*1 the vital at issue evidence contradicted directly testi- refuted all of the plaintiff’s demolished completely furnished material was to the date the last regard mony the de- material was used on date that company lumber fendants’ property. argued parties have been briefed
Other points is unnecessary heretofore stated it conclusion in view compels of the record decided. Our review discussed and they be the district court must set that the conclusion the defendants. trial granted and new aside It is ordered. so 43,145
No. Margaret E. Carter, Administrators M. Cameron Carter Carter, Deceased, E. Appellees, Estate of William Ray Skelly Corporation, Tom Keplinger, Company, Roth Appellants. Steinle, geb, Al 277)
(382 P. 2d Opinion 8, 1963. filed June Russell, argued ferry Driscoll, cause, Driscoll, M. Richard Oklahoma, Russell, Oliver, Tulsa, him on and Sam C. were with also appellants.
brief Ostrum, Balloun, Eugene Bend, argued cause, Great and Oscar /. Russell, appellees. was with him on the for the brief o£ the court was delivered The opinion is a action based the doc- This upon Schroeder, J.: *2 trine of It is the administrators of brought by attractive nuisance. the of to Carter, deceased, estate William authoriza- pursuant E. the trial the granted by probate The court overruled court. joint defendants, and demurrers filed separate the and has by appeal been duly perfected from such orders.
The only question presented is whether the state a pleadings cause of action under the attractive nuisance doctrine.
The the of de- that the petition alleged plaintiffs, parents child, ceased a had lived on section of land in quarter Russell for ten County and had years, Skelly Oil Company operating wells on the land as the and a oil lessee for number gas of years. The defendants are individual of employees Skelly Company. further petition alleged that addition to the deceased
child, the had plaintiffs four other young children at the farm home; that had Skelly recently slush or dug about one- pond pit fourth of a mile from home at well location on quarter section leased by plaintiffs tenants, farm and in a field farmed by the plaintiffs; the well had been re-drilled in order to water flood the Kansas City pay zone, and the slush new pond had pit been dug only a few days before the 8th of day January, when William Carter lost his life; E. that the slush had pit used aas for waste material of consisting oil and other in- flammable waste material, including of worn one-inch length and rope; that on January defendants set fire to the slush and pit visited the once pit and once on January January 8, and otherwise left it then alleged: unattended. That on Sunday, January 1961, decedent, the afternoon of im- “4. years, mature of p. between the hours of 2:00 and m. of said 6:00 day, himself, amusing company anyone, while and without was at- approached burning pit, tracted and apparently to slush said and was attracted oily rope the fire and an employees 1-inch which had been discarded Skelly partially pit, defendant and thrown into said slush and then and attempted pull pit, looped body, there it to from the around his and got too to the vertical wall slush pit, east or side of said and either lost balance, wet, slipped damp pit, on the soil and fell into said or the edge away weight causing wall said crumbled under his him to fall into pit burning therein, being said and into the oil fire that the exact facts plaintiffs, clothing unknown to and set his on fire. That in his to efforts side, opposite distance of pit on the crawled out escape, and said he crossed succumbing to fire. pit, edge away before from the ten feet about Skelly operations, defend- and the other such with in connection “5. That which were the sole carelessness and guilty of acts of ants were by said bums sustained William fatal severe and proximate cause and directed, approved ratified deceased, and Carter, which were all of follows, Skelly, to-wit: oily disposition and failing refuse “(a) make burning. than other fire methods therein inflammable substances particularly open unguarded failing fire would be that an “(b) realize such, years, boys was an attractive nuisance and as vicinity family living in the had the Carter them; which was well proximity all of oil well and slush to said in close known to said defendants. maintaining establishing attractive to children “(c) fraught knowing years, that said well of immature persons. such hazard failing and intense “(d) flares into unusual realize that a slush stirred, agitated, burning pit is activity disturbed or when surface against proper precautions such occurrences. take *3 open pit constructing maintaining with vertical “(e) an slush east In and against undermining by wholly unsupported guarded and west dirt walls pit freezing and of water and other fluids said and winter-time the action subject crumbling thereby making and and thawing, such walls to erosion cave-ins. pit using maintaining open “(f) for waste In and as slush ropes obstacles, oil, increasing and other and thus fire materials such pit. hazard of such signs any failing warning “(g) con- In to erect and maintain kind pit, particularly it had set fire. nection such slush after on setting pit “(h) In said the conduct said foreman fire to without keeping maintaining anyone guard as a to look such fire. after ropes, prevent failing