Texas Utilities Electric Co. v. Timmons

*192HECHT, Justice,

delivered the opinion of the Court,

joined by PHILLIPS, Chief Justice, CORNYN, ENOCH, OWEN, BAKER and ABBOTT, Justices.

The sole question in this ease is whether, as a matter of law, a 90-foot electric transmission tower is an attractive nuisance to a 14-year-old boy. The district court answered no, granting summary judgment for the defendant. The court of appeals answered yes. 917 S.W.2d 84. We agree with the district court.

After spending the evening drinking beer and malt liquor at a friend’s house, Billy Edwin Byrum, age 14, walked • outside and down the street about half a block to a utility tower and began to climb it. The tower is owned by Texas Utilities Electric Company. It was built in 1913 and is over 90 feet tall. The tower has four vertical sides, each crisscrossed by metal braces forming large “X” patterns from the ground to the top. At the top is a 69 kv electric transmission line. There is no ladder up the tower, but it can be climbed by means of the diagonal braces on each side. Years ago Texas Utilities erected a barricade around the tower 12 — 16 feet above the ground, consisting of steel braces protruding 17-19 inches from each of the four corners of the tower at a ninety degree angle, holding four strands of barbed wire, two to five inches apart, encircling the tower. Seven other strands of barbed wire are stretched across the interior of the tower. This barbed wire wall extending from the interior of the tower to about one and one-half feet beyond its sides is designed to prevent unauthorized persons from sealing the tower and coming near the power lines. Posted on one corner of the tower about five feet from the ground is a ten-inch-by-three-inch sign. Although portions were faded or illegible, and its gray background was the same color as the tower, the sign contained this warning in large, bold letters:

KEEP AWAY

DANGER

WIRES HEAVILY ELECTRIFIED

The sign did not specifically warn of the danger of arcing. Despite this warning and the barricade, children sometimes climbed on the tower without Texas Utilities’ knowledge and certainly without its permission. Billy was one of them. Texas Utilities never received a report of children climbing on the tower, although it was apparent from the condition of the barbed-wire barricade that children could get past it, and people in the neighborhood sometimes saw them playing on the tower. But no one who had seen children climbing on the tower had ever seen anyone near the top.

On the night in question, when Billy’s friends realized he was gone, they went outside to look for him and heard him yelling from near the top of the tower. He appeared drunk. Billy’s uncle and friends had repeatedly warned him not to climb the tower, that it carried high voltage electric lines, and that he could be electrocuted. On this particular evening Billy’s cousin and another boy repeatedly shouted to Billy for several minutes to come down because he might be electrocuted. Specifically, they said: “Come down before you get fried ... You’re stupid going up there, you don’t belong up there, and you know better.” Billy acknowledged their warnings but remained at the top of the tower. At 1:18 a.m., Billy started to descend when there was a bright flash and all the lights in the area went out. Billy’s body fell to the ground. Texas Utilities officials determined that Billy was killed not as a result of actually touching the electric lines but from approaching closely enough for electricity to arc into him. At the time of his death Billy’s blood alcohol concentration was 0.10 gm/dl, *193the legal standard for intoxication. Tex. Penal Code §§ 49.01(1)(B), (2)(B).

Billy’s mother, Jackie Byrum Timmons, sued Texas Utilities for wrongful death, alleging that Texas Utilities was negligent in failing to prevent children like Billy from climbing on its tower. The trial court granted Texas Utilities’ motion for summary judgment. The court of appeals reversed, holding that fact questions subsisted regarding whether Texas Utilities should have known that children climbed on its tower, even though it had no actual knowledge, and whether Billy appreciated the danger of electrical arcing, as distinguished from electrocution from touching electrical lines. 917 S.W.2d 84.

The only duty a premises owner or occupier owes a trespasser is not to injure him willfully, wantonly, or through gross negligence. Burton Constr. & Shipbuilding Co. v. Broussard, 154 Tex. 50, 273 S.W.2d 598, 603 (1954). See also Restatement (Second) of ToRts § 333 (1965). But as to invitees, a premises owner or occupier must “use ordinary care to reduce or eliminate an unreasonable risk of harm created by a premises condition of which the owner is or reasonably should be aware.” State Dept. of Highways & Public Transp. v. Payne, 838 S.W.2d 235, 237 (Tex.1992). fiad Billy been an adult, he would have been a trespasser on Texas Utilities’ tower, and since Texas Utilities did not injure him willfully, it could not be liable for his accident.

