Jаmes E. THACKER, Individually and as next friend for Jada Thacker, a minor, Appellants, v. J. C. PENNEY COMPANY, Appellee.
No. 16561.
United States Court of Appeals Fifth Circuit.
April 7, 1958.
Rehearing Denied May 15, 1958.
254 F.2d 672
William L. Kerr, Midland, Tex. (Turpin, Kerr & Smith, Midland, Tex., of counsel), for appellee.
Before HUTCHESON, Chief Judge, and RIVES and WISDOM, Circuit Judges.
WISDOM, Circuit Judge.
James E. Thacker, on his own behalf and as natural guardian and next friend of his child, Jada Thacker, brings this
The plaintiff-appellant contends that the defendant is liable for breach of its duty to maintain safe premises. The defendant-appellee contends: (1) that the danger was open and obvious and that the existence of such a danger did not shift the care of the appellant‘s child from his parent to the appellee; (2) if there was a duty upon appellee, it was only to give warning to the child‘s mother, and the mother‘s knowledge of the open danger relieved defendant of any liability.
I.
One afternoon in January, 1955, Mrs. James E. Thacker made a shopping trip to the J. C. Penney store to buy her mother a gift. With her was her аctive young son, Jada, two years and two months old at the time.
In the rear of the store is a balcony about nine feet above the first floor. It runs the width of the store, seventy-five feet, and is forty feet deep. The balcony is protected by an attractively finished railing of oak and tempered masonite, varnished and waxed, three-feet-six-inches high. The railing consists of a base eighteen inches high surmounted by four horizontal bars, suitably spaced, six inches from bar to bar, like the rungs of a ladder, as if designed as a sort of Jungle Jim for young children to climb. On the top rail overlooking the store a small boy would gaze with wonder at the scene below him and feel like stout Cortez [Balboa] silent upon a peak in Darien. This was the setting, as the appellants presented the case.
The appellee takes a dim view of this presentation of the case. The only danger here was the danger of a very young child falling from an ordinary balcony railing commonly found in Penney stores. Mr. Mickey Lavy, manager of the store, testified that the railing was strong and safe and especially constructed to prevent people and merchandise from falling off. The object of using rails instead of a solid wall of the same height was to allow the merchandise to be seen from the ground floor. Mr. Lavy said that he had never had any complaints that the balcony was unsafe for children and he never heard of a child having fallen from the balcony of any Penney store.
The balcony was used for the display and sale of women‘s clothing. On entering the store, Mrs. Thacker went immediately to the balcony to find a dress for her mother. The purchase was never completed. Jada pulled away from his mother so often, each time going to the railing and climbing it, that Mrs. Thacker gave up finding a dress and carried Jada down to the main floor to a jewelry counter some eighty feet from the staircase.1 She placed Jada on the floor between her and the jewelry counter. After about ten minutes Mrs. Thacker became conscious of the fact that Jada was not in sight. She looked behind counters, heard a cry, saw a crowd near the staircase, and found her child on the floor beneath the balcony. No one saw him fall. No one saw him moments before the fall. Jada fell on his head and suffered a severe cerebral contusion and a compound fracture of the right leg.
Appellants extract the last ounce of benefit to their view of the case from the testimony of Mrs. Helen Finley, one of the saleswomen who worked on the bal-
Mrs. Finley insisted, however, that whenever she saw Jada on the railing she “always got him down“. She did not see him immediately before his fall and, according to her testimony, some twenty minutes elapsed between the last time she removed Jada from the railing and the child‘s fall.
The testimony showed that the employees who worked on the balcony recognized that the railing attracted children and was a danger to small children. Mrs. Meek, who worked with Mrs. Finley, testified: “I have taken children off of there several times, and it was a thing that attracted children to it.”3 Mrs. Meek said that it was “of practically daily occurrence” and that this “danger” to children was “a matter that was dis-
The case was tried before a jury in the District Court for the Western District of Texas and defendant‘s motion for an instructed verdict was overruled, but after failing to reach an agreement the jury was discharged. Defendant then filed a motion for a summary judgment and a motion for a judgment on the same grounds that had been urged in asking for an instructed verdict. The district judge granted both motions and ordered entry of judgment in favor of the defendant, apparently on the basis that as a matter of law there was no breach of duty and no negligence shown.
