Personal injury action was filed by parents of
16-year-old who climbed utility pole and received electrical shock. The
Superior Court, Norfolk County, Robert W. Banks, J., after jury trial,
entered judgment for utility companies after jury determined that child
was 75% at fault and was barred from recovering damages under
comparative negligence statute. Plaintiffs appealed. The Supreme
Judicial Court, Liacos, C.J., held that: (1) since child trespasser
statute imposed on utility companies duty of reasonable care and created
liability based on negligence principles, comparative negligence defense
was available to companies; (2) finding that companies unreasonably
created dangerous condition, risks of which could not ordinarily be
discovered by children, was not inconsistent with finding that, even
though child failed to realize risk, he or she acted without degree of
care expected from child of similar age, intelligence and experience;
(3) in considering child's comparative negligence, jury was required to
judge child by standard of behavior expected from child of like age,
intelligence, and experience, and not by same standard of care as adult;
and (4) motion to amend complaint made four years after filing was
properly denied.
Affirmed.
D**1181
*256
Jeffrey
N.
Roy
(Carol
R. Steinberg with him), for plaintiffs.
Andrew B. Estrine
(Steven E. Thomas with him), for Massachusetts Elec. Co.
*257
Bartlett L. Thomas, for New England Tel. and Tel. Co.
Before
*256
LIACOS, C.J., and
WILKINS,
ABRAMS,
LYNCH and
GREANEY, JJ.
*257
LIACOS, Chief Justice.
During the evening of June 23, 1983, the
plaintiff, Brian Mathis, sixteen years and eight months old, and three
of his friends were gathered in front of the house located directly
across from Brian's home in Franklin. Brian crossed the street and, to
impress his friends, began climbing a utility pole, jointly owned by
defendants Massachusetts Electric Company (MEC) and New England
Telephone and Telegraph Company (NET). The pole was located on the
property of the plaintiff's parents. It was supported by two guy wires,
the upper one installed and owned by MEC, the lower one installed and
owned by NET. As Brian climbed the pole, he came in contact with several
telephone, cable television, and electrical wires which did not harm
him. When Brian reached the top of the utility pole, he grabbed the
primary electrical wire and received an electrical shock. Brian fell to
the ground. He sustained severe injuries and burns.
In March, 1984, the plaintiff filed suit in
Superior Court alleging that MEC's negligence caused his injuries. His
mother sought damages for loss of consortium.
[FN3] On May 6, 1988, the plaintiffs
moved to amend the complaint to add counts alleging trespass; the
plaintiffs alleged that there was no recorded easement authorizing the
defendants to place the guy wires on the family's property. A judge
denied the motion and, on July 7, 1988, the Appeals Court denied the
plaintiffs' interlocutory appeal.
[FN4]
FN3.
On February 21, 1985, MEC filed a third-party complaint against NET
for contribution and indemnification. On October 14, 1987, the
plaintiffs filed an amended complaint, adding claims against NET for
negligence and loss of filial consortium. On December 1, 1987, NET
filed cross claims against MEC for contribution and indemnification.
FN4.
The judge denied a renewed motion by the plaintiffs to amend the
complaint to add the trespass counts. Subsequently, the mother
voluntarily dismissed her claim for loss of filial consortium.
The case proceeded to trial before a jury. On
November 23, 1988, the case was submitted to the jury to decide a
*258
number of special verdict questions.
Mass.R.Civ.P. 49(a),
365 Mass. 812 (1974). The jury found that MEC violated its duty toward
foreseeable child trespassers under
G.L. c. 231, § 85Q (1988
ed.). The jury also found that the plaintiff was comparatively
negligent. The jury determined that the plaintiff was 75% at fault,
while MEC was 25% at fault. Thus, the plaintiff was barred, under the
comparative negligence statute,
G.L. c. 231, § 85 (1988
ed.), from recovering any damages from MEC. The jury found that NET was
not negligent. Judgment for the defendants was entered on November 30,
1988. MEC's third- party complaint and NET's cross claims against MEC
were dismissed.
The plaintiff filed a motion for a new trial,
and a motion to amend the judgment and for a new trial to assess
damages. The judge denied both motions. The plaintiff appeals. He argues
that (1) the lower court erred by denying his motion to amend the
judgment and for a new trial on damages because the comparative
negligence
**1182
statute,
G.L. c. 231, § 85,
is inapplicable to an action brought under the child trespasser statute,
G.L. c. 231, § 85Q;
(2) the judge improperly instructed the jury on the issue of comparative
negligence; and (3) the denial of his motion to amend the complaint to
add counts for trespass against both defendants was error.
