# Knight v. Kaiser Co.

> California Supreme Court · June 28, 1957 · 48 Cal. 2d 778

URL: https://www.frixlaw.com/law-library/cases/9844843

## Case

- **Full name:** HELEN KNIGHT, Appellant, v. KAISER COMPANY (A Corporation), Respondent
- **Court:** California Supreme Court
- **Decided:** June 28, 1957
- **Citations:** 48 Cal. 2d 778; 312 P.2d 1089; 1957 Cal. LEXIS 228
- **Precedential status:** Published
- **Opinion:** Dissent by Traynor
- **Judges:** McComb, Traynor
- **Cited by:** 16 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9844843

## Opinion text

TRAYNOR, J.
I dissent.
The Civil Code, section 1714, provides; “Everyone is responsible, not only for the result of his willful acts, but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself.” Nevertheless, the cases are replete with statements that an occupier of real property owes no such general duty of care to trespassers and bare licensees. With respect to adults we need not pause to determine how many of such statements constitute no more than a determination by the court that the defendant was not negligent at all or that the plaintiff assumed the risk or was guilty of contributory negligence as a matter of law. Clearly the fact that the plaintiff is a trespasser or a bare licensee is relevant to the question what precautions the reasonable man would take to protect him. In many cases there may be no reason to foresee trespassing, and a reasonable man ordinarily may be entitled to assume that those entering without right or by mere permission will not expect special precautions to be taken for their benefit and will accordingly exercise greater care for their own safety. Moreover, the rules dealing with the duty of land occupiers to the various classes of entrants on the land make clear that in this area courts have frequently exercised their power to l establish specific standards of negligence instead of leaving the matter under more general instructions to the jury. It , cannot be denied, however, that in the case of adult trespassers and licensees the operation of no-duty rules has in many instances resulted in immunity for conduct that unreasonably endangered the plaintiff and was therefore negligent toward him. The dilemma of choosing between such cases *786 and the rule set forth in section 1714 is not now before us. In the case of trespassing children a review of the better considered cases convinces me that it does not exist.
In Barrett v. Southern Pac. Co., 91 Cal. 296 [ 27 P. 666 , 25 Am.St.Rep. 186 ], this court followed the Supreme Court of the United States in Sioux City & Pac. R. R. Co. v. Stout, 17 Wall (U.S.) 657 [ 21 L.Ed. 745 ], by solving the problem of the land occupier’s liability to trespassing children for dangerous conditions maintained on the premises in terms of ordinary negligence principles. It pointed out that it could not recognize a rule that no duty was owed to trespassing children without departing from well-settled principles. “It is a maxim of the law that one must so use and enjoy his property as to interfere with the comfort and safety of others as little as possible, consistently with its proper use. This rule] which only imposes a just restriction upon the owner of property, seems not to have been given due consideration in the case referred to. [Frost v. Eastern R. R. Co., 64 N.H. 220 [ 9 A. 790 ], invoked by defendant.] But this principle as a standard of conduct is of universal application, and the failure to observe it is, in respect to those who have a right to invoke its protection, a breach of. duty, and in a legal sense, constitutes negligence. Whether, in any given case, there has been such negligence upon the part of the owner of property, in the maintenance thereon of dangerous machinery, is a question of fact dependent upon the situation of the property and the attendant circumstances, because upon such facts will depend the degree of care which prudence would suggest as reasonably necessary to guard others against injury therefrom; ‘for negligence in a legal sense is no more than this: the failure to observe, for the protection of the interests of another person, that degree of care, precaution, and vigilance which the circumstances justly demand, whereby such other person suffers injury.’ (Cooley on Torts, 630.) The question of defendant’s negligence in this case was a matter to be decided by the jury, in view of all the evidence, and with reference to this general principle as to the duty of the defendant. If defendant ought reasonably to have anticipated that leaving this turn-table unguarded and exposed, an injury such as plaintiff suffered was likely to occur, then it must be held to have anticipated it, and was guilty of negligence in thus maintaining it in its exposed position. It is no answer to this to say that the child was a trespasser, and if it had not intermeddled with defendant’s property it *787 would not have been hurt, and that the law imposes no duty upon the defendant to make its premises a safe playing-ground for children. In the forum of law, as well as of common sense, a child of immature years is expected to exercise only such care and self-restraint as belongs to childhood, and a reasonable man must be presumed to know this, and required to govern his actions accordingly. It is a matter of common experience that children of tender years are guided in their actions by childish instincts, and are lacking in that discretion which is ordinarily sufficient to enable those of more mature years to appreciate and avoid danger, and in proportion to this lack of judgment on their part, the care which must be observed toward them by others is increased.” ( 91 Cal. at 301-303 .)
