Puchta v. Rothman

• Decision Date: 31 August 1950
• Citation: 99 Cal.App.2d 285,221 P.2d 744
• Court: California Court of Appeals Court of Appeals
• Parties: PUCHTA v. ROTHMAN et al. Civ. 14338.

Page 744

221 P.2d 744

99 Cal.App.2d 285

PUCHTA v. ROTHMAN et al.

Civ. 14338.

District Court of Appeal, First District, Division 2, California.

Aug. 31, 1950.

Rehearing Denied Sept. 30, 1950.

Dolwig & Gaudio, South San Francisco, for appellants.

F. E. Hoffmann, San Mateo, for respondents.

GOODELL, Justice.

Appellant sued for $50,000, for injuries sustained in a building which was under construction, when she fell through an opening in the second floor thereof onto a concrete floor 12 or 13 feet beneath. A general demurrer was sustained (with leave to amend) to each of the two counts of the amended complaint. Appellant declined to amend and judgment was entered for respondents for costs. This appeal followed.

Appellant's statement of facts as alleged in the complaint is as follows: 'On or about the 6th day of February, 1947, the defendants were engaged in the construction of a building in South San Francisco * * * The building was partially completed on that date and the second floor was overlaid with a sheet of tar paper. Under this tar paper and totally concealed by it was a hole for a proposed ventilator or skylight. The stairway had already been completed so that access to the second floor was easy and convenient. Children had, to defendants' knowledge, played upon this structure and knowing this, defendants had in fact erected a barricade to protect them from this known danger. On or about the 6th day of February, 1947, defendants removed this protective barricade and plaintiff Margaret Jane Puchta, ten years of age, went to the second floor of the building to play and while so engaged, stepped upon the tar paper above the concealed hole, plunging through to the first floor, suffering severe personal injury.'

Appellant concedes that it is 'the general rule that a land owner owes no duty of care to trespassers' and states that the first count is based on the attractive nuisance doctrine, which is an exception to that rule.

The attractive nuisance doctrine was first applied in California in Barrett v. Southern Pacific Co., 91 Cal. 296, 27 P. 666, 25 Am.St.Rep. 186, where the Supreme Court, with two rules on the subject from which to choose, selected the rule followed by the United States Supreme Court, and by Pennsylvania, Michigan, Missouri, Kansas and Minnesota, and rejected that of New Hampshire. It is a typical attractive nuisance case since it involved a turntable.

Cahill v. E. B. & A. L. Stone & Co., 153 Cal. 571, 96 P. 84, 19 L.R.A.,N.S., 1094, involved a push-car used in laying a railroad track in a city street which car, without any brake, was left unguarded, unenclosed and unlocked, and a 12-year old boy was injured while playing thereon while it was in motion. A demurrer to his complaint was sustained but the judgment was reversed on the authority of the Barrett case. The court in 153 Cal. at page 574, 96 P. at page 86, said: 'The rule of course is not to be confined to turntables, but applies to any attractive and dangerous machinery * * * It is true that in this state the rule has been strictly limited to the particular character of cases mentioned in the Barrett Case. In Peters v. Bowman, 115 Cal. (349, 47 P. 113, 598, 56 Am.St.Rep. 106), wherein it was held that the owner of a lot was not liable for the death of a boy drowned in a pond on his premises, Mr. Justice McFarland, speaking of the so-called 'turntable cases,' says: 'The rule as thus applied rested on the ground that the immature judgment of a young child could not well determine or provide against the danger of meddling with such machinery, and that therefore the railroad company was liable for legal negligence in crecting it and leaving it exposed as an attraction to children, and a temptation to them to intermeddle with it.' It is further stated that the principle of these 'turntable cases,' while well established in this state, is an exception to the general rule that the owner of land is under no legal duty to keep it in safe condition for others than those whom he invites there.'

'Originally, the attractive muisance doctrine was applied only to machinery under certain circumstances, but in this state its application has been extended to various appliances and contrivances.' Hernandez v. Santiago etc. Ass'n, 110 Cal.App. 229, 233, 293 P. 875, 877. Thus it was applied in Pierce v. United G. & E. Co., 161 Cal. 176, 118 P. 700, where a loose guy wire came in contact with a live wire; in Skinner v. Knickrehm, 10 Cal.App. 596, 102 P. 947, where a wagon was attached to the rear of a house being moved through city streets; in Faylor v. Great Eastern Q. M. Co., 45 Cal.App. 194, 187 P. 101, where unlocked ore cars were left in an unguarded, unused, mining tunnel; in Sandberg v. McGilvray-Raymond Granite Co., 66 Cal.App. 261, 226 P. 28, where a railroad train was slowly backing; in Morse v. Douglas, 107 Cal.App. 196, 290 P. 465, where a trailer and vat of boiling tar were left unguarded in a city street, and in Lambert v. Western Pacific R. R. Co., 135 Cal.App. 81, 26 P.2d 824, where an abandoned box of dynamite caps was left on a railroad right of way under construction.

