Bradley Pace, a Minor, by His Mother and Next Friend, Carmen Pace v. American Radiator & Standard Sanitary Corporation
346 F.2d 321
7th Cir.
1965
Check Treatment

*2 relief, III which him would entitle Sydney Berger, Lockyear, L. Theodore judgment Conley must be reversed. Evansville, Ind., plaintiff-appellant. Gibson, 41, 45-46, U.S. S.Ct. Bamberger, Evansville, Ind., Fred P. (1957); 2 L.Ed.2d 80 Due v. Tallahassee defendant-appellee, Bamberger, for man, Fore- Theatres, Inc., (5th F.2d Cir. Hahn, Evansville, Ind., Oswald & 1964); Columbia, Sass v. District of counsel. U.S.App.D.C. (1963); 365, 316 F.2d 366 DUFFY, Kurzweg Regis Before KILEY Corp., v. Hotel St. Judges. SWYGERT, (2d 1962); Circuit F.2d 746 Leimer v. State Cir. that its motion contends that each of counts of said summary judgment complaint treated as one for amended against fails state a claim upon and that of the district which relief defendant regard judg court granted.” on that rendered basis. The can be judgment entry states, however, ment, therefore, that the a dismissal of the summary judgment. court “now sustains said first defenses and not a * * upon grounds to dismiss (8th L.R.A. 769 Co., F.2d 302 Life Assur. Mut. Landrey, Fassion v. 1940). Cir. plaintiff to In order for the below did We think prove had sus he recover must “that dismissing I err in degree damages, tained different private In order for citizen sustained different in kind from those *3 ac law in an recover under Indiana to by by public generally, reason such the alleged damages against person a tion for added.) (Emphasis Mat obstruction.” nuisance, public it maintained a to have Hawkins, 225, (1883). 92 228 lock v. Ind. necessary as a that he have suffered is injury been the natural The must have special in nuisance some result the proximate result of the defendant’s degree jury, in kind from different duty— perform some acts failure to generally. by public that suffered the duty free here the not to interfere with 361, Kumley, Ind.App. 119 v. Eads pub access and on a unobstructed travel (1918). N.E. 219 way. lic think I of the We that count allege does not facts by plaintiff, Indiana cases cited plaintiff which would to recover entitle Haag v. Board of Commissioners Van- theory nuisance under Indiana derburgh County, (1878); 60 Ind. 511 law. 394, Paper Pope, Weston Co. 155 Ind. v. 719, (1900); 57 N.E. 56 L.R.A. 899 charges neg- Count III defendant with Marquette Chadwick, Pere R. R. Co. v. ligence storing carelessly pipes in in 95, Ind.App. (1917), 115 N.E. 678 do “likely area in a manner to attract ** support not his contention that he has danger which damage special suffered as a result of failing they appreciate,” could in not may recover, nuisance for which he as- duty by suitably protect them suming purposes point of this that guarding against danger, in fail- storing alleged ing by permitting to use reasonable care a In nuisance. each of those cases the dropped broken to be in the area right private special to a action for dam- removing glass. not ages resulting public from a nuisance attempts pose a di Defendant was sustained. But in each of those by' contending plaintiff that directly lemma cases nuisance caused the property question not injury since the complained is true of. That not plaintiff on here, any, cannot recover here. The if nuisance theory, and that public roadway by the attractive nuisance the obstruction of a city, property pipes, since it was the of the debris. Such city, it, duty give to main and not had the obstruction would rise to an action damages This tain the area in a safe condition. at the instance of a traveler however, escaped, supposed injury dilemma is who suffered some attributable owner, but Here, however, since even if one is not the the nuisance as such. place possession alleges of the plaintiff is and control I and the oth- harm, may instrumentality boys stopped pipes. be er around the negligence in held liable for the use resulted from the use of the thereof, Indianapolis v. manner; as in Water Co. in this it was suf- 308, Schoenemann, Ind.App. 20 N.E. plaintiff fered as a traveler because instrumentality (1939), roadway. 2d 671 where the the obstruction of under cut-off box involved was a water protected The interest company in a of the water control action, right private of a for obstruction grass plat and the side between a street right highway public of a of the walk, tripped over. which the of access and unobstructed travel. Cleve land, C., Ry. Christie, one ac Under Indiana law who & L. St. v. C. pub permit 691, cepts use a of franchise to a Ind. Dantzer enterprise Indianapolis Co., private as- for a v. Union 141 Ind. lic street R. protect legal person care to exercise care lawfully using from sumes the Indianapolis conducting business. his the street a reason ” Schoenemann, Ind.App. prudent ably Water Co. v. manner.2 (1939). think 20 N.E.2d McCormick, And in Penso v. apply one who also to rule would (1890), 9 L.R.A. 313 public occupies part at the street citing approval, also Emmelman with municipality. House- sufferance of a Cf. Supreme Indiana Court reversed the Indianap City League, Wives olis, Inc. sustaining trial court’s aof demurrer in Ind. N.E. eight year boy the case of an who was burned when he tried to over a cross Defendant, then, required to pri mound of on ashes the defendant’s degree of care exercise at same least roadway. property vate near a duty been would have city This under circumstances. argues the same if it had a *4 Supreme duty by the Indiana was defined of reasonable care was no there violation Indianapolis City Emmel in v. Court of duty plaintiff of the here because was (1886). 