However, “when children of tender years [come] upon the premises by virtue of them unusual attractiveness, the legal effect [is] that of an implied invitation to do so. Such child [is] regarded, not as a trespasser, but as being rightfully on the premises.” Banker v. McLaughlin, 146 Tex. 434, 208 S.W.2d 843, 847 (1948). This is the doctrine of attractive nuisance. It originally developed in so-called “turntable cases” where young children were injured playing on railroad turntables which seemed especially attractive playgrounds, the dangers of which children did not appreciate. See, e.g., (Sioux City & Pac.) Railroad Co. v. Stout, 84 U.S. (17 Wall.) 657, 21 L.Ed. 745 (1873); Evansich v. Gulf, C. & S.F. R’y, 57 Tex. 123 (1882). The doctrine has since been extended to other situations, as we explained in Banker:

“The theory of liability under the attractive nuisance doctrine is that, where the owner maintains a device or machinery on his premises of such an unusually attractive nature as to be especially alluring to children of tender years, he thereby impliedly invites such children to come upon his premises, and, by reason of such invitation, they are relieved from being classed as trespassers, but are in the attitude of being rightfully on the premises. Under such circumstances, the law places upon the owner of such machinery or de-rice the duty of exercising ordinary care to keep such machinery in reasonably safe condition for their protection, if the facts are such as to raise the issue that the owner knew, or in the exercise of ordinary care ought to have known, that such children were likely or would probably be attracted by the machinery, and thus be drawn to the premises by such attraction.” (Emphasis ours.)
The “attractive-nuisance”, or so-called turntable doctrine, is applicable to cases involving different dangerous instrumen-talities and conditions on the premises.

208 S.W.2d at 847-848. When the attractive nuisance doctrine applies, the owner or occupier of premises owes a trespassing child the same duty as an invitee.

Nearly fifty years ago, in Banker, we adopted the statement of the attractive nuisance doctrine found in section 339 of the Restatement of Torts. Id. at 847. See Eaton v. R.B. George Inv., Inc., 152 Tex. 523, 260 S.W.2d 587, 589-91 (1953); Massie v. Copeland, 149 Tex. 319, 233 S.W.2d 449, 451-52 (1950). Section 339 of the Restatement (Second) of Torts is changed slightly from its predecessor, but we believe it still correctly states the doctrine as follows:

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 *194has 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.

Restatement (Second) of ToRts § 339 (1965). We focus on the requirement of paragraph (c).

In the present case, Timmons concedes, as she must, that Billy realized that climbing the tower was dangerous. His Mends repeatedly warned him not to climb it, and Texas Utilities erected a barricade to prevent him from climbing it. Billy knew the electrical lines were dangerous. Texas Utilities’ sign posted at the foot of the tower warned him to keep away. His Mends admonished him the evening of the accident, as they had numerous times before, that he could be electrocuted. Even without such express warnings, anyone as old as Billy is charged “with the knowledge that elecMe wires are ordinarily dangerous; that they should be avoided wherever possible ... and that it is dangerous to come in close proximity to them.” Cloud v. Houston Lighting & Power Co., 199 S.W.2d 260, 262 (Tex.Civ. App. — Galveston 1947, writ ref d n.r.e).

Timmons herself warned Billy of the danger of touching electric lines, but she contends that neither she nor Billy knew that electricity could arc from a line into a nearby object that was not touching the line. She argues that even though Billy knew the risks involved in climbing the tower and touching the lines, he did not know the risk of simply being near the lines.

Whether the fact that electricity can arc is known to 14-year-olds, or to older persons for that matter, is debatable. In 1922, the Texas Commission of Appeals observed:

The public knows that it is dangerous to touch a live wire, but very few know that there exists danger of death from this powerful current by near approach to the wire so charged, without actually coming in contact with the wire. Only those who are engaged in the business, and those who have stood beside some inanimate form whose scorched and burned flesh bears mute evidence to its tremendous power, know this.

