An action was brought against the defendant church to recover damages for personal injuries sustained by a five-year-old girl, Julie Ann Summers, who fell into a light well at the church where she was attending Bible school. The jury returned a defendant’s verdict. The plaintiff appeals.
The trial court struck the two following charges of negligence:
“2. In maintaining and permitting a dangerous and unsafe condition upon the land in the nature of a concrete encased light-well at the south side of the church building in that no protective grating of any kind covered the opening.
“3. In failing to warn plaintiff or those in direction of her conduct and the location of her physical presence of the danger of the open light-well at the south side of the church building.”
The only charge of negligence which the jury was allowed to consider is as follows: “In failing to provide adequate supervision of the small children members of the Vacation Bible School of which group plaintiff was one.”
Plaintiff asserts that the trial court’s striking of the first two quoted specifications of negligence was error. We hold that it was not.
The evidence was that at recess the plaintiff and her schoolmates played in a grassy area on the side of the church. Bordering this area there Avere four concrete light wells. These wells are about four feet deep and there is a concrete curb about six inches in height surrounding each well. The well into which Julie fell is about nine feet long and two feet Avide. Around the Avell is a pipe railing Avith the top rail about three feet in height and another rail about halfway between the *364 top rail and the curb. The railing is supported by two pipe posts rising from the outside corners of the curb surrounding the well.
The evidence is conflicting whether or not the plaintiff had climbed upon the railing around the well before and had been warned not to play there. All agree that some children had climbed on the railing and had been told to get off. The evidence is that on the day of the injury Julie and others were seated upon the grass having refreshments while the supervisors left for a few minutes to retrieve some small boys who had run around to the front of the church. The supervisors came back and found Julie lying in the bottom of one of the wells and crying. Neither Julie nor anyone else testified how she got there. She suffered a compressed vertebra. We will assume that the jury could reasonably have found that Julie had been climbing upon the railing and fell into the well.
This case does not involve the “attractive nuisance doctrine,” as Julie was invited to be upon the premises. However, a portion of the law applicable to a landowner’s liability to tresspassing children is appropos. In
Pocholec v. Giustina,
We conclude that this light well is not a “condition * * * which * * * will involve an unreasonable risk of death or serious bodily harm to * * * children,” and children appreciate the risk involved in playing on the railing. Therefore, the defendant was not negligent by maintaining a dangerous condition.
There is almost no condition which an adventurous child cannot turn into an injury-producer: trees, swings, slides, stairs, hard-surfaced playgrounds, and soft-surfaced playgrounds can all be a source of harm to the young. “Surely, it would be an intolerable burden to require a landowner ‘to guard every stairway, cellarway, retaining wall, shed, tree and open window on his premises so that a child cannot climb to a precipitous place and fall off.’ ” 2 Harper and James, The Law of Torts, 1455, §2715 (1956).
Only when a jury might find that the risk to children is unreasonable and that the harm possible is serious is there a question of fact to be determined.
Two examples of judicial action in this general area are
Gleason v. Housing Authority of City of Pittsburgh,
354 Pa 381,
The plaintiff contends that our recent decision of
EberlE v. Benedictine Sisters,
Affirmed.
Notes
Restatement (Second), Torts § 339, adopts its reporter’s (Dean Prosser) views.