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MCGETTIGAN v. NATIONAL BANK OF WASHINGTON

November 20, 1961

Gertrude McGETTIGAN, Individually and as mother and next friend of Charles S. McGettigan, a minor, Plaintiffs,
v.
NATIONAL BANK OF WASHINGTON, a corporation, and Fred A. Smith Company, Defendants



The opinion of the court was delivered by: HOLTZOFF

This case involves a phase of that aspect of the law of negligence that is picturesquely denominated as the doctrine of 'attractive nuisance'. The action is brought in behalf of a little boy, who was badly injured by a flare picked up by his brother on premises owned by one of the defendants and managed by the other as agent. The flare was carried to the plaintiff's home and injured him while he was playing with its contents. The defendants move for summary judgment on the ground that on the admitted facts there is no liability as a matter of law.

The motion is made after exhaustive discovery proceedings have been had, and after the case was thoroughly pretried. The salient facts are not in dispute. Actually the defendants accept the version elicited from the plaintiffs and their witnesses, as most of the events are unknown to the defendants or their agents.

 The basic facts on which this controversy hinges are as follows. Adjoining a building in the heart of downtown Washington, which was actively occupied in part for commercial and in part for residential purposes, and located on the same lot there was a small, dilapidated, deteriorated brick structure that had not been used for many years. It was in a state of disrepair. Its doors were broken and access to the interior was not barred. Vagrants and other persons of unsavory types frequently congregated at night in this vacant building, drinking alcoholic beverages and engaging in other activities. Children frequently came into the place to play. A great deal of debris and trash had gradually accumulated in it in the course of time.

 The infant plaintiff is a little boy, who at the time of the occurrence about to be described was nine years old. He lived with his family a short distance away from the above mentioned property. One day his brother, who was two years older, while returning home from an errand aimlessly wandered into the abandoned structure. While ransacking among the rubbish, he found a cylindrical, tubular object. He picked it up and carried it home. Later the younger brother started to dismantle it. Unfortunately, the object was a flare and contained gunpowder. The gunpowder exploded and painfully and permanently injured the little boy. The injuries were of a very serious nature that may affect him throughout his life.

 This action is brought against the National Bank of Washington, the owner of the building as trustee of an estate, and against Fred A. Smith Company, a real estate agent who managed the entire property in behalf of the owner. The plaintiff claims to be entitled to recover damages on the theory of attractive nuisance. The defendants contend that this humanitarian principle is limited to situations in which the property owner himself maintains the structure or places on the property the object, which is asserted to constitute the attractive nuisance, as well as to instances in which he at least is aware of its existence and does nothing to safeguard children against it. It is claimed on behalf of the defendants that the doctrine does not apply if the object constituting the nuisance is placed on the property by a third person and its presence is not known to the property owner. These conflicting contentions present the issue of law to be determined on this motion.

 The progenitor of the doctrine of attractive nuisance is a decision rendered by the Supreme Court in 1873, in Sioux City & Pacific Railroad Company v. Stout, 17 Wall. 657, 21 L. Ed. 745. In that case, a child six years of age was playing on a railroad turntable located in an open space near a railroad depot. As was well known to the Company's employees, boys were accustomed to play and swing on the turntable from time to time. On the occasion in question, the child's foot was caught and crushed between the ends of two rails as the turntable was revolving. The turnable was neither fastened nor locked and rotated easily on its axis, although it could have readily been made fast by a latch. It was held that the child was entitled to recover damages from the railroad company for the injury that he had sustained. In discussing this subject, the Court stated that the conduct of an infant of tender years is not to be judged by the same rule which governs that of an adult; that a turntable was a dangerous machine; and that the defendant was under a duty to give it that care and attention to prevent the occurrence of accidents which prudent and careful men ordinarily bestow. While the Court did not discuss the theory on which this decision was predicated, it was later stated that the doctrine of this case is 'that he who places upon his land, where children of tender years are likely to go, a construction or agency, in its nature attractive, and therefore a temptation, to such children, is culpably negligent if he does not take reasonable care to keep them away, or to see that such dangerous thing is so guarded that they will not be injured by it when following the instincts and impulses of childhood, of which all mankind has notice'. *fn1" Because of the fortuitous circumstance that the dangerous object involved in this case was a railroad turntable, decisions applying these principles have sometimes been informally referred to as 'turntable cases'.

