Garcia v. Soogian , 52 Cal. 2d 107 ( 1959 )

GIBSON, C. J.

In this action, which was tried by the court sitting without a jury, plaintiff recovered damages for injuries she sustained while playing on defendants’ lot, and defendants have appealed.

The accident happened about 8 p. m., when it was getting dark. Plaintiff, who was 12 years and 8 months old, had trespassed on defendants’ lot in order to play a form of hide- and-seek with other children. She cut her ankle when, running in pursuit of a playmate, she attempted to jump over a stack of prefabricated building panels containing windows, failed to clear the stack, and landed on top, her foot crashing through the glass. The panels over which she jumped were part of building materials stored on the lot by defendants for the purpose of erecting several prefabricated houses. The materials had been placed about 120 to 150 feet back from the street. The panels with glass, each weighing about 200 pounds, had been stacked in firm, orderly piles which were from 24 to 30 inches high, 8 feet long and at least 4 feet wide. Plaintiff’s sister, who was one of the children on the lot at the time of the accident, testified that she saw the stacks that evening and that none of them were covered. There was other testimony that at least two of the piles were uncovered. During working hours defendants, who were engaged in building at a nearby site, watched the lot and ordered children away, and, in the absence of defendants, a man who lived in the vicinity did the same on their behalf whenever he saw children on the lot.

The sole question presented on this appeal is whether the judgment is supported by the evidence.

Section 339 of the Restatement of Torts reads: “A possessor of land is subject to liability for bodily harm to young children trespassing thereon caused by a structure or other artificial condition which he maintains upon the land, if (a) the place where the condition is maintained is one upon which the possessor knows or should know that such children are likely to trespass, and (b) the condition is one of which the possessor knows or should know and which he realizes or should realize as involving 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 in it or in coming within the area made dangerous by it, and (d) the utility to the possessor of maintaining the condition is slight as compared to the risk to young children involved therein.” The rule set forth in section 339 has been adopted as the law of this state. (Courtell v. McEachen, 51 Cal.2d 448, 457-458 [334 P.2d 870] ; Reynolds v. Willson, 51 Cal.2d 94, 103 [331 P.2d 48].)

It is apparent that the application of this rule depends upon a number of variable factors. The question of liability must be decided in the light of all the circumstances and not by arbitrarily placing cases in rigid categories on the basis of the type of condition involved without giving due consideration to the effect of all the factors in a particular situation. There is no inflexible rule which would exclude liability in every case involving building materials or buildings under construction, and each such case must be judged on its own facts. Although there are some cases of this type in which recovery has been denied (Knight v. Kaiser Co., 48 Cal.2d 778 [312 P.2d 1089] ; Lopez v. Capitol Co., 141 Cal.App.2d 60 [296 P.2d 63]; Camp v. Peel, 33 Cal.App.2d 612 [92 P.2d 428]), there are others recognizing that liability may exist (Woods v. City & County of San Francisco, 148 Cal.App.2d 958 [307 P.2d 698]; Morse v. Douglas, 107 Cal.App. 196 [290 P. 465]).

The circumstance that a condition giving rise to injury is common in character does not necessarily exclude liability. Of course, if a dangerous condition is common, children are more likely to be aware of the risk than if the condition is unusual, but it does not follow that common conditions can, under no circumstances, give rise to dangers which are not obvious to children. What is important is not whether conditions are common in character but whether their dangers are fully understood by children. In discussing the duty of care owed by the possessor of land in connection with the ability of children to appreciate the risk presented, the Restatement says, in comment (b) to section 339, that the duty extends to dangerous conditions “which, though observable by adults, are likely not to be observed by children or which contain risks the full extent of which an adult would realize but which are beyond the imperfect realization of children.” The duty, of course, does not extend to “those conditions the existence of which is obvious even to children and the risk of which is fully realized by them.” (Rest., Torts, § 339, comment (b).) The further statement in comment (b) that the limitation on the duty operates to remove liability with respect to “the normal, necessary and usual implements which are essential to [the land’s] normal use,” appears in a sentence which, when taken as a whole, refers only to those situations in which children, knowing the danger of the implements as fully as adults, use them “in a spirit of bravado.”^*

