Collomy v. MSAD 55
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MAINE SUPREME JUDICIAL COURT              Reporter of Decisions
Decision:1998 ME 79
Docket:Cum-97-441
Argued:	February 3, 1998
Decided:April 22, 1998


Panel:WATHEN, C.J., and ROBERTS, CLIFFORD, RUDMAN, DANA, LIPEZ, and
SAUFLEY, JJ.

RHONDA COLLOMY, individually and 
as mother and next friend of TREVOR CARTER

v.

SCHOOL ADMINISTRATIVE DISTRICT NO. 55

WATHEN, C.J.


	[¶1]  Plaintiff Rhonda Collomy, individually and as mother and next
friend of Trevor Carter, appeals from a judgment entered in the Superior
Court (Cumberland County, Mills, J.) in favor of defendant School
Administrative District No. 55 (the School District).  Plaintiff argues on
appeal that the court erred in failing to find a genuine issue of material fact
whether Trevor was a trespasser; whether the School District owed Trevor a
duty of care under the attractive nuisance doctrine; and whether the School
District acted willfully, wantonly or recklessly.  Finding no error, we affirm.
	[¶2]  The facts, viewed in the light most favorable to plaintiff, may be
summarized as follows:  On a Saturday morning in early June, Trevor Carter,
a 12-year-old boy, and his 12-year-old friend, together with his friend's
younger siblings, were dropped off at the playground of Baldwin Elementary
School by his friend's father. Trevor believed that he had a little league game
at the school that morning, but discovered later that the game was at a
different school.  While waiting, Trevor and his friend played soccer on the
field and played on the jungle gym and the swings on the playground.  
	[¶3]  After awhile, they became curious and entered a cinder block
shed adjacent to the playground. The shed had two doors, a steel door
secured by a large padlock, and a hollow core wooden door secured by an
integrated lock and a smaller padlock and hasp. The boys entered through
the wooden door that Trevor testified was unlocked and ajar.  His friend
found a can of fluid, later identified as duplicating fluid, took it outside and
set it on fire.  His friend and his friend's siblings played with the fire, while
Trevor sat on the swings and did not participate. When his friend wanted to
go play soccer, Trevor was concerned about the fire catching onto the trees
or something else and recommended that they stay until the fire was out. 
When the fire was out, Trevor went back into the building because it was
cooler.  His friend then took more of the duplicating fluid and this time half-
filled the cinder block step in the doorway and tried to ignite it. The fluid
did not ignite on the first try and his friend put more fluid into the block.
Trevor told his friend not to do it and that he was going to get out of the
building. When Trevor began to leave, his friend threw another match into
the block, the fluid ignited, flashed back, and ignited Trevor's clothes,
causing burns to his lower extremities.
	[¶4]  Rhonda Collomy, individually and as mother of Trevor, filed a
complaint against the School District alleging that the School District stored
highly flammable substances in a negligently constructed, operated, or
maintained storage shed on property adjacent to the playground and, as a
direct and proximate result, plaintiff sustained injuries.  After hearing,
summary judgment was entered in favor of the School District and plaintiff
appealed.
 	[¶5] We review the court's "entry of a summary judgment for errors of
law, viewing the evidence in the light most favorable to the party against
whom the judgment was entered."  Rodrigue v. Rodrigue, 1997 ME 99, ¶8,
694 A.2d 924, 926 (citation omitted).  Summary judgment will be upheld if
the evidence produced demonstrates that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as a matter of
law.  Id. 

