# Petition for Writ of Certiorari — Beach v. District of Columbia > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_1299%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1963 - **Citation:** 375 U.S. 943 ## Text ° . ¥ Hire é perry 4 Sy cy" ‘ % } § j H LD | ) athe ae ah ae, pass Aan om ee ect inaaba oie dears : : -SEP 23 1967 | oe : qi “YQHN F oAWis. CLLR | i = - 9 | a) © IN THE: Ree z - 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 . . | i ° > Se é s eo ay" Cr: yas e . ° ; 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- ae : . + @ = i i “4 A. i" : xia, q ° A * Dy © ‘ oes f t aor u sre _°* ; 69 # : ee ae ; 2 6 : 5 ? -_ 2 o . ? rs . s ' : “3 . io } é : ‘eo al z é J « . ‘ ‘ é ad $ a 2 a . : 0 ) ° - \ : — oe ‘ .) c . IN "RIE | Supreme Court of the Anited States es OCTOBER _— 1963 %, Bo _ es a / 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 Ps the ( ait Court of “Ap peals; printed . 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 4 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 - I \ 7 er ’ 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 ” Sy 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 os 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 2 r. Co., 95 NW. 24.409 (Mim. - » 7 7 . > -- 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). es 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 * to 7) 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. ~~ 6 - 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 2 % . 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 - he her i] 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. ee 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 . i, . e ¢ . 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. . U * a9 14 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}. —_——- .. . i FOR THE DISTRICT/OF COLU MBE GeRTRU DE, McGerrT VAN, | fe Civil Action No . 73 Individually . - 1313-58 -, oo 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 } s ~., 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 . ‘. ° *& ° x. . > 1 . ‘ e . e > . 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 ° e e, . ° . i , 3 . “y -) a . @ is ° om . are 4 e . : . : 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. 2s i. 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 hOe- o - : ‘ . 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 > ° a a ° 2 a \ @ a : s e . my Bs PCM Ps % Oo * _* lia aty % es : e 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. 2 . 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. i childre not fi auc rears! Courts hiave ex xtended te such ag ms . 4 os . : +e *Evefi 90 -vears aftersple Stout decision. 79 - . ~ . Pea . e : 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 = . “9 «yy * ; ra ; : 7 aA © é. aot > ‘. y *Lamilowners. Res: onshriity “To ("); hyren La Ti 427 Be | Vee : 4 : . fp : 2 : ~ 3 2 . “oN : i e i] pS e J * e * ‘ rs . fe . a * . = . s . e * . > ° - ° _ - . . . Vit : . -- Z LF F . 5 ‘ 2% 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 ° ° . ° . * e a 4 . a % > . re, . | il - =. . 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: : ‘. ° - e o 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 ° i : e > . ae, _ 2 . ms . » . ° +) ? . ° a « . . ‘ a é ° ? > : - . oe e ¢ Ya : q : ; 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 ° : Ps : " if sl ot i j PEE INS ! 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 ? 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 : . ‘ _ « : ‘1 e . . ° . + Scene ; : ° a) * ; ‘ 4 > “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 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. °, \ : : , 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: : 9 ? e i t “ 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 Lor poo! © senerally shallow water may conceal a deep -w ell, 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 . | (ang 7 | a , id . f i f a . . . . s ° @ . . e ‘ $ ; . ° ° . 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. ‘standard: of eondu © that re! leves one wdass of defendants from 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? | e* Oe ” . ¢ . “ ~ E ~, 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. °, * . 3 « . N -4 ~ t E . e a ’ ° - 0 bd . ‘ 4 . ‘ i * % , \ \ “ , 2 x. : ‘ : > ° é 4 . . - ‘ é 5 : p . . a “ ‘ « ae ) : ra ’ 3 > * > ee ° . e * wf . . < * * --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_1299%3A2. Public record. Not legal advice.