[1]
1. Comparative negligence. The
plaintiff claims that landowners who violate the child trespasser
statute are strictly liable and therefore cannot avail themselves of the
principle of comparative negligence. See
Correia v. Firestone Tire & Rubber Co., 388 Mass.
342, 353-356, 446 N.E.2d 1033 (1983)
(comparative negligence has no application to strict liability breach of
warranty actions).
[FN5] The child trespasser statute
states:
FN5.
Our comparative negligence statute states in part that, "[c]ontributory
negligence shall not bar recovery in any action by any person or
legal representative to recover damages for negligence resulting in
death or in injury to person or property, if such negligence was not
greater than the total amount of negligence attributable to the
person or persons against whom recovery is sought, but any damages
allowed shall be diminished in proportion to the amount of
negligence attributable to the person for whose injury, damage or
death recovery is made."
G.L. c. 231, § 85 (1988
ed.).
*259
"Any person who maintains an artificial condition upon his own land
shall be liable for physical harm to children trespassing thereon if (a)
the place where the condition exists is one upon which the land owner
knows or has reason to know that children are likely to trespass, (b)
the condition is one of which the land owner 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, (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, (d) the utility to the land owner of maintaining the
condition and the burden of eliminating the danger are slight as
compared with the risk to children involved, and (e) the land owner
fails to exercise reasonable care to eliminate the danger or otherwise
to protect the children" (emphasis supplied).
G.L. c. 231, § 85Q (1988
ed.). [FN6]
FN6.
The language of
§ 85Q is
virtually identical to the language of
§ 339 of the Restatement (Second) of Torts
(1965). We have previously
recognized that the scope of
§ 85Q and §
339 of the Restatement is identical. See
Soule v. Massachusetts Elec. Co., 378 Mass.
177, 184, 390 N.E.2d 716 (1979).
See also
McDonald v. Consolidated Rail Corp., 399 Mass.
25, 29, 502 N.E.2d 521 (1987)
(common law rules,
§ 85Q and §
339 of the Restatement are virtually "indistinguishable").
Although, in our view,
§ 85Q is not
applicable because the plaintiff's injuries did not occur in the
defendants' "own land," and therefore the defendants are not
"landowners" within the meaning of the statute, the
parties have assumed throughout that
§ 85Q applies
to utility poles. Since the parties have made this the "law of the
case," we shall make the same assumption. See
Commonwealth v. Thompson, 382 Mass. 379, 382,
416 N.E.2d 497 (1981);
Kagan v. Levenson, 334 Mass. 100, 106, 134
N.E.2d 415 (1956). We believe,
however, that this case should be governed by common law principles
and not by
§ 85Q. See
Soule v. Massachusetts Elec. Co., supra 378
Mass. at 182, 390 N.E.2d 716 ("we
hold that there is a common law duty of reasonable care by a
landowner or occupier to prevent harm to foreseeable child
trespassers" [emphasis supplied] ).
The plaintiff argues that once the five statutory conditions are met,
the owners are strictly liable, and therefore negligence principles are
inapplicable.
*260
Neither the statute nor the common law doctrine of
Soule v. Massachusetts Elec. Co., 378 Mass. 177,
390 N.E.2d 716 (1979), imposes
liability on landowners or others irrespective of their degree of fault
or knowledge of the risk involved. See
Briggs v. Taylor, 397 Mass. 1010, 494 N.E.2d 1023
(1986) (affirming directed verdict in
§ 85Q action
where plaintiffs failed to show both that landowner did not exercise
reasonable care and that it knew or should have known about dangerous
condition). Compare
Bencosme v. Kokoras, 400 Mass. 40, 43, 507 N.E.2d
748 (1987) (owners of residential
properties are strictly liable under the lead paint statute,
G.L. c. 111, § 199 [1988
ed.] ).
Under the traditional common law rule, a landowner did not have a duty
toward a child trespasser, except to refrain from
**1183
wanton and wilful conduct.
Soule v. Massachusetts Elec. Co., supra 378 Mass.
at 180, 390 N.E.2d 716.
Urban v. Central Mass. Elec. Co., 301 Mass. 519,
523, 17 N.E.2d 718 (1938). The child
trespasser statute softened the "Draconian" common law rule.
Soule v. Massachusetts Elec. Co., supra.
By enacting the statute, the Legislature followed the national trend
towards imposing on landowners a uniform standard of care regardless of
the status of the injured party. See
id. 378 Mass. at 182-184, 390 N.E.2d 716.
[FN7]
FN7.
