Supreme Judicial Court of Massachusetts,
MASSACHUSETTS ELECTRIC COMPANY et al.
Argued Nov. 5, 1990.
Decided Jan. 29, 1991.
Personal injury action was filed by parents of 16-year-old who climbed utility pole and received electrical shock. The Superior Court, Norfolk County, Robert W. Banks, J., after jury trial, entered judgment for utility companies after jury determined that child was 75% at fault and was barred from recovering damages under comparative negligence statute. Plaintiffs appealed. The Supreme Judicial Court, Liacos, C.J., held that: (1) since child trespasser statute imposed on utility companies duty of reasonable care and created liability based on negligence principles, comparative negligence defense was available to companies; (2) finding that companies unreasonably created dangerous condition, risks of which could not ordinarily be discovered by children, was not inconsistent with finding that, even though child failed to realize risk, he or she acted without degree of care expected from child of similar age, intelligence and experience; (3) in considering child’s comparative negligence, jury was required to judge child by standard of behavior expected from child of like age, intelligence, and experience, and not by same standard of care as adult; and (4) motion to amend complaint made four years after filing was properly denied.
D**1181 *256 Jeffrey N. Roy (Carol R. Steinberg with him), for plaintiffs.
Andrew B. Estrine (Steven E. Thomas with him), for Massachusetts Elec. Co.
*257 Bartlett L. Thomas, for New England Tel. and Tel. Co.
Before *256 LIACOS, C.J., and WILKINS, ABRAMS, LYNCH and GREANEY, JJ.
During the evening of June 23, 1983, the plaintiff, Brian Mathis, sixteen years and eight months old, and three of his friends were gathered in front of the house located directly across from Brian’s home in Franklin. Brian crossed the street and, to impress his friends, began climbing a utility pole, jointly owned by defendants Massachusetts Electric Company (MEC) and New England Telephone and Telegraph Company (NET). The pole was located on the property of the plaintiff’s parents. It was supported by two guy wires, the upper one installed and owned by MEC, the lower one installed and owned by NET. As Brian climbed the pole, he came in contact with several telephone, cable television, and electrical wires which did not harm him. When Brian reached the top of the utility pole, he grabbed the primary electrical wire and received an electrical shock. Brian fell to the ground. He sustained severe injuries and burns.
In March, 1984, the plaintiff filed suit in Superior Court alleging that MEC’s negligence caused his injuries. His mother sought damages for loss of consortium. [FN3] On May 6, 1988, the plaintiffs moved to amend the complaint to add counts alleging trespass; the plaintiffs alleged that there was no recorded easement authorizing the defendants to place the guy wires on the family’s property. A judge denied the motion and, on July 7, 1988, the Appeals Court denied the plaintiffs’ interlocutory appeal. [FN4]
FN3. On February 21, 1985, MEC filed a third-party complaint against NET for contribution and indemnification. On October 14, 1987, the plaintiffs filed an amended complaint, adding claims against NET for negligence and loss of filial consortium. On December 1, 1987, NET filed cross claims against MEC for contribution and indemnification.
FN4. The judge denied a renewed motion by the plaintiffs to amend the complaint to add the trespass counts. Subsequently, the mother voluntarily dismissed her claim for loss of filial consortium.
The case proceeded to trial before a jury. On November 23, 1988, the case was submitted to the jury to decide a *258 number of special verdict questions. Mass.R.Civ.P. 49(a), 365 Mass. 812 (1974). The jury found that MEC violated its duty toward foreseeable child trespassers under G.L. c. 231, § 85Q (1988 ed.). The jury also found that the plaintiff was comparatively negligent. The jury determined that the plaintiff was 75% at fault, while MEC was 25% at fault. Thus, the plaintiff was barred, under the comparative negligence statute,G.L. c. 231, § 85 (1988 ed.), from recovering any damages from MEC. The jury found that NET was not negligent. Judgment for the defendants was entered on November 30, 1988. MEC’s third- party complaint and NET’s cross claims against MEC were dismissed.
The plaintiff filed a motion for a new trial, and a motion to amend the judgment and for a new trial to assess damages. The judge denied both motions. The plaintiff appeals. He argues that (1) the lower court erred by denying his motion to amend the judgment and for a new trial on damages because the comparative negligence **1182 statute, G.L. c. 231, § 85, is inapplicable to an action brought under the child trespasser statute, G.L. c. 231, § 85Q; (2) the judge improperly instructed the jury on the issue of comparative negligence; and (3) the denial of his motion to amend the complaint to add counts for trespass against both defendants was error.