guards, ap- “(i) erect or other obstructions to proach pit. vertical said slush walls of failing post “(/) pit adequate said slush and to barricades enclose prevent approach and from obstructions to children and minors to said pit. safety “(7c) failing precautions kind warn take dangers involving highly and others of inherent in a slush inflammable oily particularly unsupported refuse and in connection with the walls of said pit. “(1) entirely That said slush at tire time hereinafter referred to was unguarded obstructions, open, by any fence, barricade and unenclosed thereof, particularly and the vertical dirt walls approaching edge pit. of said That reason all the act “6. acts of and failures to on part aforesaid, severe, of defendants he endured excru- and incurred death, pain suffering, shock, ciating resulting and mortal his and
477 aforesaid, premises decedent intense reason suffered suffering agony, pain and and indured terrific and mortal shock mentally, finally death, system, bodily resulting entire both in his $50;000.00.” damage in all to his the sum of to the instant applicable appeal rules have been stated fully in the recent case v. and discussed of Brittain 190 Kan. 641, 141, 378 P. 2d and in the cases cited therein. These rules herein, restated will not be further discussion proceed will assumption reader has familiarized himself with in Brittain. decision contend a slush is not nuisance. of this support argument cite decisions holding: authorities That (1) common and useful appliances conditions are not so unusual and alluring to children as to furnish the essential elements of dangerous attraction and invita- v. Co., Kaw (Brennan 465, Construction 176 Kan. 271 P. 2d 253; Haines, 453, McGaughey v. 120; 189 Kan. 370 P. 2d Bruce 13, v. City, 284; Kansas 128 Kan. 276 Pac. Rhodes v. City of 719, 275; 167 Kan. 208 P. 2d Zagar v. Co., Railroad 240, 214 Pac. 107); (2) that if the danger involved is patent fall object' does not within the doctrine of attractive Co., nuisance v. Kaw (Brennan Construction Shank supra; Cooperative Peabody Equity Exchange, 648, 352 P. 2d 41; Haines, McGaughey supra); (3) fires are not an nuisance F. (W. Lumber Co. Bradley Crowell, 66; 28 Ala. App. 178 So. Zaia v. Lalex Realty 300; Rush, Corp., 287 N. Y. 39 N. E. 2d v. Plains Appellant 200; 371 Pa. A. 2d Township, Fitzmaurice v. Connecticut &Ry. 620; 78 Conn. Lighting Cook, Atl. Harper W. Va. 82 S. Smith E. 2d v. Illinois Cent. R. *4 243, 546; Iowa 158 N. Co., W. Erickson v. Great Northern Ry 60, 462; 82 Minn. 84 N. W. Lentz v. & Schuerman Building Realty Co., 103, 58; State, 359 Mo. 220 S. W. 2d v. Eason 104 N. Y. S. 2d 683, 479; Railroad, aff'd 113 N. Y. S. 2d Madden v. 379, 76 N. H. 129; 83 Mills, Inc., Atl. Hancock v. Aiken 93, 180 S. C. 185 S. E. 188; Bahr Thiel v. 196, Construction 13 Wis. 2d 108 N. W. 573; Harmon, 2d Brannon 826, v. 56 792; 2d 355 Wn. P. 2d Skelton v. Sinclair Refining 375 P. Company 2d 948); [Okla.] an oil and (4) gas that lessee does not have any duty erect a fence or guard around a slush pit. (Mid-Continent Petroleum Rhodes, 651, 95; v. Corp. 2d Okla. P. & Pitzer West v. 181; Prairie 2d Sinclair 159 S. W. Civ. App.]
Williamson [Tex. 484; 2d Civ. 191 S. W. App.] v. Perry Co. Oil [Tex. Benefiel 726; v. Davis 2d 53 N. Baker Co., 322 Ill. App. Pure S., Negligence, C. W. 2d 211 S. Civ. App.] [Tex. J. [14], p.479.) §29 the decisions cited studied We have situation, in each the factual the conclusion escape cannot determine whether instance, be examined to must exists. nuisance in the cases. finds contradiction first appellants’ often been or conditions have useful appliances
Common v. Wire Biggs in example, attractive nuisances. For held be caught was years age 56 Pac. fourteen 60 Kan. machinery machinery private grounds, where exposed children, from the of trespassing visits unprotected was others knowledge had were who owner frequent grounds upon climb accustomed dangerous held liable appliances structures supporting in damages. Fitzsimmons, affirmed the court
In K. C. Co. Rly. held liable railway company verdict which jury children turntable unlocked an area where leaving watched, in. guarded not or fenced the turntable was played, where upon doctrine is based nuisance The attractive young fails to children attracted protect who of the proprietor thing or dangerous artificially some place premises created, he have that children anticipated should would where danger. (Brittain supra.) into the be lured 585, 228, 2d Moseley City P. said: the court everything may regarded is not which attract a child that can be “It nuisance, objects limit for there is no to the class of an attractive which may though be to a normal child even he be than ten less p. 765.) age (45 C. would To hold otherwise unreasonable J. every upon property capable causing owner of almost kind burden injury personal appliance condition under must circumstances. something rendering peculiarly unusual and is of a nature it which unusually alluring children. The attractive or must be one and knew, known, so owner or should have situated was attractive (p. years. . to children of tender . .” the Carter had alleged family Here of and close vicinity proximity all *5 the It of which was well known to further appellants. alleged and maintained a established attractive to appellants years, well knowing was burning with hazard and such fraught persons; and that the failed to take measures designed to children near prevent to the approach burning pit. their
