T.A. v. Allen

FORD ELLIOTT,

Judge, dissenting.

Having carefully reviewed both the majority opinion of my colleague Judge Wieand and the concurring and dissenting opinion of my colleague Judge Olszewski, I find that I must respectfully dissent as to both. I would affirm the order of the trial court denying appellant Elizabeth Ann Allen’s motions for post-trial relief. My reasons follow.

As do my colleagues, I recognize that Pennsylvania still adheres to the view that “‘[t]he standard of care which a possessor of land owes to an entrant upon the land depends upon whether the entrant is a trespasser, licensee, or business invitee.’ ” (Majority opinion at 309, quoting Trude v. Martin, 442 Pa.Super. 614, 624, 660 A.2d 626, 630 (1995).) I also agree with my colleagues that the children in the instant case were licensees. (Majority opinion at 308-309.) Additionally, I do not take issue with my colleagues’ statement of the duty generally owed by a possessor of land to a licensee. (Id. at 310, citing § 342 of the Restatement of the Law (Second) of Torts (possessor of land has a duty to exercise reasonable care to make a condition upon the land safe or to warn the licensee of the condition and the risk involved where the possessor of land knows or has reason to know of the condition and should realize it involves an unreasonable risk of harm to such licensees, and should also expect that the licensees will not discover or realize the danger).) It is at this point in the analysis, however, that I must part company with my colleagues, for different reasons.

The majority finds that the children were licensees, that appellant’s husband was not a condition on the land, and that, therefore, appellant had no duty as a possessor of land to protect the children from her husband. (Majority opinion at 310.) The majority then finds no “special relationship,” as that term is defined in the Restatement, between appellant and the children that would impose upon appellant a duty to control the conduct of third persons who might harm the children. (Id. at 311, citing Restatement (Second) of Torts § 315 (1965) and sections referred to therein.) Having thus found no duty as a possessor of land, and no special relationship that imposes a duty, the majority finds no duty at all.

The concurring and dissenting opinion of Judge Olszewski, on the other hand, would find a duty based upon appellant’s status as a possessor of land, but would limit that duty to a duty at most to warn the children licensees of the danger posed by their grandfather. (Concurring and dissenting opinion at 312-313.) Judge Olszewski recognizes, however, that licensees are only protected from conditions upon the land. In addition, Judge Olszewski acknowledges that Pennsylvania has yet to find a special relationship between adults and children, generally, that would impose upon adults with knowledge of a particular danger to children a duty to act to protect a child subject to that danger. (Id. at 314-317.) Nevertheless, Judge Olszewski, recognizing the “shifting sands” upon which the law imposes a duty of care, is willing to find, from the children’s status as children, from “our ideas of morals and justice,” and from “the mores of the community,” a duty on the part of appellant to warn the children of the danger posed by their grandfather. (Id. at 316-317, quoting Gardner by Gardner v. Consolidated Rail Corp., 524 Pa. 445, 454-55, 573 A.2d 1016, 1020 (1990) (other citations omitted).)

I agree with Judge Olszewski that:

[T]he concept of duty amounts to no more than ‘the sum total of those considerations of policy which led the law to say that the particular plaintiff is entitled to protection’ from the harm suffered. To give it any greater mystique would unduly hamper our system of jurisprudence in adjusting to the changing times.

Concurring and dissenting opinion at 316, quoting Gardner, supra at 454-55, 573 A.2d at 1020 (other citations omitted). As a result, I would agree with him that appellant had a duty to warn; however, I would find that duty encompassed within a broader duty to protect, for the following reasons.

Pennsylvania has adopted the so-called “attractive nuisance” or “child trespasser” doctrine, which states:

§ 339. Artificial Conditions Highly Dangerous to Trespassing Children

A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if

(a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and

(b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and

(c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and

(d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and

(e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.

