*1 аpplicable it held layoff, the second the standards original layoff. Board Accordingly, the Personnel is directed lay University’s affirming decision an order issue officer, it is position police Mayes off from his Mayes laying the decision off to reverse also directed Mayes former security to his is to be reinstated officer. seniority or security without position as officer loss pay. full with back benefits Judgment part By affirmed in re- Court. — part; with directions cause remanded versed entry to the Personnel Board record be returned opinion. order of an consistent J., part. took no Day, others, Respondent,
McWilliams, Guzinski, v. Appellants. Argued Septembеr (1974).
No. 29, 1975. January 20, 1976. Decided 437.) (Also reported 237 N. W. *3 by appellants R. For there James brief Swietlik, Kasdorf, Henderson, Dali, Gass & Lewis Milv/aukee, argument by all of M. and oral Russell Ware. by respondent Robert E. For the a brief there was Sutton, Friebert, Samson, Thomas St. Sut- W. John and Finerty argu- ton, Milwaukee, Burns, & all oral by ment Thomas St. John. W. appealed de- J. The order
Day, overrules the question fendants’ demurrer here whether negligence complaint states a cause of action in under the “attractive nuisance” doctrine.1 brought by
The action of a mother deceased damages by child for sustained her a result of the drowning four-year-old backyard son, Joseph, her in а swimming pool owned the defendants, Mr. and Mrs. It Thomas Guzinski. is sur- rounded a fence in a constructed “basket weave” man- ner, presenting stepladder” a “natural support at each post. The sole concerning gates July fence’s is “that on 1972 there were two gates in the and that fence information belief on July 1972 and at all times material hereto neither of gates those were locked.” period
For a prior drowning, substantial of time years” children of “tender allegedly had *4 been accustomed playing swimming in the pool, and the defendants activity. knew of such The deceased, Joseph Ajack, re- sided in the vicinity of the allegedly Guzinski home and played waded, swam, and swimming pool fre- prior This case holding arose to our in Antoniewicz v. Reszczynski (1975), 836, Wis. 1, 236 N. W. 2d and we make concerning no comment here the effect case, of that if any, on attractive nuisance doctrine. quently children, the defendants’ with other and with knowledge. play- July Joseph
At p.m. 1972, about 4:30 11, ing swimming wading and pool, in and about the and allegedly there proper supervision that unaware without dangers wading playing are inherent involved in and swimming pool. got swimming pool Joseph into the area, fell al- into the and pool, drowned. The leges Joseph that was “unaware of hazard and alleges incident thereto . . .” and further that he was thereby “attracted and allured thereto.” complaint alleges negligently the defendants guard swimming protect failed to and pool “in such way impossible get that it would for children to swimming and pool into the practice their usual playing running swimming pool ,” and around the .. negligently proper defendants failed to maintain a gates fence with locked so as to make the same safe might children who swimming pool, attracted to the they and that “provide protection failed any or safe- guard kind for children and infants known to be using attracted to swimming pool in and ,” about the same . . .
was attractive to children, and
was known
the de-
likely
fendants to bе
to attract and
play
allure children to
in and around
negligence
the same,
proximate
defendants was
sole
cause of the death
Joseph.
allegations
designed
bring
are
the case within the doctrine of attractive nuisance,
requirements
for which have been recently
set forth
Kempen
the case of
Bay
v. Green
& Miss. Canal Co.