In
Mounsey v. Ellard, 363 Mass. 693, 707, 297
N.E.2d 43 (1973), this court held
that landowners owed the same duty of reasonable care to all lawful
entrants regardless whether they were considered invitees or
licensees at common law. Prior to
Mounsey,
landowners owed invitees a duty of reasonable care, while they only
owed licensees a duty not to inflict wanton or wilful harm.
Id. at 696-697, 297 N.E.2d 43.
In
Pridgen v. Boston Hous. Auth., 364 Mass. 696,
710-711, 308 N.E.2d 467 (1974), we
held that a landowner has a duty of reasonable care towards a
helplessly trapped trespasser. The court has refused, however, to
extend the reasonable care standard to
cases involving adult trespassers who are not helplessly trapped.
Schofield v. Merrill, 386 Mass. 244, 435
N.E.2d 339 (1982). Compare,
however, the dissent by three Justices in
Schofield, supra 386 Mass. at 254-259,
435 N.E.2d 339
(distinction based on "status" of a plaintiff ought to be
discarded).
The child trespasser statute and the common law impose on landowners a
duty of reasonable care, a negligence standard of liability. See
McDonald v. Consolidated Rail Corp., 399 Mass. 25,
27, 502 N.E.2d 521 (1987);
Briggs v. Taylor, supra;
Schofield v. Merrill, 386 Mass. 244, 246 n. 2, 435
N.E.2d 339 (1982);
Soule v. Massachusetts
*261
Elec. Co., supra 378 Mass. at 184, 390 N.E.2d 716.
[FN8] See also W. Prosser & W. Keeton,
Torts § 59, at 401-402 (5th ed. 1984) (attractive nuisance doctrine
gives child trespasser much of the protection of ordinary negligence
doctrine).
FN8.
In
Soule, the
plaintiff child was injured twenty-three years before the
Legislature enacted the child trespasser statute. In that case we
stated that if the Legislature had not enacted
§ 85Q, we
would have applied § 339 of the Restatement. We therefore held, as a
matter of common law, that landowners have a duty to exercise
reasonable care toward a child trespasser.
Id. Comment b
of § 339 of the Restatement
states that a landowner owes "a limited
obligation to the child [trespasser], falling short of a duty to
prevent all foreseeable harm to him, but requiring reasonable care
as to those conditions against which he may be expected to be unable
to protect himself."
Since the child trespasser statute,
G.L. c. 231, § 85Q,
imposes on landowners a duty of reasonable care, and creates liability
based on negligence principles, the comparative negligence defense is
available to defendants.
O'Malley v. Putnam Safe Deposit Vaults, Inc., 17
Mass.App.Ct. 332, 343-344, 458 N.E.2d 752 (1983).
"[T]he policy of negligence liability presumes that people will, or at
least should, take reasonable measures to protect themselves and others
from harm.... However, if the injured person's unreasonable conduct also
has been a cause of his injury, his conduct will be accounted for in
apportioning liability for damages."
Correia v. Firestone Tire & Rubber Co., supra 388
Mass. at 354, 446 N.E.2d 1033.
[2]
The plaintiff argues that a finding by
a jury that children, because of their youth, did not "discover the
condition or realize the risk involved in intermeddling" with the
artificial condition,
G.L. c. 231, § 85Q (c ),
is irreconcilable with the doctrine of comparative negligence. The
plaintiff also argues that, even if such a finding by a jury is not
irreconcilable with the doctrine of comparative negligence, the jury's
answers to the special verdict questions in this case were inconsistent.
The jury found that "the plaintiff, Brian Mathis, because of his youth,
fail[ed] to appreciate the risk and danger involved or lack[ed] the
understanding to evaluate the peril involved in intermeddling with the
subject pole and its attachments." The jury also found that the
plaintiff was negligent,*262
and that his negligence was a proximate cause of his injuries. The
plaintiff asks us to order a new trial because the jury's answers were
inconsistent, and because they cannot be harmonized. See
Solimene v. B. Grauel & Co., KG, 399 Mass. 790,
800-801, 507 N.E.2d 662 (1987), and
cases cited.
**1184
[3]
The child trespasser statute addresses
a landowner's duty toward a child trespasser. In a case brought under
the statute, a landowner's duty of reasonable care toward a foreseeable
child trespasser will be breached only if the five conditions of the
statute are satisfied. "[I]f the child is fully aware of the condition,
understands the risk which it carries, and is quite able to avoid it, he
stands in no better position than an adult with similar knowledge and
understanding. This is not merely a matter of contributory negligence or
assumption of risk, but of lack of duty to the child" (footnotes
omitted). W. Prosser & W. Keeton, Torts, supra at 408- 409. It is only
after the jury determine that the landowner breached his or her duty
toward the child that the child's possible negligence is taken into
account.