Restatement (Second) of Torts § 339 (1965) (emphasis added).¹ See Carter by Carter v. United States Steel Corp., 390 Pa.Super. 265, 276-77, 568 A.2d 646, 651 (1990) (noting that the Pennsylvania Supreme Court adopted § 339 in Bartleson v. Glen Alden Coal Co., 361 Pa. 519, 64 A.2d 846 (1949)), affirmed in part, reversed in part on other grounds, 529 Pa. 409, 604 A.2d 1010 (1992), cert. denied sub nom. U.S. Steel v. Carter, 506 U.S. 864, 113 S.Ct. 186, 121 L.Ed.2d 130 (1992). It is thus clear that Pennsylvania, as well as almost every other jurisdiction, recognizes a distinction between children who enter upon the land, even as trespassers, and adults who do likewise. The possessor of land who knows that children are likely to trespass on his or her land, and who also knows of an artificial condition on the land that poses a threat of serious bodily injury or death, owes the children the same duty he or she would owe an invitee; namely, a duty to protect. See § 343(c), Restatement (Second) of Torts (1965). See also § 369 (possessor of land is subject to liability for physical harm caused to children by an artificial condition maintained by him on the land so close to the highway that it involves an unreasonable risk to such children because of their tendency to deviate from the highway).

The reason for our heightened protection of children is grounded in the public policy that society should protect those who are too young, too innocent, or too defenseless to protect themselves. As a result, we recognize that a sign posted beside a swimming pool would do little to deter a young trespassing child, even if he or she could read, from jumping in on a hot day. Throughout the law, there exists this heightened protection afforded to children. We grant immunity from criminal or civil liability to those who make a good-faith report of suspected child abuse, 23 Pa.C.S. § 6318(a), and we presume good faith. 23 Pa.C.S. § 6318(b). Physicians, nurses, teachers, day-care workers, and others who encounter suspected instances of child abuse in the course of their employment are required by law to report these instances to child protective agencies, and may face summary or misdemeanor charges for the willful failure to comply. 23 Pa.C.S. §§ 6311, 6319. We impose upon social hosts civil liability for the consequences of serving alcoholic beverages to minors. Congini by Congini v. Portersville Valve Co., 504 Pa. 157, 470 A.2d 515 (1983). We also impose criminal accomplice liability upon adults who obtain alcoholic beverages for minors. 18 Pa.C,S.A. §§ 306, 6308. See generally 18 Pa.C.S.A. §§ 6301-6314 (minors). As a society, we do all of this in recognition of the fact that children aré usually not able to appreciate the risk inherent in their actions, and that even warnings are inadequate to protect those who are too immature or too innocent to understand the danger.

The majority argues that finding a duty on the part of appellant to protect children coming onto her property from the harmful acts of third parties is precluded by our supreme court’s decision in Feld v. Merriam, 506 Pa. 383, 485 A.2d 742 (1984). With all due respect to the majority, I must disagree. In Feld, a couple was abducted and brutally assaulted by an unknown assailant in the parking garage of the large apartment complex in which they resided. In refusing to extend to the apartment complex owners a duty to protect tenants from the criminal acts of unknown third parties, the supreme court stated:

The criminal acts of a third person belong to a different category and can bear no analogy to the unfixed radiator, unlighted steps, falling ceiling, or the other myriad possibilities of oné’s personal negligence. To render one liable for the deliberate criminal acts of unknown third persons can only be a judicial rule for given limited circumstances.

Feld, supra at 390, 485 A.2d at 745 (emphasis added). The Feld court continued:

The Superior Court viewed the imposition of this new duty [to protect against harmful acts of third persons] as merely an extension of the landlord’s existing duty to maintain the common areas to be free from the risk of harm caused by physical defects. However, in so holding that court failed to recognize the crucial distinction between the risk of injury from a physical defect in the property, and the risk from the criminal acts of a third person. In the former situation the landlord has effectively perpetuated the risk of injury by refusing to correct a known and verifiable defect. On the other hand, the risk of injury from the criminal acts of third persons arises not from the conduct of the landlord but from the conduct of an unpredictable independent agent. To impose a general duty in the latter could effectively require landlords to be insurers of their tenants [sic] safety; a burden which could never be completely met given the unfortunate realities of modern society.

