Puchta v. Rothman , 99 Cal. App. 2d 285 ( 1950 )

DOOLING, J.

I dissent. Our Supreme Court reiterated only the other day the well settled rule that under the liberal provisions of our code “(i)t is not necessary in this state to plead with the exactitude required at common law.” (Steiner v. Rowley, 35 Cal.2d 713, 719 [221 P.2d 9].) Certainly judged by this standard, and in my opinion by any reasonable standard, the first count of the complaint states a cause of action under the attractive nuisance doctrine. It alleges that the minor plaintiff is 10 years of age; that the defendants on or about February 6, 1947, were engaged in constructing a building; that prior to the injury herein complained of children had been attracted to the unfinished building for the purpose of playing therein “and had played in and about said stairway and uncompleted roof, all of which, at all times herein mentioned, was well known to the defendants; . . . that the second story of said structure was incomplete . . . and at that time was covered by a sheet of tar paper covering, which tar paper covering also was laid over a proposed ventilation opening or skylight, totally concealing the same”; that the minor plaintiff was attracted, with other children, to the building as a place to play and “ without knowledge or notice of the existence of said covered ventilator shaft . . . fell into the concealed ventilation opening . . . through the temporary tar paper covering . . . (Emphasis mine.)

These allegations fit the concealed peril or “trap” phase of the attractive nuisance doctrine expounded by the courts in Sanchez v. East Contra Costa Irr. Co., 205 Cal. 515 [271 P. 1060] and Faylor v. Great Eastern Q. Min. Co., 45 Cal.App. 194 [187 P. 101], like a glove tailored to the hand.

It is a too mechanical application of the rules of law to say that because the cases have held that to bring the ordinary perils of an unfinished building within the attractive nuisance doctrine “would burden the ownership of property with a most preposterous and unbearable weight,” ergo no sort of trap or concealed peril in an unfinished building can come within that doctrine. The removal of a piece of tar paper from a ventilator opening would not burden the ownership of property with a “preposterous and unbearable weight” or any appreciable weight at all, particularly when measured against the lives and safety of little children Imown to have played in the building.

With the knowledge that little children were in the habit of playing about the building, according to the pleaded facts, the defendants covered the entire second story floor, including the ventilator opening, with tar paper thus giving the deceptive appearance of a safe flooring to the ventilator opening and the minor plaintiff deceived by the appearance fell through the opening and was injured, thus springing the “trap.”

The courts of this state have held over and over again that an open body of water on a defendant’s land is not within the attractive nuisance doctrine and yet the court in Sanchez v. East Contra Costa Irr. Co., supra, had no difficulty in finding that a concealed trap in an open canal came within the doctrine. The court made the distinction between the obvious dangers and the trap or concealed peril in the following words (205 Cal. at pp. 517-518) : guarded. It is a matter of common knowledge that children playing on the edge of a shallow body of water will be tempted to play in the water and to reach into it, and while the defendant need not have guarded against this open and obvious stream of water, under numerous California decisions, we think a different rule applies where an apparently harmless, shallow stream of water contains a large opening into which anyone might'slip, which opening is wholly unguarded and completely concealed from view. . . . The children assumed the risk of the open, obvious, notorious danger incident to the canal, containing about three feet of water; but they did not assume the risk of an unknown, concealed, and unguarded danger.”

“In the instant ease, the canal with its shallow water was the bait of the trap. The defendant knew that children lived close by and the opening of the syphon might have been easily

Substitute “unfinished building” for “canal” and you have the pleaded case. Nor can I agree that Doyle v. Pacific Elec. Ry. Co., 6 Cal.2d 550 [59 P.2d 93] is a comparable case. There a canvas did conceal a skylight, but it was in the attic of a finished building used as a public ballroom which could only be reached by a ladder from the spectators’ gallery and a eat walk of planks, a situation very different from an unfinished building open to playing children and in which, according to the allegations of the complaint the fact that children “had played . . . was well known to the defendants.” The facts of the two cases readily distinguish them.

I would reverse the judgment.

A petition for rehearing was denied September 30, 1950.