II.
When a person on the property of another is injured as the result of an alleged dangerous condition of the premises, liability depends upon (1) the existence and scope of the defendant‘s duty of care to the plaintiff and (2) whether the defendant breached this duty. The relationship between the parties is a material factor in determining the existence and scope of the duty. Conventionally, courts divide visitors into three classes and calibrate the duty owed according to whether a plaintiff is a trespasser, licensee, or invitee.5
Under Texas law a storeowner who invites the public to his store, knowing that women constitute a heavy percentage of his customers, knowing too that frequently a child will accompany a parent to the store, is “under [an] obligation to extend to the child the protection of an invitee“. Carlisle v. J. Weingarten, Inc., Tex. Civ. App. 1941, 120 S.W.2d 886; Id., 137 Tex. 220, 152 S.W.2d 1073 at page 1077.6 Unlike the attractive nuisance cases, where the difficulty is in finding an affirmative duty of due care to a trespasser,7 there is no doubt as to the existence of suсh a duty imposed on the defendant with respect to Jada as an invitee.
III.
What is the scope of the duty here? A storeowner is not an insurer of an invitee‘s safety, but he is under the affirmative duty of exercising due care under all circumstances. The Restatement speaks of the liability of a landowner to business visitors “to exercise reasonable care to make the land safe for [their] reception“.8 Restatement, Torts, Section 343. Harper and James state: “The occupier must use due care not to injure the plaintiff by negligent activity and also to warn him of latent perils actually known to the occupier. In addition, the occupier owes the duty to inspect his premises and to discover dangerous conditions * * * [as] part of a larger duty of reasonable care to make the premises reasonably safe.”9 2 Harper and James, Law of Torts, Section 27.12, p. 1487.
A storeowner is under a duty to use due care to make the premises safe for all invitees—for a young child as well as for an adult. He owes the same degree of care to both, but, of course, different precautions must be taken for children, if the storeowner‘s conduct is to measure up to the standard of due care under all the circumstances.10 “The
Whether J. C. Penney Company breached its duty to use due care to make its store reasonably safe for young invitees is the basic issue in this case. We believe that there was a sufficient showing of a breach of duty for the issue to be decided by a jury.
IV.
The issue in this case is confused by the misleading emphasis the defendant and the trial court placed upon a parent‘s duty to a child. (1) The defendant starts with the major premise that the primary duty of protecting a child rests on the parents; that the care of the child does not shift from the parent to the appellee because of the existence of a danger. There is no disagreement over this principle. (2) The defendant
A mother, by nature and law, does have a primary duty to protect her children and that duty does not shift to anyone else. But a storeowner is also under a duty. A storeowner must provide safe premises for invitees; he must inspect his store and exercise due care to protect invitees from injury from any dangerous condition in his store. The duties of parent and storeowner are concurrent. They are not mutually exclusive, a conclusion one would come to from the defendant‘s argument.
In an action by a parent for his own benefit to recover damages which he has suffered because of injury to his child, the parent‘s contributory negligence will bar recovery.14 But where recovery is sought for the benefit of the child, the parent‘s negligence is irrelevant to the question of the existence and scope of a storeowner‘s duty tо the child.15 It
Here the most important of these other circumstances is that shortly before Jada‘s fall Mrs. Finley removed Jada three times from the balcony railing. She knew, and through her the defendant knew, that the child had escaped from his mother and was in danger. Appellants and appellee contend vigorously over the applicability of the doctrine of discovered peril to Mrs. Finley and Jada. In a narrow sense, thе doctrine of discovered peril may be inapposite since Mrs. Finley did not see the child immediately before he fell in time to save him.16 But the basis for the application of the doctrine is a perilous situation in which foreseeable harm may be prevented by reasonable action of a defendant under a duty to act. We see no reason to quibble over the meaning, boundaries, and applicability of the doctrine.17 “Discovered peril” provides a rationale for certain cases that may be loosely grouped together. That is all. Its applicability here in its pristine formulation is not the crux of this case. We believe that without relying on any legalistic cantrip, a jury might find that Mrs. Finley knew that Jada was in a perilous situation, and find also that her failure to return the two-year old child to his mother or to place him in the hands of a responsible employee was conduct that just does not measure up to the standard of due care imposed on a stоreowner and his employees.
