Mead v. Parker

Aug 22, 1963
Civ. A. No. 1680
Versions:221 F. Supp. 601
1963 U.S. Dist. LEXIS 6716
NEESE, District Judge.

It is аlleged herein that the defendant Smith in the course of his employment by his codefendant T. & F. Vending Service, Inc., and after having proceeded eastwardly on a street in Bristol, Tennessee, pulled his said codefendant’s vehicle to the north (and “wrong”) side of the street and, in violation of a muniсipal ordinance, there parked to hawk the said defendants’ ice cream and other wares; that this knowingly constituted an attractive enticement for children to cross the ‍‌​​‌​‌‌​‌​​​​‌​​‌​‌​​​​​‌‌​​‌​‌‌​‌​‌‌​​‌‌​​​‌‌​‌‍street аnd come to the vending truck to make purchases; that the minor plaintiff Mead, then five years оf age, was thereby attracted and enticed, and did start, to cross the said street from its opposite side; and that the child in the process of crossing the street under such circumstances, wаs thereby caused to be struck and injured by the automobile of the defendant Parker.

This is a joint action on behalf of the minor child and his father. The defendants Smith and his employer seek a dismissal of the action on the ground that the complaint fails to state a claim against them on which relief can be granted, Rule 12(b) (6). Federal Rules of Civil Procedure, which will be treated as a motion for summary judgment and disposed of as provided in Rule 56, Federal Rules of Civil Procedure. The Court granted the рarties an oral hearing on this and other motions. Rule 12(c) of this court.

The plaintiffs Mead are not beneficiaries of the municipal ordinance-aforementioned ‍‌​​‌​‌‌​‌​​​​‌​​‌​‌​​​​​‌‌​​‌​‌‌​‌​‌‌​​‌‌​​​‌‌​‌‍and cannot base their action on its violation. Vinson v. Fentress (1950), 33 Tenn.App. 359, 368, 232 S.W.2d 272, 276, cited with approval in Borden v. Daniel (1960), 48 Tenn.App. 314, 346 S.W.2d 283. Ordinances which govern parking on municipal streets hаve as their purpose the prevention of traffic bottle-necks and the collision-free passage-of other vehicles; they are not aimed at the protection of pеdestrians. * * * ” Borden v. Daniel,, supra, 346 S.W.2d page 285.

Neither have the plaintiffs stated a claim under the attractive nuisance doctrine on which, in Tennessee, they can be granted relief. The Court ‍‌​​‌​‌‌​‌​​​​‌​​‌​‌​​​​​‌‌​​‌​‌‌​‌​‌‌​​‌‌​​​‌‌​‌‍must determine, as a matter of law, whether this-doctrine is applicable under the alleged facts. Gouger v. Tennessee Valley Authority (1949), 188 Tenn. 96, 216 S.W. 2d 739, 6 A.L.R.2d 750; Ross v. Sequatchie Valley Electric Cooperative (1955), 198 Tenn. 638, 281 S.W.2d 646; Louisville & N. Railroad Co. v. Ray (1910), 124 Tenn. 16, 134 S.W. 858.

Contrary to popular conception,, the doctrine of attractive nuisance is-not based on humanitarian principles; it rests on either negligence or the failure to observe a legal duty. McCulley v. Cherokee Amusement Co. (1945), 182 Tenn. 68, 184 S.W.2d 170. The doctrine сontemplates the guarding against some danger which ‍‌​​‌​‌‌​‌​​​​‌​​‌​‌​​​​​‌‌​​‌​‌‌​‌​‌‌​​‌‌​​​‌‌​‌‍is neither common nor obvious. Ray v. Hutchison (1934), 17 Tenn.App. 477, 68 S.W.2d 948. Thе owner of property which may be attractive to children who are too young to-understand and avoid ordinary dangers is entitled to rely on their parents’ or guardians’ either keeping such children away from such property or forbidding the children’s encountering such property unless they аre properly accompanied. McCay v. DuPont Rayon Co. (1935), 20 Tenn.App. 157, 96 S.W.2d 177, 183, citing Ray v. Hutchison, supra. In McCay the *603Tennessee court made a concise summary of the situations in which the doctrine may ‍‌​​‌​‌‌​‌​​​​‌​​‌​‌​​​​​‌‌​​‌​‌‌​‌​‌‌​​‌‌​​​‌‌​‌‍be applied and quoted the fоllowing language from City of Memphis v. Trice, 13 Tenn.App. 607:

* * * “The owner of a thing dangerous and attractive to childrеn is not always and universally liable for an injury to a child tempted by the attraction. His liability bears a relation to the character of the thing, whether natural and common or artificial and uncоmmon, to the comparative ease or difficulty of preventing the danger without -destroying or impairing the usefulness of the thing, and, in short, to the reasonableness and propriety of his own conduсt, in view of all surrounding circumstances and conditions.” * * * Idem., 13 Tenn.App. page 616.

The Court, thereforе, finds and concludes : (1) that the minor plaintiff Mead was at the time of his injury a pedestrian and not a beneficiary of the municipal ■ordinance which the defendant Smith violated prior to the accident involved here; and (2) that these defendants’ ice ■cream vending vehicle was engagеd at the time and place of this accident in a lawful business, that it would have been extremely diffiсult for the defendants to have prevented any obvious danger to youthful purchasers of its merchandise without totally destroying the usefulness of the vending truck, that the attractive presence of the vending truck at the time and place of this accident merely created the occasion which afforded opportunity for another event to produce the minor plaintiff’s injuriеs, and that, accordingly, the plaintiffs have not thereby charged .these defendants with either aсtionable negligence or actionable failure to observe any legal duty owing the minor plaintiff.

The clerk hereby is ordered to forthwith prepare a judgment dismissing the complaint as to thе defendants Kenneth Smith and T. & F. Vending Service, Inc., and after the form of judgment has been by the Court .approved, to enter the same herein.