Anneker v. Quinn-Robbins Co.

• Decision Date: 07 April 1958
• Docket Number: No. 8547,QUINN-ROBBINS,8547
• Citation: 80 Idaho 1,323 P.2d 1073
• Parties: William ANNEKER and Ida Anneker, husband and wife, Plaintiffs-Appellants, v.CO., Inc., an Idaho Corporation, and Independent School District of Boise City, Defendants-Respondents.
• Court: Idaho Supreme Court

Page 1073

323 P.2d 1073

80 Idaho 1

William ANNEKER and Ida Anneker, husband and wife, Plaintiffs-Appellants, v. QUINN-ROBBINS CO., Inc., an Idaho Corporation, and Independent School District of Boise City, Defendants-Respondents.

No. 8547.

Supreme Court of Idaho.

April 7, 1958.

Vernon K. Smith, Boise, for appellants.

Clemons, Skiles & Green, Boise, for respondents.

SMITH, Justice.

Appellants have appealed from a judgment of dismissal of their complaint which resulted when the trial court sustained respondents' general demurrers to appellants' complaint, without leave to amend. Relevant alleged facts are hereinafter related.

Respondent Independent School District of Boise City, herein sometimes called the School District, owns the Whittier School Building facing 29th Street constructed on the School District's property between Idaho and Jefferson Streets, bordering 29th Street for approximately 600 feet and extending westerly about 700 feet. Approximately 150 feet of the school grounds, extending westerly from the rear of the school building, is paved for playground purposes; the school property then continues westerly approximately 300 feet to its westerly boundary, where it adjoins the easterly boundary of the property of respondent Quinn-Robbins Co., Inc., herein sometimes called Quinn-Robbins.

Prior to this action respondent Quinn-Robbins had removed gravel from its premises, leaving a gravel pit of approximately 15 acres in area and some 50 feet in depth, which became a pond by seepage and flow of water from Boise River nearby, the main channel of which is situate about 300 feet to the south. The pond extended, to a depth of about 4 feet, into the westerly 20 feet of a natural swale, situate at the southwesterly corner, along the southerly edge of the school grounds; the swale sloped gradually toward the pond; its banks were somewhat precipitous. In this general vicinity, but on its own property near its easterly boundary, respondent Quinn-Robbins had placed discarded truck beds, motor vehicles and similar equipment.

Appellants allege that their minor son approximately 3 years of age (under school age), about 10:00 o'clock a. m., July 7, 1953 (school vacation time), escaped the attention of his mother, an appellant, and with a companion went to play upon the Whittier School grounds, and was attracted to the southwesterly corner of the school premises; that the minor then wandered close to the edge of the gravel bank of the natural swale situate on the school property, a few feet from the property line separating the school property from that of respondent Quinn-Robbins, and in the near vicinity of the latter's discarded equipment; that thereupon the bank gave way, causing the minor to tumble down the bank of the swale into the water with resultant death by drowning.

Appellants then allege the joint and concurrent negligence of respondents, in allowing each described condition to exist, as a proximate cause of alleged wrongful death of the minor, for which appellants seek recovery of general and special damages.

We shall first dispose of appellants' assignment that the trial court erred in sustaining respondent Quinn-Robbins' general demurrer and dismissing the complaint as to such respondent.

Appellants seek to invoke the attractive nuisance doctrine; in so doing they urge attraction of the minor to the discarded equipment situate on Quinn-Robbins' premises, close to the westerly boundary of the school property, near the natural swale. Appellants assert that the latent danger inherent in the locality permits application of the attractive nuisance doctrine.

This Court has heretofore considered the attractive nuisance doctrine as applied to pools and ponds of water. Bicandi v. Boise Payette Lbr. Co., 55 Idaho 543, 44 P.2d 1103, and Bass v. Quinn-Robbins Co., Inc., 70 Idaho 308, 216 P.2d 944, 946. Appellants admit that the Bass case involved the identical pond as in this case, but argue dissimilarity between the facts of the two cases.

This Court in the Bass case held that a pond, even when situate in a thickly populated area does not constitute an attractive nuisance where the dangers in it are open and apparent; said the Court:

'A pool or pond is not an 'attractive nuisance,' such as to render the owner liable for the drowning of a child, where the dangers inherent in it are open and apparent, and there is no hidden, concealed or unusual danger or trap.' Citing many authorities.

See also Bicandi v. Boise-Payette Lbr. Co., supra; King v. Simons Brick Co., 52 Cal.App.2d

586, 126 P.2d 627; Ward v. Oakley Co., 125 Cal.App.2d 840, 271 P.2d 536; Villani v. Wilmington Housing Authority, 9 Terry, Del., 450, 106 A.2d 211; Wood v. Consumers Co., 334 Ill.App. 530, 79 N.E.2d 826; Plotzki v. Standard Oil Co. of Ind., 228 Ind. 518, 92 N.E.2d 632; Holifield v. Wigdor, 361 Mo. 636, 235 S.W.2d 564; Fitch v. Selwyn Village, 234 N.C. 632, 68 S.E.2d 255; Dennis v. Spillers, 190 Okl. 311, 185 P.2d 465; Meyer v. General Electric Company, 46 Wash.2d 251, 280 P.2d 257; 56 Am.Jur., Waters, sec. 436, p. 850; Annotation, 36 A.L.R., Ponds, p. 224.

