State v. Juengel

• Decision Date: 18 October 1971
• Citation: 15 Ariz.App. 495,489 P.2d 869
• Parties: STATE of Arizona, Appellant and Cross-Appellee, v. Eric Roy JUENGEL, by and through his Guardian ad Litem, Harold Roy Juengel, Appellee and Cross-Appellant. Civ. 1268.
• Court: Arizona Court of Appeals

Page 869

489 P.2d 869

15 Ariz.App. 495

STATE of Arizona, Appellant and Cross-Appellee, v. Eric Roy JUENGEL, by and through his Guardian ad Litem, Harold Roy Juengel, Appellee and Cross-Appellant.

Civ. 1268.

Court of Appeals of Arizona, Division 1, Department A.

Oct. 18, 1971.

Review Denied Dec. 21, 1971.

O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears, by John H. Lyons, Phoenix, for appellant and cross-appellee.

Langerman, Begam & Lewis, by Samuel Langerman, Phoenix, for appellee and cross-appellant.

CASE, Judge.

This is an appeal from a judgment for appellee (plaintiff in the trial court) and denial of appellant's (defendant in the trial court) motions for judgment notwithstanding the verdict or in the alternative for a new trial. The appellee questions the denial of costs to him as part of his award by way of cross-appeal. The parties will be referred to hereinafter as they appeared in the trial court.

In the late afternoon of November 7, 1965, the Juengel family while traveling in two cars in an easterly direction on U.S. Route 60--70, stopped at a roadside rest area located approximately 700 feet east of the Queen Creek Tunnel, three or four miles east of Superior. Plaintiff, then age eight, his sister and mother climbed up a path on the east side of a rock formation located at the south end of the rest area. Plaintiff's mother descended from the rock formation leaving the plaintiff and his sister who descended later by the same path. Subsequently, the plaintiff and his sister again walked to the peak of the formation, approximately 15 feet from the ground level. Plaintiff, instead of descending as he had done previously by way of the travel-worn path, began to climb down the face of the formation which appeared rugged and which contained numerous inscriptions. As plaintiff was climbing with his face to the formation, a rock on which his foot was resting gave way. He fell to the ground and was there struck by a dislodged rock. Plaintiff suffered considerable internal injuries. The matter was tried to a jury which awarded plaintiff $150,000.00 in damages.

The defendant first raises the issue of the State's duty to plaintiff. His argument, not specifically challenging any trial court action, seems to question the sufficiency of the evidence regarding negligence. Neither party disputes the fact that the State has a duty to maintain and repair public places so as to keep them reasonably safe for the ordinary purpose intended. Arizona State Highway Department v. Bechtold, 105 Ariz. 125, 460 P.2d 179 (1969). Defendant questions whether the State breached this duty to plaintiff.

This question is one of fact to be answered by the jury, unless the court could find that all reasonable men could come to but one conclusion in which case this would be a question of law. Shell Oil Co. v. Collar, 99 Ariz. 154, 407 P.2d 380 (1965); Moore v. Maricopa County, 11 Ariz.App. 505, 466 P.2d 56 (1970). The evidence of plaintiff's expert, a civil engineer and an engineering seismologist, indicated that the rock formation, created by blasting, was unstable; that the blasters had reason to know this; that proper blasting would have left a stable formation; and that trained maintenance crews should have noticed the raveling and should have taken some relatively simple steps to correct the problem. He further noted that the inscriptions on the rocks were tantamount to an invitation to climb thereon in the absence of a warning sign. This evidence, together with the victim's description of the accident, is sufficient to allow the issue of negligence to go to the jury. The State presented to evidence as to duty or liability. Thus, the issue of liability was properly presented to the jury on credible evidence and therefore will not be disturbed. Feighner v. Clarke, 101 Ariz. 334, 419 P.2d 513 (1966).

Defendant next argues that the trial court erred in giving the plaintiff's requested instruction on standard of conduct attributable to a child which reads as follows:

'With regard to the claim of the State that Eric Juengel was contributorily negligent, I instruct you that the degree or amount of care required to be exercised by a child differs materially from that required of an adult person. With respect to children as each case arises, it must depend upon its own facts and circumstances. No hard and fast rule has been, or can be, laid down based on age alone.