 1. Comparative negligence. The plaintiff claims that landowners who violate the child trespasser statute are strictly liable and therefore cannot avail themselves of the principle of comparative negligence. See Correia v. Firestone Tire & Rubber Co., 388 Mass. 342, 353-356, 446 N.E.2d 1033 (1983) (comparative negligence has no application to strict liability breach of warranty actions). [FN5] The child trespasser statute states:
FN5. Our comparative negligence statute states in part that, “[c]ontributory negligence shall not bar recovery in any action by any person or legal representative to recover damages for negligence resulting in death or in injury to person or property, if such negligence was not greater than the total amount of negligence attributable to the person or persons against whom recovery is sought, but any damages allowed shall be diminished in proportion to the amount of negligence attributable to the person for whose injury, damage or death recovery is made.” G.L. c. 231, § 85 (1988 ed.).
*259 “Any person who maintains an artificial condition upon his own land shall be liable for physical harm to children trespassing thereon if (a) the place where the condition exists is one upon which the land owner knows or has reason to know that children are likely to trespass, (b) the condition is one of which the land owner 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, (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, (d) the utility to the land owner of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and (e) the land owner fails to exercise reasonable care to eliminate the danger or otherwise to protect the children” (emphasis supplied). G.L. c. 231, § 85Q (1988 ed.). [FN6]
FN6. The language of § 85Q is virtually identical to the language of § 339 of the Restatement (Second) of Torts (1965). We have previously recognized that the scope of § 85Q and § 339 of the Restatement is identical. See Soule v. Massachusetts Elec. Co., 378 Mass. 177, 184, 390 N.E.2d 716 (1979). See also McDonald v. Consolidated Rail Corp., 399 Mass. 25, 29, 502 N.E.2d 521 (1987) (common law rules, § 85Q and § 339 of the Restatement are virtually “indistinguishable”).
Although, in our view, § 85Q is not applicable because the plaintiff’s injuries did not occur in the defendants’ “own land,” and therefore the defendants are not “landowners” within the meaning of the statute, the
parties have assumed throughout that § 85Q applies to utility poles. Since the parties have made this the “law of the case,” we shall make the same assumption. See Commonwealth v. Thompson, 382 Mass. 379, 382, 416 N.E.2d 497 (1981); Kagan v. Levenson, 334 Mass. 100, 106, 134 N.E.2d 415 (1956). We believe, however, that this case should be governed by common law principles and not by § 85Q. See Soule v. Massachusetts Elec. Co., supra 378 Mass. at 182, 390 N.E.2d 716 (“we hold that there is a common law duty of reasonable care by a landowner or occupier to prevent harm to foreseeable child trespassers” [emphasis supplied] ).
The plaintiff argues that once the five statutory conditions are met, the owners are strictly liable, and therefore negligence principles are inapplicable.
*260 Neither the statute nor the common law doctrine of Soule v. Massachusetts Elec. Co., 378 Mass. 177, 390 N.E.2d 716 (1979), imposes liability on landowners or others irrespective of their degree of fault or knowledge of the risk involved. See Briggs v. Taylor, 397 Mass. 1010, 494 N.E.2d 1023 (1986) (affirming directed verdict in § 85Q action where plaintiffs failed to show both that landowner did not exercise reasonable care and that it knew or should have known about dangerous condition). Compare Bencosme v. Kokoras, 400 Mass. 40, 43, 507 N.E.2d 748 (1987) (owners of residential properties are strictly liable under the lead paint statute, G.L. c. 111, § 199 [1988 ed.] ).