(1974), 66
185,
Wis. 2d
187,
N. W. 2d 202, which
language
reiterated the
originally
Angelier
used v. Red
Yeast
Star
Wis.
trespassed or were that the (3) have realized he realized or “that should maintained or the artificial condition structure erected by inherently dangerous and involved to children him was bodily injury death risk serious unreasonable them youth or (4) injured child, of his “that the because realize did not discover condition or age, tender going area, within the risk involved condition;” dangerous inherently proximity to the close been safeguards reasonably (5) have could “and provided without which the artificial condition was the inherent obviated which would have materially interfering for purpose with the maintained.” guarded insufficiently hold here that an We inherently pool may maintained in a residential area age. Having dangerous years deter- to a child four question precautionary mined what this, becomes steps danger, the owner must eliminate the such take to materially are as and do not interfere with reasonable pool. use of “basket-weave” specificity nature of the fence indicate lacks sufficient that the not safeguard, while fence reasonable height complaint say climbed, does that it could be forth, not lack of it fence is set nor ease or four-year-old with which a could surmount such obstacle. complaint allege However, does there were two gates which not permit were locked “all and, we must allegations reasonable inferences” from the in the con- (Purtell struction on demurrer v. Tehan 2d Wis. 139 W. 655), N. the inference gate pool the unlocked made the accessible to this four-year-old child it open, either because fact was in easily pushed may open, because was made. We do agree pool that a must owner “impossible” get make children to into the safeguards artificial erection of barriers. must *6 reasonable, question the of whether the safe- and only guards employed by rea- in were defendants this case stage the sonable cannot be determined at of proceedings.
Many previous the dealt with cases this court have problem nuisance,” particularly of “attractive and question danger- “inherently the of an what constitutes Kempen, supra, ous” a condition. seven-and-a-half- year-old “spillway child fell from a or canal overflow” adjoining into an river held and was court drowned. This conclusory allegation a spillway that in- the herently dangerous of was insufficient to a cause state allegations necessary action, and that additional would be spillway to show that the a was constructed in such apparent manner that risks the were not the to drowned child. сourt stated: allegation complaint “. . . the the here, the spillway dangerous or inherently canal overflow was to children, . . structure den ciate conclusion, is a not admitted demurrer, allegations . in the of absence the as to a defect in peculiar circumstance, or was hid- which from the child or appre- which a child would fail his immaturity, because a child must be held of knowledge appreciation of the obvious risks involved going along in way or in proximity spill- close to a though or overflow, alleges canal even
that he Kempen was unaware of page such risks.” at (emphasis supplied). leading One of the Wisconsin dan- cases on “inherent ger” Kassuba, is Schilz v. Walter Inc. 2dWis. ten-year-old N. a W. where child had injured large pipe been in a fall protruding from a from ground. spoke The court of obviousness danger child, saying: [playing “The risk involved in pipes] simple and challenge obvious. Indeed the offered falling probably provided risk is what There fun. suggestion any no surprising danger, in- such as stability of the pipes, slipperiness.” unusual Schilz page allegation that, in the absence
The court concluded dangerous, deceptively pipes that the were was insufficient: child is generally appears “It be the rule that danger fall- simple appreciate obvious bound to ap- ing object structure, is not bound an but from exaggerated by defect
