*1 Aug. 31, Dist., No. 14338. First Div. Two. 1950.] [Civ. Minor, etc., Appellant, PUCHTA, JANE MARGARET Respondents. al., N. ROTHMAN et Appellant. Dolwig Gaudio for & Respondents. F. E. Hoffmann *2 GOODELL, injuries $50,000, for Appellant sued for J. construction, when building was under in a sustained floor thereof onto opening in the second through an she fell general A demurrer beneath. floor 12 or 13 feet a concrete amend) to each of the two counts leave to (with was sustained Appellant declined to amend and complaint. amended appeal respondents for costs. judgment entered was followed. alleged in statement of facts as the com
Appellant’s day February, 6th or about the plaint is as follows: “On engaged in the construction of a 1947, defendants were building building in Francisco. . . . The was South San floor was over completed on that date and second partially paper and paper. with a of tar Under this laid sheet totally proposed was a hole for a completed already been skylight. The had so easy convenient. Children second floor was access to the upon this had, knowledge, played structure to defendants’ knowing this, defendants had in fact erected barricade danger. or about the 6th protect them from this known On protective day February, 1947, defendants removed this years of plaintiff Margaret Puehta, 10 barricade and Jane play and while a'ge,went to the second floor of engaged, stepped upon the tar above the concealed so floor, suffering per hole, plunging to the first severe injury.” sonal “the rule that a general concedes that it is land trespassers” and states that the owes no of care
owner doctrine, the attractive nuisance count is based on first exception to that rule. applied in nuisance doctrine first Cali- The attractive was fornia in Barrett Southern Pacific Supreme Court, with two 666, Am.St.Rep. 186], where the the rule subject choose, selected on the from which rules by Pennsyl- Supreme Court, followed United States rejected Minnesota, Michigan, Missouri, vania, Kansas Hampshire. typical nuisance case It is a that of New it involved a turntable. since v. E. Cahill B. & A. L. Stone 84, & Cal. 571 push-car laying L.R.A.N.S. involved a used in city
railroad track car, brake, street which without any left unguarded, unlocked, unenclosed and 12-year-old and a boy injured playing thereon while it inwas motion. A demurrer to his judgment was sustained but the authority reversed on the of the Barrett case. The court ‘1 page rule, 574 said: course, is not to be confined to turntables, any attractive and machinery. ... It is true that in this state the rule been has strictly particular limited to the character of cases mentioned in the Barrett case. In Am.St.Rep. 106, 47 P. v. Bowman, 598], wherein it was held that [345] the owner of a lot was boy not liable for the death of a drowned pond on his premises, Mr. McFarland, speaking Justice of the so-called eases,’ says: ‘turn-table ‘The rule as thus applied ground rested on the judgment immature young child could not well provide against determine or danger meddling with such machinery, and that, therefore, company railroad was liable negligence in erecting leaving it and exposed as an attraction to children, *3 temptation to them to intermeddle with it.’ is further stated principle of these ‘turn-table cases,’ while well state, established in this exception an general to the rule that the owner of legal duty land is under no keep to it in safe condition for others than those whom he invites there.”
“Originally,
applied
nuisance doctrine was
only machinery
to
under certain circumstances, but in this
application
state its
has been extended to
appliances
various
(Hernandez
Santiago
contrivances.”
v.
Assn.,
etc.
110
Cal.App. 229,
875].)
233
P.
Thus
applied
it was
[293
in
v.
Pierce United
E. Co.,
G. &
161 Cal.
700],
176
P.
[118
guy
a loose
wire came in
wire;
contact
a live
in Skinner
Knickrehm,
v.
288
caps
dynamite
was left
a rail-
box of
abandoned
where an
way under construction.
right of
road
things
such
to extend the rule to
refused
have
The courts
supra; Polk
(Peters
Bowman,
v.
v.
reservoirs
ponds
414];
P.
Cemetery
Cal.App. 624
Assn., 37
Hill
[174
Laurel
Cal.App.
68
13
P.
Valley
Water
Spring
[228
v.
