Petition for Writ of Certiorari — Beach v. District of Columbia

Supreme Court brief1963

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- Supreme Court of the United Bias

OCTOBER TEE M, , 1963 }

“e oe ci ee ; No. 4 8 g e

NATIONAL BANK 6F WasHINGTon and :

Frep A. Smiru & Co. Petitioners,

x B os -. og v. . ° ,* ‘

Gerrev Dy: MCGETTIOAN, Individually and ats mother fi ;

and next friend of GH ARLES S. McGer TIGAN, a minor, Ga)

Ke sponde wie

\ Sy ee

PETITION FOR A WRIT OF CERTIORARI TO THE

¢ “UNITED STATES COURT OF APPEALS ane

FOR THE Diesmivs OF COLUMBIA. CIRCUIT sone

i PAL _ CoxNow 4 .

ad ™ JAMES A aN SON

r is? ~ S00 ¢ ‘betas éAloulding

& Washington 5.1. €,

eae ee 7 : Counsel for Pei HoHers .

- * PsESS OF Byaox $ Apams WaAsnin Ton, D.C a

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Citations to Opimons Be low... SPP REL eae : bite we dnye l

Jurisdiction | ees AS ay Sniewees ee ek rah. Bae Ce ae

a “Question P *resented NEPA STC Te rhe gtk Wak, ibs . 2

' Stafeme nt LeeK a wee cage es tg crass wee A Se ‘

. + Reanote - foNGranting the Wi a VRE Me ww Caan eros sy 16

- : De ‘parture From Existing Precedent ........... 10 is

; . Conflict W ith Eve Ty Ant her Jurisdiction ean wees 11 ‘

® z *-

Reliance on ‘Reversed Opiniat cs ooo en5 sk. 12 x

, Ensuing Injury Not Proximately Caused by Poti-

tioners’ Acts, and Not Re “asénatbly Foreseeable 14 fms

<az-, # oe ; 3

“a The Matter of: ‘Policy ............ oo ere . 16:

Con sion een gUahcu nese Gs yaar ae Syare ere 16

i ‘adix tee Wie ewok norte ee ee ee men iin a la.

i Opinion of Distriet Court of Noveniber Oh 1961. da’ cass

ie : Opinion of the C ourt, of Appeals: ‘of May 16,. 1963, ita *.

aa % :

: ; Order Amending Cont oF Appeals Opinion of

fC Me te ee re ee eee ans erie

Supplemental Opinion Of ( ‘ourt of Appeals .. 0.05. 24a,

- Order Denying Petition for Rehearing, Including

Dissen nt Thereto Mae euCu rcs Poe Petes rs ee ae si

peng CITATIONS

Cases: Suntborer

Best v. Distriet ef-€5 ymbia, 291 UIS. 411 (19 34). . 10, 14, 16-

oot geil Carter ( ‘oal v. Smith, 173 Ky. 843, 191 S.W. 631 (1917y 11

aie Castella v. Caristo Construction ( orp., 12 A.19.2d G05,

ee . "908 N.Y.S2d 577 (1960), aff'd. 10 N.Y.2d 945, 179

i ‘ N.K.2d 863, 224 N.Y.S.2d 23°(1961)"*. 0.0000. Th :

Gallagher ‘i ‘2 rederick, 366 Pa. 4 OO, 77 Ad 427 (1951) d 1 me

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of e fs = bd

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. ave “ hele “ . - : ’ Aas

. ye Bh ge pel. hidex’ Continued prep

er sz aa Sly caer ewer ee | 49 Page

Haile v. Urystline Realty, | Mie: 148 Cota, 043-1 73 X26

: Wag Shr RPMTIGNG Sie cas SN ee aig ees on}

, S Jamieson sy, W oiigarPe Lothrop, 11 0 3S. App..B.c ‘

. G oot) oS, 247 Bed the 2, cert. le nie aes she yy ] } a. oe) e

é Cad) cel APPEAL in hen 9.15—

es Jolinson vv. Senile ‘y Cous te. Co., 9 N.W.2 Y 409 (Minn. é

RE che OR oo A ea a

: Palserat v. Long rsland R "i «» 248 N: ¥ 330. We Ne 199, . Fon

. We ALL: R. 1253 (1998). Ss qa ke adh Gath ake “Gr o'e: oreo . 15-88

es ~ Noman y. City of Les avenworth, “Wb 379, 135 ‘ac.. > ;

DL ORS Mate anes ame phd vee guest ws) 8. PEPE Fe + 4

Simmel y, New Jersey Coop. Co. AT Nu. anor OM,

: 16 Ald ie Ap p. Div. 1957), rer’d. 28 N.J:.1,

‘ 145 -A.: re ae Sete eae ei oa Cre ane tee Ae Wee 1

: U nited Zine Co. vy. B Rutt, 208 U.S. 268 (1922) sey een te b ae

M {SCELL nae = . \ . : :

E 1960 Proce ‘inigs of thy Americ ‘ah Law [nstitute. ene

I | ap RSPR ae ghey ie I ae el ie ea eoetc oe th 4

. ierkte MENT, ‘Tor TS, E30 “(ose oo picmemer ts eagle ce 8.

; ne “Rusnaremesr (Secosp), Torrs, Tentative Draft No. 5,

ER EEE OR ee Nic ie Firat S, 14. 16-

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. IN "RIE

| Supreme Court of the Anited States

es OCTOBER _— 1963

%, Bo _ es

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sNo. ¥- lane

+ “ 5 penn ct e : - ms

Nation ar’ BASE or W ABRINGTOR and’ ;

. 7 FRep’ A. SMITH & Co., Petitiv~ners,

Sen ss mA , ie ° das i

—— ° ¢ . . ’ 4 . ey ‘ bd

ms GERTRUDE McGEYTIGAN, Individag Jy and as’ mother

° aud next ‘friend of HALES S, Mot ‘GETTIGAN a. minor, |

, } A c sponds.

Deer °. ° 5 Aes : | Ff ee oo

\.. °. PETITION FOR A T OF CERTIORARI. TO THE

hing, Ay UNITED s S COURT OF APPEALS . ‘

FOR ‘THE DIS ae OF ‘COLUMBIA CIRCUIT: Pay

XY “ yp ee ¥

“ Petitioners p pray that a Writ of certiorari issue to’,

review the /vademe ut of the United States Court aS eee

Appeals for the Distriet of Columbia Cirenit ‘in the

: ubove-Miti itled- "case ente red. on May, 16, 1963. |

a Sf CITATIONS: TO OPINIONS BELOW

Y The opinion of the District Court (R. 240-249), also

printed in Appendix A hereto, infra, ‘p. Ja, is reported

at _ F. ee 1S3 (D. T).C., 1961). The opinion of

eel

ope: QUESTIONS PRESENTED

the ( ait Court of “Ap peals; printed <in yo ails A

_pAteto, infra, p. Wa, is not vet reported... The supple-

‘mental opinion of the Court of “Appeals, printed in

» Appe ndix A berefo, tnfrasp. 24a, also isonet vet re:

ported. An opitiion dissenting from the denial of the

petition for rehearing en bane, “printed ‘at Appendix

‘7 A \hyerety,, infra-p., 26a. is alsa SRoeporta.. : 4

J YRISDICTION

“The opinion of the ‘Cireuit Court® of Appeals was -

entered on May 16, 1963, Appendix A-hereto, infra, Pp.

Tha. A.timely petition for rehe aring diled on May, 31; a

1963, was denied on June 2 1963, and a supphmentul «

— was filed by the C ee of Appeals on that date,

Aqpe nix. A hereto, iufra, pp. 24act oa. The jurisqic-

tion of this € ‘ourt Is invoked under 28 U SC geod 1).

1. Has a landowner, who is not a user or storer of

- flaxes or similar items and w ho has no.rpasoin to Suspec t

the presence of a flare on his-land, the duty to inspect:

. his: premises to discover whether unkrown third par-

ties may have defoRite ‘d-ther reon a-flar(; or similar in-

strumentality whichetnay_ be « carrie “do by a trespass-..

. x

ing child hing the vos\lttiint harm is lste me aused to a.

Pat

premises?" _|

-2.-Ts the det of a h ndowner in maintaining a shed _

“which is- dirty and. so netimes frequented) by persons

of ill repute the proxi nate cause of in juny which oe-

curs When unknown third pirties deposit 4. the prem-.

ises a flare w hich is.carried off by an’ ah vear-old

trespasser, which passps through the hands of his. fif-

teen-year-old brother pnd his mother . and whieh’ the

next day cones into the possession of a hine-vear-old

Lak”

= ° bs on

> . Via

brother Whe ds in Jared: after freaking. iaind lighting

it ori: tire ?- ; ste

. Is injury te the nine-ve: ate hoy under thie cir.

eyuustauaces, setuforth in Que ation 0 i} reasonably fore-

seeable result of. the mere msintenance of a she d-whie h

Jf dirty: and sometimes freq rented, by persons of ill

re — ? se . | A

. — 29 = . és -

STATEMENT”

a. | -0

Respondents filed aif dmended complaint for peg

> sonal injurie® on Tune %. 1998, in the U nited States

Deotriet Court for the District of 4 ‘olumbia. “The pur

tes completed exhaustive pretrial distovery including

the ‘t aking. of nine ale thositigns: and the answering of -

os numerous inte rragatories, Che R-65, 65-197). -

An elaborate pretrial order was pre pared whic h set

_ forth the tacts and “the parties” le wail contentions:

-Thie reafter, in connection with @héeir motion’ for sum-

" mary: Sudéme nt, the petitioners sefved on. responde nits

a statement of undisyiuted material faets, ” pursuant toe,

Rule 9¢h) oft the Distriet'Conrt. (CR. 225). Subse-

quently there was filed a -*Statement by Plaintiffs Con- .

troverting, ‘Statement of Uneontroverted hee

Facts’, Filed by the Defendants. im Bei 230

As a consequenee it was establi: ea factually that .

Charles MeGettigan, aged 9. was, burned at his home

at. 1117 4th? Sfreet. NW ‘in the Distriet ef Columbia

on Mareh 4.°1956, under athe following train of cir-

_ cumstaneées, ‘The previous day a brother Fohn MeGet-

- tigan, aged 11, had entered a’bhick shed behind prem-

ises' 2413 Pennsylvania. Avene, N.Wy (R. 40 et seg.).

_ Those premises were owned by the National PBauk of»

Washington as trustee ane managed: by the ‘realty firm

o : ‘ so

8&o

f Fred ad A Smith Company CRIN The tirst floor

st the principal, structure on the premises was suit-

able for cvommere ‘lal, tenants, bu was vacant on: Maré hi

1,/1956. The upper tloors were residential. CR. Soe

118). John McGettigan Was -generally. diseommodious

‘and Lic ‘Kell about cer tain: trash and debris in the shed.

