Villani v. Wilmington Housing Authority
| Decision Date | 30 June 1954 |
| Court | Delaware Superior Court |
| Parties | , 48 Del. 450 VILLANI v. WILMINGTON HOUSING AUTHORITY et al. |
John M. Bader, Wilmington, for plaintiff.
William H. Bennethum and Ernest S. Wilson, Jr., of Morford, Bennethum & Marvel, Wilmington, for Wilmington Housing Authority.
William Prickett, Wilmington, for the Baltimore & Ohio R. Co.
John W. Huxley, Jr., and Thomas H. Wingate, Wilmington, for Philadelphia and Reading R. Co.
Henry M. Canby and William A. Worth, Jr., of Richards, Layton & Finger, Wilmington, for Diamond Ice and Coal Co.
The Attorney for the plaintiff does not oppose the motion to dismiss the complaint as to the Baltimore and Ohio Railroad Company and Philadelphia and Reading Railway Company.
It is alleged in the complaint that on February 23, 1952, Marianne Villani, a child aged two years and eight months resided with her parents, Victor E. Villani and the plaintiff, Helen F. Villani, at 676 Shipside, a housing project in Christiana Hundred, New Castle County, Delaware, under the jurisdiction and control of the defendant, The Wilmington Housing Authority; that shortly before nine o'clock on the morning of said date, the said Marianne Villani wandered away from the home of her parents at said housing project, crossed the railroad right-of-way maintained by defendant, The Baltimore and Ohio Railroad Company, crossed the railroad right-of-way maintained by defendant, Philadelphia and Reading Railway Company, and after proceeding about a quarter of a mile fell into a tributary of the Christiana River, located on the lands of Diamond Ice and Coal Company and was drowned.
It is contended that the defendant, The Wilmington Housing Authority, knowing or being upon reasonable notice of the proximity of said railroad tracks and the tributary of the Christiana River, both of which constituted a reasonably foreseeable attraction to small children, was negligent in that it knowingly allowed a certain fence previously erected by it along the Southwesterly boundary of Shipside, the housing project controlled by it, to fall into and remain in such a state of disrepair that it presented no obstacle to the passage to children of the age of the deceased.
It is further contended that the defendant, Diamond Ice and Coal Company, being the owner in fee simple of the lands and premises abutting said tributary of the Christiana River, and knowing of the proximity of said tributary of the Christiana River to Shipside, the housing project, and the number of small children residing there, was negligent in that it failed to take reasonable and proper steps to prevent the access of small children to said water course.
The defendant, The Wilmington Housing Authority, contends that it owed plaintiff's decedent no duty to maintain boundary fences in repair; and further contends that having jurisdiction over the housing project known as Shipside, did not impose upon it the duty of protecting minor children who lived there from something which might be found to be an attractive nuisance on the property of someone else.
There is no common law duty requiring a landowner to enclose his land with fences. In many grazing states the duty is regulated by statute. 22 Amer.Jur. 513, Sec. 3, Carey v. Schweitzer, 3 W.W.Harr. 211, 134 A. 52.
The only fence law in force in this state applies solely to partition fences, defining what constitutes a lawful fence, and imposes no duty of the landowner to a tenant. 25 Del.C. § 1301. Carey v. Schweitzer, supra. Of course a landowner may enter into contractual relations with his tenant with respect to fencing. To hold that a landowner was negligent by failing to keep a fence on property occupied by his tenant in such a state of repair as would prevent the children of his tenant from leaving the premises, brings up the question of the kind of a fence he would be required to build, the manner of construction and the height. The additional fact of the proximity of the railroad track of The Baltimore and Ohio Railroad Company, the railroad tracks of Reading Railway Company and the stream of water on the land of Diamond Ice and Coal Company, located on lands owned by others and not under the control of the defendant, The Wilmington Housing Authority, does not alter the situation.
The Wilmington Housing Authority was not required to keep the fence around its housing project known as Shipside, in repair, and could not be expected to know what reasonably constituted a foreseeable attraction to small children who wandered away from said housing project. It would be asking too much of the owners of property, to require them to foresee everything in the community in which their property was located, which might prove to be attractive to the children of their tenants.
The defendant, Diamond Ice and Coal Company, contends there is no legal liability on a landowner for the death of an infant trespasser in a natural stream flowing through the owner's land. It was not denied that the stream of water in which the plaintiff's intestate was drowned, known as Little Mills Creek, a tributary of the Christiana River, is a natural water course.
The law is well settled that an owner or person in charge of property has no duty to a trespasser, except to refrain from injuring him intentionally, wilfully, or wantonly. This rule of non-liability for injuries to trespassers, applies with equal force to infant trespassers, except under circumstances where liability may be found to exist under the attractive nuisance doctrine. 65 C.J.S., Negligence, §§ 24-28, pages 437, et seq.
The attractive nuisance doctrine imposes liability upon the owner or person in charge of property, for injuries to children of tender years, technically trespassers, resulting from the failure of such owner or person in charge, to exercise proper care to protect children from instrumentalities or conditions which he should realize by the exercise of ordinary care and judgment, would naturally attract them to places of danger.
It originated in England in the case of Lynch v. Nurdin, 1 Q.B. 30, 41 E.C.L. 422, 113 Reprint 1041. In that case the defendant left a horse and cart standing on the street unattended for about half an hour and plaintiff, a child seven years of age, was injured while playing on the cart. The Court found that the plaintiff was negligent, but also held that he used as great a degree of care as he could be expected to possess and could not be blamed for...
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