Schorah v. Carey

• Decision Date: 05 April 1974
• Citation: 318 A.2d 610
• Parties: Joseph J. SCHORAH, Jr., and Joseph J. Schorah, Sr., Individually and as guardian ad litem of Joseph J. Schorah, Jr., Plaintiffs, v. Charles E. CAREY et al., Defendants.
• Court: Delaware Superior Court

Page 610

318 A.2d 610

Joseph J. SCHORAH, Jr., and Joseph J. Schorah, Sr. Individually and as guardian ad litem of Joseph J Schorah, Jr., Plaintiffs, v. Charles E. CAREY et al., Defendants.

Superior Court of Delaware, New Castle County.

April 5, 1974.

Morton Richard Kimmel and Stephen R. Spiller, Kimmel & Spiller, Wilmington, for plaintiffs.

Joseph H. Flanzer, Flanzer & Isaacs, Wilmington, for defendants Charles E. Carey annd Sarah C. Carey.

James F. Kipp and Dennis D. Ferri, Wilmington, for defendants Albert Bendistis and Roberta Bendistis.

OPINION

BUSH, Judge.

This is a personal injury action brought by Joseph J. Schorah, Sr., individually and as guardian ad litem of Joseph J. Schorah, Jr., his minor son, for injuries sustained by the child while on or near property owned by the defendants, Charles and Sarah Carey, and leased to defendants, Albert and Roberta Bendistis. After discovery, both sets of defendants have moved for summary judgment in their respective favors. This is the Court's opinion on defendants' motions.

The evidence in this case discloses that at the time of the incident in question, the minor plaintiff, then eight years old, was playing a game of tag with a friend. Plaintiff ascended a fence belonging to and located on the property of the Borgias, the Bendistises neighbors. Disregarding a warning by a friend, the plaintiff proceeded to stand on top of the fence, maintaining his balance by grasping an overhead clothesline. Shortly thereafter the line broke, causing plaintiff to lose his footing and to fall chest forward on a metal pole. The metal pole, which was formerly a fence post, was located on property leased by the defendants, Bendistis. The pole extended perpendicularly from the ground about three feet and was located in a rose bush. The pole was in noticeable view and had in fact been observed by plaintiff prior to the accident.

The evidence further discloses that the Bendistises were aware that neighborhood children played in their backyard and climbed the fences in the area. The Bendistises, however, repeatedly warned the children, including the plaintiff, not to play there, but the children disregarded these warnings. Mrs. Bendistis was aware of the existence of the metal pole in her backyard but did not think that it was dangerous or a source of danger to the neighborhood children.

At the time of the incident the defendants, Carey, owned the property on which the metal pole was located. Mr. Carey states that he has been on the property only once, has no recollection of ever being in the backyard, and has no knowledge of the pole's existence. It appears from the evidence, however, that the pole on which plaintiff was injured was on the property when the Bendistises took possession of the premises as lessees.

Plaintiffs allege that the Careys, as owners of the property on which the minor plaintiff was injured, were negligent in permitting a dangerous condition to exist on the property, where they knew or should have known that neighborhood children routinely engaged in play. Plaintiffs further contend that such conduct constituted wilful and wanton misconduct on the part of both the Careys and the Bendistises. Although the defendants raise legal questions with respect to liability inter se, the primary issue before the Court is whether the evidence, when viewed in the light most favorable to the plaintiffs, establishes a legal basis of liability against either the Careys or the Bendistises on the asserted grounds.

The minor plaintiff was a trespasser on the Bendistis' property at the time of the incident in question. Consequently, the Careys, as owners of the property, and the Bendistises, as occupants, owed no duty to the trespassing plaintiff other than to refrain from injuring him intentionally, wilfully, or wantonly. Villani v. Wilmington Housing Authority, Del.Super., 9 Terry 450, 106 A.2d 211, 213 (1954). Moreover, 'this rule of non-liability for injuries to trespassers' is said to apply 'with equal force to infant trespassers, except under circumstances where liability may be found to exist under the attractive nuisance doctrine.' Villani v. Wilmington Housing Authority, supra.

The Court has little difficulty in finding that the evidence in this case is manifestly insufficient to establish any 'wilful or wanton' misconduct on the part of the defendants. Wilful conduct, by definition, includes an element of actual or implied intent to cause injury. Wanton conduct occurs when a person, though possessing no intent to cause harm, performs an act which is so unreasonable and dangerous that an imminent likelihood of harm or injury to another is reasonably apparent. Wagner v. Shanks, Del.Supr., 194 A.2d 701, 707 (1963). Such conduct is often characterized by a conscious indifference to the consequences of one's acts or by an 'I-don't-care-a-bit-what-happens' attitude. McHugh v. Brown, Del.Supr., 11 Terry 154, 125 A.2d 583, 586 (1956). In the instant case, there are simply no facts from which a jury could reasonably find that the defendants engaged in any wilful or wanton conduct in connection with the metal fence post on the premises.

Nor does the evidence in the record, when viewed in the light most favorable to the plaintiff, justify submitting this case to the jury on the question of defendants' liability under Section 339 of the Restatement of Torts, Second, which has been adopted in the State, see Moran v. Delaware Racing Association, Del.Super., 218 A.2d 452 (1966); Beaston v. James Julian, Inc., Del.Super., 10 Terry 521, 120 A.2d 317 (1956), and which was in effect at the time of the incident in question. Section 339 imposes liability on a possessor of land for physical harm to child trespassers caused by an artificial condition upon the land Only 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 condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and (d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk of children involved, and (e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children. Plaintiffs have failed to show that condition (c) exists in this case...