McCoy v. Texas Power & Light Co., 239 S.W. 1105, 1110 (Tex. Com. App.1922, judgm’t adopted). See Klingensmith v. Scioto Valley Traction Co., 18 Ohio App. 290 (1924), cited in Comment Note, Age and Mentality of Child as Affecting Application of Attractive Nuisance Doctrine, 16 A.L.R.3d 25, 100 (1967) (where 16-year-old boy was killed by arcing while climbing an electric tower, the court said that “if the dead boy knew of the possibility that disruptive discharges from high-voltage wires such as those upon the tower might cause death without contact with the wires, then he knew more of the qualities of electricity than any member of the court prior to the information obtained in [this] case.”). In 1939, however, the Minnesota Supreme Court rejected the idea that an 18-year-old did not know of arcing, saying simply that “[t]he danger of electrical energy is a matter of common knowledge.” Peterson v. Minnesota Power & Light Co., 206 Minn. 268, 288 N.W. 588 (1939). In 1956 the Pennsylvania Supreme Court stated that whether an 11-year-old boy realized the risk of arcing could be a fact issue. Dugan v. Pennsylvania R.R. Co., 387 Pa. 25, 127 A.2d 343, 345-346 (1956).

Resolving this debate is not necessary to deciding the present case. This Court, like several others, has refused to apply the attractive nuisance doctrine to a young person injured by electrical arcing who realized the risk of being near electrical wires, even if he was not aware of arcing. In Texas Power & Light Co. v. Burt, 104 S.W.2d 941, 942 (Tex. *195Civ.App. — Waco 1937, writ refd), an 18-year-old boy climbed 50 feet up an electric tower and out onto a crossbar, where he was struck by an arc from a nearby 61 kv line. The tower had two ladders made of spikes extending from corner posts. We held as a matter of law that the boy realized the risk of injury. We stated:

[Considering the manner in which this tower was constructed and the natural and apparent danger that would have to be overcome before one could reach the zone where he might be injured by the electric current, it is unreasonable to assume that a child young enough to be possessed of such childish impulses as is contemplated by the attractive nuisance doctrine, would have the courage to climb the tower on the spike ladder far enough to encounter the danger here contemplated.
We are also of the opinion that the injured boy was not of such tender age as to bring him within the attractive nuisance doctrine- He knew that it was dangerous to touch the wires and tried to avoid touching them, but he did not know that the current would jump from the wire to his body when he came in close proximity to the wire without touching the same. We are of the opinion that he was not so immature in judgment, experience, and intelligence as to be overpowered by childish impulses and led to believe, by the mere attractiveness of the tower, that he had a right to play on the tower and that he could do so without fear of danger.

Id. at 943 (citations omitted). In other words, the fact that the boy must have realized the risk of being near electric lines fifty feet in the air was enough to preclude application of the attractive nuisance doctrine, even if the boy did not realize the specific risk of arcing. Although there was no warning on the tower, we said:

If this boy, knowing that the tower carried high-tension wires and that it was dangerous to contact them, had the courage to climb the tower by means of a spike ladder to a distance of sixty feet, and, after seeing the wires, could, without trepidation, crawl immediately under and in close proximity to one of them on his hands and knees on a bar forty-seven feet from the ground, and could then sit down on the end of the bar, swing his feet in the air, and view the surrounding country with complacency, it is hardly probable that an ordinary “danger” sign at the bottom of the ladder would have deterred him.

Id. Other courts have refused to apply the attractive nuisance doctrine to children injured or killed by arcing while climbing electric towers, despite the claim that the child did not realize the risk of arcing. Kirschner v. Louisville Gas & Elec. Co., 743 S.W.2d 840, 842, 845 (Ky.1988) (involving a 15-year-old boy); Peterson, 288 N.W. at 590 (involving an 18-year-old boy); James v. Wisconsin Power & Light Co., 266 Wis. 290, 63 N.W.2d 116, 117, 119-120 (1954) (involving a 15-year-old boy “mentally retarded about two or three years”); Hashtani v. Duke Power Co., 578 F.2d 542, 543 (4th Cir.1978) (applying North Carolina law, and involving a 14-year-old boy). See generally Comment Note, 16 A.L.R.3d at 100-101; Annotation, Liability for Injury of Child on Electric Transmission Tower or Pole, 6 A.L.R.2d 754 (1949).

