Yeske v. Avon Old Farms School, Inc., 2270

• Decision Date: 24 January 1984
• Docket Number: No. 2270,2270
• Citation: 470 A.2d 705,1 Conn.App. 195
• Court: Connecticut Court of Appeals
• Parties: , 15 Ed. Law Rep. 1194 Daniel YESKE et al. v. The AVON OLD FARMS SCHOOL, INC., et al.

Page 705

470 A.2d 705

1 Conn.App. 195, 15 Ed. Law Rep. 1194

Daniel YESKE et al. v. The AVON OLD FARMS SCHOOL, INC., et al.

No. 2270.

Appellate Court of Connecticut.

Argued Oct. 12, 1983.

Decided Jan. 24, 1984.

Wesley W. Horton, Hartford, with whom were Susan M. Cormier, Zibigniew P. Rozbicki and William Conti, Torrington, for appellants (plaintiffs).

Albert Zakarian, Hartford, with whom was Dean Cordiano, Hartford, for appellees (defendants).

Before DANNEHY, C.P.J., and HULL and DUPONT, JJ.

DUPONT, Judge.

The plaintiffs brought suit against the defendants, the owners of the realty on which the named plaintiff, a minor, had sustained injuries on May 23, 1971. After a trial by jury, a verdict was returned awarding $250,000 to the minor plaintiff. ¹ The defendants then filed a motion to set aside the verdict and to render judgment in their favor in accordance with their prior motion for a directed verdict. The court granted the motion and rendered judgment for the defendants notwithstanding the verdict. ² The plaintiffs have appealed from that judgment. ³

The trial court's memorandum of decision cites three reasons for its action. It concluded: (1) that the plaintiffs had failed to "produce evidence that the defendants knew or had reason to know that children were using this particular part" of the defendant's property; (2) that the closing argument of the plaintiffs' counsel contained statements which were an "unwarranted and unprovoked attack" on the defendants' counsel which deprived the defendants of a fair trial; and (3) that the testimony of an expert witness for the plaintiffs should not have been admitted into evidence.

I

The minor plaintiff, who was fourteen years old at the time of the accident, was injured while riding a minibike on a dirt trail on the defendants' land. He struck a steel cable, which had been strung across the trail by the defendants, and sustained injuries to his face and neck. The steel wire ran between two metal poles set in concrete posts and had been placed there by the defendants to prevent trespassers from dumping garbage on the trail. There were no streamers, flags or signs on the wire at the time of the accident. The minor plaintiff had never been riding on this trail prior to the accident and the defendants had not given him permission to do so. The property of the defendants consists of about 2000 acres, including many acres of undeveloped land and heavily wooded land, as well as many trails other than the one on which the plaintiff was injured.

The plaintiffs' substitute complaint consists of one count and makes no distinction among the possible causes of action as invitee, licensee or trespasser. The judge charged the jury on all three alternative causes of action and a general verdict was returned. No party requested interrogatories. If the case were properly before the jury on the issue of trespass, it would not matter whether there was any evidence from which the jury could conclude that the minor plaintiff was an invitee or licensee. If a verdict is a general one, with no party having requested interrogatories, the presumption is that the jury found every issue in favor of the party who received the verdict. Colucci v. Pinette, 185 Conn. 483, ---, (43 CLJ 20, pp. 5, 6) 441 A.2d 574 (1981); Johnson v. Pagano, 184 Conn. 594, 595-96, 440 A.2d 244 (1981); Tedesco v. Julius C. Pagano, Inc., 182 Conn. 339, 341, 438 A.2d 95 (1980). Furthermore, the parties and the trial court are in agreement that there was no evidence from which a jury could conclude that the minor plaintiff was a licensee or invitee. It is only necessary, therefore, for this court to consider whether there was sufficient evidence for a jury to conclude that the defendants were liable to the minor plaintiff in his status as a trespasser.