530, 533, man, N.E.155 using Ind. purpose the area for a not within duty, relying on of Town v. Geneva any- “Whoever, therefore, does Mesel, Jr., 632, Ind.App. 21 N.E.2d thing in, immediately adjacent (1939), City Whiting 458 Grindle, of and street, public at- to a calculated to 407, Ind.App. 59 N.E.2d vicinity of into tract children (1945). In Mesel the court held that they danger, appreci- cannot city the eye was not liable for the of loss ate, duty protecting them owes the of high boy eye a school who hit his by suitably guarding of the source stump por- ” wooden on the untraveled * * danger. alley boy prac- tion of an where the was plaintiff’s In infant ticing Emmelman shot-putting, city’s duty since the stepped Son into drowned when he a keep traveling its streets safe did deep dug pit in bed a shallow encompass activity plain- of the neighborhood stream near a street a Grindle, year boy tiff. In a fifteen old many where small children accus- were injured guard when a sidewalk rail play stream, tomed to edge in the knowl- to the swinging gave way on which he was city. Indi- of the defendant Other depression. fell a there duty ana ex- cases have reaffirmed the city duty held that the had no to main- pressed special guard Emmelman to exercise purpose tain the rail precautions where children are involved. using which the it. Those City Addison, In of Elwood v. 26 Ind. young did not cases involve children at- App. 28, citing (1901), Em- dangerous N.E. a tracted to condition near a melman, year boy a seven old was attract- roadway as in the case before us and as ed to near and drowned an excavation in Emmelman and the other cases cited roadway the side of a which filled Neither Mesel nor above. quires Grindle re- heavy water there, said after a rain. The court negligence the dismissal page page 48: at at of the duty municipality

“It is the of a further contends keep in a that as a matter to reasonably and sidewalks of law the streets action plaintiff’s travel, eleven condition for safe discharged throwing glass through duty fully pipe is not supervening by making a part traveled cause which broke the dangerous plain chain of causation street there are and rendered safe. If injury places usually part tiff’s not a foreseeable result of near the traveled although it, any. young negligence, street, defendant’s A if outside ordinary child, law, under city’s Indiana is not held to to use it Stevenson, Ind.App., City (1964). 201 N.E.2d 58 of Mitchell v. authority, public respon of a area for without of care the same standards storage purposes with it more carried sibility or a child an adult as maintaining anticipated the area years, it is to be mature passers-by create so as not to for children young in areas will that my In Hoover, to them. a likelihood of opinion danger. 100 F.2d Luhman v. is whether 1938) (applying the crucial (6th Indiana Cir. de- law); McCormick, a causal relation between there was Penso v. assuming City conduct, under cer- fendant’s 9 L.R.A. might Addison, Ind.App. have been tain circumstances it negligent, of Elwood v. being case, plaintiff’s This 59 N.E. 47 subject say so direct and foreseeable as a matter of law we cannot liability. defendant not the sole conduct was injury, concurrent cause of presence is not rele- of the boy. other the conduct of the because of pipe which the vant. The following ques think the nothing more than was thrown was whether trier of fact: tions were for the played It no for the missile. conduit had notice had or should have defendant part happening. If the material glass alleged in the be broken pipe, above the had been thrown anticipated area; should have whether it might none- have occurred the accident likely stray small children were Moreover, presence of the theless. *5 play the around from the sidewalk and glass area, not used dedicated but the glass; pipes and and whether the con proxi- public purposes, was not the throwing glass duct of the other child injury. plaintiff’s The mate cause of pipe which brought by an eleven- about looking, con rather than defendant’s piece picked up a who duct, proximate cause of was the glass plain- propelled it toward injury. independent and willful this That tiff. sufficiently III activity, presence conclude that count rather than charges have fore- that defendant should pipe, proximate cause or was the small children seen likelihood that by the demonstrated occurrence is by nearby passing pipes, on side- might eye supposition play walk, be induced about would injured by playmate if the have been using pipes; the area up picked a stone and thrown latter had storage it had the glass. piece In those cir- instead keep area say cumstances, that because could we guard suitably area happened in an area which the occurrence alleged pipes; around possession de- was controlled duties are actionable breaches of such presence liability ? The followed fendant plaintiff. at the instance of anwas and the of the broken alleges upon which The count a claim had no adventitious circumstance granted upon proof relief can be sufficient charges proximate effect relation cause and made. district dismissing III plaintiff’s injury. erred in be de- The case should and the upon upon than this basis rather cided that extent is reversed and cause duty defendant of what a determination proceedings con- remanded for further proxi- plaintiff. was a there Unless owed opinion. sistent with this con- link between mate causal Reversed and remanded. occurrence, questions of duct and the negligence rele- do become Judge (dissent- SWYGERT, Circuit vant. ing). rationale, majority says Upon affirm the I would that the vital use, dismissal of the this case is whether defendant’s