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WHIGHAM v. PYLE (03/27/73)

decided: March 27, 1973.

WHIGHAM, APPELLANT,
v.
PYLE



Appeal from order of Court of Common Pleas, Civil Division, of Allegheny County, Jan. T., 1972, No. 2114, in case of Gary Keith Whigham, a minor by Donald Whigham and Elizabeth Whigham, his parents and natural guardians v. James N. Pyle and Charles F. Vilsack.

COUNSEL

Thomas Hollander, with him Evans, Ivory & Evans, for appellants.

Lawrence A. Demase, for appellee.

Wright, P. J., Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. (Watkins, J., absent.) Opinion by Spaulding, J.

Author: Spaulding

[ 224 Pa. Super. Page 8]

Appellant Donald Whigham appeals from the granting of appellees' motion for summary judgment in an action brought to recover for injuries suffered by his minor son, Gary, while trespassing on land owned by appellee James Pyle in Indiana Township, Allegheny County, Pennsylvania.

Appellee Pyle owns a 45.50-acre tract of undeveloped land surrounded by commercial and residential properties, including appellants' residence. Gary and his minor friends had regularly flown kites, played football and baseball, and ridden bicycles on appellee's property. Pyle knew about, and had never objected to, this activity. The children customarily walked the thirty yards from appellant's house to the field. The incident which gave rise to the instant appeal occurred on the afternoon of April 12, 1970. Gary, then ten years of age, and his fourteen-year-old brother went to observe a nearby brush fire from a vantage point on property owned by one Sokol. Sokol's property was adjacent to both appellant's and appellee's properties. Their route to the viewing area did not involve crossing onto appellee's land. Unable to see the fire from ground level, Gary climbed atop a fence on the Sokol property. After observing the fire for some time, he jumped off the fence post onto appellee's land without looking down, and impaled his leg on a steel rod protruding two to three feet from the ground. Appellee had placed the 7/16-inch diameter rods along the perimeter of his

[ 224 Pa. Super. Page 9]

    property near stakes laid by a surveyor whom he had employed.*fn1 The site of the injury was some 150 yards from the field where the children usually played and was separated from that field by woods.

Appellant's trespass action was based on the alleged liability of a possessor of land to children trespassers who are injured by artificial conditions on the land. In reviewing Judge Silvestri's granting of appellees' motions for summary judgment in this case, we are guided by Rule 1035(b) of the Pennsylvania Rules of Civil Procedure, which provides for the rendering of summary judgment ". . . if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. . . ." Review of the facts in such cases must give the party against whom the motion is directed the benefit of all favorable inferences, Michigan Bank v. Steensen, 211 Pa. Superior Ct. 405, 236 A.2d 565, with a view toward providing a jury trial in all but clear cases where no issue of credibility of witnesses is presented. See Kopar v. Mamone, 419 Pa. 601, 215 A.2d 641 (1966); Schacter v. Albert, 212 Pa. Superior Ct. 58, 239 A.2d 841 (1968).

This Commonwealth has adopted the view of the Restatement of Torts 2d, § 339 to govern such cases. Jesko v. Turk, 421 Pa. 434, 219 A.2d 591 (1966); Dragonjac v. McGaffin Construction & Supply Co., 409 Pa. 276, 186 A.2d 241 (1962). That section provides that: "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

[ 224 Pa. Super. Page 10]

    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 ...


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