The courts have refused to extend the rule to such things as ponds and reservoirs, Peters v. Bowman, supra; Polk v. Laurel Hill Cemetery Ass'n, 37 Cal.App. 624, 174 P. 414; Reardon v. Spring Valley Water Co., 68 Cal.App. 13, 228 P. 406, storm drains; Melendez v. Los Angeles, 8 Cal.2d 741, 68 P.2d 971; Beeson v. Los Angeles, 115 Cal.App. 122, 300 P. 993, a stable; Giannini v. Campodonico, 176 Cal. 548, 169 P. 80, a dance hall; Doyle v. Pacific Electric Ry. Co., 6 Cal.2d 550, 59 P.2d 93, an icing platform; Hernandez v. Santiago etc. Ass'n, 110 Cal.App. 229, 293 P. 875 supra.

An unfinished building has none of the characteristics of turn-tables, moving cars or wagons, live wires, or 'dangerous and attractive machinery.' Respondents' assertion in their brief that they have found no case holding such a structure to be an attractive nuisance virtually challenged their adversary to produce one, but since no reply brief was filed none was forthcoming.

In Peters v. Bowman, supra, 115 Cal. 345, 349-350, 47 P. 113, 114, the court said: 'the rule of the Turntable cases is an exception to the general principle that the owner of land is under no legal duty to keep it in a safe condition for others than those whom he invites there, and that trespassers take the risk of injuries from ordinary visible causes; and it should not be carried beyond the class of cases to which it has been applied', and added in 115 Cal. at page 356, 47 P. at page 599, in denying a rehearing: 'The owner of a thing dangerous and attractive to children is not always and universally liable for an injury to a child tempted by the attraction. His liability bears a relation to the character of the thing, whether natural and common, or artificial and uncommon: to the comparative ease or difficulty of preventing the danger without destroying or impairing the usefulness of the thing; and, in short, to the reasonableness and propriety of his own conduct, in view of all surrounding circumstances and conditions.' (Emphasis added.)

In Loftus v. Dehail, 133 Cal. 214, 218, 65 P. 379, 380, the court said: 'But it by no means follows, * * * that anything or everything which a jury may find, or a court may determine, to be attractive as a playground or plaything for children casts a responsibility of guard and care upon the owner of that thing. * * * Venturesome boys and even girls make playgrounds of unfinished buildings, climb perilous heights, and scamper over insecure boards and rafters. If an owner became responsible, merely because children were attracted, it would burden the ownership of property with a most preposterous and unbearable weight.' (Emphasis added.) The last quotation, which used unfinished buildings as an example, while merely a dictum, was repeated 35 years later in Doyle v. Pacific Electic Ry. Co., 6 Cal.2d 550, 552, 59 P.2d 93, supra. In the latter case a 13 year old boy trespasser ventured onto a canvas-covered sky-light opening and fell through it, in much the same way as appellant fell through this paper-covered opening.

When the cases speak of guarding the dangerous contrivance, they are not speaking of a warning of 'danger' or a notice to 'keep out', but of something that will physically prevent children and others from going upon the premises. This is indicated by the case of Faylor v. Great Eastern Q. M. Co., 45 Cal.App. 194, 187 P. 101, supra, where the mining property was enclosed with a barbed wire fence, and where there was posted in a conspicuous place on the gate 'a sign 6 feet long and 18 inches wide, and with the word 'Danger' painted thereon in letters 1 foot high, and the words 'No Admittance' about 8 inches high.' Notwithstanding these precautions the court held that the mining company should have sealed up the mouth of the unused tunnel. It is indicated also in the Barrett case, 91 Cal. 296, 27 P. 667, supra, where the turntable was equipped 'with a latch and slot, such as is in common use on such tables, to keep it from revolving' which was fastened at the time, but since it 'was not protected by any inclosure' or guarded, the defendant was held liable.

It is self-evident that any barricade at the foot of the stairway of this building, of sufficient size and strength to keep children from going up the stairs, would destroy the very purpose for which the stairs were built and retard the completion of the building.

Appellant quotes the Restatement of the Law of Torts, § 339, and argues that the California rule on attractive nuisances is substantially in accord with it. Generally speaking it is, but the cases which we have cited show the lines of distinction which the California courts have drawn. A building under construction, being immobile for one thing, is readily distinguishable from an attractive, moving...