BOLIN, Judge.
Invoking the attractive nuisance doctrine, the plaintiffs sued to recover damages for the death of their three-year-old daughter, and for the serious injury to a six-year-old daughter, by suffocation in a refrigerator located within a house that was owned by the defendant, Joseph S. Guerriero. Liability was sought against the other defendant on the basis of his employment by the owner to make certain repairs to the premises; it being alleged that he had joint control at the time of the accident, and thereby became a joint tort-feasor. From a ruling by the trial court sustaining an exception of no cause of action against the plaintiffs they have perfected this appeal.
Inasmuch as we must decide whether or not the judgment sustaining the exception was correct, it necessarily follows that our statement of facts will be based upon the allegations taken from the plaintiffs' petition.
Plaintiffs alleged that the two small children lived near the property in question; and that on the afternoon of the fatal accident, they wandered away from their maid and stopped on the premises in order to play in the tall clover, catch bees, and play under the carport; that finding the house unlocked, they entered therein to play, and became fascinated with a large empty refrigerator located therein, and entered same and became trapped by the automatic locking door. These children apparently remained in the locked refrigerator until they were found some time later by another child. After removing the two children from the refrigerator, it was possible to revive the older girl, but the three-year-old girl, Brenda Dawn Beasley, was dead upon arrival at the local hospital.
The plaintiffs set forth that the house was located in a neighborhood where there were living many small children; that the presence of such children was well known to the defendants, and that these children played on the lawn, carport and the entirety of the premises in question. The plaintiffs further alleged that the shelves had been removed from the refrigerator, and that it thereby constituted a death trap for children who might enter therein; that the house wherein the refrigerator was located was vacant and unoccupied, and that the defendants were grossly negligent in failing to keep the premises locked at all times; that same was unlocked on the day of the fatal accident, and had been for several days prior thereto.
The basis of the plaintiffs' contentions that their petition sets forth a cause of action may be summarized by the following quotation of paragraph nineteen:
Counsel for the plaintiffs, in his brief before us, contends that an exception of no cause of action can only be sustained when all of the well-pleaded facts, taken as true, do not state a cause of action. In connection with this cardinal principle of law, he cited us to the following cases: Peoples State Bank v. St. Landry State Bank, 1898, 50 La.Ann. 528, 24 So. 14; Lusco v. McNeese, La.App.1956, 86 So.2d 226.
This court certainly has no quarrel with the principle above enunciated, because same has been recognized and reaffirmed by our courts on occasions too frequent to enumerate. As a matter of fact, this Court, in the case of O'Bier v. Manufacturers Casualty Co., La.App.1956, 70 So.2d 220, in considering an attractive nuisance case which was before it on the lower court's sustaining an exception of no cause of action, recognized this principle of law when it stated on page 222 of its opinion:
We now pass to the real issue before us, and that is, whether or not the plaintiffs' petition has stated a cause of action under the attractive nuisance doctrine. In this connection, it can safely be said that there was a time, in the early jurisprudence of this state, when there was some doubt as to whether or nor Louisiana had adopted such a doctrine. However, an examination of the cases decided, by the Appellate Courts within recent years leaves no doubt that Louisiana has recognized and accepted the attractive nuisance doctrine. See Saxton v. Plum Orchards, Inc., 215 La. 378, 40 So.2d 791, 794, together with the many cases cited therein.
In the Saxton case the Supreme Court thoroughly reviewed the attractive nuisance doctrine, and we feel that the following language taken from that case is a brief, but comprehensive statement of the doctrine as it has been applied and used by our Louisiana Courts:
"`3. That there was a strong likelihood of accident.
"`4. That the danger was one other than those ordinarily encountered.
There have been numerous other cases decided by the courts of Louisiana as to particular circumstances, and also as to whether specific instrumentalities are dangerous in themselves. For example, in the case of Peters v. Town of Ruston, La.App. 2 Cir., 1936, 167 So. 491, the court held that there were innumerable things which were both attractive and dangerous to children, but that property owners could not be held accountable as a matter of law for all injuries resulting to children from such articles, and in connection with its opinion had this to say at page 492:
In line with the above case, we also cite the following language taken from the case of Browne v. Rosenfields, Inc., La.App. 1 Cir., 1949, 42 So.2d 885, 887:
In the case of O'Bier v. Manufacturers Cas. Co., supra, the court was considering whether or not a kerosene flare, that was left in a public place where children usually played, was the type of instrumentality that could be used in applying the doctrine of attractive nuisance. In that case the court used the following language:
In light of the above-stated principles of law, we now must consider the peculiar facts and circumstances of this case. Returning to the specific things which the plaintiff alleged constituted an attractive nuisance, we again refer to Article Nineteen of their petition, wherein four different things were listed: (1) Tall clover in the yard; (2) a carport where children play; (3) an unlocked house; (4) an empty refrigerator without any shelves. While we have noted with interest the zeal with which counsel for the plaintiffs has briefed
The instrumentality that caused the unfortunate accident to the children in this case was a refrigerator. This refrigerator was an ordinary appearing object, and it was located on the inside of a fully furnished house. In other words, there was nothing about the appearance or location of this refrigerator that lured these children from their place beyond the premises and caused them to become entrapped therein. The allegations also do not justify this court in holding that these defendants had any reason to anticipate the presence of these children at the place where they were merely because the house was left unlocked.
The attractive nuisance doctrine is in derogation of the ordinary rules of negligence, and therefore should be used with caution. The extension of this doctrine to apply to the facts alleged in the plaintiffs' petition would be an unwarranted, unreasonable and dangerous extension of this doctrine. Unlocked houses have become common and ordinary things in our complex society; in these houses are hundreds of common objects such as electrical appliances, mechanical devices, medicine cabinets and too many other articles to enumerate. All of these objects located within houses could very easily cause fatalities to small children who wander therein, but we certainly cannot hold the owner liable for the untold injuries that might occur to children in these structures. If this house is held to be an attractive nuisance, merely because it was vacant and had a refrigerator located therein, then it would reasonably follow that a small child going into an unlocked house and being killed by almost any dangerous instrumentality therein would subject the owner to liability under the attractive nuisance doctrine.
It is our opinion that the judgment below sustaining the exception of no cause of action is correct, and, accordingly, it is affirmed at appellant's cost.
Comment
User Comments