There are other circumstances to be weighed, some relating to a storeowner‘s duty to children generally and some relating to the duty to Jada in this case. (1) Where there are ladies’ dresses sold, customers will bring their children. (2) The balcony and railing did attract children. (3) Young children frequently climbed on the balcony. (4) It was “a daily occurrence” for employees of the store to remove children, because the railing was dangerous. (5) Employees working on the balcony in the past had discussed the danger. (6) Jada was at an age when a child is active but is not capable of realizing peril. (7) Jada was not under the immediate control of his mother, as in American Fire & Casualty Co. v. Jackson, 5 Cir., 1951, 187 F.2d 379. (8) A solid, higher railing could be utilized at relatively little additional cost. (9) It is common knowledge that on childish impulse the best behaved children do sometimes escape from the most careful mothers. A syllogism in logic or a theorem in natural law does not outweigh facts a man is faced with; the life of the law is still experience.
In this case the railing was dangerous only to children too young to realize its danger. If children are too
V.
Defendant finds support for its position in American Fire and Casualty Co. v. Jackson, 5 Cir., 1951, 187 F.2d 379 and in Stimpson v. Bartex Pipe Line Co., Tex.Com.App.1931, 120 Tex. 232, 36 S.W.2d 473 (adopted by the Sup. Ct.). In the Jackson case an infant, less than one year old, pulled away from her mother as they were walking upstairs and fell through an opening in the stair rail 27½ inches above the floor. This Court, speaking through Judge Hutcheson, Judge McCord cоncurring and Judge Russell dissenting, held that the defendant was not liable, and quoted with approval the language of a Louisiana case [187 F. 2d 384]: “We do not base freedom from liability upon the contributory negligence of the parents, but solely upon the fact that there is no negligence in the owner of the building in failing to foresee that the parents will not protect their very young children against such dangers.” This language, if considered in the light of the facts in the Jackson case, supports the point we make in this opinion, that the duty imposed on the parent is an element in determining whether the defendant should foresee the probability of injury to a child from the parent not protecting his child against an obvious danger, but the existence of this concurrent duty imposed on the parent does not in itself relieve an occupier from his duty of due care to an invitee. In the Jackson case the child was a young infant under the immediate control of the mother; the defendant could not foresee the danger. In the instant case a jury could hold that the defendant did in fact know, or should have known, that children of Jada‘s age, not under the immediate control of their parents (as in the Jackson case) and too young to realize the danger, were attracted to the balcony railing.
Stimpson v. Bartex Pipe Line Co., Tex. Com.App.1931, 120 Tex. 232, 36 S.W.2d 473, 477, (Ad. by Sup. Ct.), the principal case relied on by appellee, is distinguishable. In that case the question was whether the petition stated a cause of action for injuries a six-year old boy received from a fall from pipes around an oil storage tank. As in this case, the only danger was the danger of falling. The Court held that the petition did not state a cause of action. (1) But the child in that case was a trespasser, making it necessary for the plaintiff to resort to the attractive nuisance doctrine.18 Here there was no necessity for the plaintiff to resort to the doctrine, because the Thacker child was a business invitee who was entitled to be on the premises. Jada Thacker was invited to go on Penney‘s premises, which were represented as safe for children; young Stimpson was not invited, his presence on the Bartex premises was not known to the owner, and the Bartex property was not represented as safe for (trespassing) children. The
In the Stimpson case, the court stated that it is a “salutary rule which impоses a duty to guard a child of such immaturity as to be unable to appreciate patent and unconcealed dangers upon the parent instead of the landowner“. If this were a correct statement of the law, there would never be recovery in any case involving child trespassers, licensees, or invitees where the danger is unconcealed. If too young to realize the danger, the duty imposed on the parent would bar recovery; if old enough to realize the danger, the child‘s competency would bar recovery.
