Swanson v. City of Marquette

• Decision Date: 13 October 1959
• Docket Number: J,2,Nos. 1,s. 1
• Citation: 98 N.W.2d 574,357 Mich. 424
• Parties: Eugene SWANSON, Plaintiff and Appellant, v. CITY OF MARQUETTE, Michigan, a Municipal Corporation, Defendant and Appellee. Eugene SWANSON, as Guardian of the person and estate of Keith Swanson, a Minor, Plaintiff and Appellant, v. CITY OF MARQUETTE, Michigan, a Municipal Corporation, Defendant and Appellee. anuary Term.
• Court: Michigan Supreme Court

Page 574

98 N.W.2d 574

357 Mich. 424

Eugene SWANSON, Plaintiff and Appellant, v. CITY OF MARQUETTE, Michigan, a Municipal Corporation,

Defendant and Appellee.

Eugene SWANSON, as Guardian of the person and estate of Keith Swanson, a Minor, Plaintiff and Appellant, v. CITY OF MARQUETTE, Michigan, a Municipal Corporation,

Defendant and Appellee.

Nos. 1, 2, January Term.

Supreme Court of Michigan.

Oct. 13, 1959.

Baldwin & Kendricks, Marquette, for plaintiff and appellant.

Waldo A. McCrea, Marquette, for defendant and appellee.

Before the Entire Bench.

EDWARDS, Justice.

These are other negligence actions dismissed upon motions, without answer or trial. They involve claims for the injuries and medical expenses of an 8-year-old boy who was seriously burned by coming into contact with high-voltage equipment of defendant's public lighting commission.

In appeals from such dismissals, we, of course, accept as true all well-pleaded facts in the declaration.

Appellant's amended declarations recite that on March 5, 1955, defendant city of Marquette 'owned, maintained and operated for profit an electric public utility supplying electrical energy to the city,' and that on that date, as a portion of its electrical transmission system, defendant maintained an electrical substation or transformer vault on the premises of St. Luke's hospital, in the city of Marquette. The declarations further allege that defendant had a duty to exercise a high degree of care in the operation of this substation as to persons on the premises, and more particularly as to plaintiff's 8-year-old son; and that such duty required the construction and maintenance of the vault and fence so that children could not easily enter same and come in contact with the high-voltage wires contained therein.

The declarations further allege that, although there was a vault and there was a wooden fence around the substation in question, there were holes in the fence and in the top of the vault which defendant either knew existed, or should have known existed, on March 5, 1955. The declarations further allege that the substation was located within 100 feet of playground apparatus and some construction materials placed on the hospital site for the purpose of construction work being engaged in, and that defendant either knew, or should have known, that small children played in the immediate vicinity.

The declarations further allege that plaintiff's 8-year-old son did, in fact, fall or enter through 1 of the holes in the fence and through a hole in the transformer vault, and in seeking to escape thereform came in contact with high-voltage wires with his subsequent serious injury.

The declarations also set forth timely notice to the city of Marquette of the hapening of the injury, but they do not allege the filing of any attested claim prior to the institution of suit some 2 years after the happening of the injuries (which alleged defendant's negligence in detail).

As we read Judge Jackson's opinion granting defendant's motions to dismiss, he felt constrained to grant the motions primarily on the ground that Michigan case law barred recovery for this 8-year-old child's injuries because he was not shown by the declarations to have been at the time of his injuries other than a trespasser. His opinion said:

'Michigan has clearly adopted and maintained the rule that trespassers have no rights of action for injuries sustained upon the property of others. The person whose property is trespassed upon owes no duty to the trespasser, except not to wilfully or wantonly injure him. Ryan v. Towar, 128 Mich. 463 [87 N.W. 644, 55 L.R.A. 310], clearly laid down this rule that owners of real property owed no duty to trespassers, even though they be children.

'Ryan v. Towar, supra, is in line with Formall v. Standard Oil Co., 127 Mich. 496 .