I.  Trespass 

	[¶6]  Plaintiff first argues that there is a genuine issue of material fact
whether Trevor was a trespasser.  The duty owed to Trevor is dependent
upon his legal status and the determination of his legal status is an issue of
fact.  Poulin v. Colby College, 402 A.2d 846, 849 (Me. 1979).  A trespasser is
defined as "a person who enters or remains upon land in the possession of
another without a privilege to do so created by the possessor's consent or
otherwise." Restatement (Second) of Torts § 329 (1965); see also Cogswell
v. Warren Bros. Road Co., 229 A.2d 215, 219 (Me. 1967).  It is undisputed
that the playground, the shed and the contents of the shed were in the
possession of the School District and that Trevor entered the playground
and the shed.  It is also agreed that Trevor was not a trespasser on the
playground, because children often played on the playground and fields
when school was not in session.   
	[¶7]  Even though it may be agreed that Trevor was an invitee and not
a trespasser on the playground, however, that status applies "only while he is
on the part of the land to which his invitation extends -- or in other words,
the part of the land upon which the possessor gives him reason to believe
that his presence is desired for the purpose for which he has come."
Restatement (Second) of Torts, §332, comment l (1965).  For example,
"where one enters a part of premises reserved for the use of the occupant
and his employees and to which there was no express or implied invitation
to go, there can be no recovery for resulting injury, even though he is an
invitee to other parts of the premises."  Lewis v. Mains, 150 Me. 75, 77-78,
104 A.2d 432, 434 (1954) (although defendant invited a father to come
upon his land and erect a home for himself and his family, he did not invite
the father's child to enter an area obviously devoted to commercial uses and
climb a sawdust pile at the sawmill on the same property, where she
touched an electric wire and was injured).  	
	[¶8]  Contrary to plaintiff's attempt to distinguish Lewis v. Mains, the
shed did have a different use than the playground equipment, such as swings
and monkey bars. The swings and monkey bars were on the premises for
students to play on during school and the School District gave children,
including Trevor, reason to believe that their presence was also permitted
for the purpose of playing on the playground equipment when the school
was not in session.  The School District, however, used the shed to store
equipment and materials and plaintiff introduced no evidence that the
School District allowed the children to play in the building when school was
in session or when it was not.  Therefore, the court did not err in finding
that plaintiff failed to raise a genuine issue of material fact whether Trevor
was a trespasser when he entered the shed. 

	II.  Attractive Nuisance

	[¶9]  Plaintiff next argues that, even if Trevor was a trespasser when
he entered the cinder block shed, there is a genuine issue of material fact
whether the School District owed him a duty under the attractive nuisance
doctrine. In Jones v. Billings, 289 A.2d 39 (Me. 1972), we adopted the
following definition of the attractive nuisance doctrine:

Sec. 339.  Artificial Conditions Highly Dangerous to Trespassing
		Children

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 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 as
compared with the risk to children involved, and
	(e) the possessor fails to exercise reasonable care to
eliminate the danger or otherwise to protect the children.

Jones v. Billings, 289 A.2d 39, 42 (Me. 1972) (quoting Restatement
(Second) of Torts § 339 (1965)).  
	[¶10]  We adopted the attractive nuisance doctrine with the caveat
that we would strictly interpret the doctrine, Id. at 43, and we applied a
strict interpretation in Merrill v. Central Maine Power Co., 628 A.2d 1062,
1063 (Me. 1993). In affirming the court's summary judgment in favor of the
defendant, we focused on whether the child appreciated the risk at the time
of the accident and noted one commentator's statement that: 

[t]he child, because of his immaturity, either must not discover
the condition or must not in fact appreciate the danger involved. 
Since the principal reason for the rule distinguishing
trespassing children from trespassing adults is the inability of
the child to protect himself, the courts have been quite firm in
their insistence that if the child is fully aware of the condition,
understands the risk which it carries, and is quite able to avoid
it, he stands in no better position than an adult with similar
knowledge and understanding.