. Whieh, had apparently accumulated therein through

the conduct of neghbor hood derelicts and children,

(R. 44, 45). ; ea

In the course, of dislodgisig wiih lis feet some 2 trash

ina closet in the shed, John McGettigan uncovered. a

evlindrie ‘alc ardboard object approximately* two ‘fe

in length covered: with a brownish. _ paper. (R. 40-44)

43-46). John said: ‘*T was in- there a lot-and. [ Kicked!

things.. around and breke-bottles: and: T had, seen this *

thing just, at a glaneé and T told yotr I thought St was

i pipe or something like that.” (R.-50). John also

. said: “*T had. seen it in there ‘before, but I didn't go

Fight after it. It wouldn't be something vou would be --

right away attracted to, till the day F,kieked it.” (R.

50). It bore a label: showi ing it had heen manufactured.

by the ‘* Hitt: Fireworks ('o."" (R..105, 106). He took

it from the premises to his home several -bloeks away

(R. 39,-453—He used jt as a bat: striking roeks and

boxés with it. (R. 46,55), At home it was taken away

from-John by .his oldér brother, Patrick McGettigan, -

aged 15, and given to the ‘Loy s*mother, (R. 179). T he -

mother. deposited the objecf in the trash, oitside her.

baek door from which it was removed the followi Ing day"

_ _ by dJobn’s younger brother @harlés, then 9 years old.

| Charles. plaved with it in-his back vard: In‘his euri- -

"sity he wanted to open it. With a serew driver he

pune hed holes in the container until he was finally ,

abe to break it m two. ‘He poured the contents out on

. ee Oe a a

o> . = an

’

te bea Hare, (RR. 64 ).

‘the hiek, steps, The powder wads gr iE: hind ¢

looked the same AS pow pire CAPS i fhework,

CR. 59)... The mother, Observing tHe seene, Deve teal

- her son to ‘clean tip the mess’ a und left. (RTA). Pie’

"powder Was carefully swept inte a monnd. Aig |

plieed a piece of Whx paper ini _ Obtained a mate

. from his kitehen andylit the way paper: The wesultine

Hames | severely burned him. The object hed tur Inc out

‘ None of the business oegupante of “premises ©2411

. Perinsy ly ania Avenue, N. AW. world hi: ive jad Oreasio?

-in the normal COMPS. ‘of their business ty lise oy “store

such an instrumentality asa flare. (R. 117," 11s As

the Court of Appeals opinion halaw pointed out, HE was

-* @

» “net alleged fhat the defendants brought. ‘the Hares to.

the prenfises @r knew it wale there.”’ (Appendix A,

gnfra,at R- Va) ). i ee. ee ver

The U. 'S. Nis trict Court Ray anted ‘the ner Horfers’

tretion for sumhiary v. Judzine ‘it on Nove miber 20,196).

In its opinion CR: 240,242, », Appendix: A. infra, at Phe

“ an i the District Cort suecine tly ‘Suneanis rized the issue

of. aetunl know ledge as follows: ne

T he qlaintift clainis to be e antitled tO recover apni:

‘ageson the: thes KY of attrattiys nuisanee. Phe

defendants. eotitend that. this humanitarian prin

pas ciple i is limited to situations in which the properts

ri owner himself maintains the structure.or places

on the: property: the object, whieh is asserted te

dnstapees in which he atleast is. aware of-its eXIS};

constitute the attractive nujsaneg, as. well as to

enee ated dows “nothin to safeguard children’

against it. It is-claiined on beHalt of the defetid-

“ants that the doctrine dees not ipply” if the object

toustituting themiaance ts placed on the property « -

by i third pe rson ind ‘dts presetier is not. Anown

od .

: o

”

3, : “3 a . “a 7 | |

2 4 oe ° vie A = on 5 See , . : _ .

TO the property owner. “These eontheting eorten-

Ane eee ; tions present the Issue of law to_be determined on

this motion. ‘ Rabe

os . : &

The Court, after x thorourh review of appheably

ene. ~ precedents, concluded as follows (CR. 248, “Appendix A,

\ : infra, at p. 9a):. , ‘8 ie

oe va The prinefoles te. be ‘evolved trom tlie line of

\- ‘anthorities diseussed in this apinion,s may be stm.

marized as ‘follows: If the owner: oe possessér of

an, real property mainthins a hazardous stracture, or -

a o- keeps-a dangerous*objeet, on his land, whieh has |

‘ : a natural tendeney. to attract or allure ehildren,

| ~. . aygl if children are aceustormed to Visit or congre:

~ Bate! on the grounds, then the property owner is

liable for any injury that may be sugained by a

. .e Child’as a result of contact with the’ stracture or

A ae “object. “This liability extends to a: situation 1n

~ which? the dangerous object Was placed on’ the

edo property by a third persen if the property owner

* had actual knowledge of its prescenee. ‘Ort the

other hand, there is no liability on the part of the

owner if third party creates the dangerous situa-

tion and its existence is unknown te the property

owner. The Jatter is under no, obligation to make

periodic inspections in order to ascertain whether

any hazard.has been ereated by any third person

and to safeguard against any sueclk remote possi-

- | bility. oe Se

art a * Applying the feregoing principles to, the ad-

*. . mitted facts of this Case, 19 basis for-hability is

- diseernible. No legal or moral obligation can be

perceived.on the part of the defendants to pay-the .-

Plaintiffs fer the result of their tragedy. :

-. Timely appeal was noted by thé respondents. The.

’ se ~ * : ; , ° 36) ste

argument on appeal was beard on January 3, 1963, be-

fore a Division of the Court of Appeals for the District

of Columbia Circuit, consisting of Judges Edgerton,

Fahy, and‘Wright. That Coart reversed the District

es, = .

’ :

: a : .

‘*

SUN F “Ct ec a : a

“hi j pae 2 ’ 2 Sonatas 3F tie a

a e . z

‘

Coyrt per opinion ‘by J udge’ Fahy which was ‘handed

‘down on’ May. 16, 1963. Touching ‘on the. vital issue

whether the petitioners had knowiedge of the existence

of the flare the opinion stated (Appendix A, infra, at

Soe he aes cnr:

In the present ease defendants contend that

since the dangerous instrumentality was not used.

by them or brought by them onto their premises

the plaintiffs conld not recover. This. contention

fails to take account. of the seope both of the law

of negligence and the. full development of the at-

tractive nuisance doctrine... | :

In framing that kev issue, the Court of Appeals’. —

‘opinion, unlike that of the District Court, failed to

take into, xecount the undisputed fact of .absener of

actual knowledge on the part of property owner of

the presence of the allegedly dangerous instrumental-

ity: The Court of Appeals concluded (Appendix A: =

infra, atp. Wa):

} Nor is the doctrine inapplicable beeaise the dan-

gerqus condition # not created by the landowner

or possessor, If third persons, even trespassers’

unknown to the landowner or occupier,gome onto .

the land and create the artificial condittirn.or de-

posit the harmful object, and thé owner does noth:

ing to remedy the condition after a reasonable op-

portunity to do so, he may be responsible. Roman’

v. Cit# of Leavenworth, 90 Kan. .379, 133 Pac! 551

(1913); Siminel vy. New Jersey Coop. Co.. 4T NuKK

Super. 509, 136 A. 2d 301 (App. Div. 1957) = John.

* son Vv. Sculley Const

~ . *

1959). (Emphasis added.) ~»

Applying that doctrine'to the instant ease, the Court

of Appeals stated (Appendix A, infra, at p. 20a) :

. are °

The data before the trial eourt crested an isshe

as to an unreasonable risk of harm toyards the

r. Co., 95 NW. 24.409 (Mim. -

-- re = eS)

> * minor plaintiff, a ehildee f the, ne ee sete) Whose

ia jurs il Jury mught reasonably conclude might

have beer? preve nted by duc care on the part of

defendants!" habe

A timely: petition for rehearing on bane was filed,

an pe hit was asserted” that the apinien of the Courfrt

> Appeals was e rrohedis an three respects: Pate. e;

1. It strongly re lied: Upon an Lapartant faetesal

assumptiou Whigh Wis unquestionably and dem-.

vane of voung thieves, Which at times ised the

> premises, tad lised stolen, rips For Purposes of

an useaient hear the premises. The sole SOULrCE, In

the record Of inforpaation naiebinw to snek flare.

stealing activities was the deposition of Leslie

O'Neal, dr. CR 96- 10). O'Neal established that

his gang had never had any flares any Where near

the: premise x (R. 100-150).

It Hnposed Lis ability ina fashion which eve ry

other court which hiad considered the problem had

refused to do. and in so doing had’ réled heavily’

upon a precede nt whi I had heen overrnled, and .

“upon, -a provision ef the . RE STATEMENT,

é TORTS, 3... 2 889 (1934) which had utidérgone such

‘i re vision in 1960 that it had become authority of

onstrably Incorrect: The Opition stated that a

thegmost persuasive sort forthe position” of the -

tbe>

landoawne v. See £330: of persia Draft No.5

of the ‘RESTAT EMENT oo Ske OND). TORTS

= (1960), the adoption of white ' is reported at ptt

‘of the 1960 P roccedines of the’ Americesss Liv weTn--°

stitute: That Te nyative Bratt withtits ace oMmpany-

ire text and the minnte < of the proceeding rx, Of thie

"American Law Tnstitute 3 made it clear that netual

knowledge had universatls” been requatred in cases

. -

je .

of en type, and that a tandow ner under these cir.

; cumstances $ had no duty to Inspect,

3. It adopted a theory that conduet could

amount. to actionable ne ehige nee regardless of

Whethe Yr the general type ef harm which ensned

Was’ a foreseeable - results of the coriducet. "That

theory conflicts with tlie recent. en bane. opinion

of the same Court. in damic £on NV. Woodward ¢:

; Lothy rop,.101 WU. S. App. D.C, 32. 38, 247 F.2d 49

29,. cert. denicil 355 U.S. ‘855 (1957), What, rea-

Sonable man coukl foresee that failure to keep a

clean ‘or locked shed ina back vard would result

sina veritable homh exploding In the face of: ae

child several blocks away?

On. June 2 27, 1963. the pe tition for re ‘hearing « en hang

was denied: wna a suppleme ntal opinion was filed hy

the Division of the Conrt of Appeals? Whieh had heard

the apie (Appendix AL intrir, at P. 24a). The sup-

plementi al eeinton sti uted in part (Appendix A, infra,

at p. 24a) :

We adhere to our “views 'as ‘eXpressed in ony opin.

ion, adding that. were we to apply the: changed

langu: ize Of Section 339 of the Restatement to this

case a reversal would still be q required ; for the.

data before tlie. District Court-if followed by proof

would ®tnable. a Jury to find that appellevs had

reason to know that the “‘fast’ “that is; the de-

scribed condition—existed and the plase was being

-- used by children. Tf, however, the change an See--

* tion 389 means that if. sugh # situation as is now

before us the appellees must he showh to have

~~ had reason to know that the Hare liself. existed

among the rubbish, | we disagree, .

