Appeal from a dismissal of a second amended complaint in a suit brought to recover .damages for injuries to a nine-year-old child suffered when he fell from a sec *95 ond-story ledge of a house under construction. Affirmed with costs, to defendant.
Plaintiff’s complaint obviously was patterned after factual requirements of Section 339, Restatement of Torts, which states in sweeping terms' a' liability for injuries suffered by curious young children trespassing on another’s property. Plaintiff suggests that we adopt the section and make it applicable to almost all such injuries, including those occurring on building construction sites. "We are not constrained to respond to such urgence, and prefer to examine each case as it arises in the light of our own previous pronouncements on this and kindred kinds of cases, and of respectable authority of sister states. Some of such cases are collated in Brinkerhoff v. Salt Lake City;
We can see both virtues and vices in Section 339, but cannot subscribe to its application to all cases that might satisfy its general requirements, but which because of public policy or other legitimate reasons require noncompensability for injury sustained under circumstances taking it out of the principle enunciated therein. The title of such Section reflects its nonuniver-sality when it says “Artificial Conditions Highly Dangerous to Trespassing Children,” — which seemingly eliminates run-of-the-mill home construction cases, where any danger reasonably is as observable by a child as it would be to an adult. The parent hardly can expect to be entitled to delegate its own duy of care to prevent its children from trespassing, to one expected to have an even higher duty of care, who simply *96 is exercising his legal rights on his own legal property, without overt enticement of anyone, hidden traps for anyone or wilful intention to harm anyone.
Under the allegations of plaintiff’s second amended complaint, the owner is alleged to have left a door unlocked at the rear of the partially-built house, which the ■child opened; that the latter then climbed to the second floor and fell off a ledge which for aught the complaint reveals was in plain sight of anyone to see, child or adult. The thrust of plaintiff’s argument in substance and effect is no more than that one who is building a house should enclose it with a fence, failing which, Section 339 allows recovery, and that ergo, we should adopt and apply the section to the facts of this case. The same sort of argument could be advanced by saying there could be a recovery even if a fence were built and a kid, climbing it, fell off the fence, plaintiff pleading that the owner should have built it higher. In other words it appears to us that plaintiff is holding out for a doctrine of insurability against injury by invoking an as yet unespoused philosophy of absolute liability and its corollary of liability without fault. We are not constrained to go along with such a philosophy at this time and therefore we ■affirm the dismissal.
Notes
. See Carroll v. Spencer,