Under the traditional common law rule, a landowner did not have a duty toward a child trespasser, except to refrain from **1183 wanton and wilful conduct. Soule v. Massachusetts Elec. Co., supra 378 Mass. at 180, 390 N.E.2d 716. Urban v. Central Mass. Elec. Co., 301 Mass. 519, 523, 17 N.E.2d 718 (1938). The child trespasser statute softened the “Draconian” common law rule. Soule v. Massachusetts Elec. Co., supra. By enacting the statute, the Legislature followed the national trend towards imposing on landowners a uniform standard of care regardless of the status of the injured party. See id. 378 Mass. at 182-184, 390 N.E.2d 716. [FN7]
FN7. In Mounsey v. Ellard, 363 Mass. 693, 707, 297 N.E.2d 43 (1973), this court held that landowners owed the same duty of reasonable care to all lawful entrants regardless whether they were considered invitees or licensees at common law. Prior to Mounsey, landowners owed invitees a duty of reasonable care, while they only owed licensees a duty not to inflict wanton or wilful harm. Id. at 696-697, 297 N.E.2d 43. In Pridgen v. Boston Hous. Auth., 364 Mass. 696, 710-711, 308 N.E.2d 467 (1974), we held that a landowner has a duty of reasonable care towards a helplessly trapped trespasser. The court has refused, however, to
extend the reasonable care standard to cases involving adult trespassers who are not helplessly trapped. Schofield v. Merrill, 386 Mass. 244, 435 N.E.2d 339 (1982). Compare, however, the dissent by three Justices inSchofield, supra 386 Mass. at 254-259, 435 N.E.2d 339 (distinction based on “status” of a plaintiff ought to be discarded).
The child trespasser statute and the common law impose on landowners a duty of reasonable care, a negligence standard of liability. See McDonald v. Consolidated Rail Corp., 399 Mass. 25, 27, 502 N.E.2d 521 (1987); Briggs v. Taylor, supra; Schofield v. Merrill, 386 Mass. 244, 246 n. 2, 435 N.E.2d 339 (1982); Soule v. Massachusetts *261 Elec. Co., supra 378 Mass. at 184, 390 N.E.2d 716. [FN8] See also W. Prosser & W. Keeton, Torts § 59, at 401-402 (5th ed. 1984) (attractive nuisance doctrine gives child trespasser much of the protection of ordinary negligence doctrine).
FN8. In Soule, the plaintiff child was injured twenty-three years before the Legislature enacted the child trespasser statute. In that case we stated that if the Legislature had not enacted § 85Q, we would have applied § 339 of the Restatement. We therefore held, as a matter of common law, that landowners have a duty to exercise reasonable care toward a child trespasser. Id. Comment b of § 339 of the Restatement
states that a landowner owes “a limited obligation to the child [trespasser], falling short of a duty to prevent all foreseeable harm to him, but requiring reasonable care as to those conditions against which he may be expected to be unable to protect himself.”
Since the child trespasser statute, G.L. c. 231, § 85Q, imposes on landowners a duty of reasonable care, and creates liability based on negligence principles, the comparative negligence defense is available to defendants. O’Malley v. Putnam Safe Deposit Vaults, Inc., 17 Mass.App.Ct. 332, 343-344, 458 N.E.2d 752 (1983). “[T]he policy of negligence liability presumes that people will, or at least should, take reasonable measures to protect themselves and others from harm…. However, if the injured person’s unreasonable conduct also has been a cause of his injury, his conduct will be accounted for in apportioning liability for damages.” Correia v. Firestone Tire & Rubber Co., supra 388 Mass. at 354, 446 N.E.2d 1033.
 The plaintiff argues that a finding by a jury that children, because of their youth, did not “discover the condition or realize the risk involved in intermeddling” with the artificial condition, G.L. c. 231, § 85Q (c ), is irreconcilable with the doctrine of comparative negligence. The plaintiff also argues that, even if such a finding by a jury is not irreconcilable with the doctrine of comparative negligence, the jury’s answers to the special verdict questions in this case were inconsistent. The jury found that “the plaintiff, Brian Mathis, because of his youth, fail[ed] to appreciate the risk and danger involved or lack[ed] the understanding to evaluate the peril involved in intermeddling with the subject pole and its attachments.” The jury also found that the plaintiff was negligent,*262 and that his negligence was a proximate cause of his injuries. The plaintiff asks us to order a new trial because the jury’s answers were inconsistent, and because they cannot be harmonized. SeeSolimene v. B. Grauel & Co., KG, 399 Mass. 790, 800-801, 507 N.E.2d 662 (1987), and cases cited.
**1184  The child trespasser statute addresses a landowner’s duty toward a child trespasser. In a case brought under the statute, a landowner’s duty of reasonable care toward a foreseeable child trespasser will be breached only if the five conditions of the statute are satisfied. “[I]f 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. This is not merely a matter of contributory negligence or assumption of risk, but of lack of duty to the child” (footnotes omitted). W. Prosser & W. Keeton, Torts, supra at 408- 409. It is only after the jury determine that the landowner breached his or her duty toward the child that the child’s possible negligence is taken into account.