preciate presented peculiar circumstance, or other structure a child would child or which is hidden appreciate fail immaturity. because pipes, four “We conclude that inherently complaint, were in the instant described admitted, by dangerous demurrer, conclusion, to children is plaintiff must be a matter of law *7 risk of knowledge from appreciation the of obvious held to and though falling pipes the even (em- 396, pages she unaware it.” Schilz at was phasis supplied). quote approval The a comment court went on to with 2d, p. Restatement, 203, to Torts sec. 339: many and dangers, of fire “There are such as those ordinary falling height, from a which under water, or may reasonably expected fully under- conditions be be appreciated by any age an to be al- stood and child of large. at To this lowed the rule in such conditions stated ordinarily application, no Section has absence creating special a the child some other factor will not avoid risk that fact that condi- danger, as the such readily tion or a dis- visible, is so hidden as not to be tracting likely influence it which makes appreciate (Emphasis supplied.) will not discover or it.” large” age an term “of at not self- allowed is ability defining. merely physical Does refer to a child’s think It to walk a distance? We must refer not. maturity possession child’s to travel “at sufficient large” large” own, unsupervised. on Does travel “at crossing highways busy intersections, for include example, venturing neighbor’s backyard into a for a swimming pool? four-year-old look at a Whether by may large” facts to the extent revealed “at be the finder question a of this case circumstances of fact. large,” age at Joseph jack an to be allowed
If A “of was held suggests that he should the Restatement comment of water those such as dangers, understand common applied principle properly was bodies. While ten, ages liability children, prevent seven to the older Kempen Cases, conclude and Schilz we involved four-year-old may applicable here: age large” extent, and an to a limited “of to be allowed yet held, apprecia law, an a matter of will not be Kem/pen swimming pool. tion of the of a hazards situation; recognize the existence of this Schilz both a child passages quoted above, both cases state knowledge simple ob will not be held to of even might danger appreciate he “fail vious because immaturity.” precisely the of his This is situation present case. Bahr Thiel v. Construction Cо. 18 Wis. 108 N. this court confronted W. 2d very involving danger
similar to a situation obvious young four-year-old injured by child: a an oil-burn- ing flare at a maintained sewer construction site residential area. of the flare would have been enough anyone obvious to old to understand fire. As to *8 however, four-year-old, question this court held that the danger the whether was could not obvious be resolved safeguards demurrer, nor could the reasonableness of adequately evaluated without a full be record: question grave “The raised is too to be resolved as a pleadings matter of law from the before us. The issue can in the be raised answer to the and testi- mony produced general at the trial use flares type used the defendant in sewer-construction work; also as to whether or not there are other devices lights, battery-operated lanterns, lights, such as electric glass-inclosed provide flares can an effective 66 being placed upon the warning without an undue burden children are known defendant when small being vicinity determination proper A the work done. reflecting only of the all of the be made from a record issue can leading the up to facts circumstances
injury.” Thiel at 200. present similarly, In hold, the case we whether Jospeh Ajack appreciate held could be pool, safe- the reasonableness defendants’ guards, point. cannot decided at the com- Where plaint alleges four-year-old gained an that a entrance to insufficiently protected swimming pool in a resi- located area, dential it is sufficient to withstand demurrer. Other courts have allowed attractive nuisance actions injured private where children have been swimming pools. drowned (Fla. 1970), App. Samson v. O’Hara permitted only 239 151, So. 2d a suit where the child was eighteen old, although months there was an additional gate pool standing open. had been left Tapley Giacona v. App. 5 (1967), Ariz. 2d 494, Pac. 439, allowed an attractive nuisance action where a five- year-ojd through hedge surrounding had crawled King pool. (1959), 340, Rptr. v. Lennen 2d Cal. Cal. 665, 2d an Pac. allowed attractive nuisance suit eighteen old, only where the child involved was months although pool protected only by easily pene- was trated rail fence. Staley Security v. Athletic Assn. 152 Colo.