Reardon
Angeles,
In Peters v. the court the turntable is an exception “the eases said: that the owner of land general principle is under no in a safe condition for others than those whom trespassers there, he invites and that take the risk of injuries causes; ordinary visible and it should not be carried beyond the class of cases to it has been applied,” denying rehearing: (p. 356) in “The thing added owner of a not always children is and uni- tempted by for an a child versally liable the attrac- liability His bears relation to character of the tion. natural and thing, common, whether or artificial and uncom- comparative difficulty ease or mon, preventing destroying impairing danger without usefulness of and, short, reasonableness thing, propriety his surrounding conduct, own in view of all circumstances and added.) (Emphasis conditions.” Dehail, Loftus *4 follows, “But no means . . . anything said: it or jury may may everything find, determine, which a or a court playground plaything attractive as be responsibility guard upon care casts owner thing. boys, girls, play- . . . Venturesome and even make buildings, perilous grounds heights, climb unfinished If scamper over insecure boards and rafters. an owner be merely responsible, children were attracted, came because pre burden the with a most would posterous weight.” (Emphasis added.) and unbearable buildings quotation, example, last which used as dictum, years Doyle merely repeated later 550, 552, supra. In Electric Cal.2d the latter Pacific ease a 13-year-old boy trespasser ventured onto a canvas- skylight opening through it, covered and fell in much the same way appellant paper-covered opening. fell speak guarding When cases contriv- ance, they warning “danger” not speaking are or a out,” something notice to “keep physically but of that will prevent going upon premises. children and others from is indicated the case of Great M. Eastern Cal.App. 194, supra, mining where the fence, enclosed with a barbed wire posted and where there was conspicuous place gate sign on the long “a six feet eighteen wide, inches ‘Danger’ painted and with the word high thereon in one letters foot and the words ‘No Admittance’ ’ eight high.' Notwithstanding inches precautions these mining company held that the should have sealed up the mouth of the unused tunnel. is indicated also case, 296, supra, Barrett where the turntable was equiped slot, “with latch and such as is in common use on such tables, revolving” it from keep at was fastened time, protected by any but since “it not inclosure” or guarded, the defendant was held liable. any
It is self-evident that barricade at foot the stair- way this building, strength of sufficient size and going up stairs, destroy children from very would purpose for which the stairs were built and retard the com- pletion building. quotes Torts, Restatement of the Law argues
section that the California rule on attractive substantially in nuisances Generally is accord with it. speak ing is, but the cases which we cited show the lines of distinction which the California courts have drawn. A build construction, being immobile for thing, one readily distinguishable attractive, moving from an vehicle piece machinery. applying the our courts draw protective line destroy situation where the measure would *5 itself. The property impair the usefulness by appellant, on 194, supra, relied involved Cal.App. ease, 45 mine, (b) is of the nonoperating one eases (a) idle, mining things—push-cars in an unused tunnel— moving where attraction; building under nowise a construction were for both reasons. comparable, the first count states no cause California eases
Under nuisances, within the doctrine of action properly sustained. thereto was demurrer appellant’s grounded, second count is counsel The entirely a landowner different doctrine that “upon the say, injury wilfully inflicting upon a duty from a to refrain owes trespasser.” known Cal.App. 226, 572], Thompson, v. Bradley by as the caused offend “Inasmuch court said: instrumentality is the result of a in this class cases upon plain child, is incumbent
trespass committed legal consequences would be the otherwise tiff to obviate what proving which alleging and all facts are trespass by objection trespass as an necessary the effect to remove equal here. force recovery.” to a plaintiff’s allegations is that de- part of charging barricade, stairway theretofore “wilfully a removed fendants safety measure, wilfully defendants as erected said stairway and roof.” guard, enclose, or block said failed to stating which could conclude Instead of facts wilful, pleader acts were for itself whether or not these allega descriptive epithet. An “wilfully” as simply adds lesson, that, trespassers order to teach tion, instance, prem trap planted some contrivance or the owner had (See v. showing a wilful act. ises, would state facts spring 348, 345, which instances Bowman, supra, Cal.App. 588, Co., 8 Spring Valley gun and Bourie v. Water ditch). instances a of barricade which had Obviously, the removal “enclosed” stairway, would restore the and “blocked” the floor— n of access the unfinished second usefulness as means act of normal and perfectly could hardly be called wilful. Even expected destroy impair an owner is not nuisance rule safeguard trespassing of his order to usefulness supra, (Peters Bowman, 345, 350, 355; Cemetery Assn., supra, 624, Laurel Sill Polk v. being surely so, then he cannot be held to such 637). That duty is not an attractive an onerous being nuisance, “that the owner land is under no (Peters trespassers” premises his safe 348). Bowman, supra, 115 allegation knew that children Moreover, the that defendants (squinting, does, as it at the and about the nothing rule) all to claim of attractive nuisance adds applies to wilfulness. The rule under discussion now *6 again quote as well as to adults. Bowman To “ 349): premises (p. ordinarily ‘The rule is that owner of though no of trespassers, owes immunities to the latter be ’ (Whittaker’s Negligence, ed., 67, note, infants. Smith on 2d ” cited.) and cases there properly
The demurrer to the second count was sustained. argument presents respecting the third original complaint,
count. were three in There counts pleaded special damages arising last from medical hospital expenses, the sum of third $1613.25. This count apparently abandoned, appear as it does not complaint. complaint amended The amended course superseded original performs complaint and the latter no function pleading as a to for the and cannot be looked (21 214.) issues be tried. Cal.Jur. judgment
The is affirmed.
