*1 the offenses so that each would be separately tried. He con- tended that since joinder they were not “based on two or more acts or transactions connected together or of a constituting parts common scheme or plan.” 173.115(2). NRS It is that the obvious motion to sever could have been made more 10 days than before the trial date. NRS 174.125. No reason is offered for counsel’s failure to do so. permissible was the district deny court to the motion ground that it was timely presented.
4. Other claims of error have been considered and found to be without merit. Grand affirmed. conviction conviction larceny Burglary
reversed, and remanded a new trial. J., C. Zenoff, Batjer, Mowbray, Gunderson, JI., concur. KIMBERLIN, ROBERT KIMBERLIN MARIE Hus- P. LEAR WILLIAM Wife, Appellants, band and Respond- CO., DEVELOPMENT RENO/STEAD ents.
No. 6756 September 7,
[Rehearing denied October 1972] Osborne, & Reno, Echeverría for Appellants. *2 Dixon,
Vargas, Reno, Bartlett & for Respondents.
OPINION Court, Thompson, J.:
By The district court dismissed this wrongful death action William against P. Lear and Co., Reno/Stead defendants, two several joined the failure of the plain- to state tiffs a claim which relief granted, could be no found just delay of appropriate judg- entry ments. This appeal followed. are the of two plaintiffs-appellants parents nine, seven and
ages body who drowned a natural of water on land owned on the of their accidental day deaths Land Inc., another defendant whom this action dry bed, remains lake pending. During Spring acres, comprising some 56 had become covered with muddy water from the winter’s runoff a lake two to feet forming four In deep. August holes, twenty several about feet square and fifteen feet dug lake bed to test the deep, dry water table. This was done with the knowledge and consent of P. William Lear who then owned the property.
About six after Mr. Lear days conveyed property had Inc., Land Developers, two children were plaintiffs’ wading in the lake without in one of the test permission drowned holes. Their is premised claim for relief the doc- solely trine of attractive nuisance. No basis for is other asserted.1
This court
the attractive
adopted
rejected
has neither
nor
nuisance
Smith v. Smith-
doctrine. We have mentioned it.
Peterson
45 P.2d
Ditch Co.
Ct.,
best
v. Justice
P.2d
2d,
defined in
Sec.
below.2
Rest. Torts
quoted
occupier
of the land
fastened upon
if
is one
place
the condition is found
*3
know
the
that children are
knows or has reason to
possessor
(b)
to
the
likely
possessor
the condition is one which
trespass,
an
risk of harm to
recognize
involving
should
as
unreasonable
children,
child,
immaturity,
(c)
such
his
either
the
because of
appreciate
does not
or
not in fact
discover the condition
does
(d)
and,
to the
of
danger
utility
possessor
the
the
involved
with the
be
as
maintaining
slight
compared
condition must
the
by a
1 Following
plaintiffs-appellants,
motion for
the
dismissals
the
rehearing, sought
NRS 455.010
district
consider
the
court
to have
holes,
excavations,
safeguard shafts,
regarding
duty
or
aas
the
to
however, they
day,
liability.
also
a
possible
same
filed
for
the
basis
On
appeal
the record that
it
clear from
of
court. Since
is
notice
to this
application
upon
statute
the
the
of that
to
district court did not rule
the
circumstances
case,
point.
not
Britz v. Con
of
shall
consider the
this
we
Corp.,
Casinos
solidated
2d,
possessor
to
Torts
“A
2 Rest.
Sec. 339:
trespassing
an
caused
artificial
for
children
thereon
harm to
upon
place
(a) the
the condition exists is
condition
one
the land if
upon
possessor
know that
which
knows or
chil
the
has
likely
(b)
trespass,
the
of
dren are
to
and
condition is one which the
possessor
or
knows or has reason to
and which he realizes
should
bodily
serious
realize will involve an unreasonable risk of death or
youth
(c) the
their
harm to such
and
children because of
do
inter-meddling
the
the
not discover
with it or in
condition or realize
involved in
it,
coming
dangerous by
(d)
the area
and
within
made
the
utility
possessor maintaining
and the
the condition
burden of
eliminating
danger
slight
compared
the
are
with the risk to children
(e)
possessor
fails
reasonable
to exercise
care to
danger
protect
eliminate the
or otherwise to
children.”