19, 380 upheld Pac. the court granting of a against directed plaintiff verdict four-year- where his old son had been drowned in a pool owned private club. area was closed, by a enclosed high chain-link fence six-feet with a three-strand barbed- apron top wire extending angle at an of about degrees pool. Although from the single gate locked, eight its bottom about inches above the center of the somewhat pedestrian concave path dirt leading to creating and from the pool, apparent entry. means of *9 every rea- made had held that the The court defendant pool area keep people out effort to sonable noting “was fencing, the defendant proper impenetrable wall obliged erect and maintain to clear proof. . .” It is boy make it around the area or to prove plaintiff unable Staley Case the nui- attractive of fifth in a cause action element safeguards reasonably рrovided sance, been had in that Although Staley danger. any inherent which obviated dan- a presence held that the of water court also years find ger we age, child obvious a four danger here was unpersuasive. conclusion Whether question four-year-old of fact obvious to this is a in the trial court. resolved
By the affirmed. Court. —Order de- Did the (dissenting). J. W. Hansen, Robert duty by them wife, a owed fendants, husband and breach neighbor’s property onto their came who trespasser? a homeowning couple pool put
The had they required, backyard. municipal their ordinance As pool entry pool to the fence, with a had enclosed through gatеs. area either one of two obtained four-year-old neighbor per- came, A child of a without day- backyard in the unobserved, into that mission entering climbing either the fence time, and, through gate, got pool and drowned. whether, presented this under issue law
state, property respon- are these owners any degree death for the child. sible attempts allege cause action allege gen- negligence, but does not breach of the duty by a property trespasser.1 eral owed owner to Radetzky 119, 125, See: v. 2dWis. Szafranski holding: person “If 141 N. this court is a tres W. duty passer, refrain from the owner of land has the wilful *10 it
Instead seeks to state a cause of action under doctrine, “attractive nuisance” under a landowner may, circumstances, under certain be held to a liable trespassing injuries. child for negligence.2
Such of action cause is tort for In this requirements pleading state there are proof five as to or key in an “attractive nuisance” re- cause action.3 A artificial, quirement is that the structure or condition premises dangerous.” maintained on the “inherently injury. Chicago, M., (1943), intentional Shea v. St. P. & R.P. Co. 253, 257, 243 10 Wis. N. 2d 135. W. He is not liable for injury trespassers, general rule, as a caused his failure to put exercise reasonable care to his land in safe condition for them, obliged oрerations is he refrain nor or activities might injury. cause . . .” 2 (1966), Mazurkiewicz v. 211, 222, Pawinski 2d Wis. quoting 186, N. (1956), 2d Nechodomu W. v. Lindstrom 273 Wis. “ 313, 319, 417, stating: N. W. 78 N. W. 2d ‘. . . the phrase special departure “attractive nuisance” indicates no or ” exception ordinary negligence from the run of cases.’ 3 Kempen Bay Mississippi v. Green & Canal Co. 185, 187, 188, 202, holding require Wis. 2d 224 N. W. 2d the five “‘(1) [possessor ments tobe: ... that the former of real estate] maintained, upon exist, land, or allowed to his an artificial condi inherently dangerous being upon tion which was to children his premises .... “‘(2) he . . . that or should knew have known that children likely trespassed trespass upon premises or were .... “‘(3) . . . that he realized or should have realized thаt structure erected artificial condition maintained him was inherently dangerous to children and involved an unreasonable risk bodily injury of serious or death to them .... “ ‘(4) injured youth child, ... because of his or tender age, did not discover the or realize the condition risk involved in going area, playing proximity within or in in close inherently dangerous condition .... “‘(5) safeguards reasonably provided . . . that could have been have obviated the which would inherent without ma- terially interfering purpose with the for which the artificial (Emphasis supplied.) Quot- condition maintained ....’” ing Pawinski, supra, pages 215, v. Mazurkiewicz footnote Nowhere in the before is case us swimming pool that a in a fenced backyard, unfenced, dangerous.” “inherently is The closest conelusory comes to such al- legation that the child involved was “. . of unaware proper supervision fact that without there are in- dangers herent wading involved in in a swimming pool.”