Merrill, 628 A.2d at 1063-64 (citing W. Keeton, Prosser and Keeton on the
Law of Torts § 59 at 408 (5th ed. 1984) (footnotes and citations omitted)). 
We also recognized that "'[o]ften the child's own testimony is the best
evidence of whether he possessed sufficient intelligence and knowledge to
understand or avoid the danger."  Merrill, 628 A.2d at 1064 (quoting Lister
v. Campbell, 371 So.2d 133, 136 (Fla. Dist. Ct. App. 1979)).  Based on these
principles, we found in that case that it was undisputed that the child
appreciated the risk inherent in placing an eel on a live electrical wire.
	[¶11]  This case also focuses on the third element, that is, whether
Trevor appreciated the risk.  We must consider at what point he should have
appreciated the risk -- when he entered the building the first time or when
he entered the building the second time.  Plaintiff focuses on the initial
entry into the shed and argues that there is a genuine issue of material fact
whether Trevor appreciated the risk of entering the cinder block shed and
the dangers of the materials therein and that this issue is sufficient to deny
summary judgment.  Trevor testified that, before entering the building the
first time, he thought it was okay to play on the playground, and that he
thought it was okay to enter the building because it was unlocked.  Trevor
also testified that, at the time he saw the cans, he did not see that the cans
had writing that said they were flammable, but that his friend told him about
the labels after the accident. Viewing Trevor's testimony in the light most
favorable to him, there is an issue of fact whether he appreciated any risk
when he entered the building the first time. Trevor's understanding at the
time of the first entry, however, is not material because he was not injured
at that point in time.
	[¶12]  The determinative period of time for appreciating the risk was
when Trevor chose to enter the building the second time, because this is
when the accident occurred.  Before entering the building the second time
he had the knowledge (1) that there were flammable materials in the
building and (2) that his friend had already ignited the materials once.  He
stated that he went back into the building because it was cooler.  He
acknowledged, however, that a teacher might ask him to leave.  Asked why,
he responded "because it's not really that safe a place to be in." Asked why
again, he responded "because of the flammable liquids." Asked "and you
knew that when went back in," he answered "right."
	[¶13]  He also admitted that he knew fire could hurt you and burn you.
He admitted that he knew it was dangerous to play with fire, but that he did
not believe that his friend understood it was dangerous.  He testified that he
had observed the effects of flammable fluids when his friend threw the
match in the first time.  He also admitted that he understood it was
dangerous and that someone could get hurt. He testified that he never
touched the cans or matches.   To the question "you were worried it would
explode," he responded, "right."  He testified that, when his friend poured
more fluid into the step, he said, "I'm going to get up and get out," and that
when he started walking out, his friend threw a match and the fluid ignited. 
	[¶14]  Even viewed in the light most favorable to plaintiff, the
evidence unequivocally reveals that Trevor appreciated the dangers before
re-entering the building.  Although Trevor clearly did not anticipate that his
friend would throw a match onto the fluid while he was trying to leave the
building, he did know that the fluid was in the building, that his friend
would play with the fluid, that the fluid was flammable, and that the
flammable fluid could hurt or burn him. Therefore, because plaintiff failed to
generate a genuine issue concerning an indispensable element of the
attractive nuisance doctrine, she was conclusively precluded from recovery
under this doctrine.{1}  Thus the court did not err in granting the School
District's summary judgment on this theory of recovery. 

	III.  Wanton, willful and reckless conduct

	[¶15]  Because we determine that Trevor was a trespasser and was not
within the attractive nuisance doctrine, the duty owed to Trevor is only a
duty to refrain from wanton, willful or reckless acts of negligence. See 
Cogswell v. Warren Bros. Road Co., 229 A.2d 215, 219 (Me. 1967).   Even
viewed in the light most favorable to the plaintiff, the School District's acts
of leaving flammable materials in the cinder block building on the
playground, leaving the door unlocked, and failing to post warning signs on
the property do not rise to the level of "wanton, willful or reckless behavior." 
See Lewis v. Mains, 150 Me. 75, 78, 104 A.2d 432, 434 (1954); Bonney v.
Canadian Nat'l Ry. Co., 800 F.2d 274, 278 (lst Cir. 1986).  Therefore, the
court did not err in finding that plaintiff failed to generate a genuine issue of
material fact whether the School District acted wantonly, willfully, or
recklessly.
	The entry is:
					Judgment affirmed.
                                                                          
Attorneys for plaintiffs:

Paul F. Macri, Esq. (orally)
Tyler N. Kolle, Esq.
Berman & Simmons, P.A.
P O Box 961
Lewiston, ME 04243-0961

Attorney for defendant:

David P. Very, Esq. (orally)
Norman, Hanson & DeTroy
P O Box 4600
Portland, ME 04112-4600