To recognize such a duty of care toward trespassing children does not impose an unreasonable burden on the defendant, and “it must be kept in mind that it requires nothing of the owner that a man of ordinary care and prudence would not do of his own volition, under like circumstances. Such a man would not willingly take up unreasonable burdens, nor vex himself with intolerable restrictions.” (Chicago, B. & Q. R. Co. v. Krayenbuhl, 65 Neb. 89 [ 91 N.W. 880, 882 ].) “The owner of a thing dangerous and attractive to children is not always and universally liable for an injury to a child tempted by the attraction. His liability bears a relation to the character of the thing, whether natural and common, or artificial and uncommon, to the comparative ease or difficulty of preventing the danger without destroying or impairing the usefulness of the thing, and, in short, io the reasonableness and propriety of his own conduct, in view of all surrounding circumstances and conditions. As to common dangers existing in the order of nature, it is the duty of parents to guard and warn their children, and, failing to do so, they should not expect to hold others responsible for their own want of care. But, with respect to dangers specially created by the act of the owner, novel in character, attractive and dangerous to children, easily guarded and rendered safe, the rule is, as it ought to be, different; and such is the rule of the turntable cases, of the lumber-pile cases, and others of similar character. But the owner of a thing dangerous and attractive to children is not always culpable, and therefore is not always liable for an injury to a child drawn into danger by the attraction. It is necessary to discriminate between the eases in which culpability does and does not exist.” (Beatty, C. J., on denial of *788 rehearing in Peters v. Bowman, 115 Cal. 345, 356 [ 47 P. 113, 598 , 58 Am.St.Rep. 106 ], Italics added.)
As Chief Justice Beatty stated such culpability turns on “the reasonableness and propriety of” the defendant’s “conduct, in view of all surrounding circumstances and conditions,” or, in other words, it is determined by applying familiar negligence standards. (Accord: Gimmestad v. Rose Bros. Co., 194 Minn. 531 [ 261 N.W. 194, 196 ] ; Wolfe v. Rehbein, 123 Conn. 110 [ 193 A. 608, 609-610 ]; Foster v. Lusk, 129 Ark. 1 [ 194 S.W. 855, 856 ]; Kahn v. James Burton Co., 51 Ill. 614 [ 126 N.E.2d 836, 841-842 ].) Section 339 of the Restatement of Torts has defined these standards by stating four conditions that must be satisfied to impose liability on a possessor of land for injury to trespassing children caused by a structure or other artificial condition on the land. Liability exists 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.” This section was cited with approval in Melendez v. City of Los Angeles, 8 Cal.2d 741 [ 68 P.2d 971 ], and has frequently been held to be in accord with the law of this state. (Woods v. City & County of San Francisco, 148 Cal.App.2d 958, 962-963 [ 307 P.2d 698 ] ; Edler v. Sepulveda Park Apts., 141 Cal.App.2d 675, 680 [ 297 P.2d 508 ] ; 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 ]; Long v. Standard Oil Co., 92 Cal.App.2d 455, 464 [ 207 P.2d 837 ].)