Id. at 392, 485 A.2d at 746 (emphasis added). Clearly, the facts of the instant case are distinguishable. Under Feld, I could not impose upon appellant a duty to protect children from the unpredictable acts of unknown third parties; rather, I would impose upon her a duty to protect them from the predictable acts of known third parties, because she effectively perpetuated the risk of injury by refusing to respond to a known and verifiable risk to the children. As in Judge Olszewski’s example, just as appellant would owe a duty to protect the child who comes to her home for piano lessons, as a business invitee, from her husband’s known abuse, so too should appellant owe the same duty to protect the child who comes to her home as a licensee merely to practice on her piano. Similarly, the child who comes to one’s home as an invitee to purchase home-made candy should receive no more protection from the known propensity of a person on the premises to contaminate the candy than would the child who comes to one’s home as a licensee to trick-or-treat on Halloween. To require anything less is to countenance an absurd result.

Nor is there a valid public policy consideration behind refusing to impose a duty on appellant in the instant case, as there was in Feld. The Feld court was properly concerned with making apartment complex owners insurers of their tenants’ safety in a world in which “[t]he criminal can be expected anywhere, any time, and has been a risk of life for a long time.” Feld, supra at 391, 485 A.2d at 746. Recognizing that providing such “insurance” would dramatically increase the costs of owning apartment complexes, and that these costs would inevitably be passed along to tenants, the Feld court wisely decided it could not impose such a duty. Instantly, however, the cost of protecting the children from a known child abuser could amount to nothing more than the cost of a telephone call — to the parents, the police, or the local child protection service.

While no one section of the Restatement, and no Pennsylvania case, directly imposes upon possessors of land a heightened duty toward children to protect them from the harmful acts of known third persons regardless of their status as trespassers, licensees or invitees, several sections recognize such a duty where a special relationship exists between the possessor of land and the person coming on the land. See Restatement (Second) of Torts §§ 315, 314A, & 320 (1965), cited with approval in Maxwell v. Keas, 433 Pa.Super. 70, 639 A.2d 1215 (1994); Troxel v. A.I. duPont Institute, 431 Pa.Super. 464, 636 A.2d 1179 (1994); Johnson v. Johnson, 410 Pa.Super. 631, 644, 600 A.2d 965, 971-72 (1991); Stupka v. Peoples Cab Co., 437 Pa. 509, 264 A.2d 373 (1970). Section 314A(3), for example, recognizes a special relationship between a possessor of land who holds it open to the public and members of the public who enter in response to his invitation, even where their presence on the land is not in furtherance of any pecuniary interest of the possessor of land. See W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 61, at 421-424 (5th ed. 1984). As a result, such a possessor of land would have a duty to protect those coming onto his land by invitation from the harmful acts of third persons. See § 315. Section 344 imposes upon a possessor of land who holds it open to the public for entry for his business purposes a duty to protect those members of the public on his land from the accidental, negligent or intentionally harmful acts of third persons or animals. See Johnson v. City of Philadelphia, 657 A.2d 87 (Pa.Cmwlth.1995) (citing § 344 with approval but holding that plaintiff must still show that alleged negligent conduct falls within an exception to immunity provided state employees). Section 509 imposes absolute liability on a dog owner who is aware of the animal’s vicious propensities, and whose dog injures a person coming on the land, regardless of the status of the person. While this section has not been adopted in Pennsylvania, our supreme court has adopted the theory that a dog owner is liable for negligently failing to control or restrain a dog when he knows of the dog’s vicious propensities. Andrews v. Smith, 324 Pa. 455, 188 A. 146 (1936). Accord Deardorff v. Burger, 414 Pa.Super. 45, 606 A.2d 489 (1992), allocatur denied sub nom. Deardorff v. Miller, 532 Pa. 655, 615 A.2d 1312 (1992).