The plaintiff is correct when he argues that an owner's liability under
the child trespasser statute and a child's possible contributory
negligence are two separate issues. "The question of the child's
contributory negligence is a separate problem that must be carefully
distinguished from that of the land occupier's duty." 5 F. Harper, F.
James & O. Gray, Torts § 27.5 n. 60 (1986). The fact that they are two
separate issues, however, does not make them irreconcilable.
[FN9]
FN9.
The majority of the courts which have addressed this issue have held
that a landowner's duty to a child trespasser is not inconsistent
with the doctrine of contributory or comparative negligence. See
Pocholec v. Giustina, 224 Or. 245, 252-255,
355 P.2d 1104 (1960);
Schneider v. Seattle, 24 Wash.App. 251,
256-257, 600 P.2d 666 (1979);
Nechodomu v. Lindstrom, 273 Wis. 313,
327a-327c, 77 N.W.2d 707 (1956).
See also
Courtell v. McEachen, 51 Cal.2d 448, 454-455,
334 P.2d 870 (1959);
Greene v. DiFazio, 148 Conn. 419, 424-425, 171
A.2d 411 (1961). But see
Larnel Builders, Inc. v. Martin, 110 So.2d
649, 650 (Fla.1959).
The commentators are in accord. See, e.g. 5
F. Harper, F. James & O. Gray, supra at § 27.5 n. 57. "If the real
basis of the doctrine here discussed is the foreseeability of
unreasonable harm involved in the defendant's conduct, then the
discretion of the child should be relevant
only to deciding the question of whether or
not, in the light of that discretion, unreasonable harm was
foreseeable.... Of course, even if the child is held to be within
the attractive nuisance doctrine, the question of his contributory
or comparative negligence, in the light of all relevant
circumstances, will have to be decided. But that question is
different from the one of whether or not the protection of the
attractive nuisance doctrine should be available to him." (Citations
omitted.)
*263
[4]
[5]
The possible negligence of a child is
"judged by the standard of behavior expected from a child of like age,
intelligence, and experience."
Mann v. Cook, 346 Mass. 174, 178, 190 N.E.2d 676
(1963).
[FN10] It is not
inconsistent, therefore, for a jury to find that the landowner
unreasonably created a dangerous condition, the risks of which would not
ordinarily be discovered by children, while at the same time finding
that even though the plaintiff failed to realize the risk, he or she
acted without the degree of care expected from a child of similar age,
intelligence, and experience. We cannot, as the plaintiff urges us,
impose a judicially-created rule which would immunize child trespassers
from their own negligence. The judge did not err in denying the
plaintiff's motion to amend the judgment and for a new trial.
FN10.
Whether a child was negligent is a question for the jury. See
Bartley v. Almeida, 322 Mass. 104, 107, 76
N.E.2d 22 (1947);
Brown v. Daley, 273 Mass. 432, 436, 173 N.E.
545 (1930).
[6]
2. Jury instructions. The judge
instructed the jury that, in considering Brian's comparative negligence,
they should "judge him by the standard of behavior expected from a child
of like age, intelligence, emotional being, experience, by what he is
inside him as a child."
[FN11] The
**1185
plaintiff argues that
*264
the instructions were defective because they failed to instruct the
jury to take into account his learning disabilities, hyperactivity, and
other limitations in his ability to know and appreciate danger. There
was no error. See
Blake v. Springfield St. Ry. Co., 9 Mass.App.Ct.
912, 403 N.E.2d 1197 (1980)
(instruction which stated that child should be held to "standard of a
typical eight-year-old" included within its scope intelligence and
experience characteristics).
FN11.
The judge instructed the jury that, "[w]hen you consider comparative
negligence, negligence if any of Brian Mathis, I want you to
remember that the standard of care in negligence cases is how a
person of ordinary prudence acts in similar circumstances. If you
reach that point in this case, in considering comparative
negligence, you would have made a
decision that the status of Brian Mathis
under the law as I gave it to you would be that of a child.
Therefore, you are not to judge him by the standard of an adult.
Rather you are to judge him by the standard of behavior expected
from a child of like age, intelligence, emotional being, experience,
by what he is inside him as a child. You are to ask yourself how a
child of that age, intelligence, experience, or makeup would have
acted under the circumstances which existed in this case. Once you
have reached that decision, you are to determine whether he acted
appropriately or inappropriately, and you are to compare the
negligence. It is a subjective consideration."
