Lubitz v. Wells
19 Conn.Sup. 322, 113 A.2d 147.
Prosser, p. 131
Facts: Wells left a golf club sitting in his yard. His son picked it up and used it to hit a stone. He hit Lubitz with the club. Lubitz sued the elder Wells for leaving the club in his yard. The defendant demurred and said that the plaintiff failed to state a cause of action against Wells.
Issue: Is it negligence to leave a golf club lying in a yard?
Rule: It is only negligence to leave an object lying around if it is “obviously and intrinsically dangerous”.
Analysis: The court says that it is common sense that the golf club is not dangerous in and of itself.
Conclusion: The court sustains the demurrer.
Notes and Questions
1. A shotgun is obviously and intrinsically dangerous whereas the other objects are not. By the rule of this case, one could not be found negligent for leaving out any of the other items.
2. The son’s purported duty to inform Lubitz that he is going to swing the club is independent of his father’s rejected duty to not leave golf clubs on his lawn. If the son is found (1) to have such a duty, (2) to have breached it, (3) to have caused harm, and (4) to have caused actual damages, then the son could be found negligent independent of the father. If the plaintiff had tripped over the golf club, she would have alleged the breach of a different duty, namely, the duty to keep one’s lawn free from debris that someone could trip over. If such an obligation is recognized by law, the plaintiff could have a cause of action.
3. It would seem it was not negligent to sell the slingshot, because apparently there is no legal duty not to sell it. If there was, presumably the shop wouldn’t have been allowed to sell the slingshot in the first place.
4. Again, it would seem as though this is a question of whether there exists a legal duty to yell “Fore”.
5. I have a feeling that contributory negligence would come into play here. The mother has a duty to watch the toddler to make sure he doesn’t crawl under cars. It seems like an unreasonable burden to make the defendant search around his car in detail every time he’s going to drive.