On third contend fires are not an object of attractive at nuisance. The case bar a slush alleges fire, and it is matter of common knowledge oil burns a dark emitting black Such would attract smoke. a curious Furthermore, child. have a natural boys affinity fires. Since the of the parents deceased child in the case at bar were the agricultural lessees on the land on which the slush pit was had a legal child right be in the area of the slush pit. This enabled him to see the fire and rope without tres- passing, and he was attracted to it. The decedent and his parents had lived on the land in for ten years, and Skelly had been operating wells on the land for a number of years. In addi- tion, there were five children at living home, the appellants knew the family had children the area close proximity to the oil well and slush pit. at case bar the slush which was dug a trench walls,
vertical child, was located home of the could have barricaded or easily fenced. City held Roman Leavenworth, 551, that smouldering city
Pac. fire was an dump nuisance. There eleven age, while on a playing city dump, fell into fire, such smouldering described dump being the court as an attractive clearly gave nuisance. corut cor- rect instructions at of the request plaintiff, but also gave several at the request the defendant which were erroneous. The court held because the which found jury, for the defendant, was as likely to be influenced wrong right instructions, did his case not have under a presented in- proper law, and terpretation of the a new trial should be granted. There the maintenance city and not its establishment material, was said to city use reasonable required care to away them from keep being injured. conditions,
A distinction has made natural such between bluff, as a and artificial conditions created steep (See, man. *6 Brittain supra.) Co., supra; Railroad Zagar v. herein of the petition that the allegations but is little There condition. an artificial disclose their fourth point by cases relied upon
The of slush fencing pits relate to the jurisdictions foreign are from and Texas rule The Oklahoma cattle. injuries to fence tanks, machinery, not the lessee off does require access to having livestock from them. to prevent etc. pits, the opinion this court are of the members of The of majority of at- under the doctrine a cause of action states that the lower court Accordingly, tractive nuisance. is affirmed. which danger my
Sci-moEDER, J.,
dissenting:
opinion
fully
to,
is
with a slush
obvious
in connection
exists
age.
thirteen
of
by,
years
a
appreciated
within
has
held not to come
a
or
Falling
building
from
cliff
Kaw Construction
(Brennan
nuisance doctrine.
Railroad
Zagar
Kan.
2d
P.
walls of a trench
the vertical
Surely
Only relatively dealing few each situation, to a has the doctrine of attractive nuisance applied Moseley City ten of years age. child more than of 699, the court said: 2d 228 P. doctrine, recognized by “The attractive nuisance courts and the federal by (not Kansas, states, including all) the courts of of is a some modifica- liability only general applies rules of to a child years,’ trespasser, a ‘tender in which the child is at technical least sense, liability trespasser but is excused from the normal of a because of an object situation, dangerous or if used or handled children who years capacity danger reason of their tender lack know realize the being handling about the attractive or condition. does not apply apply enough adults. Neither does old to know the possible danger years’ involved. The term ‘tender never has been defined in months, years overwhelming majority jurisdictions, exact used, rarely applied where doctrine is it is in the case of a child more years age. instances, relatively dealing ten than few each with an applied age situation, to a child of the the doctrine has been unusual -590, age. twelve, years (pp. . . .” eleven, thirteen or fourteen of the attractive deny reason to strongest application far the Ry case is the second in the instant appellants’ nuisance doctrine obvious, is particu- is, patent That involved point. Cases cited larly a child thirteen age. language
on this this fully Appropriate support position. are not of attractive relative to the fact that fires an object nuisance is Sinclair Refining Company found Skelton v. [Okla.] Court of had before 2d where Oklahoma Supreme P. it an action minor, girl. suit involving eight-year-old court said: things taught, . . “. One of the first child learns is ex- perience, is will that fire bum and discomfort. This is a matter of cause *7 Therefore, knowledge. common not be said location and it can danger’ character of the stove constituted a ‘hidden for the (p. this case.” is respectfully submitted the lower court
should be reversed on the ground does not state' a cause of action under the doctrine attractive nuisance.
Parker, C. J., join J., foregoing dissent. Price, 43,146
No. Gleason C. Gregory, Appellant, P. Harrison Robert doing Harrison, Partners Pauline Gill business as R. M. and H. C. Gill Appellees. Agency, Real Estate Murphree,
(382 470) P. 2d Opinion filed 1963. June Eugene Riling Pendleton, Lawrence, argued C. and William B. both of appellant. the cause on the and were briefs for the