Bailey v. City of Mobile

• Decision Date: 30 May 1974
• Citation: 296 So.2d 149,292 Ala. 436
• Parties: Elmer BAILEY v. The CITY OF MOBILE, a municipal corporation. S.C. 619.
• Court: Alabama Supreme Court

Page 149

296 So.2d 149

292 Ala. 436

Elmer BAILEY v. The CITY OF MOBILE, a municipal corporation.

S.C. 619.

Supreme Court of Alabama.

May 30, 1974.

Howell, Johnston, Langford, Finkbohner & Lawler, Mobile, for appellant.

William H. Brigham, Mobile, for appellee.

MERRILL, Justice.

Appellant took a nonsuit and appealed after demurrer had been sustained to the complaint a third time. We affirm.

The suit was filed September 11, 1967, seeking $200,000.00 damages for fatal injuries to plaintiff's minor son and daughter, and it was alleged that the defendant, City of Mobile, negligently maintained a public drainage ditch so as to allow children to fall into it and drown. Demurrer was sustained December 21, 1967. The complaint was amended, demurrer refiled and sustained October 23, 1968. The complaint was again amended on July 18, 1969 and demurrer thereto sustained November 3, 1972. Plaintiff moved for a nonsuit and the judgment was entered May 11, 1973.

In Count One, as amended, plaintiff claimed damages for the death of his eight-year-old daughter and his eleven-year-old son 'caused by the negligence of Defendant's officers, agents, servants, or employees, while acting in line with, and within the scope of their employment, did negligently permit a great artificial hole or excavation commonly called a drainage ditch of great and dangerous depth, and dangerous to children, to be and remain upon its premises at or near Mobile County, Alabama, unguarded, uncovered, and in such condition as to be dangerous to children under eleven years of age; and Plaintiff further avers that his two children were invited to be, and to play around, said artificial drainage ditch and that the Defendant, its officers, agents, servants, or employees, either knew or in the exercise of due diligence should have known, that said artificial drainage ditch was a place of great danger to Plaintiff's two aforesaid children, and Plaintiff further avers that on May 7, 1966, while Plaintiff's two aforesaid children on said premises by said invitation of said Defendant, its officers, servants, agents, or employees as such, the Plaintiff's two aforesaid children fell into said artificial drainage ditch, and thereby drowned.'

The sworn statement of claim against the City required by Tit. 37, § 504, Code 1940, stated in part:

'My name is Elmer Bailey and I reside at 5930 West Haven Drive, Mobile, Alabama. I have been living there for the last seven (7) years with my family. My family had gone to the rear of the lot across the street and were picking blackberries along a drainage ditch when suddenly my younger daughter fell into the ditch. My two (2) children, Bobby Bailey and Gwendolyn Joyce Bailey both were drowned in attempting to get out of the ditch. * * *'

Appellant contends that the complaint sufficiently invokes the doctrine of attractive nuisance. He states in brief:

'Plaintiff-Appellant is not unmindful of the many cases of this Court which have held under varying circumstances that either the doctrine of attractive nuisance did not apply or because the hazard on the defendant's property was a water hazard and was open and obvious, that there could be no liability to minor children. Plaintiff has read such cases as Mullins v. Pannell, 289 Ala. 252, 266 So.2d 862; Earnest v. Regent Pool, Inc., 288 Ala. 63, 257 So.2d 313; City of Dothan v. Gulledge, 276 Ala. 433, 163 So.2d 217; Alabama Great Southern Railroad v. Green, 276 Ala. 120, 159 So.2d 823.'

We add to that list Cox v. Alabama Water Co., 216 Ala. 35, 112 So. 352, and Cobb v. Lowe Mfg. Co., 227 Ala. 456, 150 So. 687. In the latter case, this court said:

'Waters, whether pools or lakes, natural streams, or artificial streams maintained for lawful purposes, it may be conceded, have a lure for children, especially boys, even of tender years.

'But this court, in line with reason and the great weight of authority, has declined to extend the doctrine of attractive nuisance to such conditions, so as to impose on the owner of property a legal duty to erect barriers, or other safeguards to protect children, not invitees, from water hazards. They exist everywhere in nature, and take a toll of the lives of adventurous youth, and betime those of very tender years.'

We cannot agree with appellant's contentions that the instant case should mark an exception to the rule of the cases cited supra.

The allegations of the complaint were not sufficient to invoke the attractive nuisance doctrine and the demurrer was properly sustained.

Appellant argues that the allegation that 'his two children were invited to be, and to play around, said artificial drainage ditch' was sufficient against demurrer and cites the same allegation as Count 3 of the complaint in Alabama By-Products Corp. v. Cosby, 217 Ala. 144, 115 So. 31. We cannot agree.

The first reason is that here, the defendant is a city and not an individual or an ordinary corporation. Tit. 37, §§ 502--504, require a claim to be filed with the city, and in Hillis v. City of Huntsville, 274 Ala. 663, 151 So.2d 240, this court held that these sections were intended by the Legislature to restrict municipal liability to two classes '(1)...