Goben Ex Rel. Goben v. Sidney Winer Co.
342 S.W.2d 706 (1961)
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Rule of Law:
Under the attractive nuisance doctrine, a jury question regarding negligence arises when a contractor or landowner creates or maintains a structure on a construction site that is attractive to children and contains a latent danger, even if adults perceive it as sturdy, and the risk of injury from foreseeable child play is disproportionate to the burden of prevention.
Facts:
- Mr. and Mrs. Lucas hired Sidney Winer & Co. (contractor) to build a two-car garage near their home in a residential neighborhood.
- William H. Cole, the masonry subcontractor, constructed the concrete block walls, including a central column in the front opening of the garage.
- The central column was 10 or 11 concrete blocks high, approximately 7-8 feet tall, 16 inches wide, and 8 inches thick, supported only by its own weight and mortar, with several bolts protruding from it.
- Cole finished the masonry work on a Friday, and carpenters were delayed until the following Monday, leaving the column with 'green' (unhardened) mortar and unsecured.
- On Monday afternoon after school, nine-year-old Ronnie Goben and other neighborhood children were playing in and around the unfinished garage.
- Ronnie Goben attempted to climb the concrete block column, using the protruding bolts as steps, to test its sturdiness.
- As Ronnie Goben pulled himself upward, the column began to fall, and one of the blocks struck his hand, resulting in the amputation of two fingers.
- Adults, including Mr. Winer (the contractor), Mrs. Lucas, and Mrs. Hays, had previously observed the column and believed it looked 'sturdy,' 'solid,' and 'strong,' with nothing to indicate it would fall if climbed, though Cole admitted the mortar was 'green' and he sometimes chocked similar columns on windy days.
Procedural Posture:
- Plaintiff, Ronnie Goben, a 9-year-old boy, sued the contractor (Sidney Winer & Co.) and the masonry subcontractor (William H. Cole) for damages in a trial court.
- The trial court entered a directed verdict in favor of the defendants.
- Ronnie Goben appealed the trial court's judgment to the Court of Appeals of Kentucky.
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Issue:
Does the attractive nuisance doctrine require a jury determination of negligence when a nine-year-old child is injured climbing a concrete block column on a residential construction site that appeared sturdy to adults but collapsed due to unsecured mortar, thereby presenting a latent danger to children?
Opinions:
Majority - Palmore, Judge
Yes, the cause should have been submitted to the jury. The concrete block column, with its protruding bolts, was an attractive object to small boys and became dangerous when it fell. While it appeared sturdy to adults, the danger of its collapse was concealed to children due to their inexperience and immature judgment, presenting an 'unexpected development' beyond merely falling from an obvious structure. The masonry subcontractor's testimony regarding the 'green' mortar and the practice of chocking columns on windy days suggests that the danger of it falling was foreseeable, and available security measures would not have been unduly burdensome. The contractor, Sidney Winer & Co., retained control and responsibility for the project, making its relationship with the subcontractor immaterial regarding its duty to anticipate and guard against such foreseeable dangers, especially in a residential neighborhood where children's presence is expected. Furthermore, a 9-year-old child is presumed to lack the capacity for contributory negligence, making it a jury question.
Dissenting - Stewart, Judge
No, the attractive nuisance doctrine should not apply, and the case should not have gone to the jury. The majority opinion extends the attractive nuisance doctrine to an unprecedented and undesirable degree, effectively making property owners and builders insurers of trespassing children's safety, contrary to judicial policy to restrict the doctrine's application, particularly for conditions arising from the ordinary use of property like a wall. The column, being part of a garage wall under construction, falls into this exclusionary category. The protruding bolts were necessary for construction, not an invitation to climb. Unlike previous cases involving negligently stacked materials in public streets or playgrounds, this structure was on private property and built with customary workmanship. The danger of falling from the column was obvious, and the child was a trespasser engaging in bravado. Requiring builders to implement security measures for every aspect of construction would impose prohibitive costs. When the facts regarding the accident are undisputed, it is the court's duty to decide, as a matter of law, whether there was culpable negligence, and in this case, the trial court correctly directed a verdict for the defendants.
Analysis:
This case significantly clarifies and potentially expands the application of the attractive nuisance doctrine in Kentucky, particularly concerning construction sites. It underscores the importance of distinguishing between dangers obvious to adults and those latent or concealed to children, emphasizing that a structure appearing sturdy to an adult may still harbor hidden perils for an inexperienced child. The ruling reinforces that contractors maintain a duty of care to anticipate children's presence and potential interaction with dangerous structures in residential areas, irrespective of subcontractor negligence. It makes the question of foreseeability and reasonable preventative measures a factual determination for the jury, solidifying the idea that the 'improper use' of an object by a child, if foreseeable, does not automatically absolve liability.
