Ausmer v. Sliman

Decision Date24 August 1976
Docket NumberNo. 48774,48774
Citation336 So.2d 730
PartiesLavern AUSMER v. George J. SLIMAN and Jody Johnson.
CourtMississippi Supreme Court

Johnston, Pritchard & Wright, Pascagoula, for appellant.

White & Morse, Gulfport, for appellees.

Before INZER, SUGG and LEE, JJ.

LEE, Justice, for the Court:

This is an action by Lavern Ausmer against George J. Sliman and Jody Johnson for the wrongful death of her six-year-old son. The Circuit Judge of Jackson County, hearing the case without a jury, entered judgment for defendants at the conclusion of the plaintiff's testimony, and Ausmer appeals.

The sole question is whether or not the trial judge erred in excluding the evidence of appellant and in entering judgment for appellees.

The child, Miles Bainsford, drowned in a swimming pool of appellees on July 29, 1973. Appellees owned an apartment building, and the pool was located at its rear. The deceased lived about two blocks away. At various times, children slipped into the swimming pool area and swam in the pool, both during the day and night. Appellees learned of this practice, they placed signs around the pool warning persons other than the tenants to stay away from the premises, and they told the children to keep away from the area.

On the occasion of the tragic accident, Miles, his nine-year-old brother, Harold, and another child were looking for a little gril friend with whom they wished to play. Miles was 'making like a motorcycle' when he ran through the apartment property near the swimming pool, tripped over the handle of a net used to clean the pool, fell, struck his head on the concrete and rolled into the water. His brother was unable to rescue him and Miles drowned.

The long-established rule in this state is that water hazards are not attractive nuisances, and the attractive nuisance doctrine does not extend to swimming pools, although there may be exceptions where the hazards are hidden or concealed and are not likely to be found and avoided by a child. Gordon v. C.H.C. Corporation, 236 So.2d 733 (Miss.1970); McGill v. City of Laurel, 252 Miss. 740, 173 So.2d 892 (1965).

Miles Bainsford was not attracted to the pool and apartment area for the purpose of swimming, but he was looking for his friend. A cleaning net by the side of the pool could not be said to constitute a danger and a hazard. If there had been no pool at the site and the child had tripped over the handle, struck his head on the concrete and sustained fatal injury, ...

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4 cases
  • Hughes v. Star Homes, Inc.
    • United States
    • Mississippi Supreme Court
    • 16 January 1980
    ...to refrain from willfully or wantonly injuring him. McGee v. Charles F. Smith & Sons, Inc., 357 So.2d 930 (Miss.1978); Ausmer v. Sliman, 336 So.2d 730 (Miss.1976); Langford v. Mercurio, 254 Miss. 788, 183 So.2d 150 (1966); Kelley v. Sportsmen's Speedway, Inc., 224 Miss. 632, 80 So.2d 785 (1......
  • Adams By and Through Adams v. Fred's Dollar Store of Batesville
    • United States
    • Mississippi Supreme Court
    • 15 October 1986
    ...to refrain from willfully or wantonly injuring him. McGee v. Charles F. Smith & Sons, Inc., 357 So.2d 930 (Miss. 1978); Ausmer v. Sliman, 336 So.2d 730 (Miss. 1976); Langford v. Mercurio, 254 Miss. 788, 183 So.2d 150 (1966); Kelly v. Sportsmen's Speedway, Inc., 224 Miss. 632, 80 So.2d 785 (......
  • Goodwin v. Jackson
    • United States
    • Mississippi Supreme Court
    • 12 March 1986
    ...Laurel, 252 Miss. 740, 173 So.2d 892 (1965), and Thompson v. Illinois Central R.R., 105 Miss. 636, 63 So. 185 (1913). In Ausmer v. Sliman, 336 So.2d 730 (Miss.1976), involving the death of a 6-year-old child, who drowned in an apartment building swimming pool, the Court said: The long-estab......
  • Anderson v. CLAIBORNE CTY. REC. CLUB, INC.
    • United States
    • Mississippi Supreme Court
    • 4 April 2002
    ...Adams v. Fred's Dollar Store, 497 So.2d 1097, 1100 (Miss.1986); Goodwin v. Jackson, 484 So.2d 1041, 1045 (Miss.1986); Ausmer v. Sliman, 336 So.2d 730, 731 (Miss.1976). The conflict arises over the definition of such conduct. Can wanton conduct be demonstrated by a failure to act, as the pla......

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