solid cinder blocks were placed on top of the footing. All this was under the ground. Vertical steel bars were erected at specified intervals. Cinder blocks were then laid in rows and were fastened with mortar according to the specifications, and reinforcing steel wire was laid horizontally through the mortar after every two layers of blocks. The testimony is to the effect that these specifications were approved by the Building Inspection Department of the District of Columbia Government and that the specifications were followed by the contractor.
There is no evidence whatever to the effect that there was anything improper or unsafe in a construction of this type. The purpose of this wall was an ornamental one, to act as a screen, and not to carry any stresses or strains or to serve as a retaining wall. The Court, therefore, concludes that there was no showing of negligence in the construction of this wall; but that, on the contrary, the evidence affirmatively establishes that the wall was properly constructed for the purpose for which it was intended.
The question then arises whether there is any basis for invoking the doctrine of attractive nuisance. The doctrine of attractive nuisance has had a varied career in the District of Columbia. At one time it was in full force and effect, at another time it was narrowed, and then later it was revived and is now part of the District of Columbia law. This matter is discussed in detail in an opinion of this Court in the case of McGettigan v. National Bank of Washington, D.C., 199 F. Supp. 133, which was reversed on another point in 115 U.S.App.D.C. 384, 320 F.2d 703. The doctrine of attractive nuisance is, however, limited to a situation in which a structure or an object is involved that is dangerous or attractive to children and the situation was one in which the danger to children could have been prevented by some action on the part of the defendant. For example, in the so-called turntable cases, which originated the doctrine of attractive nuisance, it was not the turntable that was the nuisance. It was the fact that the railroad company had failed to lock the turntable that made it a nuisance.
In this instance the wall is obviously not an attractive nuisance. It was erected for the benefit of the tenants in order to make their homes more attractive in appearance. The benches manifestly are not an attractive nuisance. The fact that some children were so destructive as to wrench or obtain slats from the concrete benches and then carry them 125 feet and use them as a seesaw in this wall, could hardly have been foreseen by anyone in charge of the premises.
The question also arises whether these children had a right to be on these premises. I am assuming that they had, and am giving the plaintiffs the benefit of the doubt on that score. In the leading case of Firfer v. United States, 93 U.S.App.D.C. 216, 208 F.2d 524, the Court distinguished between invitees, licensees by invitation, and bare licensees. Obviously these children were not invitees because the Court points out in the Firfer case that a person is an invitee only if he goes on the premises to carry on some commercial or other transaction for the benefit or partial benefit not only of himself but also of an occupant of the premises. The Court is inclined to the view that these children were more than bare licensees, but were licensees by invitation, in that they were invited to the premises by children of tenants. However, in going into the fenced-off drying area there is a serious question whether they did not become bare licensees. But assuming that they were licensees by invitation, their rights are not enhanced by that circumstance because it has been shown affirmatively that there was no negligence in the construction of the wall and that neither the wall nor the benches, nor the entire area, constituted an attractive nuisance.
In view of these circumstances the Court concludes that there is no liability on the part of the United States and the complaint is dismissed on the merits.
A transcript of this oral decision will constitute the findings of fact and conclusions of law.
Judgment will be rendered for the defendants.
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