This petition for a writ of certiorari followed.

- 0

REASONS | FOR GRANTING THE WRIT

This case .cerits Supreme Court review because

rs aeainiab below is the product of judicial legisla-

tion which nof only lacks preeedent, but whieh is at

War With the conclusion ‘rege ‘hed by every: ‘other JUPis-

diction which has considered the principal issues iti-

volved. The. petitions ns recognize that this TLorornble

Court ésllows a poliey of Judicial restraint with re-

gind to review of: Distriet ef Columbia matters. How-

ever,, petitioners urge that the supervisory power of

this Court over the U.S. Court of «Appeals. for the

District of ¢ Columbia Cirenit ought to he -exePeised

wli®re that court decides, "without prece dent and i

Hally ih reliance on a reversed ease aud on othe i

apposite cases, to depart from recognized leeal stand-

ards in an-arez as important ax the basie duties owed.

by the elass of lanklowne ‘Ys to = children.

Thistarea off loeal lay is pf suelo importance that it

merited review by this Cc ‘ourt ‘once before. Best v. Dis-

trict of Columbia. 2] t ‘S.-411 (19: 4), Review ‘is es’

peeiglly necessary: since the District does not have its

own legislature to correct unwarranted Judieral leg

islation: ‘

. Departure From ‘Existing Precedent? Nesta he

% .

The ees ‘sion below is not only at confliet with the

decisions of the highest courts of all jurisdictions

which have conside Ped the question, brt-it also’ goes.

substinialty hevond the enidelines laid down by this

Conrt in the ease oft Best \. District of (' ola ni bia’ ASB

U.S. 411 (1934). Best held that a ¢ ise of aetion’

existed whert a. five-vear- -old hoy was attracted by.

send piles onto the) private: wharf of the munieip: ity

where he fe ll threuch one of several holes in thie woaden

her

planking and was drowned. "Phis Court there quoted

With approval, at 291 us. 419, its earlier words‘in °°. *

“the case of United Zine CB. vy. Britt, 258 US. 268. x

> . on oe

(1922), that: ; * ay eno Cheep ina = ir ys

knowingly 4 to establpsh yd? expose, unfenced, to”

children of any age wher they foltow 2 bait as

Mechanically as a. fish. .somethine that is certain

- to attract them. has the legal effeet of an invita-

tion to them although-mot te an adult .¢ Mainphasis

added.) - 7 . a oe Bebe

While those cartier decisions of this Court: spoke of iy

knowitny actions on the part of the défendant, the deei-

sion’ below: is. that liali! ity omav be fastened > Upon. 3 :

landowner who lacks knowledee of the presenee of an

instrumentality on his. promises, deposited there bv

unknowa third patties, which, one day after remoral

froin the premises by oni chikl, ijures another child.

Conflict With Every Other Jurisdiction .

The following decisions of site courts of last resort

are in direct confliet wath the opinion of the Court of

Appeals below, and hald that a i: indowner is under ne

duty wh: itsoever ‘to Jispect Hetamiio discover condi- 7, -

tions Hkely to hi irm TreStassine children, dud holding

correlatively that there is no lighifity ine such cases

in the absence of actual knowledge of. the coudition..

Hale v. Crestline Realty, Tne ,14S.Conn. 648; 173 A 2d

900° (1961): Stmme? veNn. ‘. C OOD. Co. On WJ; 1, 143:

A.2d 521 (1958 ) > Grallagher Vv. F redarck. 366 Pa. 450.

77. “A.2d 427 | 1951) ; Carter Coal Co. v. Smith, 175 Ky. 2

843,191 SW. 6351 ¢ ee ’ see alse Castella vy. Caristo

Construction Corp. A.D.2d_ 605,.208 N Y 8.2 577

(1960), aff'd. 10N, r3 945, 179 N.E.2d 863. 294 NYS

an s . a . ae gio .

. 2d 23 (1961).° No jurisdiction in which this issue had:

been considered heretofore -had. adopted the. position

taken by the Court of Ajipeals. below, :

Reliance on Reversed Opinion

The Court below, in finding-fhat a duty of inspection _ -

, sexisted under the cireumstanees cf this case, cited three

eases, the Sim mel case, supra, and two other decisions.

(Appendix A, infra, at p. va). Inthe other two eases,

the defendants had actual knowledge of the condition

which caused injury, and thus they do not support the

doctrine inherent: in- the opinion below, .

BS ) ¢

As to Simmel, the Court below did not rely upon

the New Jersey. Supreme Court decision but rather

on an intermediate appellate decision reported at 47

_ NJ. Super. 509, 136 A.2d 301 (App. Div. 1957). _The

_ original opinion of the Court below was silent as to the

- subsequent history of the intermediate appellate de-.

cision: fe fa

ak The Supreme | Court of New. Jersey in fact reversed:

at decision, 28 N.J. 15-143 A.2d°521 (1958), in an

~ . opinion which was cited in appellees’ brief below at-

page 16. ° The Supreme Court of New. J ersey held that

the trial judge’s instructions had been erroneous he-

eause they’ permitted a finding of liability on imputed

—_—_——--_-_.,

. * OF the jurisdictions listed, only New York has recognized this -

requirement by a- mere affirmance of # lower court. The others

have done so in lengthiy and well-reasoned opinions.‘ For a stimmary .

afid déseussion of the listed eases, please refer to the brief for ap-

pellees, pp. 15-19. That brief has’ been specially certified to this

Court by the Clerk of the United Sates Court of. Appeals for. the

District of Columbia Circuit. , ze

"§ Johnyon v. Scully Constr. Co., 95 N:W.2d 409 (Minn. 19599.

Roman. City of Leavenwarta, 90 Kans. 379, 132 Pae- 551 (193) )

: é : . 2 $ y : :

pellate court had ruled that there ‘was sufficient evi-

dence Frown Which ‘to cone ‘lide aetual know ledge.

When ‘petitioners in their: petiiten for re hearing .”

en bane below, protested that the decision of the Court

of Appeals had: fashioned wan unprecedented. doctrine —

of tort liability in reliance -on a reversed intermediate

appellate decision. of a state court, the Court below »

issued, an-order. correcting its earlier Opifiion to. the

extent ‘that the-Simonc? case Was markedas “rev'd én

other grounds. CApperidix: A, infra, at p. 23).

-A rei ading of beth the inte rmediate- appellate and ern

the supreme esurt opinion in the Sime Teads .

inescapably to the conelasiod that the ré<erent came

about only beeatse the jury hd heen permitted to im--

pute to defend: int .kKnowledge’%of the dangerous condi

tion by dint of the mere possi ge of time. 145 A2Qd at

928. The original Coit of ee “inion “he-

low. cited the intermediate opinion ine Simmel for

the proposition thy failure sto’ re nate the eondi-

tioh “Lereated bv. unknown third parties] after a.

reasonable opportunity te do so may provide a

hasis for’ liabitity. © (Appendix A tnfra, atop. Va),

From oa‘-reading and study of the New Jersey

opinions, it does not appear that the Somme case wi: ns”

‘reversed on other grounds.”

In view of ‘the’ lack of support from Sine? for the

Court of Appeals’ novel theory of liabilitynd in view

of the fact ‘that ‘the other eases cited by the Court of

Appeals are not in point. it must betconeluded Ah: a

the’ Court of Appeals hag: decided an important quis

tion of tort Jaw in aw Te hic h Lees he yond here tofore

*See summary and analysis of those opinions in appellees’ peti.

tion for rehearing en hane, pp. &:-9,:.11 and 12

rather than ‘actual knowledge, The iitermediate. ap-

oe 2

. U

* a9

applicable principles as enunéiated in this Court's de- —

~. eision-in the Best case, supra, and in sharp conflict with

the general law of other states.’

; Ensuing Injury Not Proximately Caused by Petitioners’

% Acts, ahd Not Reasonably Fcreseeable

. 2. The decision of the Court below departs from ree-

ognized fort principles in a second important. respect.

“1... ‘The acts of persons not under, the control of the peti-

tioners intervened to -such-an extent.in this case that_

the resulting injury can not be said to have been proxi--

mately caused by the petitioners. The injury oceurred

on the day following the day on which: the flare was:

taken from the ‘petitioners’ premises, not by the in-

jured boy, but by his brother. The flare, clearly show-

‘ing that it seas thanufactured By the ‘Hitt Fireworks

Company,’? pas%@ through the hands of the injured.

respondent’s 15-year-old brother and those of his -

mother. As was pointed out in the dissent to the dénial ,

of the petitioners’ motion for rehearing en bane (Ap-

* pendix A, infra, at. p. 26a) fis |

Labeled as it was, the 13-yedr-old boy obviously

recognized it as‘a possible source of danger. Cer-

tainly the mother could have done so. The mother .

had -it within. her power to make a condition of

safety sure, but.did not do so. Instead, she placed

the flare in her own trash from. which the. follow-

ing day it was removed by her younger son... .

—_——_.

* A totally reliable.and conclusive indication of the’ status of tort’ >

law’in this connection is afforded hy the RESTATEMENT (SEC.-

OND), TORTS (1960), Tentative Draft No. 5 of which contains a

' revised’, § 339, dealing: with the ‘attractive nuisance doetrine.’’

That section eliminates the duty to inspect. It was approved with-

out dissent by the American Law Institute. See 1960 Proceedings

of the American Law Institute, p. 244.

ae]

da - i 3:

The dissent also- pointed out Mit the mother saw the

instrument .after: it had -broken open and its. powder

spilled out ‘by the as-yet-uninjured sgn. She simply:

told him to clean up the powdér then she left the se ene.

Universally applicable principles of tort law make /

it plain that the petitioners’ actions in this case were

~.. not: the proximate cause of the injurie ‘s of the minor

respondent. Correlatively,.a reasonable man could not

predict that the consequence of allowing ordinary de-

bris to accumulate in a shed would be the detonation

of an unknown flare, deposited earlier in the shed by

unknown third parties, which, after being carried off, ;

would the next day severely. burn a young boy several

blocks‘ away. A recent en banc opinion of the U.S.

Court of Appeals for the District of Columbia Circuit

held that the harm or injury which. resulted must ‘have

been of the same general type which was reasonably

foreseeable in order to spell out negligence. Jamies son

v. Woodward & Lothrop, 101 U.S. App. D.C. 32, 38,

- 247-F.2d 23, 29, cert: denicd 355 U.S. 855 (1957). ‘See

_ also Palsqraf v. Long [sland RR., 248 N.Y..339, 162.

