Blaylock v. Jensen

California Court of Appeal May 16, 1941 No. Civ. 13001Published

Before: Wood

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Holding. The court held that while a landowner may be liable for maintaining a trap or pitfall regardless of the attractive nuisance doctrine, the trial court's failure to make a finding on the pleaded issue of contributory negligence requires reversal.

Issues

Whether a landowner is liable for injuries sustained by a trespasser who falls into an unguarded oil sump.
Whether the trial court's failure to make a finding on the pleaded issue of contributory negligence constitutes reversible error.
Whether the plaintiff was guilty of contributory negligence as a matter of law for attempting to rescue her dog.

Disposition. reversed

Quotations verified verbatim against the opinion

“The conclusion of the trial court may be sustained under the general rule that a landowner may not construct or maintain a trap or pitfall into which he knows or has reason to believe that a trespasser will probably fall.”

“It has frequently been held that a failure to find on the issue of contributory negligence, when pleaded, is reversible error.”

[851]

WOOD, Acting P. J.

Plaintiff commenced this action to recover damages for injuries which she suffered in being mired in an oil sump on property in the possession of defendant. The appeal is from a judgment in plaintiff’s favor in the sum of $500.

On the afternoon of April 6, 1940, plaintiff, a girl thirteen years of age, was walking with her two sisters, aged eleven and fifteen years, and a boy, aged fifteen years, along the highway about one mile from her home at Nipomo, California. Her dog ran loose in front of the group. About 20 or 30 feet from the paved highway oil and tar had accumulated on defendant’s property in a hole about 250 feet long and about 100 feet wide. The sump was separated from the highway by a low embankment. Various witnesses described the appearance of the surface of the oil. Plaintiff described it as “just black with dirt and I could not tell what it was”. She also stated that it was “like a big round hole and it was black and it had sand over it”. One of the plaintiff’s witnesses testified that the sump “looked brown”, and another testified that it was “covered with sand and it had black streaks in it”. No signs were placed on the premises giving notice of the dangerous condition of the sump.

As plaintiff walked on the highway by the sump she noticed that her dog was barking and trying to extricate itself from the sump. She called but the dog could not come to her. She and the other children remained on the bank of the sump about five minutes and then she started into the sump to rescue the dog. Plaintiff was able to walk about ten steps on the surface but she then suddenly mired down at a distance of about 30 feet from the dog. Both of her feet became stuck in the oil and tar and she fell on her right side. She was not rescued for several hours and during this period oil covered her body with the exception of her left arm and head. The boy who was accompanying plaintiff attempted to rescue her and he in turn became mired in the oil.

Defendant argues that the sump was not an “attractive nuisance”, and that since plaintiff was a trespasser defendant was under no obligation to plaintiff to keep the premises in a safe condition. Although the trial court found that defendant “knew that it (the sump) was attractive to

[852]

Blaylock v. Jensen

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