Summary
In Thiel v. Bahr Construction Co. (1961), 13 Wis.2d 196, 108 N.W.2d 573, this court was confronted with a similar situation involving an obvious danger to a very young child: a four-year-old was injured by an oil-burning flare maintained at a sewer construction site in a residential area.
Summary of this case from McWilliams v. GuzinskiOpinion
March 6, 1961 —
April 4, 1961.
APPEAL from an order of the circuit court for Manitowoc county: F. H. SCHLICHTING, Circuit Judge. Affirmed.
For the appellant there was a brief and oral argument by Dudley O. Emmert of Manitowoc.
For the respondents there was a brief and oral argument by John C. Mayer and John E. Huberty, guardian ad litem, both of Manitowoc.
Action by William A. Thiel, a minor, by guardian ad litem, and Robert A. Thiel, father of said minor, to recover damages because of injuries sustained by the minor.
Each plaintiff pleaded two causes of action within the same complaint. On behalf of the minor plaintiff the complaint first alleged that the defendant for some time prior to August 27, 1956, had been engaged in the installation of a sewer within a residential street in the city of Manitowoc where numerous families having small children resided; that in conjunction with said work the defendant made excavations and deposited piles of earth adjacent thereto; erected barricades and maintained unprotected oil-burning flares in proximity thereto; that it was the habit of children of tender years residing in the area to play in the vicinity of the excavations, barricades, earth piles, and flares, and that defendant knew or should have known thereof by the exercise of reasonable diligence and care; that the defendant realized or should have realized that said excavations, earth piles, barricades, and unprotected oil-burning flares were inherently dangerous to children and involved an unreasonable risk of serious bodily harm to them; that said William A. Thiel, being four years of age, was not likely to and did not discover the condition or realize the risk involved in going within the area, and that safeguards could reasonably have been provided which would have obviated the inherent danger without materially interfering with the purpose for which the artificial condition was maintained; that on the 27th day of August, 1956, said William A. Thiel suffered personal injuries when his clothing became ignited by the flares placed in the area and maintained in a careless and negligent manner by the defendant, and that said minor was injured as a result of the negligence of the defendant.
As a second cause of action on behalf of the minor the above was realleged by reference. It was then alleged that the street where the injury occurred constituted a place of employment and that defendant was negligent in failing to furnish a place of employment safe for frequenters thereof.
As to the plaintiff Robert A. Thiel, the contents of the complaint with reference to the minor plaintiff were incorporated by reference.
The defendant moved to strike the second cause of action of each plaintiff on the ground that violation of the safe-place statute does not constitute a separate cause of action and therefore there had been an attempt in setting up each second cause of action to improperly join causes of action. The defendant further demurred to the complaint on the grounds that several causes of action were improperly united and that the complaint did not state facts sufficient to constitute a cause of action.
On June 7, 1960, the trial court entered an order denying the motion to strike and overruling the demurrer. The defendant appealed from said order.
The trial court denied the motion to strike for the reason that no authority was cited for the granting of the motion for the reasons stated therein. Attention was called to secs. 263.42, 263.43, and 263.44, Stats., with reference to when pleadings may be stricken. In any event, the same issue was raised by the demurrer.
It is true that the alleged violation of the safe-place statute, sec. 101.06, merely alleged another act of negligence on the part of the defendant. It was not the proper basis for a separate cause of action. However, the demurrer cannot be sustained on that ground. Taken as a whole the complaint alleges but one cause of action by each plaintiff and that is based on the claimed negligence of the defendant. All of the allegations in the complaint are parts of the presentation of that one subject, regardless of how they are subdivided. Only one primary right is sought to be enforced and the allegations in the so-called second cause of action other than those necessary to constitute or complete the cause of action first alleged must be treated as surplusage. Weber v. Naas, 212 Wis. 537, 250 N.W. 436; Cohn v. Zippel, 12 Wis.2d 258, 107 N.W.2d 184. Therefore the complaint was not demurrable because several causes of action were improperly united therein.
The defendant further contends that the complaint is demurrable because sufficient allegations of negligence were not contained therein. The defendant admits that the complaint was drawn with the intention of pleading a cause of action under the attractive-nuisance doctrine. The case of Angelier v. Red Star Yeast Products Co. 215 Wis. 47, 254 N.W. 351, stated the elements to be alleged and proved in an attractive-nuisance case. We have carefully checked the allegations of the complaint against those elements. By giving the complaint the liberal construction which we must when it is attacked by demurrer, we find that the complaint states a cause of action.
That part of the complaint alleging violation of the safe-place statute is also attacked on the ground that only conclusions of law are pleaded. That contention overlooks the incorporation of the first part of the complaint by reference. The complaint as a whole and taken as one cause of action sufficiently pleads a cause of action under the attractive-nuisance doctrine and also a violation of the safe-place statute.
The defendant further contends that the flares were so placed and maintained as to be in open view of the plaintiff and therefore as a matter of law it should be determined that the defendant is not liable so far as the attractive-nuisance doctrine is concerned. As authority for the statement the defendant cities an article in 42 Marquette Law Review, 64, 73, and the following quotation from Prosser, Torts (2d. ed.), p. 441, sec. 76:
"There are some dangers common in the community which any child of sufficient age to be allowed at large may be expected to understand and appreciate — such as the usual risks of fire and water, of falling from a height or into an excavation, of soil caving in, of moving trains, or of ordinary visible machinery in motion. It is only where such hazards are masked, or the occupier has some special notice that children too young to comprehend them will be exposed, that he is under any obligation."
There is also an annotation in 27 A.L.R. 2d 1187. We have read many of the cases therein cited. The important factor in most of the cases is the age of the injured child.
The question raised is too grave to be resolved as a matter of law from the pleadings before us. The issue can be raised in the answer to the complaint and testimony produced at the trial as to the general use of flares of the type used by the defendant in sewer-construction work; also as to whether or not there are other devices such as electric lights, battery-operated lights, lanterns, or glass-inclosed flares that can provide an effective warning without an undue burden being placed upon the defendant when small children are known to be in the vicinity of the work being done. A proper determination of the issue can only be made from a record reflecting all of the facts and circumstances leading up to the injury.
By the Court. — Order affirmed.