Even if such statement liberally were construed allege inherency enough danger, to with- Dealing stand spillway demurrer. there with a canal *11 dangerous to be attractive and children, to our court, Kempen, in held: allegation “. . . the complaint in here, spillway or dangerous canal inherently overflow to children, ais conclusion, by demurrer, not admitted and allegations ... in the absence of as to a defect in peculiar or other circumstance, structure which hid- den from the child appre- or which a to child would fail ciate knowledge of because immaturity, a child must be held to appreciation and the obvious risks involved of going along in playing or in proximity spill- in close to a way or canal though overflow, alleges even
that he was unaware such risks.”4 requiring In “inherently more than an dangerous to children” in a founded on “attractive nuisance” doctrine, Kempen, in made is clear that for a “inherently danger- condition to be held ous” under the only “attractive nuisance” doctrine, not complained must condition “highly of be one that dangerous,” but also it must be one that “obvious” to Kempen the child involved. holds a child “. . . knowledge must be held appreciation and of the obvious risks involved. . . .” There going along such risk inwas playing in proximity close spillway to a or canal.5 page (Emphasis Id. at supplied.) page 5Id. at 192. See also: Smaglich Massino v. (1958), 3 607, 223, citing Wis. 2d 89 N. W. 2d Lindstrom, Nechodomu v. along going
Here, us, that risk was before case If pool. a proximity to in close meaning there doubt as the unmistakable could be holding, Kempen it vanishes applicability clear Kempen upon the three cases with a review length. quoted at relied and which upon is Case.6 case reliеd the Sehilz first such large pipe protruding case, fell from where of fall ground, court held the risk from this simple appreciate “obvious,”7 the child “bound Sehilz, falling.”8 court, and obvious draft quoted approval comment to tentative nuisances,” section on “attractive of the Restatement stating that: many dangers, fire are such as those of “There ordinary
water, conditions falling height, or of which under expected fully reasonably under- may special supra, holding page at 611: footnote this court “[T]he ‘inherent- and the of the court used words verdict instructions ly dangerous.’ concluding page And authori- . .” 612: “Some language interpret the condition or instru- ties mentality mean ‘per ‘highly dangerous’ se must in of itself be dangerous.’ many Wisconsin, states, uses the term like dangerous.’ they thing.” ‘inherently think all the same mean We Wis, Kassuba, v. Ine. Schilz Walter *12 2d N. W. 453. 7 holding: page 394, in “The risk involved Id. this court at simple [playing pipes] the chal the obvious. Indeed was probably provided falling lenge of offered the risk is what any surprising danger, suggestion such There is no the fun. instability pipes, slipperiness.” or unusual as 8 holding: gen 396, appears pages 397, “It this court Id. at appreciate simple erally that a child is bound to the rule to be falling object structure, or from an but and obvious danger presented exaggerated appreciate a not is by bound peculiar circumstance, in the structure a defect appreci child or which child fail from the would hidden is immaturity. conclude that of his ... We ate because knowledge apprecia plaintiff be held to must of law matter though falling pipes even risk of the of the obvious tion alleged unaware it.” she was the 71 age al- appreciated by to be child stood large. lowed at in this such conditions rule To stated ordinarily application, Section has no absence creating special that some other factor risk danger, that condi- will not avoid the the fact such as readily visible, tion hidden is so to be or a distract- ing likely influencе which makes the child will appreciate not discover it.”9 Kempen upon The second cited and case relied injured Mazurkiewicz Case.10 There a child had been jump. while on a water The stated ski issue was jump to be whether “. the water . . can be deemed ski dangerous inherently to children even if [not] inferring so.”11 While from the sliding jumping children jump used water ski into the found water, court the “. . result . doing simple involved so and obvious. . .”12 Mazurkiewicz, quoted court the Eestatement comment the “attractive nuisance” doctrine does not extend “ . . to *. those conditions existence of which is ob- fully vious even to children and the risk of which is ”13 weight gave realized them.’ court fact plaintiff warning” that the no “needed such because she had, previous requested to her fall, the defendant to move boat that tied jump.14 to the water ski length quoted Kempen third case and followed in 5 the Kastenson that, Case.1 There our court held aas law, plywood leaning against matter of up plow sheets “inherently dangerous” were not to the child who used 9 page 395, quoted 2d, Id. at Restatement, p. 203, now 2 Torts 339, 13, j (1965). (Emphasis supplied.) see. eh. comment 10 supra, Pawinski, Mazurkiewicz v. footnote 2. page Id. at 216. page Id. at 216. page 217, quoting p. Id. at Restatement, 2 Torts, 339, comment b. see. page Id. at 218. 15 Kastenson v. Kastenson 54 Wis. 2d N. W. *13 top plow. There, get of the ramp a them as or cases, found to “obvious the risk in the earlier rule minor child.”16 Schilz apparent to the simple appreciate a child is bound that a reiterated Kasten danger,17 concluded in and our court and obvious respondent child must . matter of law son that “. . as knowledge appreciation of the obvious risk held to though falling plywood sheets, the com even Kastenson, our of it.”18 In plaint he was unaware plow was pointed that “. out . . view court In the before three case unobstructed from directions.”19 us, or fence around was unob the view of There from all four directions. is no structed or circumstance hiddеn from the view of defect creating exaggeration of the or a nonobvious the child risk involved.20 Schilz,