'The cases are reviewed at length in LeDuc v. Detroit Edison Co., 254 Mich. 86 , particularly with reference to attractive nuisance cases, where the rule is announced:

"The doctrine has not been permitted to seriously impair the rule that a property owner owes no duty to protect trespassers, adult or infant, from injury other than wanton or wilful, as has been done in some States."

Judge Jackson's opinion in these matters is dated November 23, 1957. On March 4, 1958, this Court decided Lyshak v. City of Detroit, 351 Mich. 230, 88 N.W.2d 596, the effect of which was to modify prior Michigan cases which held, or implied, that infant trespass automatically barred all rights of recovery against a landowner whose premises contained a hazardous condition of which he had actual or constructive knowledge: Hargreaves v. Deacon, 25 Mich. 1; Formall v. Standard Oil Co., 127 Mich 496, 86 N.W. 946; Ryan v. Towar, 128 Mich. 463, 87 N.W. 644, 55 L.R.A. 310; LeDuc v. Detroit Edison Co., 254 Mich. 86, 235 N.W. 832; Holland v. Wisconsin Michigan Power Co., 296 Mich. 668, 296 N.W. 833; Morris v. Lewis Mfg. Co., 331 Mich. 252, 49 N.W.2d 164, 28 A.L.R.2d 214.

In the instant cases we have the allegation of an electrical substation containing high-voltage wires constituting a dangerous instrumentality. See Warren v. City Electric Railway Co., 141 Mich. 298, 104 N.W. 613; Clumfoot v. St. Clair Tunnel Co., 221 Mich. 113, 190 N.W. 759; Detroit Edison Co. v. Ewing, 6 Cir., 122 F.2d 852. We have the allegation that defendant had knowledge, or in the course of ordinary care should have had knowledge, of holes in the fences or walls surrounding the substation, making same dangerous to children in the vicinity. See Clumfoot v. St. Clair Tunnel Co., supra; Siegel v. Detroit City Ice & Fuel Co., 324 Mich. 205, 36 N.W.2d 719; Yarington v. Huck, 218 Mich. 100, 187 N.W. 298. We have the allegation that children played in the vicinity of the substation and that defendant either knew, or in the exercise of ordinary care should have known, that fact. See Bridges v. Dahl, 6 Cir., 108 F.2d 228; Lyshak v. City of Detroit, supra. And finally, we have the allegation that defendant's negligence as recited was the proximate cause of the injuries complained of.

In 2 Restatement, Torts, § 339,* our instant problem is dealt with as follows:

'A possessor of land is subject to liability for bodily harm to young children trespassing thereon caused by a structure or other artificial condition which he maintains upon the land, if

'(a) the place where the condition is maintained is one upon which the possessor knows or should know that such children are likely to trespass, and

'(b) the condition is one of which the possessor knows or should know and which he realizes or should realize as involving 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 in it or in coming within the area made dangerious by it, and

'(d) the utility to the possessor of maintaining the condition is slight as compared to the risk to young children involved therein.'

We believe the declarations stated a cause of action and should not have been dismissed on defendant-appellee's motions.

The circuit judge's opinion dismissing these suits also stated that under the charter of the city of Marquette plaintiff's suits were prematurely filed because of failure to comply with city charter requirements pertaining to the filing of sworn claims.

Although no testimony was taken before the circuit judge on the motions to dismiss in accordance with Court Rule No. 18, § 3, it seems that he considered that the charter provision was before him as a result of an affidavit from the city clerk attached to defendant's motions to dismiss. Appellant raises no issue before us in this regard and does not dispute the authenticity of the quoted charter provisions. The notice and claim relied upon by plaintiff, we find attached to his amended declarations.

The circuit judge found the notice deficient in this language:

'The original notice required to have been filed within 60 days, asserts that the damages were sustained and due to the negligence of defendant, or its employees, but it fails to state any particular defect or act of negligence of the defendant, or its...