N.E. 99, 59 -A.L.R. 1253 (1928). ‘The decision below —

. conflicts with the Jamieson decision. The infant re-

spondent’s s injury came as a complete surprise to the

petitioners, not only ‘because they. had. ho reason to .

know or suspect that failure to keep.a @lean or locked

shed would result in the presence of a flare on their

“op ‘emises, but also because no, reasonable person could

havé been expected to foresee that the unsuspected in-

strument would pass } without precaution throygh the

hands of the 11- and 15-y ear-old brothers and through

the hands of the supposedly . responsible respondent

mother into the. harffls of the 9- year-old sri boy.

yy /

} ie |

/, ; | ; . 16- ‘

/ ; | ‘The Matter of “Policy

/ 3 The writ should be granted for the furthe reason -

Pe %

that this case presesits an important issue which has-

/ wide ramitications.. The, manner in Which it. was re-

solved by the Court below will place upon all the land--

-owners of the District of Columbia the onerousy duty

of inspecting their premises at frequent intervals to _

guard against the possibi ity that. unknown third pars 7;

titsshave there deposited angerous instrumentalities.

Any failure to so Inspect would:be.at the landowner's °

“

peril, No other jurtsdfétion@® burdens landowners,

This -result- has been reached Without support in

the decided’ vases -and ‘contrary to the RESTAT E-

MENT, TORTS, in a jurisdiction Which has: no leg-

islative voice, The opinion-is based’ upon a purported

‘development of a’ dortrine enunciated -by this Court

when it earlier considered.the important questions of | °

tort law involved here. Best v. District of Columbia,

291 U.S. 411 (1934). -Accomingly, befare this burden

be permitted to fal] upon landowners, this, Court, in

the exercise of its Supervisory power over the United,

States’Conrt of Appeals for the District of Columbia :

Cireuit, should hear this ease. os ie

| " CONCLUSION ° .

For the foregoing reasons this petition for a writ of

certiorari. should be granted.

Respect “uly submitted,

-; > me

Pace. R. Coxnorny

ae ee “JAMES A. BEtson -

Ped ene Counsel for Petitioners.

| #5. 9 tS

e : ‘

jaar : os

‘ / ;

{

APPENDIX A

UNITED STATES D1gTRICT COUBT

ee ‘{ Filed Nov. 30, 1967}.

—_——- .. .

FOR THE DISTRICT/OF COLU MBE

GeRTRU DE, McGerrT VAN,

| fe Civil Action No

. 73

Individually

. -

1313-58 -,

and ns ae Air nd

next frie nd of € HAKLE s. McGerricsn, a minor, Plaintiffs’

Natioxa ‘Bask oF W ASHIXGTON Noa corporation,

v. .-

aud ‘

Frep A. Sith COMPANY, Des fendants.

*e .

Soe -" Opinion

Paul R. Comnoby, of” W ashington,.D.C.,

ants, for the motion.

. Harry W. Goldtic of Was hington, D. @., for the plain-

tiffe, epposed.

case, involves a p

‘ “This

}

~.,

forthe defend-

oy = ;

—

iase of that” aspect of the lew

of negligence that is picture meted denominated as the Uoc-

trine of ‘‘attractive nuisance’

behalf of, a little bot, who was badly injured ‘by a flaré .

picked up by his ‘brother on premises owned by one of ‘the

defendants and managed by the other as dent.

was carried to ‘the plaintiff’s home and injuted hint while

The de fendants move

he was playing w

with its contents.

for summary, judgme nt on the irround’ that on the adm ‘ittel

facts there is no Hahi! ity as a matte r of Jaw.

The motion is made afte r exhaustive discove TY proc cod

The action is brought in’

The flare

ings have been had, and after the case was thoroughly pre-”

4 ty

ee Note

. - ’

O°

pia

Cay -

Fat

fry,

: . . Pane

‘.

‘

> . 25

- . 4

> : vt af

‘oe . .

tried: ‘Pho -salieht facts are not in dispute. Actually! the

defendants accept the ver ‘ston @beited from, the plaintitts

and their wilnesses, as Inostaf the events are unknown lo |

ihe detenda nis or their age nts. :

The basie fact s on which this controversy hinge s are as

follows... Adjoming a building in the. heart ef dewntown.

Washmeton, which was-activel¥ ocenpied in part for com.

“mercial and in part-for residential purposes, , and foeated on

-wasom flare and contained sunpowder. The gunpowder

wthe same lot. there was a small, dilapndatert, deterivratyad

brick structure that had net heen used for many years,

It, was ina state of disrepaift. fis doors’ were. broken and

BeCesS to thie interior was not, barred. Vagrants and other

persons of unsavery By pes froqne ntly conzreg rated at recht

in this. Vacant building, drinking aleshohe beverages anid

engaging, in other ‘ac tivities. Children iesuua ithy came

in@® the place to pidy. .X great le al of debris and ‘ash

bed yradualiy aceummiated in it git thie course of tipae.

: . ws

The infant plaintiff. is a fittle hoy, who at the tine of Ue |

nee urrence About to he “described wag nine years ofds Lie

Lives do with iis family a short@astgne e away. ffom the Unrve

mentioned ‘prope Fiv: One day his brother, wha was tave

years olders while return ing hone from an errand Aimlessts

‘wander dinto the abandoned straéture. While ri ansacking

pions the rubbish, he feun da eylindrieal, tubular ohjecu

Fe picked it up and earried it home.” Later-1 the vounger

erotaer r starte d to dismuanitic it. “Unfortum itely, the ooject

exploded and painfully and permanently injured the vittle

boy. The injutues were Sf avery : serious nature du it may

affect, him throughout tus life.

‘No oS ste hie Whit type of flare it was or what

“it Wi is used tor althouzke apparently. ait had-been .mixed

with the debris. and trash for some time. “No one knew

how it ih there, or who placed or-dropped it on the prem:

Is@s. vith r the owner ner “the agent.or their employs re k,

were aware of its presence, None ot the Owne®’s Activi-

. ° as - ‘ ay ‘

al °

. °

i , 3 .

“y -)

. @

is ° om

. are 4

. : . : aoe > ies » =

ties on thé lot in question mvoive ihanvyv use of explosives.

The defendants did not store dr keep any explosives there.

-«- This act jon is brought availst the’ National - yank .of

Washington, ‘thie ‘owner. of the butldimg as/trustye ‘ot an

O-state. and avainst Bred A. denitht ompany, acres estate

‘agent Who inanaged the entire properyy uy behalf of the

owner. The plaintit? claims to be entitled + %) reeove r dam

aves on the theory of-attmactive nuisance. The defi endints

contend that this bam: initarian princtpile is limited to’ sit-

gations Im which the prope rtv owner hnnselt tainiaims the

structure or piaces on ihe properts - the obpect, whieh Is

asserted to cons stitute fhe-attrac tive Htiisanes, as we las to |

iistances 11) W hich he at least is aware | ff Jis EX xistene e and

does, nothing to safeguard cB! dre Sy avainst rH. Jt is claimed

on belialt of the defendants Mai it ihe doctrine does not apply

if the objeed -constiftut ing the woe is pl: reed om the,

property by a third . ersen and its presence is not? know ¥

to th a prope rtyv ONS! “These spite ting conte ntions pre

sent the issue of k eh to be determiried on this motion.

” c ?

' he. prace nitor of the doctrine peaittractive nMlsance isa’.

cdecision rend fered hy ri Supreme Conrt iM INv3, ia Pail

road (Comey QHey. Stow, iw all. 657. In that case, a child

Usix years of age was oe neot a railroad thentable lovated

ian open space near a ry ailroad depot. -As was well known

to the Commpatiy’s employees, boys were dcoustomed to play

and ‘swing lh the tur trable from time 10 tines. Qn the oeca ¢

“sion in: question, sane s foot was eanght and erushed

petween the énds of two-ruls as the turntable was revolv- -

init, ha eee: wis neither fastenyi nor locked _

rotated easily on its axiswalthough it vould Kaye rendils

Heen made fast hy a late! la.

twe held ‘that the child was.

entitied to reeyve riamaes from the railredd eompany fer

the ingiry that had Been sustg@ined, In disenssing this sub

ject, the t ‘court et: ated that affe conduct of an infant Df ten-

hd by the same Tule which wey-

i a turntable was a dangerous

endant wits unjler a duty to gite

der years o not to he, jueds

ernssthat ef an adult: th

machine: end that the de

; “KA

Oo . -

Y wT

" @

. ‘ ~ °

. Ww

eo ‘ °

3 “-:

= :

. “ ¢

= ‘ 4a

"it that,eare and attention to’ prevent the oceurtence of ac.

cidents Which prudent and care ful men ordinarily hestow.

Wile the Coutt did not diseuss the theory ‘on which this

decision Was pred ated, it was later stated that the doc trine:

of this ease is ‘that he who places upon his banc, where

vhildren of temdér vears are likely to go, a construction or

age nity, in its nature attracts °, and therefore a te mptation,

to such children, is culpably negligent if he does not. take «

reasonable ceare to- keep them aaway, or to see that such -

dangerous thing is so guarded that they will not ibe injured

hy it when following ‘the instincts and irapulses of child-

hood, of which alt matikind has notice’? Bepaus e of. the:

fortuitous circumstance that the dangerous object ingolyed

in this case was acrairoad: turntable, deetsions. afi piving

‘these principlestiave sometifine ‘3 Moon informally referred

to as ‘turntable cases’ as!

In 1$22 the Supreme Court in United Zrii Co. v. Britt, 258

“0. S.-268, partially rotre: ated from the. f forw ne pos sition

that it had taken in Railroad. Company ve Stolf, supra. ‘e

The defendant in the later easeshhd torn doven a bni lding

owned Hy it, leaving a bi isement and-ecellar in which water “s

acenmulated, elear in. appearance, but in. tact danger-

ously poisoned by sulphturie actd and: zine sulphate that

had pereolated from the owner *; .works, as the owner .

‘knew. Tivo little children eame on the land, went into the

water, wéré poisoned and died. . At the trial, the judge

“instrneted the jury that if-the water looked clear, but in

fact was poisonotis and the children were allured to it.

the owner was liable to pay damages for the deathgpf |

the BS: Idren. The judeme nt was affirmed by the Court of

Apipeals, but was reversed by the Supreme Court in as

opinion Written: by Mr. Justice Holmes. While the Court

ereferred to Railro id C ompany v. Stout. witkout overraling

or disapproving it. it held that there @an he -uoszeneral duty

. Dissenting, opini on of Mr Justice C larke | me nited Zine Co. Vv.

Britt, 258 U.S. 268, 977. °

on the part ofa andowner togkeep his land safc for chil

dren, if fe had net directly: or, by Hapleation mvited er

licensed them to come there.” The Court practically

stricted the Stout case to its Taets and did nor indicate any

real distinetion in Byte iple between the awo decisions. An.

ernphatie dissenting Spun ion was written_by’ Mr. Justice

Justree Deis

Clarke, With whom Chief Justic e Taft P

eoneurred = ° .

