Soule v. Massachusetts Elec. Co.

• Decision Date: 04 June 1979
• Citation: 378 Mass. 177,390 N.E.2d 716
• Parties: Philip SOULE v. MASSACHUSETTS ELECTRIC COMPANY et al. 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 716

390 N.E.2d 716

378 Mass. 177

Philip SOULE v. MASSACHUSETTS ELECTRIC COMPANY et al. ¹

Supreme Judicial Court of Massachusetts, Plymouth.

Argued Feb. 7, 1979.

Decided June 4, 1979.

Sanford A. Kowal, Boston, for plaintiff.

Philip W. Riley, Norwood (Peter C. Kober, Boston, with him), for defendants.

Before HENNESSEY, C. J., and QUIRICO, BRAUCHER, KAPLAN and WILKINS, JJ.

QUIRICO, Justice.

In 1954, when the plaintiff was eight years old, he climbed up to an electric power substation controlled and operated by the defendant's ² predecessor Weymouth Light and Power Company, and was severely injured by coming into contact with a 13,800 volt electrical wire. On November 21, 1977, a jury awarded the plaintiff damages of $230,000 for injuries from this accident and gave the following answers to three questions posed to them on a special verdict: (1) Was the defendant negligent and, if so, was the defendant's negligence a proximate cause of the plaintiff's injuries? Yes. (2) Was the plaintiff negligent and, if so, was the plaintiff's negligence a proximate cause of the plaintiff's injuries? No. (3) Did children of the plaintiff's age, or younger, or a few years older, frequent the area in which the defendant's switching station was located during 1954, and for a period of several years before the plaintiff's accident, and, if so, should the defendant have reasonably known this to be so? Yes. On November 30, 1977, the judge allowed the defendant's motion for judgment notwithstanding the verdict, and judgment was entered for the defendant. The plaintiff appealed. We reverse the allowance of the motion, and reinstate the jury verdict.

The facts are briefly these: the switching station on which the accident occurred was a wooden platform with fenced-in sides containing electrical equipment. This platform was suspended between two wooden poles at a height of approximately eight to fifteen feet above the ground; ³ a metal switch handle and pipe ran up the side of each pole starting at a height of about three feet above the ground. The station was located along a line of considerably taller electric company poles carrying high voltage wires. This entire line was located in the area of an easement given to the electric company which in turn passed through a nine acre plot of land owned by the town of Hingham. ⁴

The town land, which was open, was commonly used by the townspeople for hunting and recreation, and was frequented by children. On the day of the accident, the plaintiff and his friend Randolph C. Jenkins, also eight years old, were playing there, as they did several times each week. Coming to the vicinity of the switching station, and thinking that the wooden enclosure "would be a good lookout tower," ⁵ the boys decided to climb up to it. Above one of the supporting poles there was a square opening in the wooden floor of the platform. ⁶ An uninsulated wire carrying 13,800 volts of electricity ran six to twelve inches above the platform floor directly over this hole. Philip climbed up the pole and stuck his head through this opening, coming into contact with the wire. He was knocked unconscious and fell to the ground, receiving serious burns on his scalp, face, feet, and leg.

Under the traditional common law analysis, Philip became a trespasser when he climbed the electric company's pole to the platform, and therefore the company had no duty toward him except to refrain from wanton and wilful misconduct, which is not alleged here. Urban v. Central Mass. Elec. Co.,301 Mass. 519, 523, 17 N.E.2d 718 (1938). This "Draconian" ⁷ doctrine concerning child trespassers has recently been softened in Massachusetts by the passage of G.L. c. 231, § 85Q, inserted by St.1977, c. 259 (approved June 6, 1977, effective ninety days thereafter), which provides: "Any person who maintains an artificial condition upon his own land shall be liable for physical harm to children trespassing thereon if (A ) the place where the condition exists is one upon which the land owner knows or has reason to know that children are likely to trespass, (B ) the condition is one of which the land owner 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, (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, (D ) the utility to the land owner of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and (E ) the land owner fails to exercise reasonable care to eliminate the danger or otherwise to protect the children." It is clear from the jury's answers to the questions posed on the special verdict that if the statute were applicable to this case the plaintiff would have a right to recover thereunder. The statute, however, did not become effective until more than twenty-three years after the plaintiff was injured, and thus is too late to be of assistance to him. Recognizing that "(t)he general rule of interpretation is that all statutes are prospective in their operation, unless an intention that they shall be retrospective appears by necessary implication," City Council of Waltham v. Vinciullo, 364 Mass. 624, 626, 307 N.E.2d 316, 318 (1974), quoting from Hanscom v. Malden & Melrose Gas Light Co., 220 Mass. 1, 3, 107 N.E. 426 (1914), the plaintiff quite rightly does not ask us to hold that it applies retroactively to his case. He asks instead that we (1) abolish the common law distinctions between trespassers and lawful visitors altogether, or (2) articulate a "dangerous instrumentality" exception to the traditional rule of no liability to trespassers, or (3) declare that as a matter of common law there is no exception for trespassing children basically equivalent in scope to that of G.L. c. 231, § 85Q. ⁸ Because we believe that the action of the Legislature in passing § 85Q was not meant to, and does not, foreclose us from announcing compatible changes in the common law of torts, consistent with the trend of our decisions in Mounsey v. Ellard, 363 Mass. 693, 297 N.E.2d 43 (1973), Pridgen v. Boston Hous. Auth., 364 Mass. 696, 308 N.E.2d 467 (1974), and Poirier v. Plymouth, --- Mass. ---, --- - --- ^A, 372 N.E.2d 212 (1978), we hold that there is a common law duty of reasonable care by a landowner or occupier to prevent harm to foreseeable child trespassers, and that therefore the evidence in this case was sufficient to support the verdict which the jury returned in favor of the plaintiff.