The criterion is intelligence, knowledge and experience. The standard or measure of duty in each case is determinable by the capacity ordinarily possessed and exercised by children of the age and development of the class to which the individual belongs. A child is not expected or required to foresee what harm may happen to him, or to make a correct decision, or to appreciate danger to which he may be exposed. The law requires of him only that he exercise for his own safety, the same degree of care that children of his own age and experience would ordinarily exercise in similar circumstances.'

Our Supreme Court in Southwest Cotton Company v. Clements, 25 Ariz. 169, 215, P. 156 (1923), recognized that the criteria of intelligence, knowledge and experience must be used to determine on a case-by-case basis the duty to which a particular child must conform his actions. We agree with defendant that the third sentence of the last paragraph of the instruction read in a vacuum tends to give the wrong impression since a child is expected to act, i.e., make correct decisions, foresee possible harm and/or appreciate danger, as would a child of similar age and experience under like circumstances. When the entire instruction is read, the import thereof clearly conforms to the rule of Southwest Cotton v. Clements, supra, and results in no error. Accordingly, this is not grounds for reversal since we must not isolate a portion of an instruction, but must interpret the instruction as a whole. See generally, City of Phoenix v. Harlan, 75 Ariz. 290, 255 P.2d 609 (1953); Wolff v. First National Bank, 47 Ariz. 97, 53 P.2d 1077 (1936). It should also be noted that the exact language complained of was approved by the Arizona Supreme Court in MacNeil v. Perkins, 84 Ariz. 74, 86, 324 P.2d 211, 219 (1958).

Defendant further urges error in the court's giving of an instruction on the attractice nuisance doctrine. Defendant contends the instruction was unsupported by the evidence and erroneously given. The instruction given follows closely § 339, Restatement of Torts 2nd (1965), which has been cited approvingly by our Supreme Court. Spur Feeding Company v. Fernandez, 106 Ariz. 143, 472 P.2d 12 (1970); MacNeil v. Perkins, supra, Buckeye Irrigation Co. v. Askren, 45 Ariz. 566, 46 P.2d 1068 (1935). In order for the doctrine to apply, five elements must be present.

'1. The place where the (artificial) condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass.'

The jury could find from the evidence that the State knew or had reason to know that children would be attracted to a rock formation located at a roadside rest area, especially one whose face is covered with inscriptions indicating the past presence of various individuals. Spur Feeding Company v. Fernandez, Supra. We should also note that testimony of plaintiff's expert indicated that the rock formation was not in its natural state but rather was created by the dynamiting done many years before while the highway was under construction.

'2. The condition is one 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.'

The jury could find from the expert's testimony that the employees of the State who performed the excavation and blasting knew or had reason to know that their work had left the formation in an unstable condition. Testimony also indicates that trained highway maintenance men have the background to recognize signs of raveling and appreciate that raveling indicates the instability of a rock formation. The jury could also have concluded that the formation created an unreasonable risk of death or bodily injury from its instability and its height.

'3. 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.'

In this regard, the plaintiff's expert witness, whose testimony was unimpeached, indicated that while a trained person would realize the danger, an untrained individual such as plaintiff, would not realize that the formation was unstable, i.e., that his weight would cause a rock to be dislodged. The plaintiff also testified he did not realize this risk.

'4. The utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to the children involved.'

No testimony was presented to show the formation had any value to the possessor, other than perhaps as a sightseeing object. The existance of many natural objects of sightseeing in Arizona causes us to discount the need of maintaining this artificial condition. Testimony also indicated that the formation could easily have been eliminated with earth moving equipment, or that unstable rocks could have been scraped away to prevent the dangerous condition. An easier remedy would have been to post a sign warning of the possible danger, or fencing off the formation from the remainder of the rest area. Though no reported accident had occurred prior to the instant incident, testimony indicated that the improper blasting created an unstable formation with greater risk of rocks being dislodged by climbers than natural rock formations, or formations formed by proper blasting. With such testimony, the comparative utility and risk was properly presented to the jury.

'5. The possessor fails to exercise reasonable care to...