Whatever effect the Stimpson case once had, its effect is very limited now. Banker v. McLaughlin, 146 Tex. 434, 208 S.W.2d 843, 8 A.L.R.2d 1231, approves and adopts the Restatement rule as to a landowner‘s liability.20 Commenting on the Banker case as changing the law of Texas, Eaton v. R. B. George Invest-ments, 1953, 152 Tex. 523, 260 S.W.2d 587, points out that when the conditions as set forth in the Restatement are satisfied, the distinction between trespassers, licensees, and invitees is abolished as to young children and the landowner is under a duty of ordinary care to protect them from injury. In Massie v. Copeland, 1950, 149 Tex. 319, 233 S.W.2d 449, 452, the Court sаid that of the four conditions “* * * probably the most important is that the child, because of his tender years, does not realize the risk or danger. * * *” The absence of this essential element was the reason for the decision in Stimpson v. Bartex Pipe Line Company, 120 Tex. 232, 36 S.W.2d 473, 477, that the plaintiff‘s petition stated no cause of action.
VI.
In its charge the Court summarized the law “as it applies to the allegations and defenses” as follows:
“The primary duty of protecting children, by nature as well as by law, devolves on the parent who has the legal power to control the action of the child and whose moral duty is to keep the child from climbing on or around places where danger from fall exists. If, therefore, you find from a preponderance of the evidence that on January 22, 1955, and prior thereto, it appeared reasonably probable to the management of the J. C. Penney Company store in Odessa, Texas, that the parent of a child of tender age who brought such a child into its Odessa store would in all reasonable probability control the action of such child or prevent such child from climbing upon the railing around the balcony or would keep such child from being exposed to the danger of falling from a railing after climbing on it, then your verdict will be for the defendant, J. C. Penney Company, and against the plaintiff.
“If you find from a preponderance of the evidence that the accident in question was without the negligence of either the plaintiff or the defendant, then the same would be an unavoidable accident, * * *”
The Court instructed the jury:
“* * * if you find and believe from a preponderance of the evidence that the defendant‘s agents, servants and employees, failed to give warning or notice to Jada Thacker‘s mother that he was in danger, if he was, and if you further find and believe from a preponderance of the evidence that the failure of the defendant‘s agents, servants and employees to give such notice to the said Jada Thacker‘s mother that he was in danger, if he was, constitutes negligencе, and if you further find and believe from a preponderance of the evidence that such negligence, if any, was a proximate cause of the plaintiff‘s damages and injuries, then you will find for the plaintiff * * *”
The Court charged that Jada Thacker, “being not more than two years of age, could not have realized the risk of danger, if any“. But the Court refused a requested charge that “the contributory negligence of the mother is not a defense” and did not point out, as it should have, that the negligence of the mother cannot be imputed to a child of Jada‘s age.
The Court‘s emphatic statement that it is the mother who has “the primary duty of protecting children by nature as well as by law”21 and the other in-
In Daigle v. Louisiana Power and Light Company, 5 Cir., 1957, 247 F.2d 227, 232, a truck driver ran over a child of five. The driver saw from a distance of one hundred feet that the child was one of a group of five or six playing in the street and that her back was turned. The district judge stated in his charge to the jury that: “it is a very terrible carelessness to let people of tender age like that play in the streets in any fashion.” This Court, speaking through Judge Hutcheson, held:
“The language of this charge stating to the jury that they had the right to determine whether to allow such play was terrible carelessness was an unintended but clear invitation to the jury to find the parents’ negligence instead of any negligence of the defendant to have been the real cause of the injury. Such a charge was particularly unfortunate in this case since there was no evidence to warrant a finding that these particular parents had violated common sense rules of safеty or behavior for the injured child and the older sister.
