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April 2, 1963

Mrs. Mary E. HANKINS, Administratrix of the Estate of Thomas A. Hankins, deceased, Plaintiff,
SOUTHERN FOUNDATION CORP., and Intercounty Construction Corporation et al., Defendants

The opinion of the court was delivered by: YOUNGDAHL

The plaintiff, administratrix of the estate of Thomas Hankins, a boy who was eleven years old when he died, recovered a jury verdict in an action for damages arising out of the death of the decedent caused by the alleged negligence of the defendants, three contractors and the District of Columbia. The defendants have moved for a judgment notwithstanding the verdict, for a reduction of the verdict, and in the alternative for a new trial.


 The motion for judgment notwithstanding the verdict is based upon two grounds: first, that the defendants as a matter of law cannot be held liable for failure to exercise reasonable care toward a child of eleven who trespassed on an area under construction and drowned in a deep ditch when the ice on top of this ditch gave way; and second, that the decedent, under these circumstances, was guilty of contributory negligence or assumption or risk as a matter of law. *fn1"

  For both these propositions, the defendants rely upon the early case of Sullivan v. Huidekoper, 27 App.D.C. 154, 5 L.R.A.,N.S., 263 (1906), where the Court of Appeals affirmed a demurrer to a complaint alleging, in effect, that for many years children from surrounding homes had been attracted to a large pond (250 feet long, 90 feet wide, and from 6 to 10 feet deep) which had been artificially created on defendant's land by the construction of two intersecting streets, and that the defendant had made no effort to drain, fill in, or fence the pond. The court stated that the pond 'was of such size, and children were so accustomed to play about it and wade and swim in it, that the element of an unknown, concealed, or hidden danger is also absent,' 27 App.D.C. at 156, and that there was no 'concealed, dangerous condition the existence of which was not and could not well be known by the child.' Id. at 158. The court declared that cases 'holding that there is no duty upon the part of a real-estate owner, upon whose land is a pond or other body of water, to keep his land safe for trespassers' was founded upon reason and common sense, and that the 'primary duty to guard and protect a child against patent and unconcealed dangers devolves upon the parent, and not upon a stranger.' Id. at 159. The court therefore held that the landowner was not liable, since 'to hold landowners responsible under such circumstances would be to impose upon them an oppressive burden, and shift the care of children from their parents to strangers.' Id. at 163.

 This Court does not believe that Sullivan v. Huidekoper, supra, is applicable to the facts in the present case, since the water involved in the present case was not a 'pond' or 'body of water' of the kind the court in Sullivan had before it, and since, unlike Sullivan, there is evidence in the present case of a concealed danger.

 In the present case, the evidence showed that the various contractors were engaged in construction work pursuant to contracts and subcontracts with the District of Columbia, in connection with the construction of the Anacostia Freeway on the southeasterly side of the Anacostia River in the District of Columbia, between Pennsylvania Avenue and the river. These particular defendant contractors were engaged in moving a sewer line in connection with said highway construction, and in pursuance of this work had excavated a deep ditch with steep sides. Photographs introduced into evidence showed that the ditch appeared to be a few yards wide and about 20 or 25 yards long. There were six or seven other such deep ditches in the whole construction area, as well as numerous smaller ones and many mounds of dirt. Water had collected in all of these ditches, and as of the date of the accident, December 27, 1958, ice had formed over the water. There was testimony that the over-all area under construction was large enough to contain 'many football fields.' Numerous children (up to 50 or 60 on one occasion) came in the afternoons and on week ends in the months and weeks immediately before the accident to play upon the mounds of dirt and to slide upon the patches of ice. The decedent drowned in one of the deep ditches when the ice on top broke; he and two young playmates had come to this deep ditch after having slid safely on ice covering several shallow ditches.

 Clearly, these patches of water and ice were not the sort of 'ponds' or 'bodies of water' the dangers of which children must, as a matter of law, be held to appreciate -- especially because the existence in close proximity of mounds of dirt and the two sorts of ditches, some shallow and safe, and the others deep and hazardous, created just the kind of concealed danger which children might not appreciate. Sullivan v. Huidekoper, supra, is therefore not applicable to the facts in the present case, and has no bearing upon the correctness of the Court's decision to submit the case to the jury under the so-called 'attractive nuisance' doctrine.

 The Court submitted the case to the jury under the 'attractive nuisance' doctrine because of two cases which are much more recent than the Sullivan case: Best v. District of Columbia, 291 U.S. 411, 54 S. Ct. 487, 78 L. Ed. 882 (1934), and Eastburn v. Levin, 72 App.D.C. 190, 113 F.2d 176 (1940).

 The Best case held that there were sufficient facts to go to the jury where it was alleged that children were attracted to a wharf on which were piles of sand, that the wharf was unfenced and close to the public road, that the piles of sand concealed holes in the wharf, and that the child drowned after falling through one of these concealed holes. The court held that 'the question is one of negligence -- whether particular circumstances gave rise to a duty which had not been performed.' 291 U.S. at 419, 54 S. Ct. at 490. Where trespassing children are concerned, the court said that such duty 'must find its source in special circumstances in which, by reason of the inducement and of the fact that visits of children to the place would naturally be anticipated, and because of the character of the danger to which they would unwittingly be exposed, reasonable prudence would require that precautions be taken for their protection.' 291 U.S. at 419, 54 S. Ct. at 490. The court in Best concluded that a jury should therefore have considered the case.

 Eastburn v. Levin, supra, held that whether these 'special circumstances' exist is a question for the jury. In that case it was alleged that children were attracted to a junk yard bordering on a city street, that the employees of the junk yard constantly let children use it as a playground, and that a child was injured when an old car on which he was climbing tilted and threw him against broken glass. The court held:

 'The jury should have been permitted to decide whether the special circumstances on which the Court relied in the Best case -- attraction, danger not apparent to children, and likelihood of visits of children -- were present here, and if so, whether defendant took reasonable precautions for the protection of children.' 72 App.D.C. at 191, 113 F.2d at 177.

 The court added that the rationale for permitting a jury to impose liability based upon these special circumstances was derived from a basic choice:

 'The underlying question is whether it is better to let occupants arrange their premises in total disregard of neighboring children, or to require them to take such precautions as a normal person would when their premises are attractive and insidiously dangerous to children too young to look out for themselves and when the intrusion of such children is likely. On the one side is the occupant's interest, and the general interest, in the profitable use of land. On the other is the child's interest, and the interest of his parents and of society, in life and limb and in compensation for their injury. Imposing responsibility is more apt to make occupants careful than denying responsibility is to make children careful; occupants may know little about law, but children know nothing about it, and children will play where they can.' 72 App.D.C. at 192, 113 F.2d at 178.

 Because of the above language from the Best and Eastburn cases, this Court concluded that the facts of the present case raised a jury question, *fn2" since a reasonable jury could conclude that the piles of dirt and the ice constituted a special attraction, that the combination of deep ditches and shallow ditches constituted a special danger, that the number of children using the construction area as a playground meant that the defendants should have anticipated that visits of children to the area were likely, and that the absence of any warning signs, fences, or guards of any kind meant that the defendants had failed to take ...

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