Ward v. Oakley, 125 Cal.App.2d 840, 271 P.2d 536, 540, was an action grounded upon the attractive nuisance theory, for the death of a child drowned in a pond; therein the California Court made the following announcements:

'It is settled that a body of water, natural or artificial, does not constitute an attractive nuisance which will subject the owner to liability for trespassing children who are attracted thereto and are drowned. (Peters v. Bowman, 115 Cal. 345, 347 et seq., 47 P. 113, 598; Demmer v. City of Eureka, 78 Cal.App.2d 708, 710 , 178 P.2d 472.)

'There is an exception to this rule where the death of a child is caused by an artificial, uncommon, dangerous and concealed contrivance constituting a trap, which can be readily safeguarded without destroying its usefulness or imposing upon the owner an undue burden. (Sanchez v. East Contra Costa Irr. Co., 205 Cal. 515, 518 , 271 P. 1060; Faylor v. Great Eastern, etc. Co., 45 Cal.App. 194, 199, 187 P. 101.)

'The essential elements of a cause of action under the 'hidden or concealed trap' exception are (a) that the dangerous hazard causing death be artifically created by the owner, (b) it be so concealed as to constitute a trap, and (c) that it can be readily guarded without destroying its usefulness or placing upon the owner an undue burden.'

The great weight of authority holds that the artificial character of the water hazard will not support the attactive nuisance doctrine, and has no bearing on liability or nonliability. See Annotation, 8 A.L.R.2d p. 1292, sec. 33, Artificial character of hazard.

The fact that a raft, logs or other object may be floating on a pool or pond does not of itself constitute an attractive nuisance so as to render the owner liable. Barnhart v. Chicago, M. & St. P. Ry. Co., 89 Wash. 304, 154 P. 441, L.R.A.1916D, 443; Smith v. McGoldrick Lumber Co., 124 Wash. 363, 214 P. 819; Mellas v. Lowdermilk, 58 N.M. 363, 271 P.2d 399; Ward v. Oakley, supra; Bicandi v. Boise-Payette Lbr. Co., supra; Bass v. Quinn-Robbins Co., supra, and authorities therein cited. Annotations, 8 A.L.R.2d p. 1298, sec. 42 and p. 1349, sec. 70.

Nor does the presence of shiny or other objects attractive to children constitute a hidden peril. In Holifield v. Wigdor, 361 Mo. 636, 235 S.W.2d 564, 567, a five-year-old child was drowned in a waterfilled hole which had been dug for installation of bright and shiny gas tanks. The court, in affirming a judgment denying a recovery, used language as follows:

'If we assume that the deceased child was attracted to the Scott property by the bright and shiny tanks, the waterfilled hole and the fresh earth around the hole, as appellants argue, the evidence fails to show that such conditions were inherently dangerous and thus constituted a dangerous and attractive nuisance.'

Steep, precipitous, smooth or slippery banks of a pool or stream, when such condition is natural, visible and readily apparent, do not constitute a hidden peril. McCabe v. American Woolen Co., C.C., 124 F. 283, affirmed 1 Cir., 132 F. 1006, steep, precipitous banks; Cox v. Alabama Water Co., 216 Ala. 35, 112 So. 352, 53 A.L.R. 1336, slime-slick, 45-degree concrete bank; Rallo v. Herman Const. Co., 291 Mo. 221, 236 S.W. 632, precipitous banks of a pond formed in a quarry; White v. Kanawha City Co., 127 W.Va. 566, 34 S.E.2d 17, concrete 45-degree banks; Somerfield v. Land & Power Co., 93 Kan. 762, 145 P. 893, perpendicular banks. Annotation, 8 A.L.R.2d p. 1296, sec. 37, Precipitous or slippery sides or banks.

Appellants attempt to bring this case under the attractive nuisance doctrine by pleading the presence of respondent Quinn-Robbins' discarded automotive equipment as the attraction which lured the minor to its near vicinity at the southwestern corner of the school premises, where the minor met his death by drowning in the natural swale.

No existent, latent or hidden danger in the discarded automotive equipment is alleged or indicated merely by its inert presence on respondent Quinn-Robbins' property. Nor do appellants allege that the minor was injured by reason of any hidden or latent risk or danger existent in the discarded equipment.

Appellants also plead that by virtue of the minor being attracted by respondent Quinn-Robbins' discarded equipment, he became subjected to certain dangerous instrumentalities, i. e., the swale's precipitous gravel bank which was likely to and did give way when the minor ventured to an outermost edge thereof, thereby precipitating him into the water in the swale with resultant death. Appellants also plead that Quinn-Robbins is responsible for the presence of the water in the swale since it flowed therein from Quinn-Robbins' pond.

Nowhere have appellants pleaded any artificial creation on the part of respondent Quinn-Robbins, as causative of the minor's accidental death...