In reliance on the Britt ease, the ppeais for,

the Pistrict of .; olul ibia, t vO Years int? (aT v. Wav

satt, 54 App. G dee © ae, OR” Bod. oh OH an T . ( to ap ply, the

doctrine of attractive nuisance to a pile oF tooze tumber

‘ina lumber yard on Which children had bee wont fo play.

ia, th: if case while 2 group af ebil iren were STTUL gling to

rei aeh the top of the pile, one of the bi ards was displaced

and fell on a little girl, who sustaln aq permane ‘ot mquries.

The Court held that the child was net See reeover

damages from- the owner of the property The Court in

dicated that Radroad Compa las. Stout ai he deemed

sage ‘ally over ruled ly 9 ni pees) apie & Britt, Vhus, for

he time being the doctrir we of attractbce tifisanee had ve

itu efficacy, if- any, im the Distri oe y calmatan. °

o .

The doctrine, however, rode oui the storm and in 1934°

whs restored to if* or! ginal cours¢ hy thre decision: of the

Supreme, Court in Best.-v. Enstrict of Cobimbia, 20 US

111. That-case presented the following situation. A child

tive Years of ave while playing onon wharf belonging tT

the- District raf Columbia. fe throuch ache lo and Wa

‘drowned. ‘There were a number of. holes inthe wharf foo

2 Prowerion Torts, 94d Edt 440,

Justice Holmes ‘thas heen uch,

Footnote 30, on the sare pace, to

court of whiclr Vir. Justive Holmes

the minority ¢reurt th it had. reje

nuisance entirety. Im taet the disse

indieated that she a lority: Were fet

“Man NV.

Cnildrén had been neeus stomed to play there

ba-

and the area in which they were, found w as not feneed. off.

The trial.

judge directed a-verdict in taver of the defendant on" the

opening statement Gf plaintiff's counsel. THe Court of

Appeals affirmed the STO ‘or the deféndant, largely .

on the author! ty of the Briff case, atthough Judge ( (froner

disse nted, 62 App. PC. 27420 On certiorari the Supreme

“Court, inan opitfion by Mr. Chigt, Justice ify ches, reversed

the judimnent and re: aftivems d the decision in Railroad Com.

Stout, The ultimate sresnit.is that the

Brith-ense in the Sade me C ourt,. and Branan vy. Wiinsatt,

sigra, in this jurisdiction, were no longer law or; at least,

their authority Was very much wei ikenéd, and that the doe- ’

trine, of attractive nuis ‘ang evolved from the pioneer de-

SHU pra,

‘cision in Railrogd C ompan wy. Ptout, supra, was restored

Distri t of ( ‘olumbia,

in elect.

to its original potency. : : deal

" The Court of Appeals for the District of Columbia acted

on this view in Easthurn v. Levin, 72 AppoD.C. 190, 113

F. 24376. In that case piles:of junk jocated on the defend.

ant’. yard, which | bordered on'a street and-was’ not COUR

pletely fenced off, were deemed to he an attractive nuisanee,

"Several hovs entered -the yard and one of them climbed en

a discardé d car, Which Was in a pile of junk. The car tilted,

and threw him against broken glass. THe property owner

was held liable for damages for. the child’s injury.” The

Court relied on eRaftlroad Coe Mm pane \ v. Stout, and Best v.

siepra., a pela Ds

The dgpigine of attr: active niigzne e 1S, however, in Rose.

jurisdi etions “in whigh it prev: ails, universally. restricted

ande ireumseribéal, hy well define earth established jimii-

tations.” ‘The liability of the proferty owner ‘for injuries

-3 Prosser on Torts suggests that while

the Brift e ase was in the Be .

the latter was quite ineonsist ent with the formér

th at.

Footnote 31.

2d Ed.

ites Liwith

$0),

apparent approvi ct ease.”

re deciston

. perhaps, wr neat not be too far-reac hing.a st tatement fo sav

th o Britt ease was ov ewe Ly the, Best PEE ohn

‘

Lae

‘Coover v. City of Readina, 392 Pa. 452, 140 A.2 LT92-F85-

. Sgn

are ; ia°

caused t toa child by what may. r-be dine di to be an ‘attractive

nnisante,- is confined Ta cases in which the property: -owier

either’ eréets of r. maintains thie dangereus stricture, or

places on the propérty the object that is dangerous and’

constitutes the nttractive auisance, ory. af most, if a third .

. party is respons sible far the Nitisance coming v inte existence,

to situations in which the property owner.is agtually aware

of its presence and does nothiny either to eradicate it, or

to prefect children agaist if. Carter Coal Co. v: Smith -

(Ky.) 191 SW. ye Batt v. Mid Beshor: i Tarn & baits

(" 0. (Ky. we S.W. Simmel x. Neve Jers y Coop, Co., 2M

N.J. 1, 143 .A.2d 521, 5 526; Fravell vy. Lainerman (N.Y.) 66%

NEL. AS34 Gallagher v. Frederick, oe Pa: 450,-77 A.2d 427;

. this ica tei Was simmarized as “Follow: sin Gallaher

v. Balede rick, sup ra, p. 429. :

“The artifieis al eondition on afi.ow ner’ s land on aecoynt

of which he may be hable for injury to trespassinw

youns children is: such as he créates or maintains:.

That, of course, does not necessarily mean’ that an.

owner may not be-said to maintain such a condition

on his land which another has created but which the.

owner allows to exist.”) {Emphasis original.)

3 ae

Similarly. a property owner is under no duty f) ins spect

his property periodically for the purpose 6 of “arching out

gind discovering whether an- attraetive nuisance has been .

‘created on his premises ty some third person, Carter Coa

Co.; ¥: Smith iKy.) 194 re W. O21: Simmel vz Neu Jerse 7

Coop. Co. 23 N.J. 1,143 2 Sa.52t, 9263 Gallagher v.Fred

erick, 366 Pa. 450, 77 A2c 427; and Cooper v. Cotu of

Reading, 392 Pa. 452, 140 4.2d 792, 795,

Thus, in Simmel -v. New Jerseu Coop. Co., supra, it was

stated {p..526): 9 - °

- + “Jt shonld he recognized, however, that the land

ofner or occupier is not an insurer of the infant. He

‘ has no duts. to perjodi

Vo inspect tht premises in

order te ascertain whetfi

. ; a? . fr : at

trespassers, might dvave “created artificial cogiditron,

thereon.’’ .) ; :

Counsel for the nfaintiffs cite no cases, and independent

research has discovered ‘one, in which the-owner of réak’

property has been Midd diable for injuries caused by an

attractive nuisance that hac lve en created on bis premises

- teeta aiiettiaeen: aatl

bya third per sunt” ANTE wW TTT the “wher: hi rd not. been

aware.* ae ea : ; .

e i, °

The foregoing. grine:ples with: the “Linajte itions surround.

ine them, have been recognized and formntated iy Piestate

we vt of the Law. Torts, See. DAL, as follows : é

£40), DANGE ROUS ¢ ‘ONDITIONS. KNOWN To

7 NS ESNC IR

A possessor of a is subject ti Jiability for bodily

harm: eaused to. gratuitous licensees by a natural or arti

ate : os ote . ° 4 .

wlieial condition therenn it¢sie). but oniy if, he

(a) knows of the condition and realizes that at in

volves. an unreasonable risk to them and has reaser

to believe’ that they willtno: discover the condition or

realize the’ fis k, and. : x :

~ (b) liivites or permit? them to enter or rem: in pen

the dafnd, Without exgrei<mne ‘res Wonk ibleveare -

(1) to make the eondition re its “yy: ab ly safe, or

(ii) to warrethem | of the anietinas and the risk

nvotyved Mh@rein ” — - . <<

. 3 F

legis ai supplied. ),

‘ ; o-. = = . bee + i . 2 +

* Prosser) in an article: on Trespassing Childcen; 47 Colif. Lau

Rery AeA, states Po all tes

r - ae A °

‘No ease das ever held that the landowner is required to poltee

‘his premises or to make any ingpifty, te discover whetder there

is a likeliheed that c¢hildyen GD) trespass. ('° -

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third persons, themselves

ee irerg beatae: wesdeies W. 2d 404, whieh has i snperticial

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‘Comment ¢. of Seetion SAL. of the ie Statement, states:

lied Juspection. K prea of Jane owes 10 a

for tne licgusee'’s. Teception or to inspect the’ land to

discaves possible « roeven Prone. di nigers.

Counsel for the plain@ffs stress the decisjon-of tie Court

of Civil Appealsvof Texas, in Die vendort Marble Co x. Gart-

“similarity te the pastant Poet Tha th eases, a child piékett

upon the défendant’s grounds a conti ainer COMpTISIBE aN

explosive, took if home and was’ in qured when. rt exploded.

[t-alse appe aired - that children hat! heen acenstomed te

‘eome to pila, "oon ‘the defendant’s hand. : There the resem

blance ends. . The distimetion between that case and the

case at bat dies in the very vital cir umstanes that in the

‘Decendor? case the blasting ‘éap that injured the ebiitd,-

shelonged. to the ‘defendant afd*had been thrown on thé

‘eround by the de fondant = emplovees, - The defendant hid

beer quarryime rocks on the property and 41 he Dlastime e: ty)

were used in these explosions. If in the instant ease the

defendant had been using explosives ow his property and

the flare had been left dying “arennd by one’ of his em

ployees, the Pecendorf case might be applieable. As it is,

however, ne support can be found im oat for the platatiffs’

posifion. ° eee 6

The principles.te be evolved from: the dine of authorities

discussed in this epinton, may be siniarized asx follows.

“Tf the owner or possesser of real property maintante a ji 7-.

ardous strueture. or keeps a daniveron~ object, on his land,

‘Which has a matural tendency tecattract on allure children,

and if children are‘acensteémed to vest or congregate on

the: grounds, then the property owner is Table: for any

injury that nay be sustained by a child as-a result of¢eon

taet with the structure or obieet, - This ability extends

te a situation ‘Mm which * thy dangerous object was placed

. ° ° 4 i

a gratuitous licensee na duty » prepare a sate place’

en > hOe-

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on the property by a third person-if the property Gwner-

had actual knewledge of, its. prese nee. On the other hand,

there is no.lability on the part of thecowner if a third

party creates the ‘daagerows situation and its, existence is .

unknown te the property owner. The latter is undet “one

obligation to make pertodic ins spections in order te ascertain

whether any hazard has bee n created by any third person

and to safes: ird against any =i ich remote possibility,

Applying the foregoing, principles to the admitted faet-

if this ease, no basis for liability is discernible. No legal

or moral obtigation can be perceived on the part of the

defendants to pay -the plaintiff. for the result of their

tragedy. z are ats

. The, defendants : -motion for summary judgment is

aranted.

- AtexanperR Howrzer:

ne nited States District Judge -

Nevember 20,1961. * 0 > °

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- °° UNITED STATES COURF OF APPEALS

EOR THE DISTRICT OW COLUMBIA CIRCUIT —

ee : —

No. 160% M4

Genatrrupe Me tis TTIGAN, iT ALL, APPELLANTS

; ; hove"

; Y. é L

. + * -Nawiowar Bank -o | Waster ee

Fre A. Surya Co, ‘APPELLEI ‘

Appeal from the I tite States District Court

/ _ytor the Distriet-of Columbia : :

Pd . - .