Prosser,
(4th
Torts,
risk to children.
Law of
368-376
ed.
1971).
to liability
is
that
these
apparent
preconditions
be
may
involve factual determinations which
usually
stage
litigation.
resolved at
pleading
however,
hand,
court
In the case at
district
apparently
was
that the attractive nuisance doctrine could
persuaded
fix
either William P. Lear or
to
apply
Reno/
Co., since
nor
possessed
Stead
neither defendant
tragic drownings.
the land at the time of the
occupied
prop-
Land
Inc.3 A vendor
real
was
it
to
title,
control of
ceases
erty who
parts
possession
all
generally,
responsi-
either an owner or an
occupier,
An
the condition of the land shifts to the purchaser.
bility
is
a
to this
does exist. A vendor
exception
proposition
conditions known
to disclose
the vendee
concealed
duty
or
health
him
involve an unreasonable
may anticipate
he
of those
and which
safety
premises
such
failure
make
may
the vendee
not discover. The
injury
the vendor
liability upon
impose
disclosure
land with
such
resulting from
conditions
2d,
353.4
Rest. Torts
Sec.
consent
vendee.
refuge
excep-
seek
plaintiffs-appellants
Although
tion,
trespassers
their children
it cannot avail them since
(a) person
2d,
who
is
“A
of land
3 Rest.Torts
Sec. 328E:
person
occupation
or
control it
is in
land with intent to
it,
occupation
if no other
with intent to control
been in
of land
who has
it,
(c)
person
occupied
control
subsequently
or
it with intent
has
person
occupation
if no other
who is entitled to immediate
(b).”
person
possession
under Clauses
2d,
“(1)
A
of land
conceals
4 Rest.Torts
Sec. 353:
any condition,
or arti
disclose to his
whether natural
fails to
*4
ficial,
the
involves
risk
on
unreasonable
liability
subject
upon
and
land with the
the vendee
the
physical
the vendee
subvendee
harm caused
consent of
or his
the
taken
vendee
condition after
vendee has
if
know or
condition or the risk
does not
have reason to
of the
involved,
and
knows or
to know
vendor
has reason
condition, and realizes
realize
the risk
and has
should
believe that
will
the vendee
not discover
condition or
(2)
condition,
actively
the risk.
If
realize
liability
conceals the
(1)
stated in Subsection
continues
until the
discovers it
opportunity
precautions
and has reasonable
to take effective
it.
only
Otherwise the
continues
until the vendee has had reason
opportunity to
pre
able
discovér
condition and to take such
cautions.”
Inc.,
not there
the land of Land
and were
Cf.
with the consent or in the
of that
right
present
company.
Co.,
(Tenn.
v.
Belote
Memphis Development
(U.S.
1961); A-F
Affirmed.
