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MARTINELLI v. PETERS. (03/17/64)

THE SUPREME COURT OF PENNSYLVANIA


March 17, 1964

MARTINELLI, APPELLANT
v.
PETERS.

Appeal, No. 94, Jan. T., 1964, from judgment of Court of Common Pleas of Delaware County, June T., 1959, No. 3096, in case of Joan Martinelli, a minor, by her parent and guardian, Guy A. Martinelli, v. Edward A. Peters. Judgment affirmed.

COUNSEL

D. T. Spagnoletti, with him William F. Keating, for appellant.

Robert W. beatty, with him Ernest L. Green, Jr., and Butler, Beatty, Greer and Johnson, for appellee.

Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.

Author: Bell

[ 413 Pa. Page 472]

OPINION BY MR. CHIEF JUSTICE BELL

Plaintiff appeals from a judgment of non-suit.

Plaintiff, a four-year-old child, was injured by being pushed by a playmate onto defendant's unguarded lawn mower. The child (and her parents) lived next

[ 413 Pa. Page 473]

    door and she came on defendant's property through an open gate.

The owner of real property is not an insurer of the safety of persons who may come upon his land as invitees, licensees or trespassers, nor is he under a duty to make his lawn "child-proof." Although there was some evidence that defendant had constructive notice that children had previously played around his lawn mower, two of the factors required by Restatement, Torts, ยง 339, adopted as the law of Pennsylvania in Bartleson v. Glen Alden Coal Co., 361 Pa. 519, 64 A.2d 846, are absent. There is "no structure or other artificial condition" maintained by defendant on his land. To hold otherwise would be an unrealistic interpretation and distortion of those words.*fn* Moreover, the utility to this and every home owner or possessor of land is sufficiently important to outweigh the slight risks to trespassing children.*fn** The case on its facts is clearly distinguishable from Bartleson v. Glen Alden Coal Co., 361 Pa., supra, and, we repeat, does not come within all the requirements of Section 339.

Mr. Justice MUSMANNO dissents.

Disposition

Judgment of non-suit affirmed.


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