There is no disagreement of the parties as to when liability of a landowner attaches if there is physical harm to a minor trespasser caused by an artificial condition upon the land. Connecticut follows the rule of 2 Restatement (Second), Torts § 339. ⁴ Duggan v. Esposito, 178 Conn. 156, 158, 422 A.2d 287 (1979); Wolfe v. Rehbein, 123 Conn. 110, 113-14, 193 A. 608 (1937). The disagreement of the parties relates to the application of the restatement rule to the facts of this case, and to the interpretation of the words contained in the rule of 2 Restatement (Second), Torts § 339(a). ⁵

A possessor of land is liable for physical harm to minor trespassers caused by an artificial condition thereon, if, among other things, "the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass ...." 2 Restatement (Second), Torts § 339(a). The defendants and the court, in its memorandum of decision, interpret the words "where the condition exists" as meaning the exact place where the accident occurred. The trial court concluded that "[a]lthough the school may have known of trespassers in general on the property, there was no evidence to indicate that the school was cognizant of trespassers at this particular location at the time in question." The plaintiffs argue that the liability of the defendants does not depend upon their knowledge of minor trespassers at the specific site but, rather, upon whether the defendants knew or had reason to know that children were likely to be trespassers on the site. The plaintiffs' brief emphasizes the word "likely" as used in the restatement and the defendants' brief deemphasizes the word.

The question is whether the plaintiffs produced evidence sufficient for a jury to conclude that the accident site was one upon which the defendants knew or had reason to know that children were likely to be trespassers. There was sufficient evidence from which it could so conclude.

Prior to this accident, the defendants had had various problems with trespassers on many of their trails. They knew that operators of cars, motorbikes, minibikes and snowmobiles had used many of their other trails; they knew that children rode minibikes along railroad property which led to this trail; and they knew that a snowmobiler while riding on another of their trails had complained about the dangers of this type of cable. The defendants placed the fourteen foot cable across this particular trail for the very purpose of preventing trespassers from using it. The purpose of the barrier, according to the defendants, was to exclude garbage-dumping trespassers if they approached from the direction of a highway approximately 40 feet away. The defendants' anticipation of trespassers cannot be deemed to be so finite as to exclude the likelihood that trespassers on minibikes would approach from the opposite direction.

"Likely" is defined as "of such a nature or so circumstanced as to make something probable." Webster, Third New International Dictionary. The evidence before the jury was such that it could conclude that the defendants knew or had reason to know that children were likely to trespass on the site of the accident.

The purpose of 2 Restatement (Second), Torts § 339 is to balance the interest of society in protecting trespassing children against the right of the landowner to use his own land as he sees fit. Prosser, "Trespassing Children," 47 Calif.L.Rev. 427, 452 (1959). Although trespassers do not have a right to demand a safe place on which to trespass, courts cannot look at children who trespass with "Blackstonian optimism which shuts its eyes to the immense prevalence of minor lawlessness ...." Bohlen, Studies in the Law of Torts p. 192 (1926). There is no legal requirement that a landowner improve wild land in order to make it safe for a trespassing child or that he be prohibited from maintaining structures on unimproved land which could only cause harm to a child if the child used great ingenuity or dexterity. The facts of this case do not involve a trespass on unimproved land or a structure which could cause harm only if used in an adroit or innovative way. Thus, the cases of Hardy v. Missouri Pac. R. Co., 266 F. 860 (8th Cir.1920), and Bennett v. Public Service Co., 542 F.2d 92 (1st Cir.1976), cited by the defendants, are inapposite. The minor plaintiff here was a trespasser on an improved portion of the defendants' land, a dirt trail, and did nothing inventive in the use of the trail or the cable. ⁶

There is a paucity of reported cases involving trespassing children on large parcels of land containing an artificial condition, and no case similar on its facts to the present case was found. The principles of the restatement, however, remain intact whether the land area is large or small. It is a question for the jury to decide if a defendant is maintaining a latently dangerous instrumentality on his premises which is so exposed that he may reasonably anticipate that a child is likely to be hurt by it. It is also for the jury to decide if a defendant knows or has reason to know that children are likely to trespass on that portion of his land where the instrumentality is located. Clover Fork Coal Co. v. Daniels, 340 S.W.2d 210, 212 (Ky.1960). Even if there is no evidence that any child had previously trespassed on the site, it remains a jury question whether, based on all of the evidence, the defendants knew or had reason to know that children were likely to trespass on the place where the condition existed. Anderson v. Cahill, 485 S.W.2d 76, 78 (Mo.1972), rev'd on other grounds, 528 S.W.2d 742 (Mo.1975).

There are a number of Connecticut cases involving § 339 of 2 Restatement (Second), Torts. A widely cited case, Wolfe v. Rehbein, 123 Conn. 110, 193 A. 608 (1937), holds that the trial court properly denied the defendant's motion to set aside the verdict where the evidence was sufficient for a jury to conclude that the owner knew or should have known that children were likely to trespass upon that part of his land upon which he maintained a condition likely to be harmful.

The...