In referring to the requirements of subsection (a) of § 339 of the Restatement, I did, at one point, speak in terms of actual knowledge that children would be likely to trespass, inadvertently omitting "or has reason to know". But this occurred only once in the course of the charge, whereas the correct terminology was read to the jury and expounded upon repeatedly, and the precisely correct terminology was employed in the special interrogatories submitted to the jury on this point. If there is a difference, in this context, between knowing what children are likely to do, and having reason to know what they are likely to do, it is nebulous at best. In any event, there can be no doubt that the charge as a whole gave the jury the correct criterion.
Several times in the course of the charge, I used interchangeably the terms "children" and "young children." From the very fact that these two terms were used interchangeably throughout the charge, I am satisfied that the jury could not have been under the impression, as plaintiffs' counsel now seems to argue, that there was some meaningful distinction between the two terms on the issue of defendant's realization of the likelihood of child trespassers, or on the issue of unreasonable risk, etc.
Complaint is made of the affirmance of defendant's point for charge No. 7, which contains the language "if you find that the defendant did not know or should not have known that the condition involved an unreasonable risk of harm to trespassing children, then your verdict must be for the defendant." It is contended that this constituted, in the words of plaintiffs' brief "an offer to the jury to exonerate the defendant in the absence of actual knowledge in spite of the presence of facts showing that it had constructive knowledge of the presence of an unreasonable risk."
In the first place, the point was obviously intended, and no doubt understood by the jury, in the sense of "if the defendant neither knew nor should have known * * *". More important, however, is the fact that this point was only mentioned casually, with the comment that it had certainly been covered previously by the charge; and the charge contains numerous correct statements of the point. And finally, the special interrogatory submitted to the jury correctly expressed the legal issue involved, and could not be regarded as subject to this charge of grammatical ambiguity.
Plaintiffs also now suggest various possible infirmities in the draftmanship of the special interrogatories. The case was submitted to the jury on October 11, 1966. At the close of the previous day's testimony, counsel were advised that it was the court's intention to submit special interrogatories to the jury to pinpoint the issues involved, and counsel were invited to give some thought to the matter during the ensuing overnight recess, and were in effect invited to submit sample forms of interrogatories. The next day, before the closing speeches or charge, counsel were given an opportunity to review the interrogatories proposed to be submitted; counsel did so, and the interrogatories which were actually submitted to the jury
were not objected to, nor were any of the presently alleged defects pointed out. Under these circumstances, it is clearly too late for counsel to complain about the wording of the special interrogatories. But be that as it may, I am of opinion that the interrogatories submitted were proper in form and substance, and there is no merit to any of plaintiffs' present arguments.
At the close of the plaintiffs' evidence, the defense made an appropriate motion under Rule 50, and renewed it at the close of all the evidence. Ruling thereon was deferred, and the case submitted to the jury. I am now of the view that this motion should have been granted.
It is agreed that the boys were trespassing upon the defendant's property at the time of the accident, and that the only conceivable basis for liability is that set forth in § 339 of the Restatement. It should be noted that the legal principles declared in this section impose liability to child trespassers only if the harm is caused by "an artificial condition upon the land." Much of the testimony at trial was devoted to the issue of whether defendant's quarry pit falls within that description. When the evidence was all in, it was apparent that there was no factual dispute underlying this issue: all of the evidence on both sides was to the effect that the hole itself, i.e., the physical depression in the land, was originally man-made, caused by quarrying or mining operations; that it had been in existence for at least one hundred years; and that the water in the quarry represented natural accumulations of surface water. From the fact that trees had grown in the bottom of the depression it is apparent that the pit had not always contained water. The experts theorized that clay and silt had gradually formed a waterproof seal, preventing the escape of rain and surface water. There was no suggestion that any activities on the part of those in possession of the defendant's property had caused or contributed to the accumulation of water in the pit. Indeed, the topographical data would seem to indicate that this would have been impossible.
The authors of the Restatement saw fit to include this caveat:
"The cases give no satisfactory answer to the question, whether the rule stated in this section [section 339] applies to natural conditions on land. There are six cases which have said it does not * * *. * * *
"There are numerous other cases of artificial ponds and other artificial conditions which duplicate natural conditions, in which this has been given as one reason among others for denying liability * * * "