Salanski v. Enright, 54479
| Decision Date | 13 April 1970 |
| Docket Number | No. 1,No. 54479,54479,1 |
| Citation | 452 S.W.2d 143 |
| Parties | David SALANSKI, by Next Friend Helen Salanski, Appellant, v. Hubert J. ENRIGHT and Lometa W. Enright, Respondents |
| Court | Missouri Supreme Court |
Robert B. Randolph, St. Joseph, for appellant.
R. A. Brown, Jr., Brown, Douglas & Brown, St. Joseph, for respondents.
Plaintiff appeals from the order and judgment of the trial court dismissing plaintiff's $100,000 damage suit for failure to state a cause of action. The petition is based on injuries sustained by plaintiff, who, when 10 years of age, fell from a treehouse on defendants' residence premises.
Does the petition state a cause of action? We quote the pertinent parts as follows:
'* * * that Defendants' residence is located on a corner lot with large trees in the back yard * * *
'That on the 12 day of August, 1964, and for a long time prior thereto, Defendants allowed and encouraged their child and other children in the neighborhood to place boards and platforms high up in the trees in their back yard; that in the construction, maintenance and use of said treehouses, Defendants allowed, induced, encouraged and invited Plaintiff and other children * * * who lived in the neighborhood, to come upon their premises and climb in the trees and play upon said treehouses * * *
' * * * that it became a customary use in the neighborhood for Plaintiff and other children * * * to come to Defendants' premises at anytime for the above purpose; that Plaintiff and other children who regularly came to Defendants' premises to play in the treehouses understood they had a standing invitation to * * * play in the treehouses at anytime.
'That * * * Plaintiff * * * upon the above-mentioned invitation went upon Defendants' premises to play in said treehouses; that one of said treehouses was approximately thirty feet above the ground, built in the smaller branches of the tree and very dangerous to ascend and descend; that while sitting on said treehouse or while trying to ascend or descend from said treehouse, Plaintiff fell from the treehouse * * * That at the time of Plaintiff's fall, Defendants were * * * out of the city.
'That said fall * * * was caused by the carelessness and negligence of Defendants, in that, Defendants failed to exercise proper care in keeping their premises safe, but encouraged, allowed and maintained dangerous treehouses built high above the ground to exist upon their property, well knowing that children * * * regularly played thereon and well knowing that children * * * could easily fall therefrom * * * Defendants not only failed to warn Plaintiff that it was dangerous to climb in said trees to play upon said treehouses, but induced, encouraged, allured and invited Plaintiff to their premises to play in said treehouses well knowing * * * that a child could easily fall therefrom and be injured * * *'
In Arbogast v. Terminal Railroad Association of St. Louis, Mo., 452 S.W.2d 81, decided March 9, 1970, we held now that Sec. 342 of Restatement of the Law, Torts, First, (1934) has been adopted in this state, Wells v. Goforth (Mo.Sup.Banc) 143 S.W.2d 155, Sec. 339, Restatement of the Law, Torts, First, (1934) should also apply. 1 In Arbogast, it was stated Sec. 339 has been held '* * * not applicable to conditions of height in the absence of some other factor creating a special risk that the child will not avoid the danger, such as the fact that the condition is so hidden as not to be readily visible, or a distracting influence which makes it likely that the child will not discover or appreciate the danger * * *' In Arbogast, a 12 year old girl fell from a high, unguarded railroad trestle, spanning a deep ravine and creek bed. The court said there was no evidence of the trestle being defective or of any other special circumstance which would be hidden from a 12 year old girl. The situation, therefore, was not one where the child would fail to appreciate the risk of falling from the trestle in the course of walking or running across it. So the plaintiff did not make a case under the rules of liability as set out in Sec. 339.
In the present case, plaintiff, according to the allegations of the petition, was on the premises at the invitation of the defendants; he was permitted to enter, Richey v. Kemper (Mo.Sup.) 392 S.W.2d 266, 268. The invitation alleged would seem to be comparable to an invitation to a social guest and plaintiff, therefore, is more in the position of a licensee than a trespasser. Of course, the fact that plaintiff is not a trespasser does not mean the principles of Sec. 339 would not apply. A fortiori, the protection extended to plaintiff as a trespassing child would also extend to plaintiff as a child licensee.
As stated in Boyer v. Guidicy Marble, Terrazzo & Tile Co. (Mo.Sup.) 246 S.W.2d 742, 744, a child trespasser case, where the trial court had sustained a motion to dismiss the petition as not stating...
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