As these cases suggest, ignorance of arcing is not enough to satisfy the third element of the attractive nuisance doctrine, section 339(c) of the Restatement, if the child is aware of the dangers of electricity generally. The doctrine requires only that the child realize the risk “in coming within the area made dangerous” by the condition. Restatement (Second) of Torts § 339(c) (1965). As we reasoned in Bmt, a child who puts himself in such close proximity to a known danger like a fifty-foot-high high-voltage electric line so as to risk severe harm cannot be heard to say that he did not realize the danger because he did not expect harm to occur exactly as it did.

The court of appeals concluded that the attractive nuisance doctrine could apply in this ease based on this Court’s decision in Johns v. Fort Worth Power & Light Co., 30 S.W.2d 549 (Tex.Civ.App. — Fort Worth 1930, writ refd). There we applied the doctrine to a 15-year-old boy who climbed a 75-foot electric tower and was killed when he either touched or came near a high-voltage line. *196The critical facts in that case, however, which are not present in the ease before us, were that the tower had a ladder from the ground to the top made of spikes extending from one corner, and there were no signs or guards around the tower to warn children of the danger. Id. at 549-550. These same facts were crucial in McCoy, the other case on which the court of appeals relied. McCoy applied the attractive nuisance doctrine to a 14-year-old boy who climbed a high-voltage electric tower by the same kind of ladder as the boy in Johns. 239 S.W. at 1106-1107. And as in Johns, there were no signs or barrieadés to warn of the danger or discourage ascent. Id. at 1107.

We have characterized Johns and McCoy as “exceptional cases where unusual and highly deceptive instrumentalities were present.” Massie, 238 S.W.2d at 454. The present case is different. Texas Utilities not only posted a sign warning everyone to keep away from the tower, it constructed a barricade to make it very difficult to climb the tower. Billy was well aware of the dangers of being near electricity, not to mention climbing 90 feet in the air. Moments before he was killed his friends were shouting that he could be electrocuted and that he should come down. Billy was warned to keep away from the tower altogether, not just the top few feet. Had he obeyed that warning, he would not have been killed.

Texas Utilities also argues, and Timmons acknowledged, that the attractive nuisance doctrine ordinarily does not apply to a normal 14-year-old. Massie, 233 S.W.2d at 453. However, Timmons asserts that the doctrine applies to Billy because he lacked the mental development ordinarily found in children of that age. See Restatement (Seoond) of Torts § 339, cmt. c (1965). Timmons alleges that Billy had difficulty functioning in a regular classroom, that he attended special education classes and made poor grades, and that he was immature and impulsive for a child his age. Like most courts, we decline to put an age limit on the beneficiaries of the attractive nuisance doctrine, although we acknowledge that “[i]n the great majority of the cases in which the [doctrine] has been applied, the plaintiff has been a child of not more than twelve years of age.” Id. We also recognize “that in our present hazardous civilization some types of dangers have become common, which an immature adolescent may reasonably not appreciate, although an adult may be expected to do so.” Id. The test is whether “the child is still too young to appreciate the danger”. Id. We hold that Billy was not too young or immature to appreciate the danger of climbing a 90-foot tower containing high-voltage power lines. Further, Billy had been warned repeatedly, even the night of the accident, not to climb the tower and did so despite those warnings.

Billy’s accident was tragic, but we cannot escape the conclusion that he realized the risk in climbing near the high-voltage lines. The district court correctly concluded, as a matter of law, that Timmons cannot invoke the attractive nuisance doctrine. Accordingly, the court of appeals’ judgment is reversed and judgment is rendered that Timmons take nothing,

GONZALEZ, Justice, joined by