Lister v. CampbellLister v. Campbell
An appeal from a final summary judgment in an action seeking damages resulting from injuries suffered by Lister caused by an alleged attractive nuisance.
Steven Lister, aged 14 years and 11 months, dove from two posts into an old gravel pit which had filled with water on property owned by Campbell in Escambia County, Florida. His head struck the bottom; his neck was broken and, as a result, he became paralyzed from the waist down. The posts from which appellant dove were approximately two feet from the water. The depth of the water where the accident occurred was nearly, according to Lister, chest high. Lister was on Campbell‘s property without his permission or knowledge. The complaint alleged that Campbell had negligently and carelessly left the artificial lake unfenced, without any warnings of any kind, in violation of a special act of Escambia County, Chapter 57-1291, Laws of Florida, which declared that any such unfenced depression was a dangerous and attractive nuisance, and provided criminal sanctions for its violation.
The Court entered different grounds supporting its order granting summary judgment in favor of Campbell. One was that the minor plaintiff was a trespasser. It is difficult to determine from this finding whether the court concluded that simply due to Lister‘s status as a trespasser, the attractive nuisance doctrine did not apply. The general rule is that a property owner owes no duty to a trespasser other than not to wilfully or wantonly injure him. McNulty v. Hurley, 97 So.2d 185 (Fla. 1957); Crutchfield v. Adams, 152 So.2d 808 (Fla. 1st DCA 1963).1 On the other hand, if the attractive nuisance doctrine applies, it is presumed that the child is a trespasser and his status as such does not excuse the owner from liability. Indeed, the doctrine was created as an exception to the rule as to trespassers. Crutchfield v. Adams, supra. Section 339, Restatement (Second) of Torts (1965), adopted in Florida, e.g., Cockerham v. R.E. Vaughn, Inc., 82 So.2d 890 (Fla. 1955); Ridgewood Groves, Inc. v. Dowell, 189 So.2d 188 (Fla. 2d DCA 1966), subjects the possessor of land to liability for physical harm to trespassing children if all the conditions of the section are satisfied.
We agree, however, with the lower court that there was no genuine issue of material fact that Lister was unaware of the risk involved at the time he dove into the lake. An additional ground for the entry of summary judgment was that the violation of Chapter 57-1291 did not constitute
Section 339 of the Restatement provides:
A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if
(a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and
(b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and
(c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and
(d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and
(e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.
In the comment to clause (b) of § 339, the standard of care is stated as follows:
The duty of the possessor, therefore, is only to exercise reasonable care to keep the part of the land upon which he should recognize the likelihood of children‘s trespassing free from those conditions which, though observable by adults, are likely not to be observed by children, or which contain the risks the full extent of which an adult would realize but which are beyond the imperfect realization of children. It does not extend to those conditions the existence of which is obvious even to children and the risk of which should be fully realized by them. Id. at 202.
The possessor‘s liability is that of negligence — and the standard of conduct to which he must conform to avoid being negligent is that of a reasonable man under like circumstances. See comment to clause (e) at 206.
It is questionable whether the testimony relating to Campbell‘s knowledge of trespassers would have been sufficient to withstand a motion for summary judgment as to the requirements set forth in clauses (a) and (b). Campbell testified he was unaware that the lake had been used for swimming by children. Indeed, he did not know whether children had come into the area. He assumed, however, persons had wrongfully trespassed due to the presence of picnic litter and tire tracks near the lake.
We conclude, however, that the requirements of clause (c) were clearly not met. The solution to whether a child “discover[s] the condition or realize[s] the risk involved” depends upon a consideration of several factors — including age, maturity, intelligence and capacity — which consideration
Often the child‘s own testimony is the best evidence of whether he possessed sufficient intelligence and knowledge to understand or avoid the danger. In O‘Keefe v. South End Rowing Club, 64 Cal.2d 729, 51 Cal. Rptr. 534, 414 P.2d 830 (1966), the California Supreme Court sustained a trial court‘s judgment of non-suit entered at the end of plaintiff‘s evidence. There the plaintiff, aged 15 years and 8 months, was injured following a dive into water, which he was aware was generally shallow. The plaintiff testified he knew “‘if you dove into shallow water that that was the wrong thing to do.‘” The court observed that the plaintiff‘s knowledge of the diving conditions at the pier was extensive; that he had dived from the same pier some ten or fifteen times over a period of three or four months. On the day of the accident he dived off the pier three or four times. Moreover the plaintiff was aware that the depth of the water was somewhere between five or six feet at that time. His intelligence appeared normal: He was in the second half of his sophomore year in high school, was performing satisfactorily in his studies, and was healthy, normal and active in every way.
The facts in O‘Keefe are strikingly similar to those here. The deposition testimony of young Steven and his mother reveals him to be possessed of ordinary intelligence. At the time of the accident, on June 25, 1976, Steven had completed the ninth grade, although he was then making up two subjects in summer school. Steven testified that he had swum in the lake over a period of ten years; that he had dived from the same posts dozens of times before over a period of three years. As a matter of fact, on the very day of the accident, he twice dove from the posts before the occurrence of his injuries. Moreover, he was aware that the water was approximately chest deep. His appreciation of the danger was stated as follows:
Q. I believe you indicated that when you had jumped before, however, you had made an effort to make a shallow dive so you would not hit the bottom, is that true?
A. Yes: but, you know, I imagine it would have been deep enough, you know, to dive, but I didn‘t want to take no chances, so you do a shallow dive.
Q. So as soon as you hit the water, you would curl up as quickly as you could?
A. Yes.
Q. So that you would not hit the bottom?
A. Yes.
Q. So you were aware that if you didn‘t make that effort, you were liable to hit the bottom?
A. Yes, I guess.
Q. Well, actually you weren‘t guessing at all, were you? You knew that, didn‘t you?
A. Yes.
We conclude from the record that the combination of the various relevant factors:
The one basic reason for a rule which distinguishes trespassing children from trespassing adults is the inability of the child to protect himself against the peril which he encounters. If that reason does not exist, it has been generally agreed that the whole policy of the special rule fails with it. The courts have been very firm in their insistence that if the child is in fact fully aware of the condition, understands and appreciates the danger which it carries, and is quite able to avoid it, he stands in no better position than any adult with similar knowledge and understanding. Prosser, Trespassing Children, 47 Cal.L.Rev. 427, 461 (1959).
AFFIRMED.
MILLS, Acting C.J., and BOOTH, J., concur.