The plaintiff is correct when he argues that an owner’s liability under the child trespasser statute and a child’s possible contributory negligence are two separate issues. “The question of the child’s contributory negligence is a separate problem that must be carefully distinguished from that of the land occupier’s duty.” 5 F. Harper, F. James & O. Gray, Torts § 27.5 n. 60 (1986). The fact that they are two separate issues, however, does not make them irreconcilable. [FN9]
FN9. The majority of the courts which have addressed this issue have held that a landowner’s duty to a child trespasser is not inconsistent with the doctrine of contributory or comparative negligence. See Pocholec v. Giustina, 224 Or. 245, 252-255, 355 P.2d 1104 (1960); Schneider v. Seattle, 24 Wash.App. 251, 256-257, 600 P.2d 666 (1979); Nechodomu v. Lindstrom, 273 Wis. 313, 327a-327c, 77 N.W.2d 707 (1956). See alsoCourtell v. McEachen, 51 Cal.2d 448, 454-455, 334 P.2d 870 (1959); Greene v. DiFazio, 148 Conn. 419, 424-425, 171 A.2d 411 (1961). But see Larnel Builders, Inc. v. Martin, 110 So.2d 649, 650 (Fla.1959).
The commentators are in accord. See, e.g. 5 F. Harper, F. James & O. Gray, supra at § 27.5 n. 57. “If the real basis of the doctrine here discussed is the foreseeability of unreasonable harm involved in the defendant’s conduct, then the discretion of the child should be relevant
only to deciding the question of whether or not, in the light of that discretion, unreasonable harm was foreseeable…. Of course, even if the child is held to be within the attractive nuisance doctrine, the question of his contributory or comparative negligence, in the light of all relevant circumstances, will have to be decided. But that question is different from the one of whether or not the protection of the attractive nuisance doctrine should be available to him.” (Citations omitted.)
*263   The possible negligence of a child is “judged by the standard of behavior expected from a child of like age, intelligence, and experience.” Mann v. Cook, 346 Mass. 174, 178, 190 N.E.2d 676 (1963). [FN10] It is not inconsistent, therefore, for a jury to find that the landowner unreasonably created a dangerous condition, the risks of which would not ordinarily be discovered by children, while at the same time finding that even though the plaintiff failed to realize the risk, he or she acted without the degree of care expected from a child of similar age, intelligence, and experience. We cannot, as the plaintiff urges us, impose a judicially-created rule which would immunize child trespassers from their own negligence. The judge did not err in denying the plaintiff’s motion to amend the judgment and for a new trial.
FN10. Whether a child was negligent is a question for the jury. See Bartley v. Almeida, 322 Mass. 104, 107, 76 N.E.2d 22 (1947); Brown v. Daley, 273 Mass. 432, 436, 173 N.E. 545 (1930).
 2. Jury instructions. The judge instructed the jury that, in considering Brian’s comparative negligence, they should “judge him by the standard of behavior expected from a child of like age, intelligence, emotional being, experience, by what he is inside him as a child.” [FN11] The **1185 plaintiff argues that *264 the instructions were defective because they failed to instruct the jury to take into account his learning disabilities, hyperactivity, and other limitations in his ability to know and appreciate danger. There was no error. See Blake v. Springfield St. Ry. Co., 9 Mass.App.Ct. 912, 403 N.E.2d 1197 (1980)(instruction which stated that child should be held to “standard of a typical eight-year-old” included within its scope intelligence and experience characteristics).
FN11. The judge instructed the jury that, “[w]hen you consider comparative negligence, negligence if any of Brian Mathis, I want you to remember that the standard of care in negligence cases is how a person of ordinary prudence acts in similar circumstances. If you reach that point in this case, in considering comparative negligence, you would have made a
decision that the status of Brian Mathis under the law as I gave it to you would be that of a child. Therefore, you are not to judge him by the standard of an adult. Rather you are to judge him by the standard of behavior expected from a child of like age, intelligence, emotional being, experience, by what he is inside him as a child. You are to ask yourself how a child of that age, intelligence, experience, or makeup would have acted under the circumstances which existed in this case. Once you have reached that decision, you are to determine whether he acted appropriately or inappropriately, and you are to compare the negligence. It is a subjective consideration.”