Woods v. City and County of San Francisco

• Decision Date: 07 March 1957
• Citation: 148 Cal.App.2d 958,307 P.2d 698
• Court: California Court of Appeals Court of Appeals
• Parties: Richard WOODS, a minor, by Richard H. Woods, his guardian ad litem, and Richard H. Woods, Plaintiffs and Appellants, v. CITY AND COUNTY OF SAN FRANCISCO, a municipal corporation, San Francisco Unified School District, Martinelli Construction Co., Inc., a corporation, Doe One, Doe Two, Doe Three, Defendants and Respondents. Civ. 17060.

Page 698

307 P.2d 698

148 Cal.App.2d 958

Richard WOODS, a minor, by Richard H. Woods, his guardian ad litem, and Richard H. Woods, Plaintiffs and Appellants, v. CITY AND COUNTY OF SAN FRANCISCO, a municipal corporation, San Francisco Unified School District, Martinelli Construction Co., Inc., a corporation, Doe One, Doe Two, Doe Three, Defendants and Respondents.

Civ. 17060.

District Court of Appeal, First District, Division 2, California.

March 7, 1957.

Philip Steiner, Robert K. Barber, San Francisco, of counsel, for appellants.

Boyd & Taylor, San Francisco, Dion R. Holm, City Atty., City and County of San Francisco, San Francisco, for respondents.

STONE, Justice pro tem.

The plaintiff Richard Woods, a minor, ten years of age, was injured while playing in a school building that was in the process of construction. The child was admittedly a trespasser but the plaintiff alleges the action comes within the attractive nuisance doctrine. The defendant's special and general demurrers to plaintiff's second amended complaint were sustained without leave to amend and judgment was entered accordingly. Plaintiffs have appealed from the judgment.

The pertinent allegations of the second amended complaint insofar as this appeal is concerned are contained in paragraphs 6 and 7 in the following language:

'VI--On June 6, 1954, defendants Martinelli Construction Company, Inc., and Doe One were in the process of performing their said contract and at that time the school building being constructed by them in accordance with the said contract was partially completed. The defendants Martinelli Construction Company, Inc., Doe One and Doe Two, and each of them, negligently and carelessly stored and maintained in said partially completed school building during the course of its construction, and particularly on June 6, 1954, various items of machinery, motors, equipment, construction tools and materials, appliances and contrivances which were attractive to the minor plaintiff, Richard Woods, who lived with his parents near said premises, and to other children in the neighborhood, as defendants and each of them well knew. That said items of machinery, motors, equipment, construction tools and materials, appliances and contrivances were an invitation to the minor plaintiff herein and to other children in the neighborhood, to enter upon said premises and to play thereon with said items of machinery, motors, equipment, construction tools and materials, appliances and contrivances, as defendants and each of them well knew, and the minor plaintiff and other children in the neighborhood, with the knowledge of defendants and each of them, did enter into said premises and play thereon with said items of machinery, motors, equipment, construction tools and materials, appliances and contrivances. That said premises were so negligently and carelessly constructed and maintained by the defendants and each of them, as to render them dangerous to children playing thereon, as was known to defendants and each of them, but was not known to the minor plaintiff. The defendants, and each of them, made no provision to safeguard and prevent children from playing in and about said partially completed building in its dangerous and unsafe condition or to advise or warn them of the danger thereof, and as so maintained the said partially completed building, and the said items of equipment, machinery, tools, motors, materials, and appliances and contrivances were an attractive nuisance.

'VII--On June 6, 1954, the minor plaintiff was attracted by said items of machinery, motors, equipment, construction tools and materials, appliances and contrivances, and went upon the said premises to play with the same. While playing with said items of machinery, motors, equipment, construction tools and materials, appliances and contrivances upon that day, the boards upon which the minor plaintiff was standing broke and gave way or turned, causing him to be thrown violently a distance of approximately twelve feet to a cement area on said premises. That at said time, plaintiff was of too tender an age to appreciate the danger which he incurred by entering into and upon said premises, and his fall was caused by the negligent and careless conduct of defendants Martinelli Construction Company, Inc., Doe One and Doe Two, and each of them, and their respective agents, servants and employees as aforesaid.'

Although the order sustaining the demurrers without leave to amend does not specify whether the special or general demurrer was sustained, only a failure to state a cause of action would warrant an order sustaining a demurrer without leave to amend. The special demurrer was directed toward the form of the pleading. Both appellant and respondent have recognized this fundamental rule of law and have directed their arguments on appeal to the question of whether or not plaintiff is precluded from recovery because a building under construction does not come within the attractive nuisance doctrine.

The attractive nuisance or so-called turntable cases are an exception to the general rule of law that the owner of property is under no legal duty to keep it in a safe condition for others than invitees, and that trespassers take the risk of injuries from ordinary visible causes. Peters v. Bowman, 115 Cal. 345, 47 P. 113, 598. This exception was established in California by Barrett v. Southern Pac. Co., 91 Cal. 296, 27 P. 666, which was an actual turn-table case decided in 1891. It has always been recognized that each alleged attractive nuisance case must be determined from the facts and circumstances of the particular action. However, the conditions governing the application of the doctrine to the facts of the particular case were not entirely clear for many years, and some exceptions to the exception appear which are difficult to reconcile.

In some of the earlier cases the courts appear to have applied the doctrine that a child is not a trespasser when he is attracted to a dangerous contrivance but that rather he becomes an invitee. (19 Cal.Jur. p. 624, § 58.) Under such a theory the owner would owe the child the same duty of care as owed any other invitee. This theory was definitely rejected by Puchta v. Rothman, 99 Cal.App.2d 285, 221 P.2d 744 and Doyle v. Pac. Elec. Ry. Co., 6 Cal.2d 550, 59 P.2d 93, because in each of those cases an adult invitee would have been protected against the hidden peril or 'trap' involved--tar-paper covering a vent opening on floor level and canvas covered sky light next to a cat-walk in an attic.

It is now settled that the child is considered a trespasser but whether or not the attractive nuisance exception is applicable to any given case depends upon whether or not four conditions are present. Those conditions which have been approved by recent California cases concerning attractive nuisances, Lopez v. Capitol Co., 141 Cal.App.2d 60, 66, 296 P.2d 63; Marino v. Valenti, 118 Cal.App.2d 830, 842, 259 P.2d 84, are set forth in Restatement of Torts, section 339. That section provides:

'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 dangerous 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.'

Since the case of Puchta v. Rothman, supra, it has been inferred that the attractive nuisance doctrine does not apply to a building under construction. Before determining whether or not the Puchta case is the rule in California, it is necessary to analyze the building cases in the light of the four conditions set out in section 339. Considering each condition separately, the following results are disclosed:

Condition Number One, 'The place where the condition is maintained must be one of...