JOHN LAURENCE KING еt al., Appellants, v. DONALD E. LENNEN et al., Respondents.
L. A. No. 25591
In Bank
Dec. 31, 1959.
Belcher, Kearney & Fargo, Belcher, Henzie & Fargo and Lester E. Olson for Respondents.
GIBSON, C. J. - Plaintiffs brought this action for damages for the wrongful death of their son, Boyd, who drowned in defendants’ swimming pool. A general demurrer to the complaint was sustained without leave to amend, and plaintiffs have appealed from the ensuing judgment.
The allegations of the complaint may be summarized as follows: Defendants’ property was located on the northwest cоrner of an intersection, and they maintained an artificial swimming pool on the premises about 30 feet from one of the streets. Along that street defendants had partially constructed, a concrеte block wall with an opening four feet wide directly opposite the pool, and facing the other street was a wood rail fence with openings through which children could readily enter. Defendants permitted their cow, two dogs, and three horses to roam freely near the pool. The animals and the pool could be seen by children of tender years who regularly used the streets adjacеnt to defendants’ premises, and, as defendants knew or should have known, such children, attracted by what they saw, habitually entered the premises and played with the animals and in and about the pool. The watеr in the pool was 3 1/2 feet deep at the shallow end and 9 feet at the deep end. It was dirty and opaque, and its depth could not be ascertained by looking into it. A sharp drop divided the shallow from thе deep water, there were no steps, ladders, rails, or other fixtures to assist a person in the pool to hold on or to climb out, and the walls and bottom of the pool were lined with a slippery plastic material. Boyd, who was 1 1/2 years old, lived with his parents on the southeast corner of the intersection diagonally across from defendants. During the five months immediately preceding the accident, defendants’ teen-age daughter had been employed as a baby sitter by plaintiffs for compensation, and in
The rule set forth in section 339 of the Restatement of Torts has been adopted as the law of this state with respect to the liability of a possessor of land for the death of or injury to a child trespasser. (Garcia v. Soogian, 52 Cal. 2d 107, 110 [338 P.2d 433]; Courtell v. McEachen, 51 Cal. 2d 448, 457 [334 P.2d 870]; Reynolds v. Willson, 51 Cal. 2d 94, 103 [331 P.2d 48].) The section reads: “A рossessor of land is subject to liability for bodily harm to young children trespassing thereon caused by a structure or other artificial condition which he maintains upon the land, if (a) the place where the сondition is maintained is one upon which the possessor knows or should know that such children are likely to trespass, and (b) the condition is one of which the possessor knows or should know and which he realizes or should realize as involving an unreasonable risk of death or serious bodily harm to such children, and (c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling in it оr in coming within the area made dangerous by it, and (d) the utility to the possessor of maintaining the condition is slight as compared to the risk to young children involved therein.”
As we explained in Garcia v. Soogian, 52 Cal. 2d 107, 110 [338 P.2d 433], the question of liability must be decided in the light of all the circumstances and not by arbitrarily placing cases in rigid categories on the basis of the type of condition involved. We also pointed out in that case
A number of cases decided before Garcia v. Soogian, supra, 52 Cal. 2d 107, and Courtell v. McEachen, supra, 51 Cal. 2d 448, reasoned that the “attractive nuisance” doctrine does not apply unless the dangеrous condition is uncommon and different from natural conditions which exist everywhere and that a body of water, natural or artificial, is a common danger and therefore, as a matter of law, will not subjeсt the possessor to liability for the drowning of a trespassing child, even if that child is too young to appreciate the danger. (See, e.g., Knight v. Kaiser Co., 48 Cal. 2d 778, 782 [312 P.2d 1089]; Melendez v. City of Los Angeles, 8 Cal. 2d 741, 745 [68 P.2d 971]; Doyle v. Pacific Elec. Ry. Co., 6 Cal. 2d 550, 552 [59 P.2d 93]; Peters v. Bowman, 115 Cal. 345, 350-351, 355-356 [47 P. 113, 598, 56 Am.St.Rep. 106]; Van Winkle v. City of King, 149 Cal. App. 2d 500, 506 [308 P.2d 512]; Wilford v. Little, 144 Cal. App. 2d 477, 480-482 [301 P.2d 282]; Lopez v. Capitol Co., 141 Cal. App. 2d 60, 65-67 [296 P.2d 63]; Lake v. Ferrer, 139 Cal. App. 2d 114, 117-118 [293 P.2d 104]; Ward v. Oakley Co., 125 Cal. App. 2d 840, 845 [271 P.2d 536]; King v. Simons Brick Co., 52 Cal. App. 2d 586, 590 [126 P.2d 627]; Beeson v. City of Los Angeles, 115 Cal. App. 122, 126-128 [300 P. 993]; Reardon v. Spring Valley Water Co., 68 Cal. App. 13, 15-17 [228 P. 406].) This reasoning is inconsistent with the Restatement rule, and the cases cited above are disapproved insofar as their language or holdings are contrary to the views expressed herein.