In the present case the allegations of plaintiff’s complaint satisfy the foregoing requirements. It is alleged that defendant maintained large sand and gravel piles and a large conveyor belt on its property adjacent to a public street. “ [ C] hildren of tender age were in the habit of . . . playing upon . . . the said sand and gravel piles and conveyor belt,” which was known or in the exercise of reasonable care should have been known to defendant. Defendant “knew and realized, or should have known or realized, that the said sand *789 piles, gravel piles and conveyor involved an unreasonable risk of death or serious bodily harm to children playing on the same as aforesaid in that the children could be injured or killed from falling from the same, from the same falling upon them and in other manners and ways. . . . [ S ] aid children because of their youth were unable to and did not discover the condition or realize the risk involved in intermeddling in said condition or coming within the area made dangerous by the same.” No fences, guards, or railings were “placed around said sand or gravel piles or around a portion of the said conveyor belt,” but “a fence guard or railing would have prevented said children from coming upon and being upon said premises and condition and from intermeddling in same. ’ ’ Plaintiff’s son, “having been attracted to and induced to come upon and be upon and to play upon the said premises, the said sand and gravel piles and the said conveyor belt as aforesaid, was playing upon the same, and being of the age of ten (10) years and being of tender and immature years and by reason of his age and immaturity, being unable to perceive or appreciate the danger confronting him and without fault on his part was situated and playing as aforesaid.” As a proximate result of defendant’s negligent failure to place any fences, guards or railings or other means of excluding small children from the area, plaintiff’s son “while playing and digging on and in the . . . piles was asphyxiated, resulting in his death, when one of said sand piles collapsed upon him while he was playing and digging on or in the same.”
Despite the apparent sufficiency of these allegations, the majority opinion holds that the complaint does not state a cause of action on the ground that a sand pile does not constitute an attractive nuisance. This holding necessarily either departs from the general principles governing liability to trespassing children by adopting a special sand-pile rule, or is based on the tacit taking of judicial notice of facts with respect to children and sand piles contrary to those alleged in the complaint. It cannot be justified on either ground. There are no established precedents in this state dealing with sand piles, as there are with respect to bodies of water, that might, under the doctrine of stare decisis, justify adhering to a rigid rule without regard to the facts of the particular case. Precedent-wise we are free to follow the general principles governing liability to trespassing children. In purporting to do so, the majority opinion states that “sand piles duplicate *790 the work of nature and are not uncommon,” and that “The dangers connected with and inherent in a sand pile are obvious to everyone, even to a child old enough to be permitted by its parents to play unattended.” There is no basis, however, for concluding that every sand pile necessarily duplicates the work of nature or holding as a matter of law that no defendant should reasonably foresee that the dangers connected with and inherent in its sand pile are not obvious to children old enough to be permitted to play unattended. Although Anderson v. Reith-Riley Const. Co., 112 Ind.App. 170 [ 44 N.E.2d 184 ], supports the majority’s position, the other cases cited in the majority opinion may be explained on their particular facts. Moreover, authority contrary to the Anderson case is not lacking. (Hawley v. City of Atlantic, 92 Iowa 172 [ 60 N.W. 519, 520 ]; Baxter v. Park, 48 S.D. 506 [ 205 N.W. 75, 76 ]; see Holmberg v. City of Chicago, 244 Ill.App. 505, 510-512 ; 28 A.L.R.2d 195 , 198.)
Whether the maintenance of a sand pile can give rise to liability for harm to trespassing children must necessarily turn on the facts of the particular case. Children accustomed to playing in sand piles in their own yards may be totally unfamiliar with the hazards of a large pile maintained for industrial purposes. The very harmlessness of the familiar small pile may lull them into a sense of security. Nor are all children reared in such proximity to natural bluffs, cliffs, caves, and large sand dunes that they may be presumed to be familiar with them or to have been warned of their characteristics by their parents. Thus even if it could be assumed that the sand piles in this case duplicated natural sand piles, we could not judicially notice that plaintiff’s child should necessarily have been aware of their hazards. Dean Prosser has pointed out that many “courts have said that the doctrine does not apply to common conditions, or to natural conditions of the land, or that it is limited to latent dangers, or to highly dangerous conditions, or to special and unusual conditions of modern industry; but all such statements appear to be made with reference to the particular case, and to be directed at nothing more than the existence of a recognizable and unreasonable risk of harm to children.” (Prosser on Torts, 2d ed., § 76, p. 443.) Professors Harper and James state: “In addition to the probability of trespass, the dangerous condition of the premises must be produced by man, and either created or maintained by the occupier. This requirement stems from the law’s reluctance to impose purely *791 affirmative obligations on a man. It is sometimes said that man-made conditions which merely reproduce natural ones stand on the same footing. But if there is to be exemption here it must obviously rest on a different basis. That basis may often be found in the fact that children are likely to appreciate the risks of natural dangers, such as water, fire, or high places, so that these conditions are not highly dangerous to them. But this is not always the case. Some natural conditions have more concealed danger than a turntable, and if a landowner reproduces such a ‘natural trap,’ liability should not be excluded. Given affirmative arrangement of the premises, the touchstone of liability should be unreasonable probability of harm. All other criteria should be used as guides only, and not erected into rigid rules.” (2 Harper and James, Law of Torts, § 27.5, pp. 1452-1453.)