Fe ca:

“Decided May 16,°1963.

Mr. Harry Wy Goldbere, with whont Wessrs ‘Morris tlt.

“man, Joseph Gélb and Mar NM. Gotdber: a wer on the brief,

for appellants. : | :

Mr: Paut R. Connolly, with w hom. We. James A. Dieison

was on the brief, for appellees

‘Before Encerron. Senior Circuit Judac, and Farny’ ane

Wricnt, Circuit Judacs. —

any. Circuit Judac: Gertrude MeGettizan, individualjs

and as mother and next friend of Charles S. MeGe ttign,

a minor, sued the National Bank of Washmeton, a Aor

poration. individually and as t rustee, and Fred A. Ainith

& Company, a cerporation, foswenages alle: cou] ve have

heen saffered by the minor-in circumstarice- ty he ex

plained insofar as this-can be done on the presgnt record,

Following rather full pretrial proceedings, 1c/ludine the

taking of depositions, arid upen the hasis alfo of all

tions in- the pleadings, the District Court trfnted the mo

tion ef defendants for summaty jndziment./Plaintiffs’ mo-

| a:

‘tion for. reconsideration was denied. This appeal ‘was

then taken by plaintiffs. ys Bat ot

Mthough there may not now ‘appear to be any “genuine

. issue as to any material tact,”’ we think deféndants were

not ‘entitled toa judgment’ axa matter of law’” and there-

_ fore not entitled 40 summary judgment. Fed. R. Civ. P.

56 (« ‘). The pleadings,: depositions’ and -other evidentiary

matters before the court were, sufficient if followed by

.proof at trial to permit a jury to find the facts now-to be

éutlined. The defendant. corporations. were .responsible,

as owner and agent, respectively, for the care of a building

near the heart of W ashington known as 2413 Pennsyl-

‘vania Avenucé, N.W., held in the name of the bank defend-

ant as trustee.- In ‘the rear of the main building was a

small structfire where the occurrences leading to this ease

arose, Although: some Years ago this structure was in

good condition | it had seriously deteriorated. ° Doors had -

disappeared. Windows were out and the glass broken.

The structure. was open to the elements, and.was a hang-

out for persons ‘of questionable oceupations and habits.

The interior was cluttered with debris and the roof. was.

insecure, The structure-was ‘used at times as a’ sort of.

elub house for young thieves, who engaged in the prae-

tice*of stealing flares from various sources, ineluding rail-

road cars and telephone fricks, and using tlrem for. their.

amusement ‘near .the premises. The place ‘as the sph.

- Jeet of complaints. ky neighbors.”. Beginning in 1955. an

employee. of the defendant agent made a weekly iInspec-

tion, which dise? tosed accumulations of debris’ A. police--

inan on several occasions advised the agent of the decrepit

condition: of the premises, the gecumulation of junk, and

othe presence of vagrants. Although the agent; Smith &

Company, agreed to correct the situation, nothing was

done prior to the accident soon to be described.t| No ef-

*Weido not hold that these eonditions existed, The pleadings

and depositions indicated isi ntiffs could introduce évidenge that’

they did ¢ €Xist. :

“Wa a

‘fort was made to close the structure, “remove the de bris,

-or restrict its us® by chil Tren, delinguegits and Var: ants.

— On March 3 3, 1956, John, cle ven years of tage “and brother

of the minor ‘plaintiff, Was playing in the structure: ’ He

obtained from the trash and junk there ae viindrical, the:

lar obje et, which he took to his, home nearby, unaware of

what it was. And the boy had seen it Sever rai tinws before

during the months he played in the strueture. His mother

‘ either found the object lving in the kitehen or was given it.

by another kon arid placed it ina paper bag outside the

back door where there was a small porch, The following

day, March 4, the minor plaintiff, thin nine years’ of age,

Was seen hy his mothér playing with the o! ject, Which he

had broken in two. Material that looked like sand had

come out of it. His mother tuld the boy to sweep this up.

Some minutes later there was an “Sp ilosion whie h severely -

burned the boy. It anpears the substance was powde rand

_.. that the*boy applied a’ halted match to waxed pape ro oon

: which-he had sw ept tlie powde ‘¢ ‘

It is not. alleged that the date ndants

jo the premises or kneé w it was there.

We think the plaintiffs set forth Facts hich: ‘if proved,

Would permit a jury to tind that defendant lark iowner and

his agent were negligé nt. This being so, and substgntial

\ °

damages having heen alleged as stemming from that pegli- -

sence, She ease should have been submitted to the jury.

Nell gerica Nis “eonduct . i. which falls below ‘the sland:

‘sa established by law for the protec tion of others avainst

Bes ratchet rivk of harm.” Restatement, Torts 4 282

(1954): 2 Harper & James on Torts 896 (1956). And the

: standard of conduct to be applied. i< thagep? the re sas <gnablé

man in like cireums tances, See Prosscfyow Torts 1: "4 £1955).

Whether a defendant has.acted as, a’ reasonable gman in

the. cireumstances is said to. depend. upon whether his

conduet—acét or omissions—ercat ted. an unreasonable risk

of harti toward agilaintiff. This principle is sometimes

Ss «

4 le flare.

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‘Stated ap tevms of duty, viz: wlieth: the defendant Lad, a.

“0° duty. te°use care toward | plaintiff, and if so whether it

eae ewas hreetched hy the conduct complained of. See Win-

93 dick, Duty in.‘Dortious Negligence,’? 34 C olumbia: L. Rev.

~ 41 (1954). 2 The ultimate quest Jon is. whether defendant

Sean fairly be said to be responsible for the injuries ¢o

we plained of © If reasonable men pould not ‘differ in answer.

‘oo ing. that question the court, ithis seid, should not allow

the jifry-te speculate about it: but if reasonable men could,

+. differ and draw different inferénees from the facts, or,

find one set of facets wien two are Offered and from) those

ara found could conclude that defendant's conduet was negli...

gent, then the jury ought to be permitted to ans ewer the,

‘ultimate question, Grand Trunk Rio ¥, Tres, 1440S. 408 ..

{ 1892). * car e

Defendants: are in the position of an owner or sgcupler ;

, oO land, for whoni thie commen law created something of

. a speci: status. ‘He ‘as not liable at common law for in-

- ° juries to a person coming on his land unless such person

was an invitee, guest or licensee. If he were.a trespasser, . -

: “he could’ not hold the landowner or oceupier liable for his.

: - ‘injuries, See Gretn, *‘ Landowner v. Intruder: intruder v. *

Landowner. Basis of Responsibility im Tort,” “Mich. 1. :

. Rev 495 (1923).- But the law has not rathained static in

Se this area. Just as it has advanced in recognition of the

need for greater protection to both persons and property -

from the affirmative acts of another, making negligence —

“the central basis for civil liability, *it also has tended to .

bring the: landowner or occupier within similar rules,

Night leaving his status less” privileged than .it- was cae

2**On the whale the rules of acendent law are so formulated as

“to give the jury considerable “scope in deaidine’ what fhe parties

_ should have ‘dond, in each specific. ease, as wel! a8 what they did.

do.”’ 2 Harper ad James at S81

“

3 Sec, e.g., Brown v. Kendall, 6.C Le: 60 Mass 6 997 (1850). #

Holdsworth History of English Law, 446-59 (1997 ‘

This has been egpeeially evident it : the gase ‘of Ch vildren af:

tender years. e i

This brings us to the fee of Stour Citu & Pacifi RR

v8! out, 84.0 S17 Ww lace) 657 (CASTS). A six vear old

‘child’ Was playing on an unguarded, unlocked | railroad

turntable whieh when’set in motion eauglit and crush d

his foot. The Court, seemingly treating the vhild’s pres

‘ence and that of other chaltren on defendant's land in the

past as tut one, of the cireumstances in 'whiely it) was t67he

decided Whether the landowner’s' conduct was proper . Said:

{1}f from ihe evidenee given af might justly be on

ferred by the jury that the defendant, in the con,

struction, location, management, #r condition of its

machine hac omitted. that care and attention t6 pre-

vent the occurrence Of aceidents which prudent aa

careful men ordinarily hestow, the jury was at liberty,

to find for the plaintiff. © ° /

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$4 U.S. at. 661. From tis beginning the courts |

fashioned a concept called attractive nuisance, undeygy uch

-the status of an intruding child isflike that of aff invitee’

rather tean a. trespasser. Tn other “words thre principles |

of negligence become relevant yotwiths standing the child

came upon the owner’s land without permission. But there

“was under the earlier rapproa wh of the doctrine the ‘require-

ment of an _allurement as welk as thé. tests of megthigence. |

This ceased to be a serious obstacle to recov ery, however,

“when gourts began to abanden’ the fietion of an‘ inv itation

by alluremérit and recognized—as the Restatement has-

another basis for the result reached im such cases as Stout,

mamely, the value of the lives of children to society. Seew-

O.0., Wolfe vo Rebbe, 128 Conn. 110, 192 Ati. 608 (1957%.:

Drew v.. Lett, G5 Ind. App. 89, 182 N.1. 547 Bhracde And

compare Best-v: Pistrict of Cohabia, 291 U.S. 441 14984),

Sioux City & Pacific RR, y. Stout, supra, sae Easthury

v. Levin. 72 App. D.C. 190, 118 Py2d 176 (1940), with

Enited Zine Co. v. Britt, 258.U.S. 268 (1922). and Branan

v. Wimsait, 54 App. D.C. 874, 298 Fed, 833 (1924). Oe

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In Best'v, District of Columbia, supra, the dangerous

‘condition which cansed the child’. death was. 4 hole in tie

* glefendant’s pvhart and not: the piles’ « rf sid Upon which

éhildren lad®previousiv played... And th Fastharn vy. Levi,

supra. this court said: — :

Tie unde riving ) nestion. is whether it’ is hotter te:

- Jet gecupants arrange their premises: in total aisre-

vard of a children, or te reqnire them to >

t : 2

take snch-precaWions a<acnormal persen would when

their preinises are, attractive and ineidiousty danger,

: ons to ehildrean tow VOUS to look ont for f bisa mselves

and when the amtrusionm of such elilds On) yi like iv. On

the one sidé ig. the ovcupant’s Tterést, anal the weeneral

Int ae In the profitabl use of Land. On the other

is the Ghild’s interes}. and the Intérest of his putrents

amé of society, an Hite and lial gnd in eomupensation

. Pd ’ td : .

for ther injury.

