Home/Court of Appeals of Texas/Robertson v. Centennial Properties of Austin, Inc.

Robertson v. Centennial Properties of Austin, Inc.

392 S.W.2d 577
CourtCourt of Appeals of Texas
DecidedJune 23, 1965
Docket11315
StatusPublished
Cited by3 cases

This text of 392 S.W.2d 577 (Robertson v. Centennial Properties of Austin, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Robertson v. Centennial Properties of Austin, Inc., 392 S.W.2d 577 (Tex. Ct. App. 1965).

Opinion

HUGHES, Justice.

This suit was by Charles W. Robertson and wife, Barbara J. Robinson, against Centennial Properties of Austin, Inc., A. P. Dooley, R. E. Eggling, E. W. Jackson, Sr., E. B. Moody, R. H. Porter and W. L. Thompson, to recover damages occasioned by the death of their son, Larry Charles Robertson, then aged eight years and one month, who on March 25, 1963, drowned in a pond located on property owned by defendants.

Trial was to a jury and, after plaintiffs rested their case, defendants made motions for an instructed verdict in their behalf which the trial court granted and rendered judgment accordingly.

We will, in determining the propriety of the instructed verdict, view the evidence in the light most favorable to appellants. We will indulge against the instruction every inference that may properly be drawn from the evidence. And, if the record reflects any testimony of probative force, either direct or circumstantial, in favor of appellants, we will hold the instruction improper. White v. White, 141 Tex. 328, 172 S.W.2d 295, and cases therein cited. We will also discard all testimony adverse to appellants. Texas Employers’ Ins. Association v. Humphrey, Tex.Civ.App., 140 S.W.2d 313, Amarillo, writ ref.

Bearing in mind these rules, we have concluded to state and discuss the facts favorable to appellants separately as they relate to each of the elements essential to the cause of action pleaded by appellants. They allege as follows:

“Defendants were on March 25, 1963, the owners of a tract of land north of Steck Avenue and west of Fran-wood Street on the northwest edge of Austin, Texas, said tract of land being more specifically described in volume 2572, page 582 of the Travis County Deed Records. On said tract of land there is a man-made waterhole which is approximately a quarter mile from Franwood Street which is in a community with many small children.
IV.
Centennial Development Company of Austin purchased an interest in the above mentioned tract of land on January 15th, 1963, and at that time, it was apparent that the town had extended over into the area near the waterhole and was apparent that small children were playing around the waterhole. Defendants knew or should have known that the waterhole was an attractive nuisance and that there was a good possibility that some child would drown in said waterhole.
V.
On March 25th, 1963 Plaintiff’s deceased son, Larry Charles Robertson, age eight years was playing with other children around said waterhole when his foot slipped on a slippery rock and he fell into the waterhole and drowned, as a result of defendants’ failure to eliminate said nuisance, or put an adequate fence around same.”

With respect to these allegations we quote from the case of Eaton v. R. B. George Investments, 152 Tex. 523, 260 S.W.2d 587, the legal requirements relative thereto:

“We have set out the procedural developments in the various stages of *579 the case because we are convinced that they demonstrate that the parties to the cause and the courts below have failed to appreciate and evaluate fully the opinion of this court in the case of Banker v. McLaughlin, 146 Tex. 434, 208 S.W.2d 843, 847, 8 A.L.R.2d 1231. Whatever may have been the rule in this state prior to the Banker decision, it is now clear that a landowner cannot escape liability for bodily harm to trespassing children caused by a structure or other artificial condition maintained on his land by simply establishing that such structure or other artificial condition was not unusually attractive to children. In the Banker case this court approved and adopted the rule laid down in Volume 2, p. 920, Sec. 339 of the Restatement of the Law of Torts wherein it is said:
‘A possessor of land is subject to liability for bodily harm to young children trespassing thereon caused by a structure or other artificial condition which he maintains upon the land, if
(a) the place where the condition is maintained is one upon which the possessor knows or should know that such children are likely to trespass, and
(b) the condition is one of which the possessor knows or should know and which he realizes or should realize as involving 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 in-termeddling in it or in coming within the area made dangerous by it, and
(d) the utility to the possessor of maintaining the condition is slight as compared to the risk to young children involved therein.’
See also Prosser on Torts, Sec. 77, pp. 620-625.
[2] In the Restatement comment on Clause (a) above it is said: ‘It is not necessary that the defendant should know that the condition which he maintains upon his land is likely to attract the trespasses of children or that the children’s trespasses shall be due to the attractiveness of the condition.’ Just so also this court said in the Banker case that ‘The element of attraction is important only in so far as it may mean that the presence of children was to be anticipated’; and again: ‘It is of course immaterial also whether the dangerous condition be in close proximity to a path or highway, as is held in some cases, since that fact merely bears on whether the presence there of members of the public is reasonably to be anticipated. Whether the dangerous condition is an “attractive nuisance” is also merely a circumstance bearing on the same question’ ; and again, quoting from Prosser on Torts, 1941, p. 619: “‘The better authorities now agree that the element of ‘attraction’ is important only in so far as it may mean that the trespass is to be anticipated, and that the basis of liability is merely the foreseeability of harm to the child” ’; and again: ‘nor is it important for what purpose a person (impliedly invited) enters premises on which a dangerous condition is maintained, provided his presence there is reasonably anticipated. Nor is it important, for the same reason, whether the dangerous condition is visible from traveled ways.’”

We will first discuss the evidence, or at least some of it, regarding condition (a) supra.

Since the attractiveness of a pond to children has a bearing on whether it should be anticipated that children would be in its vicinity, we insert a picture of the pond in which Larry drowned.

*580

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Bluebook (online)
392 S.W.2d 577, Counsel Stack Legal Research, https://law.counselstack.com/opinion/robertson-v-centennial-properties-of-austin-inc-texapp-1965.