Vincent A. Theisen and Victor F. Battaglia, of Theisen & Lank, Wilmington, for plaintiffs.
William F. Taylor, of Morford, Young & Conaway, Wilmington, for defendant Wilmington Housing Authority.
WOLCOTT, C. J., and CAREY and HERRMANN, JJ., sitting.
This is a negligence case brought against The Wilmington Housing Authority and the Pennsylvania Railroad Company for personal injuries sustained by David Robert Williamson, a minor. The plaintiffs are the parents of David, suing on his behalf and their own. The Housing Authority moved for summary judgment. The Railroad
Company did not. The trial court granted the summary judgment and the plaintiffs appeal.
The question before us is the usual one when summary judgment has been granted in favor of the defendant in a negligence case: Has the defendant discharged its burden to demonstrate, to a reasonable certitude, that there is no issue of fact which, resolved in favor of the plaintiffs, would hold the defendant liable to the plaintiffs on the claim? Howard v. Food Fair Stores, New Castle, Inc., Del.,201 A.2d 638 (1964); Ebersole v. Lowengrub, Del.,180 A.2d 467 (1962).
The uncontroverted facts are as follows:
The Authority owns and operates a low cost rental housing facility in Wilmington known as the Southbridge Development. It consists of single, row-type houses. In October 1959, David and his family moved into a house in the Development rented by his mother. They were obliged to take the house assigned to them and had no choice in the selection. The house was located near the southerly edge of the Development which abutted an embankment owned by the defendant Railroad Company. Tracks of the Railroad Company were located at the foot of the embankment. The rear of the house was approximately 60 feet from the top of the embankment, being separated therefrom by a backyard, an automobile driveway and an open area frequently used as a children's play area.
The embankment has an elevation of 100.2 feet at the top and drops to 90.2 feet at the railroad track level below. The property line between the lands of the Authority and the Railroad Company runs, [58 Del. 254] generally speaking, along the top of the embankment. A path extends down the embankment from a point at the top, located approximately 5 feet within the Authority's property line and adjoining the play area, to a point at the railroad level approximately 50 feet below. The path thus leading from within the Authority's property, down the embankment and across the railroad tracks, is used by residents of the Development as a shortcut to South Heald Street nearby.
The Authority's property is separated from the embankment and the rest of the railroad property by a screen of hedges approximately 6 feet high and bushes approximately 2 feet to 4 feet high, running generally and almost continuously along the property line. However, the top of the path, located on the Authority's property, creates an opening in the screen formed by these plantings. There was no fence across the path. The Authority reserved control of the walks, drives and community spaces between the house and the railroad property.
On April 4, 1960, David was in the play area. He was four years old at the time. He had often played there with other children. A train was passing at the bottom of the embankment. David was attracted by the train and ran to the top of the path to see the train and to wave to train personnel. He slipped and fell down the path and embankment and rolled onto the tracks and under the moving train. He suffered the loss of his right arm and foot.
The key question is whether the Authority permitted a dangerous condition to exist on its premises. The issue is clearly drawn by the parties. The plaintiffs contend that the top portion of the path, located within the Authority's property, constituted a dangerous condition existing on the Authority's land insofar as David is concerned, when viewed in conjunction with the adjoining play area, the embankment, the attraction of the passing trains below, the invitation of the opening in the screen of hedges and shrubbery, created by and for the path, and other attendant circumstances. The plaintiffs contend that the Authority owed a duty to David, under the circumstances, to erect a fence or other protective device to protect [58 Del. 255] him from the dangerous condition thus created. The Authority, on the other hand, says no dangerous condition existed on its property as to
which it owed any duty to David; that the dangerous condition was entirely outside the Authority's property. It argues that it had no duty to erect a fence to protect David against a dangerous condition existing entirely outside its premises.
The question of what constitutes a dangerous condition in a situation of this kind cannot be settled by any formula or hard and fast rule. The existence or non-existence of a dangerous condition must depend upon the facts and circumstances of each case and is generally a question of fact for the jury to determine except in very clear cases. Harper v. Vallejo Housing Authority,104 Cal.App.2d 621, 232 P.2d 262 (1951). This is not such a case.
We think that the question of whether, under the facts of this case, a dangerous condition was permitted to exist on the Authority's property, is clearly a question to be determined by the jury. The liability of the Authority depends, in large measure, upon the resolution of that question and we think it can be reasonably answered either way. Compare Herdt v. Koenig,137 Mo.App. 589. 119 S.W. 56 (1909). Since we cannot agree that the answer to that question ...