There is thus no justification for regarding the commonness of a condition as having a decisive significance independent of the obviousness of the risk. Unfortunately, several eases, both in allowing and denying recovery, have used broad language which could be understood as meaning that a common condition can never give rise to liability. (Knight v. Kaiser Co., 48 Cal.2d 778, 782 [312 P.2d 1089] ; Doyle v. Pacific Electric Ry. Co., 6 Cal.2d 550, 552 [59 P.2d 93]; Wilford v. Little, 144 Cal.App.2d 477 [301 P.2d 282] ; Lopez v. Capitol Co., 141 Cal.App.2d 60, 65 [296 P.2d 63] ; Clark v. Pacific Gas & Elec. Co., 118 Cal.App. 344, 348 [5 P.2d 58, 6 P.2d 297]; Morse v. Douglas, 107 Cal.App. 196, 201 [290 P. 465].) Dean Prosser correctly points out: “Many courts have said that the doctrine does not apply to common conditions ... or that it is limited to . . . special and unusual conditions of modern industry; hut all such statements appear to be made with reference to the particular case, and to be directed at nothing more than the existence of a recognizable and unreasonable risk of harm to the child.” (Prosser on Torts (2d ed. 1955) 443. See also Reynolds v. Willson, 51 Cal.2d 94, 103 [331 P.2d 48].)

A common condition, namely, fire or embers, led to the injuries of the minor plaintiff in the recent case of Courtell v. McEachen, 51 Cal.2d 448 [334 P.2d 870], and we held that, if the condition causing the accident was not obvious to the child, there could be liability under the law applicable to trespassing children. Other eases involving conditions which could be considered as common in character have reached the same result. (Cahill v. E. B. & A. L. Stone Co., 167 Cal. 126 [138 P. 712] ; Cahill v. E. B. & A. L. Stone & Co., 153 Cal. 571 [96 P. 84, 19 L.R.A. N.S. 1094]; Edler v. Sepulveda Park Apts., 141 Cal.App.2d 675 [297 P.2d 508] ; Copfer v. Golden, 135 Cal.App.2d 623 [288 P.2d 90] ; Long v. Standard Oil Co., 92 Cal.App.2d 455 [207 P.2d 837].) We wish to emphasize that the mere fact that the condition causing an injury is common in character will not prevent recovery by a trespassing child.

With respect to whether the circumstances of this case warrant recovery, it should be kept in mind that a possessor of land is not under a duty to prevent every possibility of harm but only to exercise due care as to those risks which he should realize are unreasonably great and threaten serious bodily harm in a way unlikely to be appreciated by children whose trespass he should foresee. The ability to appreciate danger varies, of course, with the age of the child, and there can be no recovery if the child is of sufficient age and mental capacity to look out for himself under the circumstances presented. (See Prosser on Torts (2d ed. 1955) 441, 443-444; 2 Harper and James, The Law of Torts, 1453-1454.)

. As we have seen, the panels containing windows were heavy and were firmly stacked a considerable distance from the street in such a manner that the glass could be reached only at the top of the piles, 24 to 30 inches from the ground. The chance was slight that a child of plaintiff’s age would fail to see the glass or appreciate what risk was presented, and there is no evidence that plaintiff was of less than average intelligence for her age. It may be, as plaintiff in effect testified, that, because it was getting dark, she did not see the glass before jumping, but defendants could not reasonably be required to foresee that there was any substantial likelihood that a normal child of more than 12 would not appreciate the danger of jumping over a large pile of building materials when darkness prevented sufficient perception of the nature of the obstacle. In the light of the undisputed facts now before us, there is no sound basis for concluding that the condition which caused plaintiff’s injury should have been recognized as constituting an unreasonably great risk of serious bodily harm which plaintiff was unable to discover or appreciate because of her immaturity. Accordingly, the evidence did not warrant a recovery by plaintiff.

The judgment is reversed.

Shenk, J., Traynor, J., and Peters, J., concurred.

* The sentence in question reads: " This limitation of the possessor’s liability to conditions dangerous to children, because of their inability to appreciate their surroundings or to realize the risk involved therein, frees the possessor of land from the danger of liability to which he would otherwise be subjected by maintaining on the land the normal, necessary and usual implements which are essential to its normal use but which reckless children can use to their harm in a spirit of bravado or to gratify some other childish desire and with as full a perception of the risks which they are running as though they were adults.” (Rest., Torts, § 339, comment (b).)