The opinion
Dissenting Opinion
Emmert, C. J.
I concur with the reasoning of my Brother Gilkison in his dissent, but I think the matter is of such great importance for the future safety of life and limb of the children of this state that a separate opinion is justified. I believe that our dissenting opinions in Plotzki v. Standard Oil Co. (1950), 228 Ind. 518, 522, 527 , 92 N. E. 2d 632, 634, 636 , are correct, and they should have been made the law in this appeal. My observation has been that the Plotzki case was not *204 received with favor by the bench and bar of this state, and eventually it will be overruled. 1
The error assigned here is the sustaining of the defendant’s demurrer to the complaint. “Under the present liberal rules of pleading, . . . the demurrer admits not only the facts directly and specifically alleged in the complaint but also all facts that can be implied from other allegations by reasonable and fair intendment. Domestic Block Coal Co. v. DeArmey (1913), 179 Ind. 592 , 100 N. E. 675 , 102 N. E. 99 ; Vandalia Coal Co. v. Coakley (1915), 184 Ind. 661 , 111 N. E. 426 .” Rochester Bridge Co. v. McNeill (1919), 188 Ind. 432, 439 , 122 N. E. 662 . Admittedly a stepladder in and of itself is not a dangerous instrumentality but it can easily become one when it is placed on an unstable or insecure foundation.
The complaint alleged the flooring had not been placed on the floor joists and the ladder extended to the joists *205 of the second floor which also had no flooring thereon. The three brothers were quite young, the eldest, Anthony, being only 6 years of age, Clarence being 5 years of age, and John, who became pinioned upon the stepladder as he attempted to climb to the second floor, was only 3 years of age. They lived across the street and played around the building while it was under construction and while it was being worked upon by appellees’ servants, and other children from the neighborhood had done the same. The demurrer admits that the appellees had notice that the building was attracting these children and no effort was made to warn them away. No workmen were about the house the Monday morning when the accident happened. When the 3-year-old boy became pinioned on the stepladder as he was climbing to the second floor his screams attracted his mother, who was great with child, and she came across the street and into the house to rescue him. While laboring under the excitement of the occasion and her awkward condition, she lost her footing in her attempt to effect the rescue, and fell astride a floor joist, which caused her fatal injury.
The sole question for this court to decide is whether under these circumstances we should hold that the appellees were under a duty to use due care to protect a three-year-old boy from danger. If the majority of this court had held appellees under this duty, then the breach thereof alleged in the complaint would be the failure to use reasonable care in barricading the entrance. This issue could have been submitted to a jury for its determination as to whether or not appellees had used due care in this respect.
The so-called attractive nuisance doctrine has been a misnomer from its inception. Simply because an infant is attracted by something dangerous on an occupant’s *206 land does not make the instrument a nuisance. “Thus, the early decisions, which held that the landowner’s interest in doing as he pleased upon his own land, was of greater value than the life and limbs of even a morally innocent intruder, have yielded to a change of public opinion which places a higher value on life and limb than upon the traditional dominional prerogative of a landowner. Yet the processes by which this change of value has forced the creation of a new standard by which the conduct of landowners is judged, has been one of continual fiction and false analogies. It is only recently that a few courts have had the temerity to base such decisions upon the relative values of the interests concerned. And even within the last year one of the ablest and most enlightened of American judges has denied recovery in a case [Holmes, J., in United Zinc & Chemical Co. v. Britt (1922), 268 U. S. 280 , 42 S. Ct. 299 , 66 L. Ed. 615 ] 2 of an infant trespasser because he did not come within the exact terms of a fiction, whose only purpose was to protect just such person as infant trespassers, while appearing to adhere to archaic precedents which denied them protection.” Bohlen, Studies in the Law of Torts, pp. 611, 612.
Of course “the business of life must go on,” but the business of life would not stop if this court would hold appellees were under the duty to use due care to keep these children from getting hurt in this partially constructed house. “If the landowner has expressly solicited children to come upon his land, due care requires that their visit be anticipated and prepared for, and the premises made safe for them. If children are in the habit of visiting the land, their presence should similarly be anticipated, and some provision may have *207 to be made for their safety.” Hudson, The Turntable Cases in the Federal Courts, 36 Harv. L. Rev. 826 , 848. A dozen old rough boards and a few nails should have prevented these boys from entering the house while the workmen were away. Such precautions would not stop house building anywhere, nor would it cause the builders to go bankrupt, nor materially lessen their profits.
It should be apparent that society has a great interest in protecting the safety of our children and their parents. “This has been criticized as an exhibition of excessive humanitarianism, but it seems rather to be a natural response to a public sentiment which is justified by the grave risk to a numerous and socially important class of citizens and the comparatively slight burden placed upon the landowner.” Bohlen, Studies in the Law of Torts, p. 190. See also Harper, Law of Torts, §§93, 94. The majority opinion by the Appellate Court in this appeal was well considered and correct. Neal v. Home Builders, Inc. (1952), 104 N. E. 2d 395 . 3 This appeal should not have been transferred.
. See “Landowner’s Liability for Infant Drowning In Artificial Pond,” 26 Ind. L. J. 266 (1951). In this article the writer approved the statement of the law on infant trespassers contained in 2 Restatement, Torts §339, which is stated in full in the dissent of my Brother Gilkison. The writer then stated as follows:
“Measured against the foregoing four-part formula for determining liability, it seems erroneous to say that the complaint in the Plotzki case failed to state a cause of action. There was no dispute that the defendant should have known that children were likely to come to its dangerous pond. The issue was whether the child knew or should have known of the danger, and it is on this point that the court denied recovery. . . .
“Entirely apart from the questionability of the authority for the Plotzki holding, it is unsound for other more cogent reasons. In the first place an application of the premise that all children appreciate the perils of water would necessarily preclude liability in every case of drowning where the child had seen and voluntarily entered or played near water, even if he were rightfully at the place where the drowning occurred, since contributory negligence would be established as a matter of law. This, of course, has not been the law of Indiana. A far more important objection lies in the undeniable facts of life: if automobile accidents are excluded, drowning is perhaps the largest single cause of accidental death to children between the ages of one and fourteen in the United States. The inference is that children do not appreciate the dangers of water.”
. Mr. Justice Holmes is not noted for his understanding of children. He had no children. He also reflects the harshness of the early common law in which he was a great authority.
. The decision of the Appellate Court was reviewed and approved in 27 N. Y. U. Law Rev. 722.