Appeal from judgment of Superior Court, April T., 1965, No. 304, reversing judgments of Court of Common Pleas of Allegheny County, April T., 1963, No. 1199, in case of Neil Thomas Jesko, a minor, by Betty Ann Jesko, his mother and natural guardian, and Betty Ann Jesko, in her own right v. Abe Turk and Norman Sife, trading and doing business as Ellis Construction Company.
James R. Duffy, with him McArdle, Harrington, Feeney & McLaughlin, for appellants.
Kim Darragh, with him Meyer, Darragh, Buckler, Bebenek & Eck, for appellee.
Musmanno, Jones, Cohen, Eagen and O'Brien, JJ. Opinion by Mr. Justice Cohen. Mr. Justice Musmanno dissents.
On March 12, 1961, minor plaintiff, who was then 9 1/2 years old, suffered an injury when, while climbing a 12 foot high, partially erected concrete-block wall of a building being constructed by defendants, he fell to the ground. As he neared the top he felt that the blocks beneath his feet were loose. He took another step or two and began to descend. As he did, a concrete block fell from beneath him. He managed to catch himself by grabbing the top of the wall and attempted to get a toe hold in an effort to steady his balance. However the blocks gave way and he was
thrown to the ground. Minor plaintiff had observed other children playing on and around the building previously, but had never done so himself.
Plaintiffs sued the property owner and the contractors. A compulsory non-suit was entered in favor of the property owner, but the trial court entered judgment in favor of minor plaintiff and his mother against the contractors. On appeal, the Superior Court reversed and granted judgment n.o.v. in favor of defendant-contractors. From that decision we granted allocatur.
Section 339 of the Restatement 2d, Torts, provides:
"§ 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." This section eliminates the ...