The only instances in which the Restatement addresses the duty of landowners to children specifically occur in § 339, set forth supra, and in § 369. It is instructive that in both instances, the Restatement abandons the distinctions among trespassers, licensees, and invitees as they pertain to children who come onto the land and are harmed by an artificial condition upon the land. See § 343B. I would find guidance from these sections, and hold that the distinction also blurs, with regard to children who are harmed by a known third person with known “vicious propensities.” To extend such protection merely acknowledges that which the law of Pennsylvania has already acknowledged; that children are, by their very nature, in need of greater protection than adults. Such a result also enables us to avoid the anomaly of imposing a duty upon one such as appellant to protect a child who comes onto her property from drowning in her swimming pool, while imposing no duty to protect a child who comes onto her property from the known harmful acts of a known third person. See Pamela L. v. Farmer, 112 Cal.App.3d 206, 169 Cal.Rptr. 282 (1980).

Both the majority and the concurrence and dissent make much of the fact that appellant may have been unable to keep the children from coming onto her property since they were her husband’s grandchildren, and he eo-owned the property. See majority opinion at 311 (“Indeed, to impose such a duty would be to place appellant in an untenable position between her husband and his grandchildren and impose upon her an impossible burden of insuring the safety of her husband’s grandchildren during visits between grandfather and grandchildren”); concurring and dissenting opinion, Olszewski, J. at 315 (“The law cannot reasonably demand that a landowner protect the safety of people whom she cannot exclude, against dangers she cannot eliminate.”). First, I note that the law imposes just such a duty in the case of child trespassers; namely, a duty to protect these children, who by definition cannot effectively be excluded, from a danger that cannot be eliminated. See § 339 of the Restatement (Second) of Torts, set forth supra. More importantly, however, the issues raised by my colleagues are not issues that go to appellant’s duty toward the children; rather, these are issues that go to the reasonableness of appellant’s efforts to protect the children, and are therefore properly questions for the jury. The duty imposed should be a duty to eliminate the danger or otherwise to protect, where protection subsumes warning an appropriate adult if a warning would be adequate to protect the child. In the instant case, whether merely warning the children’s mother of their grandfather’s abusive practices would have sufficed to meet this duty is not an issue before us, because appellant has never argued that she tried, but failed, to warn or otherwise to protect. Rather, she has argued only that she owed no duty whatsoever to these children, related by marriage, who came to her door, entered her home, and therein were systematically abused by a man who appellant knew kept a studio devoted to sexual experiments on young children. I do not believe that “our ideas of morals and justice” allow of such a result.

As a result of the foregoing, I would find that the trial court’s instruction to the jury on the issue of duty, which charged that appellant had a duty to eliminate the danger or to protect the children, accurately reflected the appropriate duty of a possessor of land to any child coming onto his or her property. While the trial court did not specifically mention a duty to warn, which duty is subsumed by the duty to protect, I would find such an omission harmless in view of the total lack of evidence that any warning was given, either to the children or to an appropriate adult.

As Judge Olszewski observed, the late Dean Prosser described the concept of duty as one built upon shifting sands: “There is a duty if the court says there is a duty ... Duty is only a word with which we state our conclusion that there is or is not to be liability....” Concurring and dissenting opinion, Olszewski, J. at 316-317, quoting Gardner, supra at 454-55, 573 A.2d at 1020 (other citations omitted). To the extent that the law does not yet impose a duty upon a possessor of land such as appellant to protect children from the known harmful acts of known third persons, I would seize this opportunity to do so, and would affirm.

SAYLOR, J., joins.

1 . Section 343B recognizes that situations in which a possessor of land is subject to liability to children as trespassers also subjects the possessor of land to liability to children who are licensees and invitees.