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Frankel v. Burke's Excavating Inc.

decided: June 17, 1968.

ALVIN H. FRANKEL, ADMINISTRATOR OF THE ESTATE OF GREGORY J. GALLAGHER, DECEASED, APPELLANT,
v.
BURKE'S EXCAVATING, INC. ALVIN H. FRANKEL, ADMINISTRATOR OF THE ESTATE OF ALAN D. WYLIE, III, DECEASED, APPELLANT, V. BURKE'S EXCAVATING, INC.



Hastie, Chief Judge, and Seitz and Van Dusen, Circuit Judges.

Author: Seitz

Opinion OF THE COURT

SEITZ, Circuit Judge.

These diversity actions were brought to recover damages resulting from the tragic deaths of two young boys who fell through the ice on an unused water hole located near the center of defendant-corporation's 44 acre property. These actions were consolidated below and will here be referred to as the "case". The district court deferred ruling on defendant's motion for a directed verdict and submitted the case to the jury on special interrogatories. The jury's answers to the interrogatories compelled entry of judgment for the defendant. Thereafter, the district court denied plaintiffs' motion for a new trial and also noted that, in any event, the defendant's motion for a directed verdict should have been granted. Frankel v. Burke's Excavating, Inc., 269 F. Supp. 1007 (E.D., Pa.1967).

By their evidence the plaintiffs sought to bring their case within the following provisions of the Restatement of Torts, 2d:

"ยง 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 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 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."

At the close of the evidence the jury answered special interrogatories in the following manner:

"1. On the date of the accident, was the location of the accident a place where the defendant knew or should have known that young ...


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