The evil of creating rigid rules is demonstrated by some of the California cases dealing with bodies of water. Since ordinarily it may be presumed that children are aware of the dangers of drowning and since frequently the burden of adequately protecting children from that risk is out of proportion to it, usually the maintenance of a body of water should not give rise to liability. (See Peters v. Bowmam, 115 Cal. 345 [ 47 P. 113, 598 , 58 Am.St.Rep. 106 ] ; Melendez v. City of Los Angeles, 8 Cal.2d 741 [ 68 P.2d 971 ] ; Beeson v. City of Los Angeles, 115 Cal.App. 122 [ 300 P. 993 ] ; King v. Simons Brick Co., 52 Cal.App.2d 586 [ 126 P.2d 627 ] ; Demmer v. City of Eureka, 78 Cal.App.2d 708 [ 178 P.2d 472 ] ; Polk v. Laurel Hill Cemetery Assn., 37 Cal.App. 624 [ 174 P. 414 ] ; Betts v. City & County of San Francisco, 108 Cal.App.2d 701 [ 239 P.2d 456 ] ; Ward v. Oakley Co., 125 Cal.App.2d 840 [ 271 P.2d 536 ] ; Reardon v. Spring Valley Water Co., 68 Cal.App. 13 [ 228 P. 406 ].) Blindly, however, the rule appropriate for the usual case has been extended to the unusual case unless there was something abnormal about the body of water itself. (See Sanchez v. East Contra Costa Irr. Co., 205 Cal. 515 [ 271 P. 1060 ] ; Long v. Standard Oil Co., supra, 92 Cal.App.2d 455 .) Thus recovery has been denied on the pleadings for the death of very young children who could not be presumed to appreciate the danger despite allegations sufficient to justify recovery under general principles and where the facts alleged did not indicate that the burden of protecting such children outweighed the risk to them. (Wilford v. Little, 144 Cal.App.2d 477 [ 301 P.2d 282 ] ; Lake v. Ferrer, 139 Cal.App.2d 114 [ 293 P.2d 104 ].) In nonwater *792 cases, on the other hand, the error of rigid categorization has been recognized and avoided. (Woods v. City & County of San Francisco, supra, 148 Cal.App.2d 958, 963-965 [ 307 P.2d 698 ] ; Morse v. Douglas, 107 Cal.App. 196, 200 [ 290 P. 465]; Faylor v. Great Eastern Quicksilver Min. Co., 45 Cal.App. 194, 204 [ 187 P. 101 ].) This conflict should be resolved by disapproving the former cases. In any event the error of those cases should not be extended. As stated in the Faylor case, “while matching cases is an interesting mental recreation, it is not by matching cases, but by the correct application of sound legal principles, that a case such as this is best determined. ..." ( 45 Cal.App. at 204 .) “The naming or labeling of a certain set of facts as being an ‘attractive nuisance’ ease or a ‘turntable’ case has often led to undesirable conclusions. The inclination is then to find a stare decisis pigeonhole or category. The difficulty in such procedure is that too often the result of such a search is the reaching of irreconcilable conclusions. . . . [T]he only proper basis for decision in such cases dealing with personal injuries to children are the customary rules of ordinary negligence cases.” (Kahn v. James Burton Co., supra, 51 Ill. 614 [ 126 N.E. 2d 836, 841 ].)
I would reverse the judgment.
Gibson, C. J., and Carter, J., concurred.
Appellant’s petition for a rehearing was denied July 24, 1957. Gibson, C. J., Carter, J., and Traynor, J., were of the opinion that the petition should be granted.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9844843. Public record. Not legal advice.