 In 1922 the Supreme Court in United Zinc & Chemical Co. v. Britt, 258 U.S. 268, 42 S. Ct. 299, 66 L. Ed. 615, partially retreated from the forward position that it had taken in Sioux City & Pacific Railroad Company v. Stout, supra. The defendant in the later case had torn down a building owned by it, leaving a basement and cellar in which water accumulated, clear in appearance, but in fact dangerously poisoned by sulphuric acid and zinc sulphate that had percolated from the owner's works, as the owner knew. Two little children came on the land, went into the water, were poisoned and died. At the trial, the judge instructed the jury that if the water looked clear, but in fact was poisonous and the children were allured to it, the owner was liable to pay damages for the death of the children. The judgment was affirmed by the Court of Appeals, 8 Cir., 264 F. 785, but was reversed by the Supreme Court in an opinion written by Mr. Justice Holmes. While the Court referred to Sioux City & Pacific Railroad Company v. Stout, without overruling or disapproving it, it held that there can be no general duty on the part of a landowner to keep his land safe for children, if he had not directly or by implication invited or licensed them to come there. The Court practically restricted the Stout case to its facts and did not indicate any real distinction in principle between the two decisions. An emphatic dissenting opinion was written by Mr. Justice Clarke, with whom Chief Justice Taft and Mr. Justice Day concurred. *fn2"

 In reliance on the Britt case, the Court of Appeals for the District of Columbia, two years later, in Branan v. Wimsatt, 54 App.D.C. 374, 298 Fed. 833, declined to apply the doctrine of attractive nuisance to a pile of loose lumber in a lumber yard on which children had been wont to play. In that case while a group of children were struggling to reach the top of the pile, one of the boards was displaced and fell on a little girl, who sustained permanent injuries. The Court held that the child was not entitled to recover damages from the owner of the property. The Court indicated that Sioux City & Pacific Railroad Company v. Stout must be deemed practically overruled by United Zinc & Chemical Co. v. Britt. Thus, for the time being the doctrine of attractive nuisance had very little efficacy, if any, in the District of Columbia.

 The doctrine, however, rode out the storm and in 1934 was restored to its original course by the decision of the Supreme Court in Best v. District of Columbia, 291 U.S. 411, 54 S. Ct. 478, 78 L. Ed. 882. That case presented the following situation. A child five years of age while playing on a wharf belonging to the District of Columbia, fell through a hole and was drowned. There were a number of holes in the wharf floor and the area in which they were found was not fenced off. Children had been accustomed to play there. The trial judge directed a verdict in favor of the defendant on the opening statement of plaintiff's counsel. The Court of Appeals affirmed the judgment for the defendant, largely on the authority of the Britt case, although Judge Groner dissented, 62 App.D.C. 271, 66 F.2d 797. On certiorari the Supreme Court, in an opinion by Mr. Chief Justice Hughes, reversed the judgment and reaffirmed the decision in Sioux City & Pacific Railroad Company v. Stout, supra. The ultimate result is that the Britt case in the Supreme Court, and Branan v. Wimsatt, supra, in this jurisdiction, were no longer law or, at least, their authority was very much weakened, and that the doctrine of attractive nuisance evolved from the pioneer decision in Sioux City & Pacific Railroad Company v. Stout, supra, was restored to its original potency. *fn3"

 The doctrine of attractive nuisance is, however, in those jurisdictions in which it prevails, universally restricted and circumscribed by well defined and well established limitations. The liability of the property owner for injuries caused to a child by what may be deemed to be an attractive nuisance, is confined to cases in which the property owner either erects or maintains the dangerous structure, or places on the property the object that is dangerous and constitutes the attractive nuisance, or, at most, if a third party is responsible for the nuisance coming into existence, to situations in which the property owner is actually aware of its presence and does nothing either to eradicate it, or to protect children against it. Carter Coal Co. v. Smith, 173 Ky. 843, 191 S.W. 631; Ball v. Middlesboro Town & Lands Co., Ky., 68 S.W. 6; Simmel v. New Jersey Coop. Co., 28 N.J. 1, 143 A.2d 521, 526; Travell v. Bannerman, 174 N.Y. 47, 66 N.E. 583; Gallagher v. Frederick, 366 Pa. 450, 77 A.2d 427; Cooper v. City of Reading, 392 Pa. 452, 140 A.2d 792, 795.

 This principle was summarized as follows in Gallagher v. Frederick, supra, 77 A.2d p. 429.

 'The artificial condition on an owner's land on account of which he may be liable for injury to trespassing young children is such as he creates or maintains. That, of course, does not necessarily mean that an owner may not be said to maintain such a condition on his land which ...


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