-09 (Or.1960) (quoting 2 Harper & James, Torts, § 27.5, at 1455 n.57 See also Colls v. City of Chicago, 212 Ill.App.3d 904, 1......
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    ...the rule in the First Restatement of Torts); Knowles v. Tripledee Drilling Co., 771 P.2d 208, 210 (Okla.1989); Pocholec v. Giustina, 224 Or. 245, 355 P.2d 1104, 1107-08 (Ore.1960) (adopting the first Restatement plus language similar to subsection (e) which was later added to the Restatemen......
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    ...the plaintiff may not be contributorily negligent, it would be important to keep the issues distinct.' " Pocholec v. Giustina (1960), 224 Or. 245, 254-55, 355 P.2d 1104, 1108-1109, quoting 2 F. Harper & F. James, Torts § 27.5, note 57, at 1455 Furthermore, a relatively recent case from this......
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