Saba v. Jacobs

McCOMB, J.

From a judgment in favor of defendants predicated upon the sustaining of their demurrer without leave to amend, in an action to recover damages for personal injury, plaintiff appeals.

[718]

Facts:

In an amended complaint plaintiff alleged as follows :

“(1) That on August 12, 1952, plaintiff, a minor six (6) years of age, was on the property owned by the defendants, and upon which the defendants resided, at the invitation of the defendants and with their express permission, knowledge and consent.

11 (2) That for some time previous to August 12, 1952 the defendants placed and maintained a ladder which extended from the back yard of the premises up to and against the roof of the garage on said premises, within easy reach of the minor plaintiff.

“ (3) That at all times the defendants were aware that minor plaintiff was playing around and on said ladder and that the defendants failed to warn minor plaintiff of the danger and failed to instruct minor plaintiff to cease playing around and on said ladder and further failed to remove said ladder from its position.

“ (4) That on said August 12, 1952 minor plaintiff, while playing and climbing on said ladder, jumped or fell therefrom, suffering a broken leg.

“(5) That the injuries were directly and proximately caused by the carelessness and negligence of the defendants as aforesaid.”

The demurrer was sustained by the trial court without leave to amend.

Question:

Did the complaint as amended allege a cause of action?

No.

The following rules are here applicable:

1. The owner of premises assumes no duty to one who is on his premises by permission only, and is a mere licensee, except that while on the premises no wanton or wilful injury shall be inflicted on him by the owner of the premises or his agent.

(Fisher