The three Mazurkiewicz cases reviewed — Kempen holding support and buttress Kastenson — that, for a structure or artificial condition to constitute danger in state, “attractive nuisance” this risk or presents child one must be is “obvious” dangers Kempen, court held that involved. along going proximity or in involved close spillway ato or canal overflow were such dan- obvious gers, danger years. even to a child tender obvious wading, swimming walking alongside involved or page Id. at 405. page 405, quoting Kassuba, Inc., supra, Id. at Schilz v. Walter pages 396, at footnote 397. page Id at 405. page Id. at page 405, holding: gen appears 20Id. at this court “‘. . . It erally appreciate simple the rule that is bound danger appreciate obvious . but not bound to . presented exaggerated a defect structure peculiar circumstance, which hidden from the child ” appreciate immaturity.’ a child would fail because Kassuba, Inc., Quoting supra, Schilz v. Walter footnote page 396, 397. *14 danger in- swimming pool exactly the as obvious is alongside walking swimming a canal in wading, volved danger does spillway. overflow or Obviousness such spillway. vary pool pond not or canal and as between danger, Schilz, one of in the Such оbvious words falling dangers the “. . . of and or of fire water reasonably may height, ordinary conditions under expected appreciated fully to be understood and large.”21 age child of an hold- Such allowed ing that the made easier since was here obvious is alleges complaint had the here the child involved years . . of tender frequently, “. with children waded, played swam and in the defendants Guzinski swimming pool. prior pool by . .” the . Such use of the holding particular child involved buttresses the that this appreciated child must held the to have known and dangers particular pool. the So we would follow holding swimming four pool cases cited in the here, as matter of law, not to have been an “attractive nuisance” complaint under this and these circumstances. distinguishing Without two, between the a second cause appears of action to have plaintiff’s been included complaint. adequacy This deals the and fence gates prevent ingress by children, rather than with swimming pool being as maintained an “attractive duty nuisance.” The claimed to have been breached the defendant alternatively homeowners is stated in complaint: (1) “The defendants negligently Guzinski carelessly guard failed protect swimming pool way in such a impossible would be for children get and into the pool . . . .” and (2) “The defendants negligently Guzinski carelessly failed proper to maintain a fence gates with locked so as to make the same safe for children. . . .” As to such claim of duty breached, such complaint faults enclosing fence being “constructed in a ‘basket
21 See: Footnote 9. ” pre- that, alleges, manner’
weave so thereof.” support post step at each sented “. . . ladder gates were claim No is made latched, mate- that “. . at all times but it is gates rial locked.” So hereto neither of were those jury questions fence should are seen to be whether the gates differently, have been been built should have key. padlock locked with *15 allegation goes duty
Such of such owed and breached seeking beyond requirement well of the to meet the fifth five-fold test for an action for “attractive nuisance.” require proof That fifth test does that or there safeguards reasonably that . “. could have been provided which would have obviated the inherent dan- ger. requirements . . .”22 But that final of the five be- operative only establishing comes after of the existence being highly structure or artificial condition as both dangerous. and nonobviously danger aWhere been has held, as to here, have been obvious to the in- child alleging volved, establishing type a different of padlocking fence gate would place have made the safer for сhildren not does create a cause of action under the “attractive nuisance” It require- doctrine. is all five ments that must be met for such action, just one among if it them. Even were here and could be proven along that barbed wire top of the fence would discourage fence-climbing and a padlock-and-key ar- rangement prevent gate-opening would by children, such proof claim or availability of the superior of safeguards support would not an action based the “attractive nuisance” doctrine. With the particular this pool held to have been particular obvious to this child at the time entry, there is no bаsis in law for an action against plaintiff this these defendants founded on the “attractive nuisance” doctrine. 22 Kempen Bay v. Green Mississippi & Co., Canal supra, foot page
note Holding swimming pool that this did not an constitute trespasser “attractive to nuisance” makes unnecessary matter, to reach or not here discuss briefed, applicability raised or of sec. Stats. 29.68, holding However, swimming pool such “at- be such tractive nuisance” does encounter the clear mandate trespassers,23 provides: statute. As 29.68 sec. “Liability of (1) landowners. entry; for Safe no warning. owner, An occupant premises lessee or duty keep premises owes no entry or use safe for by snоwmobiling, berry picking, hunting, fishing, hiking, others trapping, camping, sports, sightseeing, water purposes, give recreational warning or to unsafe condition or use of activity prem- or structure or on such persons entering ises to purpose, except pro- for such (3).” vided in (Emphasis supplied.)24 sub.