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App, -D.C, at 192, 113 Fl2d‘at Ts. Phe @miphasys here

1s upon A halancing of ~Pyer: uo unferests in the lied of con

duet that threatens hart, saci by the standard: « “the

“rensonadde nian. And, soe ane Wimsatt, supra. ° «

In the pres sent case dé bei dnres sontena that since the

danzerous inatrumentalits Was ‘not used hy. then or

hrought by them onto their premises the plaints ffs ee

not ae Thie eontention fails to + ake deeonnt of th

‘geope both of the Jaw, of negligence and %he ry | Hives

‘

nent of Es tetive nni=finee dort rine, that i+. the rate

of liability of a landowner for ne wlicence witir respect te.

childre not fi auc rears! Courts hiave ex xtended te such

ag ms . 4 os . : +e

*Evefi 90 -vears aftersple Stout decision. 79

- .

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neat Give canikteantod het coebe dat iit wwanld Snacts Likely he

MTVOTINOE YT Cons mTed bf ‘ “oO oi 1 is Wahi ok we EIKO. .

‘ .

yall ti hare TESNTET Oe J the prise or. be eon Nvworiisy. Vv rey) f r

a H d r. U

Mee RGD he ite elat ay S| lAor traclitinr nNPeeDt Lit

O TNE No V, Petain: Vraer Tig sede ‘ a sb COUEN fs Fl

accordin’ to eAtecarye tPespuss .@ Tey tyes 1r)s fix ““f (, reel

Ltae re : C

*Lamilowners. Res: onshriity “To ("); hyren La Ti 427 Be | Vee

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children’ the prometion of the law te inchide injuriv¢s oe

curring: off the defendant premises, Thos where a child

found altnamite capes ani took theme home where his-broth

er, also a child, played’ with tive nian was injured 3 boy thre

restltaiie eXDlesten, the initrd hild' Was allowed to re

cover. Jig rendart Marbli bys ahs GQurtoan. B33 SW Jal 404.

(Tex. Civ. App. OG0). See alse. Vilis v. Citu of Cloquet,

119 Minn. 277, 188 NAW..38 (({912b: NKavaslawd vy Erie ‘°

County Aaricultural’ Soc'u, 208 N.Y., 409, S84 N. be 88

- 2 . “| ’ 4)

if 149) : me Star Gas Co. vy. Parsons 159 Okla. 52, 4 1 od

260 41932), Tt ie sud that the defendant < conduct m miain

*f . " 7

taminiz 3 edhidition carries ancunrefisonalde risk of harm

te sueh” children When ‘the presence of children von the

: premises jy. eas ted]. Seo Prosser, **'Trespassmyet ‘Chil

dren,” 47 Calif. Rev. 427, 448-50 (1959).

: : iar 3

Nor is the doctrine inapplicable berause the dangerous

eortaition is not ere ater 1 the han lowner or POSssessor

it third yersons, geven tre “pa ters tnknewn tthe lard

owner or geenpLer, cote, ONTO the and and create the ar

tifielal confiitvon a depesit-the harmtul cobyect. angl the

owner does not hine to remedy the-condition after a fea

sonable Oppertynity eta do so, he omay be responsible. -

Roman vy. City ob Ledtemevorth, % Kan. 379: 182 Pac. dol

(IN1BVS Simmel vo New Jersen Coop, Co. At Nal. Super

500,136, N2d oul, ¢ Ap. Div. 1057 y: Johnson Vi Sealley

Constr Co., 9%) NW.2d 4 400 Minn. 1959). But see Gal-

liir ape ry. Fr: derick, 366 Pa 450, 77 A.2d 427 (19 v1).

' “he ee eel ser ee F

es the eared, ret of thie Restatemént,-Torts ° 339 (h), ‘the

*-ondition. (ns? bel one of Which the posse Seer] knows or

4 a » s ° 3

shguid Imog:... 7" Ohe authority suggests < that the alter

: ae

13. note BY (JO4S7. for a bpief discussion of the mult s statue and |

cure 2 ’ ¢ ° -

lleetior OTe « t sine 13 rye} thre sipurest ere

that a sligit trend as i result an tase trespas-ing

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oon! bad

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pes < on F . ’

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native ‘‘should know’? does net reflect the law.

statement as well asin some of the dée ided: ccuses, seen...

supra, and text p. 6, supra, whieh shifts Habiliay te chil

dren to a strauhtforward neghvence hasis. The effect

-of the progressive application of the attractive nufswnce

doctrine has bebn, we think, to, erase the litie separating

_ landowhers and oeeupiers from other persons gehe rally,

owhen their acts Gr omissions create an unreasonable risk

of harm te cbildren of tender vears: . Jantes, Vert Liabil.

* gery

Lity of Oeeupiers of Land 2 Duties Owed-to Trespassers,. * 63

Va le laa. 144, 164 (1953 ).. Sew Nt Pe Wolfe vs fick the HN,

supra, where it is said. ie

eare to he exercised ie sel’ fee is reasonable having

dn view the probandlity that children, because of. their

youth, will not. disceven the condition or realize: the

risk. invelved in intérmeddling in it or on eoming with

in the area made dangerous b¥ it... . :

123.Conn: at 116, 195 Ath. 610 CP Bee

Applying ‘these oes ‘ples to the, facts whieh might he

proved in the Instant ease, whieh we repent in’ summare

form, we find a rundgwn building.in or near the heart .of

his view’.

fails to Appreciate the development reflected inthe Re-

“Tf ine presence of children is to be anticipated, the |”

11st They ‘vy N. Brand

ees PP 8 P :

> Notwithstanding the wishful thinkine.of distinenuished Jeena]

* 7 + aeritets, ne coe as even held that the possessor is reaiured

fo Inspepr his land, orcte police it fe ise wer whether ther

is any eonditieg upen it whieh world by ldsels te harm tres ;

P : . PESSTEL, children ha ' the e*epryt rey the deerspons are ni)

to the effoet that unless bn _KHOWS of the condition There is one

ability: : ‘.

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RS om Prosser ae prit, 7 Calif. L.. Rev ‘at 451 “Te tha contrary, sie

Cocur ee | i We. Linh ous fy | Thompsay : fg Pec a = ba Cir,

‘oa! and Chi Ca, GE NW 6 OMing

1454 Nomiiih 4 rr Hy § P nei ris * 4 7 Pos 7 2 foie reas Lerion. 7?

a A 2d cay Min: "T9544 Joh naan VV. Ne ley Con Harti, fren fa).

* Supru;: and Sampyiel % Na if dee seu € oop ¢f .. Supra ger

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a large city. Doors iad disappeared from ‘the structure,

“and the Interior find become cluttered with debris of vari-

Sous kinds. Wersons of questionable habits tised the place

asa hancoyt. Neishhors conplained ef the buildmeg’s ‘eondi-

tion, Polieemen advised the owner’s agent con more than one -

Becasion of the buildine™ run lowy condition cand of the

periodic” presence, of vagrants. * Fytihermore, a general

sirovision of the D.C. Code was in effect a: the vime which -

placed upon landowners the specific responsi bili ty te .seer-

to it thet their land was kept free of dangerous debris."

“ cr ee 2s, 3

5 Fees ( ode x 54 provides tS oligws

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<i The existence on ans lot at payee! ¢ tan foam the TDhistriet of

-” “ '

of Columbia ait misee aeons Mmiaterizis-or Joodypeys «>! iti

- kind ine} ludime substariees that hizete capa lab ein lar. the re.

sult of repairs to vards Gr ; ney ftihdine aneratious, Insofar as

thepafect the gublic health, cam fort _safetu, ond wetfare ws

Aervhy declared ¢ mised Gevqeron . des Vite wid Tm, and

anv person, corporation. Martuership cendiente Ur campan:

owning a lot or pereel of laud im said Distriet an whieh such

a nuisance exists who shall negieet or réfuse to abate the sapre

to the sptisfaction at the, commissioners ot,.the Dist ret at

4 ‘oluimbiz., atter five da vs, noatreg from them to do sa, shall, on

-eonvietion ip the Muanieipal Coyet . he punished ba a fine

ofiot exeeeding $50 for eneh and every das saul person, eor

poration, nartnershfp. or svnedreate farls to eomply with suet

~—

notiee.. | Emphasis siipplie:

6 .

And this court has decided -

Where the arts whieh erentesa rrugdel ie Niisenee enuse. als pr

vate and speei! um Urs tent nflividual an aetion at law wil

lie, {Citine! inter alia, Aldrich v- Wetmore, 52° Minn WA

5 NW. 1072 (1895) t f : -

= -

District of Colhwtthia ‘ Te fen. Ty Apr Rt. S12. SiR F.2d 344

#54) (1925 3. See also Thayer. Publee Wrong and Private Aetior

OF Harv. L. Rev. 317, 354-55 1914). In National Ronk of V ash

: x ey “.

ingtox ¥. Diron, 112 U.S. App. DC. A838. 601 F.2d aly. (1961

this eourt approved the trial eourt’s submission to the jury. on the

. o ew ss a ? <5 kad Z on 1 “ ie ss + acu

question. of a jativdow neta lah a re) PoerPwesNys tl PE LUT ae tee ST's

a 3 ne wt ry | apwteneny heiieine v wrilat yen “or ae Pree

SGimrVy question wherber ceriwcn mn] ‘ tations & ‘ foolsite

and if-so whether the violation AME yanted to negligenee

°. } 4 5 rey

‘Children had played on the premises previously. The

plaintiff's biother had ehimself plaved there before the. oc

easion in question when *he pulled: out of the debris ‘the

objeet whieh when exposed to the minor plaintiff. and his

ebildish enriosity about its contents caused his’ injuries.

Finally it. is not contended that defendants -had attempted

either to remove the trash or to hoard up) the premises.

.Upon proof of these circumstances ve think -the question

of derendants’ negligenee should’ be submitted to the jury,

This is not a.easé ofta vaeant let iD<the -suburbs where

a trespasser but the day before has 4a trap, nor a ease

of u boartled warehouse in thé ety Where others have

broken in and stored. their loot. Rather our extse appears

at present to be one of a tandewner who has allowed

Hararacidale flares to he ‘deposited—undets eted and unre

moved—for-sueh a period of time ts to warrant submit

ting to the jury the question Whether in all the @ireun

stances of the ease this was negligent. There’ is-not only: *

the continued presence of the flare, the harmfut nature of « ‘

whieh could not readilv’ be appreciated by voune einidren.

but the accumulation of Junk which defendants faifed to”

s . ‘ .

gemove and. of which thy flare’ turned onj to -be a panei

The data before the trial court ereated an issue as to an

“unreasonatile risk.of harm towards the minor plaintiff, a

Bs, te ; é . a eee o : :

child of the’ neighborhood, Whose Jinjury a jury .might

reasonably conélude, might havg been prevented by dhe

care om the part of defendants. The. jury should be al

lawed to decide whetier due care was in faet “exereised,

because reasonable men might differ as to what: Was re-"

quired of defendants in the’-facetual situation ‘the jury

could have found to exist. See Grand Trunk Ry. v. Tres.

supra aip, 4"... * :

Two matters remain fér additional comment. - First,

We are. reserred to the eoneept of foreseeability repre

: ; ° sp eae

sented by the case of Palsgraf y. Long Island RR. 248 N.Y.

