Tucker Bros., Inc. v. Menard

CourtUnited States State Supreme Court of Florida
Writing for the CourtTHORNAL; DREW, C. J., TERRELL, J., and CARROLL
Citation90 So.2d 908
Decision Date28 November 1956
PartiesTUCKER BROTHERS, Inc., a corporation, and Pearlwood Construction Company, a corporation, Appellants, v. Lewis Arthur MENARD, III, a minor, by his mother and next friend, Mrs. Helen Menard, and Lewis Arthur Menard, II, Appellees.

Page 908

90 So.2d 908
TUCKER BROTHERS, Inc., a corporation, and Pearlwood Construction Company, a corporation, Appellants,
v.
Lewis Arthur MENARD, III, a minor, by his mother and next friend, Mrs. Helen Menard, and Lewis Arthur Menard, II, Appellees.
Supreme Court of Florida, Special Division A.
Nov. 28, 1956.

Page 909

Elmer M. Norton, Lewis Rhea Baxter and Rogers, Towers, Bailey & Jones, Jacksonville, for appellants.

Sistrunk & Parrish, Jacksonville, for appellees.

THORNAL, Justice.

Appellants who were defendants below seek reversal of a judgment in favor of Lewis Arthur Menard, III, a minor, and his father, Lewis Arthur Menard, II, plaintiffs below, in an action arising out of the alleged negligent injury of the above named minor.

The principal points for us to determine are: (a) whether the situation revealed by the record constituted an attractive nuisance; (b) whether there was adequate evidence of the causal relationship between the injury and the negligence alleged; and (c) whether the trial court had jurisdiction of the claim asserted by Lewis Arthur Menard, II, the father. Other incidental questions are disposed of by the opinion.

About 5:15 p. m. on March 10, 1954, Lewis Arthur Menard, III, just under seven years of age, ran home to his mother screaming. Examination revealed that his legs had been severely burned. In the immediate vicinity of the home of the plaintiffs, the appellant Tucker owned a parcel of land on which it was constructing a dwelling. Appellant Pearlwood was the contractor actually doing the building. Directly across the street Tucker owned a vacant lot upon which Pearlwood had been permitted to construct a small shed.

Page 910

Also located on this lot were a pile of lumber, drainpipe, tools, trucks, cement blocks, cans, mortar boxes, wire and other materials commonly used in the building trade. In addition for some period of time Pearlwood had used the lot to dispose of trash from the building operation. This was done by burning. The record shows that for a considerable period of time the small children in the neighborhood had used the second-described lot as a playing area. The Foreman, a man named Shuff, had been requested on numerous occasions to take precautions against the fire in the interest of the safety of the children. He had warned the children to stay away. Parents had warned them to stay away. They, nonetheless, were permitted by the appellants to use the area as a playground. On the day in question immediately after the boy ran home to his mother severely burned, an investigation showed that in the area in question there was a bed of red-hot coals covered by a layer of gray ashes. Across the bed of coals was the charred remains of a freshly burned stick, one end of which was not completely burned but was still smoking.

Alleging that the boy was attracted to the area by the condition generally described above and while so attracted stepped into the fire and was seriously burned, the plaintiff Lewis Arthur Menard, III, joined by his mother and next friend, sought damages for the resulting injury. In the course of the development of the pleadings, Lewis Arthur Menard, II, as father, joined in the complaint and by a separate count claimed compensation for medical expenses paid out by him for the treatment of the child. The case was tried before a jury. A verdict of $10,000 was rendered for the child, and the verdict of $474 was awarded to the father under the second count. Judgment was entered on the verdict. The judgment for $10,000 was in favor of the minor joined by his mother as next friend, and separately in favor of the father for the medical expenses. Reversal of this judgment is now sought.

Appellants contend for reversal on the proposition that a fire is obviously dangerous and therefore cannot constitute an attractive nuisance. In addition they contend that the record fails to establish that the boy actually was burned on the land in question. It is further asserted that the amount of the father's claim was below the jurisdiction of the Circuit Court.

The appellees contend for affirmance on the proposition that the condition of the area described constituted an attractive nuisance, that the circumstantial evidence was adequate to sustain the conclusion that the boy was injured on the property of appellant Tucker, and finally that the claim of the father was properly disposed of in this cause.

