Lawrence v. Larsen , 156 Me. 168 ( 1960 )

Concurring Opinion

Webber, J.

We concur in the result. In our opinion,'the case is governed by Lewis v. Mains, 150 Me. 75, 104 A. (2nd) 432. The evidence does not warrant a finding that the child was at the area of the cellar by express or implied invitation.

There is no dispute as to the essential facts which establish and limit the duty owed by the defendant. The child’s father had permission to occupy a dwelling house on his employer’s farm as one of the terms of his employment. There was no relinquishment by the owner of his right to enter upon a portion of the land area adjacent to the dwelling house and take exclusive control of that area for his own reasonable purposes. When the owner entered to build a new cellar and foundation wall on which to move the dwelling house, that action constituted a withdrawal of any implied invitation to the employee and his family to make reasonable use of the area in question. Thereafter, since we have expressly repudiated the doctrine of “attractive nuisance” it was incumbent upon the plaintiffs, claiming damages suffered in the area thus set aside, to show wanton, wilful or reckless acts of negligence in order to ground recovery. Of such there is no evidence. We treat the defendant contractor as owing no greater duty to the plaintiffs than did the owner for whom the defendant acted.

Williamson, C. J., joins in this opinion.