Tucker Bros., Inc. v. Menard

• Citation: 90 So.2d 908
• Parties: 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.
• Decision Date: 28 November 1956
• Court: Florida Supreme Court

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.

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. 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 area. It was shown that appellants had placed on the land in question all manner of materials and devices that would attract playing children. Furthermore the so-called 'fire' was actually not a burning, glowing flame. It consisted of a large bed of ashes surrounding and covering a bed of red-hot coals. Instead of repelling the children, the situation in this particular case suggests justification for the conclusion that the tools, blocks, woodpile, trucks and the like merely served as an invitation that in effect led the child into what might be termed a 'booby trap'.

We do not find here justification for applying the rule that might otherwise be applicable to an obvious peril. On the contrary, the record clearly suggests adequate justification for the conclusion evidently reached by the jury that the children, including the minor appellee, had been attracted to the area over a period of weeks, that appellants and their Foreman in charge had been requested to guard against the possibility of the particular injury that here apparently resulted. There is little, if anything, to distinguish this case from Carter v. Livesay Window Co., Fla.1954, 73 So.2d 411; and Cockerham v. R. E. Vaughan, Inc., Fla.1955, 82 So.2d 890.

Appellants' contention that there was no direct and positive proof that the child was injured on the Tucker land has caused us more concern. It is true that no one testified that he actually saw the child on this particular lot at the time of his injury. Nevertheless, this record abounds in circumstantial evidence that certainly weighs heavily in favor of the jury's conclusion that the land of the appellant Tucker was the locus upon which the injury occurred. An ultimate fact can be established by circumstantial evidence in a civil action just as it can be done in a criminal case. The difference is the quantum of proof necessary to justify the inference that the ultimate fact actually existed. In a criminal case the rule is that the circumstantial evidence must point to guilt to the exclusion of any reasonable hypothesis of innocence. The rule in civil cases is not so burdensome. In a civil action when circumstantial evidence is relied upon to prove a fact essential to recovery, the particular inference of the...