Appellants, by an exhaustive brief, present many cases from other jurisdictions holding to the proposition that there can be no recovery under the attractive nuisance doctrine where the injury complained of was the product of an obvious or patent danger. They rely on a rule summarized in 38 Am.Jur., Negligence, Sec. 151, p. 818. From this rule they reason that a fire is obviously dangerous and that even when a child of tender years is involved, it would tend to repel rather than attract. It is unnecessary for us here to determine whether a fire in and of itself would constitute an attractive nuisance under the interpretation of that doctrine heretofore announced by this court.

In the case before us the appellees relied upon the general condition of the...

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31 practice notes
  • Dickerson, Inc. v. Holloway, No. 82-244-Civ-3-14.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • April 27, 1987
    ...117 So.2d 731 (Fla.1960). Moreover, this ultimate fact may be proved by circumstantial evidence. Tucker Brothers, Inc. v. Menard, 90 So.2d 908 The plaintiff's evidentiary case requires us to draw two inferences from the facts. First, that Holloway picked up the government's PCB laden waste ......
  • Wong v. Crown Equipment Corp., Nos. 95-663
    • United States
    • Court of Appeal of Florida (US)
    • February 28, 1996
    ...the pertinent evidence as to the proximate cause of plaintiff's injuries. Fletcher, 324 So.2d at 136; accord Tucker Bros., Inc. v. Menard, 90 So.2d 908 (Fla.1956) (evidence that child came home inexplicably Page 984 burned and that landowner had smoldering fire on nearby lot justified infer......
  • Dudla v. P.M. Veglio LLC, 1:13-cv-0333 (LEK/DJS)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Northern District of New York
    • March 15, 2016
    ...a court in reference to the amount in controversy is determined by the sum in good faith demanded . . . ." Tucker Bros., Inc. v. Menard, 90 So.2d 908, 912 (Fla. 1956). Absent a showing of bad faith in any regard, which Plaintiff has not done, it is impossible to consider this representation......
  • Concrete Const., Inc., of Lake Worth v. Petterson, Nos. 36764
    • United States
    • United States State Supreme Court of Florida
    • June 12, 1968
    ...and caution which a prudent person would and should exercise not to injure the child intruder. See Tucker Brothers, Inc. v. Menard, Fla., 90 So.2d 908; Ansin v. Thurston, Fla.App., 98 So.2d 87; Adler v. Copeland, Fla.App., 105 So.2d 594; Miller v. Guernsey Construction Co., Fla.App., 112 So......
  • Request a trial to view additional results
31 cases
  • Dickerson, Inc. v. Holloway, No. 82-244-Civ-3-14.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • April 27, 1987
    ...117 So.2d 731 (Fla.1960). Moreover, this ultimate fact may be proved by circumstantial evidence. Tucker Brothers, Inc. v. Menard, 90 So.2d 908 The plaintiff's evidentiary case requires us to draw two inferences from the facts. First, that Holloway picked up the government's PCB laden waste ......
  • Wong v. Crown Equipment Corp., Nos. 95-663
    • United States
    • Court of Appeal of Florida (US)
    • February 28, 1996
    ...the pertinent evidence as to the proximate cause of plaintiff's injuries. Fletcher, 324 So.2d at 136; accord Tucker Bros., Inc. v. Menard, 90 So.2d 908 (Fla.1956) (evidence that child came home inexplicably Page 984 burned and that landowner had smoldering fire on nearby lot justified infer......
  • Dudla v. P.M. Veglio LLC, 1:13-cv-0333 (LEK/DJS)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Northern District of New York
    • March 15, 2016
    ...a court in reference to the amount in controversy is determined by the sum in good faith demanded . . . ." Tucker Bros., Inc. v. Menard, 90 So.2d 908, 912 (Fla. 1956). Absent a showing of bad faith in any regard, which Plaintiff has not done, it is impossible to consider this representation......
  • Concrete Const., Inc., of Lake Worth v. Petterson, Nos. 36764
    • United States
    • United States State Supreme Court of Florida
    • June 12, 1968
    ...and caution which a prudent person would and should exercise not to injure the child intruder. See Tucker Brothers, Inc. v. Menard, Fla., 90 So.2d 908; Ansin v. Thurston, Fla.App., 98 So.2d 87; Adler v. Copeland, Fla.App., 105 So.2d 594; Miller v. Guernsey Construction Co., Fla.App., 112 So......
  • Request a trial to view additional results

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