Batjer Mowbray, JL, concur. J., Gunderson, dis- Zenoff, J., agrees, C. with whom senting: nuisance attractive assert that Lear created an
Appellants of the stage and therefore of action is stated. At a cause because to answer should be held game we believe that Lear he has a holes to be drilled having caused the responsibility inform his vendees that existed. the doctrine adopted Nevada has Apparently, yet nuisance,
attractive Smith v. Smith-Peterson Company, it in has referred to 79, 85, but Ct., that case and in Ditch Co. v. Dist. 2d Law of Torts The rule is stated in Restatement 339: 339. Artificial Conditions Ҥ Highly Dangerous to Children
Trespassing A
harm to children trespassing thereon caused an artificial condition the land if
(a) the place where the condition exists is one which the possessor knows or has reason know that children are likely to trespass,
(b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable bodily death or serious harm to such
(c) the children because of their do not youth discover the condition or realize the risk involved in intermeddling coming with it or in within the area it, dangerous by made
(d) maintaining utility condition and the burden of eliminating slight are with the risk to children compared involved, and
497 (e) the fails to care exercise reasonable eliminate the or otherwise protect children.” in the Restatement
We would the doctrine as stated adopt Prosser, Trespassing of states. See join majority W. Children, Law (1959); 426 Restatement of the 47 Cal.L.Rev. of Torts 2d 339. Appendix § the fact that Lear was not
Putting aside for the moment (Restatement of Torts 2d of the land of Law 328E), consti- as to whether a of water body question § court in tutes an must be resolved. This attractive nuisance Ditch, that, 167, “the mere presence at stated supra, creek, or a conduit such water, such as a pond, body ditch, of the author- great as a canal or held majority not to an attractive nuisance.” ities (see instances many this is followed in
Although position Powers, 322, 243 Atchison, 206 S. F. Co. v. Okl. Ry. T. & Lowdermilk, 271 (1952); 58 N.M. Mellas (Ark. Comer, P.2d Jones California, rule, 1964)), developed we believe the better categorization arbitrary be that Restatement 339 prevents § Lennen, 53 (see King based on of condition involved type artificial a small Cal.2d nuisance). an attractive was held to be swimmingpool had is that the instant case boys with problem hole the artificial to find through wade a natural lake or pond Annot., dangerous which was because of its unexpected depth. child, drowning of landowner for 8 ALR2d 1294, 36 “Holes or under water.” ledges § As stated the Florida Court of in Ansin v. Appeals Thurston, 1957), there is an (Fla.App. excep- 98 So.2d tion of water is not an attractive nui- pond rule that a sance, body viz: “. . of an artificial of water is not . the owner drowning on account of therein negligence of actionable guilty to constitute a or unless there trap unless it is constructed so as about it not existent danger lurking is some unusual element of Allen v. William P. McDonald See also ponds generally.” (Fla. 1949). Corporation, So.2d 706 case, out into a lake on wading
In the instant boys Suddenly they bed even bottom. dry very formerly fell into a obscured hole. We note the large exception would rule the other general provided requirements § are met at trial. by proof
Considering, do for purposes we facts appeal
can be elicited to of 339 and prove up requirements noted, heretofore there remains the exception problem *6 fact that Lear was not the of the land. rule, a vendor to general subject liability
As
a
condition to his
by any dangerous
for
harm caused
physical
has
vendee or others
the land after the vendee
while
artificial,
existed at
taken
whether natural or
the time that the vendee took
Restatement of Torts
possession.
352; Annot.,
of real estate
grantor
2d
of vendor or
§
third
to defec
for
on
due
personal injury
purchaser
person
it is
tive condition of
8 ALR2d 218
premises,
is not
out that
rule a vendor
pointed
prevailing
there
lawfully
hable for
to the
or third
injuries
purchaser
party
premises
defective condition of the
resulting
existing
from
at the time of sale
generally
All
cease
obligations
conveyed.
and transfer of
424,
Miller, 24 Ill.App.2d
Porter v.
possession.
(1960); Conway
Ill.App.2d
We dissent. shafts, fences, safeguards excavations around Erection 2 455.010 corporation, Any person persons, company required. shall or or being done, dig, excavate, or owner cause be sink or or the same contract, any any owners, possession or lease or or mining otherwise, shaft, hole, or used or excavation whether or mining, dug, purpose of to obtain for the whether water, sunk or excavated during state, shall, purpose, time .within or for other sinking excavating, they may employed digging, or after be same, erect, or cause to have ceased work or abandoned the erected, good safeguards, keep and substantial fences or other good shafts, repair, the same in guard securely around such works or sufficient against danger falling animals into from or excavations. shafts such