In Mounsey, supra, this court indicated clearly that the days of the common law approach to the problem of a land occupier's duty in tort were numbered. "The problem of allocating the costs and risks of human injury is far too complex to be decided solely by the status of the entrant, especially where the status question often prevents the jury from ever determining the fundamental question whether the defendant has acted reasonably in light of all the circumstances in the particular case." Id. 363 Mass., at 707, 297 N.E.2d at 51. In that case we held that henceforth there would be no distinction in the duty owed to invitees and licensees, and that all lawful visitors would be owed a duty of reasonable care. Since then, we have extended the same duty to other previously unprotected classes in Pridgen v. Boston Hous. Auth., supra (helplessly trapped trespassers), Lindsey v. Massios, 372 Mass. 79, --- ^B, 360 N.E.2d 631 (1977) (visitors of a tenant), King v. G & M Realty Corp., --- Mass. ---, --- ^C, 370 N.E.2d 413 (1977) (tenants), and Poirier v. Plymouth, --- Mass. ---, --- ^D, 372 N.E.2d 212 (1978) (employees of an independent contractor).

Even under the traditional common law analysis, the duty to foreseeable child trespassers exception has had a long history in other jurisdictions. See Railroad Co. v. Stout, 84 U.S. (17 Wall.) 657, 21 L.Ed. 745 (1873). This doctrine developed originally through the legal fiction of an "attractive nuisance" which lured children onto the land to their peril, and by 1934 it had been recognized in § 339 of the Restatement of Torts, minus the fiction of "attraction." ⁹ The key conditions for the exception, instead, were given as the foreseeability of the presence of the children, and the balancing of the hardship to the land occupier in requiring him to provide protection on the one side, against the magnitude of the risk on the other. A number of courts long ago affirmed awards of damages on such a doctrine to children who had been electrocuted while climbing upon electric company installations. See, e. g., Arkansas Power & Light Co. v. Kilpatrick, 185 Ark. 678, 49 S.W.2d 353 (1932); Wolczek v Public Serv. Co., 342 Ill. 482, 493, 174 N.E. 577 (1930); Harris v. Indiana Gen. Serv. Co., 206 Ind. 351, 358-359, 189 N.E. 410 (1934); Znidersich v. Minnesota Utils. Co., 155 Minn. 293, 296, 193 N.W. 449 (1923); Robertson v. Rockland Light & Power Co., 187 App.Div. 720, 730-731, 176 N.Y.S. 281 (N.Y.1919); Afton Elec. Co. v. Harrison, 49 Wyo. 367, 54 P.2d 540 (1936). By 1971, only seven jurisdictions continued to reject a duty to foreseeable child trespassers exception to the common law rule of nonliability to trespassers. W. Prosser, Torts 365 (4th Ed. 1971). At least two of those States have since adopted it. Jones v. Billings, 289 A.2d 39, 43 (Me.1972). Haddad v. First Nat'l Stores, 109 R.I. 59, 63, 280 A.2d 93 (1971). ¹⁰ Prior to Mounsey, Massachusetts rejected the exception under its "attractive nuisance" label. Prudhomme v. Calvine Mills, Inc., 352 Mass. 767, 225 N.E.2d 592 (1967) (rescript). Daniels v. New York & New England R.R., 154 Mass. 349, 354, 28 N.E. 283 (1891).

Considering the long history of the child trespasser exception, the dwindling number of States which do not recognize the exception, and the intent expressed in a...