“We think that, under the applicable law, it was incumbent on the trial court clearly and plainly to instruct the jury as to the care that is required of a motorist who sees children of such tender age that they may do the unexpected to control his vehicle to prevent injury to such children as he passes them. We think this concept of the law was not adequately presented to the jury and that, because it was not, appellants are entitled to a new trial.”
We think that in the case before us, as in the Daigle case, the trial judge erred in inviting the jury to find that the parent‘s negligence rather than the defendant‘s negligence caused the accident.
VII.
In the attractive nuisance cases the threshold difficulty is in finding a duty of due care to a trespasser. There is no such difficulty here. The Thacker child was a business visitor or invitee. Defendant owed the child, therefore, the duty of affirmative due care under all the circumstances.
“Tresрasser” and “invitee” are empty terms until they are applied to the facts of the particular case. They are simply another way of saying that negligence cases involving visitors, like other negligence cases, turn on the foreseeability of injury. In the Stimpson case, for example, the likelihood of injury was remote. It is another story in other turntable cases where, because of the likelihood of children being present and subject to harm, a jury may find that the
If the only interests in this case were Mrs. Thacker‘s and J. C. Penney‘s we might agree with the trial judge. But Jada has an interest. And more important than Jada‘s is society‘s interest in this case. Society is interested in preserving children from harm, certainly from exposure to a danger they are too young to realize, when that danger is in a store to which they are invited and when the danger may be eliminated with relatively little inconvenience to the storeowner. We think that, whether or not parents have a high and inescapable moral duty to take care of their children, it is against public policy for a storeowner to open his store to children and escape his duty to provide safe premises.
In balancing the competing interests of a landowner and a visitor injured as a result of a condition of the premises, the quasi-sovereignty of an owner or occupier of land must yield to the superior interests of society in protecting the life and limb of future citizens; at least to the extent of having the jury decide, in a case such as this, whether the oсcupier‘s conduct measures up to the standard of due care to provide safe premises for children who are business visitors or invitees.
Judgment for the defendant is Reversed and remanded.
HUTCHESON, Chief Judge.
I concur in the result.
On Petition for Rehearing.
Before HUTCHESON, Chief Judge, and RIVES and WISDOM, Circuit Judges.
PER CURIAM.
It is ordered that the petition for rehearing filed in the above styled and numbered cause be, and the same is hereby Denied.
HUTCHESON, Chief Judge (concurring specially).
When the opinion in this case was handed down, I was content, without stating my reasons, to note my concurrence in the result, that is in the judgment reversing the case for trial anew. Upon further consideration, I think I should now make clear my reasons for so concurring by stating distinctly the part of the opinion I did and do not concur in as well as the part in which I did and do concur, and why I think the judgment should be reversed.
The part of the opinion I did not concur in is the apparent holding that it was negligence in the store owner to build a balcony as this one was built with a railing made open so that shoppers could see the store below and so as to make it a pleasant place for shoppers to come for purchases. I think the law did not and does not require a store-keeper to wall all balconies in to keep some possible child from climbing on a railing any more than to wall off his escalators, his stairways, his chairs and his tables, and if it were not for the Finley testimony, I would say no case for a jury was made out. I do not think the law goes anywhere near as far as I think the majority opinion does in giving directions to storekeepers that they must make their stores safe for two year old children when the supposed lack of safety consists not in defective construction or negligent maintenance but in a construction which is neither out of the ordinary nor in any way defective. I think we had just as well say that, because a small child if allowed to get away from his mother will get hurt by a fall down an escalator or out a window or off a table or chair, a store owner can‘t have any of those things without a guard standing by.