Action by parent for death of child which wandered from the home and was drowned in the stream approximately one-quarter of a mile away. On motion to dismiss complaint the Superior Court, New Castle County, Richards, P. J., held that the landlord had no duty to keep a fence surrounding the leased premises in a state of repair so that small child of tenant could not wander away.
Owner of property through which a natural stream flowed and on which nothing had been placed or erected which would attract children to it was not liable for death of infant who wandered onto the property and drowned in the stream.
[48 Del. 451] John M. Bader, Wilmington, for plaintiff.
William H. Bennethum and Ernest S. Wilson, Jr., of Morford, Bennethum & Marvel, Wilmington, for Wilmington Housing Authority.
William Prickett, Wilmington, for the Baltimore & Ohio R. Co.
John W. Huxley, Jr., and Thomas H. Wingate, Wilmington, for Philadelphia and Reading R. Co.
Henry M. Canby and William A. Worth, Jr., of Richards, Layton & Finger, Wilmington, for Diamond Ice and Coal Co.
The Attorney for the plaintiff does not oppose the motion to dismiss the complaint as to the Baltimore and Ohio Railroad Company and Philadelphia and Reading Railway Company.
RICHARDS, P. J., sitting.
RICHARDS, President Judge.
It is alleged in the complaint that on February 23, 1952, Marianne Villani, a child aged two years and eight months resided [48 Del. 452] with her parents, Victor E. Villani and the plaintiff, Helen F. Villani, at 676 Shipside, a housing project in Christiana Hundred, New Castle County, Delaware, under the jurisdiction and control of the defendant, The Wilmington Housing Authority; that shortly before nine o'clock on the morning of said date, the said Marianne Villani wandered away from the home of her parents at said housing project, crossed the railroad right-of-way maintained by defendant, The Baltimore and Ohio Railroad Company, crossed the railroad right-of-way maintained by defendant, Philadelphia and Reading Railway Company, and after proceeding about a quarter of a mile fell into a tributary of the Christiana River, located on the lands of Diamond Ice and Coal Company and was drowned.
It is contended that the defendant, The Wilmington Housing Authority, knowing or being upon reasonable notice of the proximity of said railroad tracks and the tributary of the Christiana River, both of which constituted a reasonably foreseeable attraction to small children, was negligent in that it knowingly allowed a certain fence previously erected by it ...