This statute been apply has held in a recent case to areas, urban and residential as well farmlands non-urban areas.25 That injury case involved an sus unlighted tained in parking city area of the of Racine. There, put as this court it: “The defendant contends *16 23 (2), applies Stats., persons given Sec. 29.68 permission to by premises purposes to enter landowners and use for certain including: proceed sports “. . to . with water or recreational uses upon premises. permitted such .. .” Such use “. . does . not thereby any premises extend assurance that are for safe purpose, permission such granted . . .” unless such was “. . . for (3). a valuable . . consideration. .” Sec. 29.68 For a case where such permission present (where valuable consideration was found to be swimming granted by to use facilities was lake resort prospective through permitting owner to create “. . . customers swimming facilities”), Copeland the use of their see: v. Larson 347, 174 (1970), 46 Wis. 2d N. W. 2d 745. solely persons (3) given permission Sub. relates to for entry premises by landоwner, providing per or use of such “granted for a (3) mission was valuable consideration.” Sub. apply trespassers, adult, for, does not child or tres passers, permission given permission no to enter or use is and no granted valuable consideration for a exists. v. Racine Goodson Wis. N. W. 2d property pursuant 29.68, Stats., an owner
since, to sec. property injuries absent not for on its liable sustained allegations proof failure of wilful or malicious guard dangerous against . . condition . or warn the defendant’s demurrer should have been sustained. holding municipality . . .”26 While property our 29.68, owner of within the ambit of sec. correctly court held . . the defendant “. asserts hоlding, effect of 29.68. . .”27 Under sec. this swim- ming pool backyard city in the covered landowner is pond clearly 29.68 of a as is a on the farm sec. rural landowner. plaintiff’s complaint specifi-
In the us, case before cally that, alleges previous child in- occasions, the had, “waded, permission volved with the of the landowner played swimming swam the defendants Guzinski pool.” inferring There is no basis other than daytime child, the return visit of the time this without permission purpose as a trespasser, was for again swimming than that wading, playing or pool. fact, climbing no other reason for a fence and getting swimming pool imagined. into a can be All three purposes wading, pool— playing in — language come within the 29.68 entry sec. for “water sightseeing sports, Thus, or purposes.” recreational trespasser under entering sec. to a 29.68, using or premises purpose for the of wading, swimming pond, in a duty keep landowner no “owes premises entry safe for that, It use.” follows under sec. 29.68 as well as under the “attractive nuisance” court, decisions of duty this no landowning owed this couple trespasser was here breached.
The writer would reverse with directions to sustain the demurrer of the defendants and dismiss plaintiff. *17 pages 556, Id. at 557. page Id. at 557. Leo Han- Mr. Justice B. I to state am authorized ley in this concur Hansen Connor T. Justice Mr. dissenting opinion. Workshop v. wife, Respondents, Curative
Korenak Center, Appellant. Rehabilitation Adult Argued (1974). November 26, 1975. No. 607 January 6, Decided 43.) reported (Also in 237 N. W.