The complaint alleges facts sufficient to meet the requirements enumеrated in section 339 of the Restatement and thus states a cause of action. It is specifically alleged that defendants knew or should have known that children of tender years habitually entered the premises and played in and about the pool and that defendants knew or should have known that Boyd had frequently been brought to the vicinity of the pool by their daughter with the result that he had become attraсted to it. The allegations describing the condition of defendants’ pool and the surrounding premises, including the absence of an adequate fence or other safeguards, state facts sufficient to permit a trier of fact to find that defendants should have realized that a serious danger of drowning was presented with respect to any unsupervised child of Boyd‘s age who might come to the pool. Obviously it сould be found that a child of 1 1/2 years would not understand the risk involved in being near a swimming pool, and it is alleged that Boyd did not know the danger. The last of the requirements set forth in section 339 was also sufficiently covered by the allegations that the utility to defendants of maintaining the condition was slight as compared with the risk to young children and that reasonable safeguards could have been provided at little cost.
The judgment is reversed.
Traynor, J., Peters, J., and White, J., concurred.
SPENCE, J.-I dissent.
This is anоther of a series of recent decisions of this court dealing with the question of the nature of the duty owed by a landowner to a trespassing child with respect to the condition of the landowner‘s premisеs. My views on this subject have been stated at length in my dissenting opinion in Reynolds v. Willson, 51 Cal. 2d 94, 106 [331 P.2d 48], and in my concurring and dissenting opinions in Courtell v. McEachen, 51 Cal. 2d 448, 460 [334 P.2d 870], and Garcia v. Soogian, 52 Cal. 2d 107, 113 [333 P.2d 433]. It would serve no useful purpose to reiterate those views here. Suffice it to say that those views were bаsed upon the salutary and reasonable rules established by a long line of “former cases,” which were followed by this court as recently as 1957 in
As stated in my dissenting opinions in the above-mentioned recent cases, the rules established by the “former cases” permitted the imposition of liability оn the landowner in favor of the trespassing child in certain situations but not in a situation, such as the present one, in which the risk encountered by the trespassing child was one which was both “common and obvious.” Thesе rules had the virtue of bringing some degree of certainty into the law and preventing the imposition of an unjust burden upon the landowner. I believe that this court should reaffirm those rules rather than disapprove thеm.
It now appears that with the majority‘s disapproval here of Knight v. Kaiser, supra, 48 Cal. 2d 778, liability may be imposed upon a landowner for the common and obvious risk to a trespassing child occasioned by the maintenance of a sandpile on the landowner‘s property. On the other hand, it now appears that with the majority‘s approval here of the decision in Garcia v. Soogian, supra, 52 Cal. 2d 107, liability may not be imposed for the risk to a trespassing child occasioned by the maintenance of a pile of materials consisting of building panels containing windows. In my opinion, these declarations of approval and disapproval by the majority cannot be reconciled, and thus confusion still exists in this important field of the law.
I would adhere to the settled rules established by the “former cases” and would affirm the judgment.
Schauer, J., and McComb, J., concurred.