Home/Court of Appeals of Washington/McDermott v. Kaczmarek

McDermott v. Kaczmarek

469 P.2d 191, 2 Wash. App. 643, 1970 Wash. App. LEXIS 1178
CourtCourt of Appeals of Washington
DecidedMay 11, 1970
Docket235-41064-1
StatusPublished
Cited by27 cases

This text of 469 P.2d 191 (McDermott v. Kaczmarek) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McDermott v. Kaczmarek, 469 P.2d 191, 2 Wash. App. 643, 1970 Wash. App. LEXIS 1178 (Wash. Ct. App. 1970).

Opinion

James, C. J.

George McDermott’s 7-year-old son Perry went, uninvited, to play on the Thomsons’ land. While playing with two companions near the top of a cliff, Perry fell to his death. McDermott’s wrongful death action against the Thomsons was dismissed on their motion for summary judgment. McDermott appeals.

The facts are not in dispute. The trial judge concluded that under no legal theory could McDermott prevail.

McDermott’s two legal theories are these; that the Thom-sons’ failure to fence their property pursuant to RCW 78.12.010 was negligence as a matter of law and that the Thomsons were negligent in maintaining an “attractive nuisance” on their land.

The Thomsons’ land is unimproved. It fronts on the same street as McDermott’s home, which is nearby. About 30 years ago rock was quarried from the Thomsons’ land by one of their predecessors in interest. The quarry operation left an exposed, rocky cliff approximately 40 feet high. The base of the cliff is at the level of the street on which McDermott’s home is located. The contour of the cliff is *645 generally concave, opening onto the street roughly in the form of a bowl. The presence of the cliff is apparent from all directions. The parties agree that the two photographs reproduced with this opinion accurately portray the areas as it was at the time of the tragedy.

Perry was a trespasser. The Thomsons would ordinarily owe him only the duty to refrain from willfully or won-

*646

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Bluebook (online)
469 P.2d 191, 2 Wash. App. 643, 1970 Wash. App. LEXIS 1178, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcdermott-v-kaczmarek-washctapp-1970.