339, 162 N.6. 99. (1928), wherein lability was denied when

the court tound that a push of a Passenger carrying con.

: : * : ;

\ : . ° . .

cealed fireworks was bet a wrong. with respect to the >

plaintiff standing some. distance dewn the platform. . The ;

court did not @ay that no risk of harm Was created hy

the act of the defendant’ avent. Rather it, found that the -

-ambit of the risk did not. include the plaintiff: injured by

talline scales after the -explesion enused by the dropping

of the Greworks ifm the passenger, wh@ was pushed.- The

eiremmstances of the insti.t case are different in signifi-

cant respects, tsa tece a veneral condition prevailed which

pué the kindowner of-netice, 6r so the jury,eould find, that

his land was being abused or misused. .Furthermore the.

presence of children whe eould net, be expected io appre

ciate and theréfore avoid the risk created by the flare i a

oo factor. here of utmost significance. oe:

Finally, Whether the necheence which.we think ean be

made out on the facts here aljesed will render*the appel —

legs responsible in damaves ix a question of proximate:

viuse.” We are told that the mixer plaintiff's mother Hae

an opportunity, to see the Hare and left it an reach of. the

ehild injured by at. We ag e that thy reeord suppearts

such a view of thé facts. aa we are not prepared to say

that.the’ defendants’ negligence, if amy, was not a prox!

‘ °

mate cause of the injury, bearing in’mingd that in the eas

of miners the neghvoenee of a. pare! may. not normal!

2 ° A . 7 : ,

7 Insofar as the Hp pei iees hs | line 9! Zorpseeabalyts its Chengde

to the issue of proximate catse we pop! ou? this court dias in tiv

DUST Sei ;

[Wie are commistedfte the ritig i newheence eases that wher

inthe natural and continual sequence? unbroken f amt, iter

vening cause jan injur is prodieced whiele’ but tor the mee!

gent-aet would net have’ oecurred, the x ressseehover Will be Ercabele

And it makes ne difference whether of mt that Pparticiiar ve

sult wys foresecuhfes

Hitaffer v. Argonne, 5% US. App. DC. 57, G1. 183 F.2d &11, 815

1AM :

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; ‘

“nav. Fletcher, 97 US. App. Bis

of ¢ ‘logiet, supra;

_ heved of liability. merely be

“n’ time. .

UO _ 29a Fad

he imputed to the minor.” “See 2 Harper at James, SUP.

at 1270-71; and-eases colttected in 15 ALR 414 (1921),

And, generally on the question of proximate Cause, see Han

110, 231 Bizd 469 (1956),

and Desendort Marble Co. v. Gartman, supra: Vi ills v. Cun

Ainasland vy. Erie County Adrecultural

Furthermore, and we do not pass upon this

aspeet of the case since in a trial it may be permitted to

go to the jury, even if two or more acts of neghvence

coneur to produce a single injury, one tortfeasor is not re-

“use his negligence was ear lier

It may still be a. proximate cause of the injury.

See Prosser on Torts <* 40 & 46 ( 955}; 2 Harper rad Jame Se

> Restatement, Toris, § 452 (1934). :

Socy, Supra.

Supra, \ ut 3

The granting of appellees’ motion for summary: judg

nent was errofieous and the order appealed from is ae.

_ eordingiw reversed, ver ‘

: Reversed. °,

: : <

“ os ;

\ .

* 28 A i

: :

——-— : - : i °

“If the jure were to find th wat the parent was contributeri!) negli

gent, the parent s aetlon an her rye 2 behalf would alone be affeeted’

o ‘

, oe : wa : fe

: . [Filed June 27, 1963)

- Ut is Onpenen by the court that the opinion deaded Mas

16, 1965,.1n the above

sentitied case is amended wx follows.

On the last line of the text on pare 7, after (App

Div. 1957)°" insert: the féllowing

** ver'd Gn other grounds, 98 N.J. 1/143 A2d 52]

(2BRG) 6a" : ‘

es 4% cei

so that the line will read: ns

509, 136 Ad 301 (App. Div) 195702 red. on other

~ grounds, 28 N.J.1, 148 Ald 521 (1998). Johnson v

si as - , ‘. 6 6 k

i Seuilew’ .

im page >, in the Hext t

the last line of Footriote

“after the word’ “supra’’, change the semicolon ta a

period and delete the fotlowiny

‘ang Stmuyel x Rew Fors. uv Coup, Co. supra.’

‘ Per (irr.

Dated: June 27, 1968: :

? e i

“ lta

Supplemental Opinion — Pa

. :

Filed Jie 27, 1968 2

>, & * he 2 . ° Ae 4 s % ‘

pefore Knaerrox, Sentor Circaa Judge,-and Famy ‘and

Wariner, Carewt Judges. : , uy

Pasty, Corcwt Judac: Appeljees’ petition for rehearing

*en-bane, which has been denied, points out that we failed

rey

te note fhat the proposed change. in the language of § 33!

Restatement, Torts, had been approved by the American

Jaw Institute. As the section’ now’ reads the language

‘should know’ in Clauses (a)‘and ()),*is changed to **ha-

reason po know.’’ -With respect te this change the Insti-

tute -Coun¢il stated that the decisions are unanimous fo_

the effect that the possessor is unaer no duty te investi

vate to aseertain whether children are trespassing, or are,

likely to trespass..°"The Council also explaineel that-

‘should knew’? involves an obligation of reasonable care

to inves diate the facts, while ‘thas reason to know’? means

that the. possessor knows enough to inter that the fact ex. °

ists.’or to govern his conduct on the assumption , that it

sists. We adhere to our views its ‘expressed in our op.

jon, acd ling that, Were We to app if the changed lar ruage of

‘Section 329 ef the. Restatement.to this case a reversai’

wold still be required: for the ‘data hetere the District

Court if followed by. proof weuld enable a jury te find

that appellees had-reason to know fhat the “fact’—-that

ix, the -de scribed condition—existed and - the place ‘was

bern seq bs children. If, however, the change. ki Sev

tion 339 ineans that if such 2. situation as is, now before/

‘ us the appellees must be showr to. have had reason tg

know that fhe flare itself, exis .d among the rubbish, wh

disagree. A landowner or ecenpier may know or pe

charged with notice of re condition’on his premjses whieh

shonld reasonahiy lead him to take preeantions against.

intruding children of tender vears Withont specific, Yosi-

tive, and current knowledge of-the particular thing, /

stituting a part of that condition, which afterwards ¢

° ; ~~, : Ze

j as 1n ( pour dv Ale ne Lumber Cv,

Ja”

injury. . Af an ) example, an unguarded and clogged pond

Tiompson, 20k ed. 8,

17-18 (fth-Ci ir. 1914). And see 2 Harner & James on Forts

“148 9) (1956). ao SP Pe ie

f ow a ae .

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r The cited atithori ty provides the folk wing analysis:

Inspection. ix one of the commonest precautions whieh the

duty of eare may require. a defendant to take for the renioval

"of danger. Mut it has been said that the oce upier ot land OWPS

no dity of inspection to diseover conditions dangerous "to tres

: passing childrén. Such*a rule would, of eourse, be a logieal

enough corollary of the nouion tht. landowners owed ne duty

of care to trespassers. Buf if the general. principles of negli

genee are tocbé-substitufed for the older. spegia! immunities

then any exemption from: 9 duty to imspeet, as 2 rmiatter of

law in all eases, is either ra vestige of the older principle aban

is out of place under ‘the “newer one, or'the erection .of i fixer.

one of the -preeau ions commerily ine dental tu the exereis’ 0!

“ordinary e eare. Here, as. cisewhere, in’ans Piven ease, inspec

‘tion may not be feasible or may seem une: Wel for. orjan inv

syivetion v whieh would have disetosed the particular cod id pert)

is may be Junreaso nably burdensome And-sinder general prin

ciples. if the danger was neither known im fact nor disweeverable

by EERE SA inspection the ‘oeeunier eannot be held Ther.

is no reason im logic or noliey for ¢ \tending the exemption fu

. ther { Footnotes emit ted. | ;

° Se al

= Ee

YOR

i [Filed June 97,1963) = \

on ; . : A ; Order : : o ;

Om consideration ot appe ‘Hees’ petition for re fearing en

hatie, ft 1s : - \,

cae e Rh . Per Curiam.

Dated: June 27, 1963. Eee ;

! Cireuit Judge Wilbur K. Miller would grant the petition.

| sah Circuit Judge Danaher dissents from the foregoing order

and would grant appetlees’ rehearing en bane for the

following reasons: “This erideeviaonal? ‘ase inwolves the

, ultiniate possible liability: of a Jandowner for injuries re

eeived, not by one who Was a (untae hut hv iis vounger

brother playing in his‘own back vard. If the opinion were

. _ limited to permit recov ery. because of injuries neeeived hy

the trespasser when ‘on the land,/due te causes of- which

the landowner had someé notige-or as to the existence of*

whieh he fairly might be charged with netice—1 would think

ye sans, . Marble Compan ‘y. Gartman, 343 S.W.2d 441 (Sup.Ct.

+ 'Tes..1961), where the appellant owned the dynamite cap

: and as a usér of blasting equipment. owed a‘high‘ degree.

a ‘ of care. ° Bok ;

Here, howeyer, the in yury did not ocenT on the lati.

The. plaintiff’s 11 year-old brother hroucht the flare to

‘his home. It bore a label sifowing it had beer manufac

+ tured hy, the “Hitt Fireworks (o,"") His Wh-year-oli

RR brother took thr flame fron the younger lad; and it was

“fo... given te.the boy’s mother. Labeled as‘it was, the 15-vear-

“old boy obviously recognized it a= a possible source of dan-

ger, *( ‘ertainly the mother could have dome so, The mother

had it within. her’ power to make a condition of safety

sure, but did not do so. “Instead, she placed the flaresan

her own trash from which the following day ft. was removed

Onvenep hy the court: that the petition is hereby denied.

the opinion. sound. Compare, for Rca Derendor? |

Oe ” .

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Wii

- * ° ,

by her younger son, the plaintiff. The Jad breke it pen

and released. the powder which looked like that fourid in’

fireworks. “The mother. saw what had happened. She:

theught it-looked like sand. She thereupon directed: the

ehild to clean up thy Powder and-left. Then it was that the

boy found wax paper, lighted it and touched eff the powder

to his injury. ;

It well may be that a study of ‘the whole record, and con:

sideration of the authorities would find me in agreement

swith what has been Said by the sitting division. . J am sufi

ciently disturbed hy the full import of theefar-reaching

‘resilt here reached that-l-would have liked-to hear the case >

‘ ae

argued. ‘

“Cireuit Judge ‘pasiian did not, participate in the fore

voimg order.

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