Smith v. Smith-Peterson Company , 56 Nev. 79 ( 1935 )

OPINION A petition for rehearing has been filed in which counsel for respondents express strong exceptions to our decision. A portion of the petition is devoted to a reargument of respondents' case. It is not contended that the court failed to decide any point presented, but the decision is vigorously assailed as being without precedent, radically wrong, and, if permitted to stand, will place an undue burden upon the owner or possessor of land in this state.

We have given the argument due consideration, but are not persuaded that our decision is wrong.

We concede that it is more liberal to the injured party than many of the cases cited by respondents, but we do not concede that it is wrong in principle or without precedent or inequitable between the owners or occupiers of land and trespassing children. We are willing to grant that the public's interest in the possessor's free use of his land for his own purposes is of the greatest importance. It is, however, of no higher importance than the protection of children who, by reason of their immaturity, are entitled to such protection.

We do not intend to again discuss respondents' contentions at large, but will give attention to a particular point made in the petition for rehearing. First, however, we will advert to the claim that the decision is without precedent.

The American Law Institute has been well designated as an attempt to meet the need of some restatement of law that will bring certainty and order out of the wilderness of precedent. That the decisions of courts on the subject of trespassing children make up such a multitude of precedent is recognized by counsel for respondents, for, in their petition for a rehearing, it is said, they "are fully cognizant of the almost chaotic state of the law upon the subject of duties and liabilities of landowners towards trespassing children." There being such a growth of precedent, it is gratifying to find that the American Law Institute has established rules consistent with the case made by the allegations of the complaint in this action. Restatement, Torts, sec. 339. It is there said:

"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."

Comment on clause (a) in part is: "It is sufficient to satisfy the conditions stated in clause (a) that the possessor knows or should know that children are likely to trespass upon a part of the land upon which he maintains a condition which is likely to be dangerous to them because of their childish propensities to intermeddle or otherwise. Therefore, the possessor is subject to liability to children who after entering the land are attracted into dangerous intermeddling by such a condition maintained by him although they were ignorant of its existence until after they had entered the land, if he knew or should know that the place is one upon which children are likely to trespass and that the condition is one with which they are likely to meddle."

As to the particular point made in the petition, it is contended that this court laid down a rule that the frequenting of the premises by children will give rise to a duty on the part of the landowner to protect such children; that the court misapplied such rule to the allegations of the complaint for the reason that it nowhere appears therein that the two boys who picked up the fuse had ever visited the premises theretofore, were members of the neighborhood group, or that they had any knowledge that any other children had ever frequented the premises.

In connection therewith it is argued that it is necessary in every negligence case for the complaint to show either a duty owed by the defendant to the particular person injured, or that the latter was a member of a particular class or group of persons to which a duty was owed. Conceding that point was originally raised either directly or inferentially, which is doubtful, we will dispose of it. We think the complaint shows that the two boys who picked up the fuse were of the group in the habit of going to the pit. This is to be clearly inferred from the following allegations of the complaint. "That said two boys were playing in and about the pit. * * * That said two boys at the time understood and believed and had a right to understand and believe that defendants had no objection to children loitering and playing in the said westerly portion of said pit."

1, 2. For the purpose of determining its effect, a pleading should be liberally construed. Section 8621 N.C.L.; Ferguson v. Virginia T.R. Co., 13 Nev. 184.

Under this rule the foregoing allegations are sufficient, even in the presence of a general demurrer, to imply the fact claimed by respondent to be essential, that the said two boys belonged to the group or groups which frequented the place. 46 C.J. pp. 108, 109, 110; 21 Cal. Jur. 30.

3. But our opinion must rest on a broader basis. If the two boys were not shown to have previously visited the pit or to belong to a neighboring group of children who were in the habit of visiting it, the complaint would nevertheless state a cause of action. The duty of exercising care springs from the danger on the land and the knowledge on the part of the possessor that it is a likely place for young children to play in. When the duty is thus charged upon him, it extends to all trespassing children, who, if it is not observed, may be liable to injury. It is a false logic that says an occupier of land is unduly oppressed if charged with a duty to all young trespassing children. If he is compelled to use ordinary care for the protection of those in the immediate vicinity who are in the habit of coming upon his land, wherein does he suffer any injustice if this duty extends to all who come within the protected class on account of their immaturity? Ordinary care protects him as fully from the many as from the few, or, if the danger is great, a corresponding degree of care shields him from damage in either instance.

It is to be observed that the restatement and comment formulated by the American Law Institute make no such limitations as counsel contends for. When the duty arises, it extends to young children trespassing on the land, and this, as we have indicated, is not unreasonable in scope. To illustrate, the complaint alleges the premises to be situate partly within the limits of a populous city. Certainly it would be a curious doctrine that would afford protection to young living nearest the pit and who were in the habit of going thereto to play, and withhold it from the others of the city, who might visit the place. To illustrate further, suppose two boys had come from afar to visit a family living near the pit and had gone with the children of that family to the place, would the duty devolving upon respondents have extended only to the latter? We think not.

For the reasons given, the rehearing is denied.