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FRANKEL v. BURKE'S EXCAVATING

June 16, 1967

Alvin H. FRANKEL, Administrator of the Estate of Gregory J. Gallagher, Deceased, Plaintiff,
v.
BURKE'S EXCAVATING, INC., and Rose Borkowski, Administratrix of the Estate of Charles Borkowski, also known as Charles S. Borkowski, Deceased, and Bryn Mawr Trust Co. and Edward Borkowski, Executors of the Estate of Michael Borkowski, also known as Michael S. Borkowski, Deceased, Defendants, and Allen D. WYLIE, Jr. and Jean R. Wylie and Joseph R. Gallagher and Katherine K. Gallagher, Third-Party Defendants. Alvin H. FRANKEL, Administrator of the Estate of Allen D. Wylie, III, Deceased, Plaintiff, v. BURKE'S EXCAVATING, INC., and Rose Borkowski, Administratrix of the Estate of Charles Borkowski, also known as Charles S. Borkowski, Deceased, and Bryn Mawr Trust Co. and Edward Borkowski, Executors of the Estate of Michael Borkowski, also known as Michael S. Borkowski, Deceased, Defendants, and Allen D. WYLIE, Jr., and Jean R. Wylie and Joseph R. Gallagher and Katherine K. Gallagher, Third-Party Defendants



The opinion of the court was delivered by: FULLAM

 In these consolidated negligence actions, plaintiffs seek to recover damages by reason of the deaths of two young boys, aged seven and eight respectively, who were drowned when they fell through the ice of an old quarry or pond on property of the defendant corporation. Plaintiffs attempted to make out a case to justify the application of the legal principles set forth in Section 339 of the Restatement of Torts, which provides as follows:

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

 However, in answer to specific interrogatories, the jury found (1) the defendant neither knew nor should have known that children were likely to trespass in the area where the accident occurred; (2) the defendant neither knew nor should have realized that the circumstances involved an unreasonable risk of death or serious bodily harm to the children; and (3) the defendant did not fail to exercise reasonable care to eliminate the danger or otherwise to protect the children. Since there was ample evidence to justify these jury findings, plaintiffs' present motion for a new trial must be refused, unless the jury's verdict was tainted by trial error. After carefully reviewing the record, and considering the exhaustive briefs and arguments of counsel, I have concluded that no prejudicial error has been shown, and that plaintiffs' motion for a new trial must be refused. Moreover, I am also of the opinion that the defendant's motion for a directed verdict, as to which ruling was deferred, should have been granted.

 A brief review of the evidence will suffice for an understanding of the legal issues involved. The defendant corporation owned a forty-four acre property, portions of which were used for equipment storage and various forms of waste disposal. In an unused portion of the property was located an old ore-pit or quarry hole, partially filled with water. There was evidence that this pit had been in existence for one hundred years or more; indeed, there was some testimony which would seem to indicate that the depression in question may have dated back to Revolutionary War times, when iron ore was mined in that area.

 This quarry hole was completely surrounded by woods, densely overgrown with underbrush and vines. It was located near the center of the forty-four acre tract of the defendant, at a distance of approximately 600 feet from the nearest point on the boundary of defendant's property. The quarry pit was invisible from the surrounding properties; indeed, there was evidence that people who had lived in the area for a considerable period, and even a police officer who regularly patrolled within the defendant's property itself, were not aware of the existence of the quarry.

 There was evidence that the defendant's entire property was fenced, although there was also testimony that some of the fencing was somewhat dilapidated and that the wire was missing from a double gate at the entrance to the property. There was also evidence that the property was posted with "no trespassing" signs, the age and legibility of which are disputed.

 On the day of the accident, the decedent, Gregory J. Gallagher, aged eight, was visiting at the home of his cousin, the decedent, Allen D. Wylie, III, aged seven, in a housing development known as Farm View Village; these homes were located twenty-five hundred feet or more from the quarry pit. The boys went out to play in the afternoon, did not return as expected, and ultimately ...


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