Banks v. Mason, 1946

• Decision Date: 21 July 1961
• Docket Number: No. 1946,1946
• Citation: 132 So.2d 219
• Parties: Ted M. BANKS, Appellant, v. James MASON and Patricia Mason, his wife, Appellees.
• Court: Florida District Court of Appeals

Page 219

132 So.2d 219

Ted M. BANKS, Appellant, v. James MASON and Patricia Mason, his wife, Appellees.

No. 1946.

District Court of Appeal of Florida, Second District.

July 21, 1961.

Rehearing Denied Aug. 15, 1961.

M. James Shaw, of Anderson, Gundlach & Hull, Fort Lauderdale, for appellant.

Stephen C. McAliley, Fort Lauderdale, for appellees.

SHANNON, Chief Judge.

The appellant, plaintiff below, filed his amended complaint against the appellees, defendants below, in this negligence action. The plaintiff's amended complaint was dismissed, and, hence, this appeal.

The amended complaint was based on the fact that plaintiff's son, aged three, was drowned in a private swimming pool maintained upon the property of the defendants. The plaintiff charges that the swimming pool was erected and maintained upon the premises of the defendants and that no fence, guard rail or other safety device was maintained thereon; that children of tender age were in the habit of being upon and playing upon said premises and around and in the vicinity of said swimming pool that a fence, guard rail or other safety device would have prevented said children coming upon and being upon said premises and near said pool; that on the 19th day of May, 1959, young Banks, deceased, having been attracted to and induced to come upon and be upon and play upon said premises and in and around said swimming pool, and being unable to perceive or appreciate the danger confronting him, and without fault on his part, jumped, stumbled or slipped, or in some manner entered said swimming pool, and, as a result, died of drowning. The second count of the complaint charges that, although it was duty to do so, the defendants did negligently fail to properly fence, or otherwise protect, said pool, or in any other way, guard or protect the numerous children in the neighborhood from the dangers attendant to said pool; that defendants had actual knowledge and repeated warnings by neighbors and parents of the deceased that children were playing in the neighborhood and in the vicinity of the pool; and that the defendants knew that this condition existed and that children were being exposed to unreasonable risks beyond the comprehension of children of tender years, all of which constituted a breach of duty; that the construction of the swimming pool, without properly protecting same, involved an unreasonable risk of death or serious bodily harm to children in said neighborhood. The lower court dismissed the complaint.

Plaintiff notes two points in this appeal, namely: 1) Does the fact that a private swimming pool is similar to hazards existing in nature preclude the application of Section 339 of Restatement of the Law of Torts? 2) May the trial court, as a matter of law, determine that the maintenance and location of a private swimming pool in a heavily populated residential area may not impose upon the owner the duty of ordinary care to children of tender age? By these two points the plaintiff seeks reversal under the attractive nuisance doctrine or, alternatively, under the theory that there was here involved a dangerous instrumentality. Notwithstanding the Restatement of the Law of Torts, Florida, since the Restatement was published, has settled this question.

In a long line of cases, the courts of this country have developed the attractive nuisance doctrine. See e. g.: 'The Turntable Case,' Sioux City & Pacific Railroad Co. v. Stout, 1874, 17 Wall, 657, 21 L.Ed. 745. The rules enunciated in the decisions wherein this doctrine has found application have been summarized in Section 339 of The Restatement of Torts as follows:

'A possessor of land is subject to liability for bodily harm to young children trespassing thereon caused by a structure or other artificial condition which he maintains upon the land, if

'(a) the place where the condition is maintained is one upon which the possessor knows or should know that such children are likely to trespass, and

'(b) the condition is one of which the possessor knows or should know and which he realizes or should realize as involving an unreasonable risk of death or serious bodily harm to such children, and

'(c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling in it or in coming within the area made dangerous by it, and

'(d) the utility to the possessor of maintaining the condition is slight as compared to the risk to young children involved therein.'

This doctrine is well established in the jurisprudence of this state. Stark v. Holtzclaw, 1925, 90 Fla. 207, 105 So. 330, 41 A.L.R. 1323; May v. Simmons, 1932, 104 Fla. 707, 140 So. 780; Peters v. City of Tampa, 1934, 115 Fla. 666, 155 So. 854; and Johnson v. Wood, 1945, 155 Fla. 753, 21 So.2d 353. See also Carter v. Livesay Window Co., Fla., 1954, 73 So.2d 411; and Cockerham v. R. E. Vaughan Inc., Fla. 1955, 82 So.2d 890, 891, where the question of whether there existed an 'inherently dangerous condition' was controlling. However, in the case of Allen v. William P. McDonald Corporation, Fla.1949, 42 So.2d 706, a case involving a two and one-half year old child who drowned in a pond after having been attracted thereto by banks of white sand, our Supreme Court said:

'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. Citing cases). * * *'

'We think the allegations of the declaration bring this case within the exception to the general rule. A spoil bank of white sand adjacent to an artificial lake or pond is an unusal element of danger and will render it more attractive than the ordinary pond. There is nothing more enticing to a child or a gang of children than a sand pile. * * *'

The Allen case, supra, is one of three cases relied upon by the trial judge in the instant case as authority for the final judgment from which this appeal is taken. The other two cases cited by the court below are Lomas v. West Palm Beach...