Nourse, J.,P. concurred.
DOOLING, J.I dissent. Supreme Our Court reiterated only day the other well settled rule that under the liberal provisions “(i)t of our code is not necessary in this state to plead required with the exactitude at (Steiner common law.” v. Rowley, 35 Cal.2d 9].) Certainly judged by standard, my opinion by any reasonable standard, the first count of the states cause of action under the attractive nuisance doctrine. alleges It that plaintiff years the minor age; is 10 that the defendants on or February 6, 1947, engaged were in constructing a build- ing; prior complained herein of children had been attracted building to the purpose of playing therein “and had in and about said uncompleted roof, all which, at all times herein men- tioned, was well known to the defendants; . . . second . incomplete . . at that
story time structure was said covering, paper paper tar which tar covered a sheet of opening or proposed over a ventilation covering was laid also same”; concealing plaintiff minor skylight, totally building place children, attracted, other “ knowledge or the existence play and without notice . . . fell into the concealed venti- said covered shaft temporary paper cover- . . opening . lation mine.) . (Emphasis . . “trap” peril phase fit allegations These expounded nuisance doctrine courts Irr. Costa East Contra Sanchez Faylor v. Min. Great Eastern 1060] glove like the hand. tailored say application of the rules law a too mechanical bring ordinary cases have held that to that because the building within the nuisance perils of an unfinished ownership with a “would burden doctrine weight,” ergo no sort of preposterous and unbearable most peril in an unfinished can come trap or concealed piece of a of tar within that doctrine. removal opening would not burden from a ventilator weight” “preposterous with a and unbearable weight all, particularly when measured any appreciable *7 safety the lives of little children Imown against and building. played in the knowledge habit
With that children were the the little building, pleaded the playing according facts, about the the including floor, story covered the entire second defendants opening, giving deceptive with tar thus flooring opening and the appearance a safe to the ventilator by appearance fell plaintiff minor deceived injured, springing “trap.” opening and was thus again held courts of this state have over and over open within body an of water on a defendant’s land is not that yet nuisance doctrine and the court in Sanchez supra, difficulty in find- East Contra Costa Irr. had no open in an canal came within the trap that The court made the distinction between the obvious doctrine. dangers trap peril following or concealed words and the : pp. 517-518) (205 ease, the canal with its shallow water
“In the instant
trap.
The defendant knew that
lived
the bait
children
easily
syphon might
opening
have been
close
and
guarded.
knowledge
that
It is matter of common
children
playing
edge
body
tempted
of a
water will be
shallow
play
it,
reach
the water and to
into
defend-
open
guarded against
ant need not have
obvious
water,
decisions,
stream
numerous California
think
we
apparently harmless,
an
different
shallow
large
anyone
opening
stream water contains a
into
might'slip,
wholly unguarded
opening
completely
concealed from view. . . .
The children assumed the risk
open, obvious,
danger
canal,
notorious
to the
incident
containing
three
but
water;
they
feet
did not assume
unknown,
unguarded
the risk of an
concealed,
danger.”
building”
Substitute “unfinished
you
“canal”
pleaded
agree
Doyle
have the
case.
I
Nor can
v. Pacific
comparable
Elec.
I would judgment. reverse the A petition rehearing September was denied 30, 1950. No. Dist., 14431. First Aug. 31, Div. Two. [Civ. 1950.] NEUSTADT, JULIUS Appellant, v. JOSEPH SKERNS
WELL, Respondent.