42 So.2d 706 (Fla. 1949), Allen v. William P. McDonald Corp.

Citation:42 So.2d 706
Case Date:November 08, 1949
Court:Supreme Court of Florida

Page 706

42 So.2d 706 (Fla. 1949)




Supreme Court of Florida, En Banc.

November 8, 1949

Rehearing Denied Dec. 2, 1949.

Whitaker Brothers, Tampa, for appellant.

Carver, Langston & Carver, Lakeland, for appellee.

TERRELL, Justice.

The amended declaration, among other things, alleges that sometime prior to the 7th day of October 1947, defendant excavated the earth so as to construct an artificial lake or pond on its lands just outside the corporate limits of the City of Auburndale, that said pond was of varying depth with sloping banks of white sand, that it was within a few feet of the public highway in a settled community where there are many children of tender years, that said pond and its white and banks was alluring to said children who congregated around it and played on its white sand banks and in its waters, that defendant negligently left the said pond open, unfenced, unguarded and unprotected, without signs or warnings of any character, that the plaintiff and his family lived in their home about 300 feet from said pond, that on the 8th day of October 1947, the infant child of the plaintiff, Kenneth Edward Allen, two and one half years old, without the knowledge of his parents was attracted to the white sand banks and water in said pond and lost his life by drowning, due solely to the negligence of the defendant in constructing said pond and leaving it unguarded. A demurrer to the amended declaration was sustained and final judgment was entered for the defendant. This appeal is from the final judgment.

The only point for determination is whether or not an artificial lake or pond may be, under the facts stated, amenable to the attractive nuisance doctrine.

The rule supported by the decided weight of authority is that the owner of artificial lakes, fish ponds, mill ponds, gin ponds and other pools, streams and bodies of water are not guilty of actionable negligence on account of drownings therein unless they are constructed so as to constitute a trap or raft or unless there is some unusual element of danger lurking about them not existent in ponds generally. Ramsay

Page 707

v. Tuthill Building Material Co., 295 Ill. 395, 129 N.E. 127, 36 A.L.R. 23; United Zinc and Chemical Co. v. Britt, 258 U.S. 268, 42 S.Ct. 299, 66 L.Ed. 615, 36 A.L.R. 28; 56 American Jurisprudence 850. The last cited authority was relied on by the...

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