Bass v. Quinn-Robbins Co., QUINN-ROBBINS

CourtUnited States State Supreme Court of Idaho
Writing for the CourtTAYLOR; HOLDEN
Citation216 P.2d 944,70 Idaho 308
PartiesBASS v.CO., Inc.
Decision Date06 April 1950
Docket NumberQUINN-ROBBINS,No. 7614

Page 944

216 P.2d 944
70 Idaho 308
BASS

v.
QUINN-ROBBINS CO., Inc.
No. 7614.
Supreme Court of Idaho.
April 6, 1950.

[70 Idaho 309] Ariel L. Crowley, Boise, for appellant.

J. F. Martin, Boise, for respondent.

[70 Idaho 310] TAYLOR, Justice.

The plaintiff brought this action under section 5-310, I.C., for the death of his son, Gary Lee Bass, age 9. Demurrer to the complaint was sustained without leave to amend. It is alleged that the defendant was the owner of and in possession of a tract of land located in a densely populated area adjoining the westerly boundary line of the city of Boise and lying between such boundary line and the shore of the Boise River. On a portion of the land, in close proximity to the Boise River, the defendant had at sometime in the past constructed and operated a gravel processing plant, and in connection with the use of the plant had excavated a deep pit, and had cut a channel,

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constituting an inlet from the river to the excavation, in such manner that the pit became filled with water. The inlet is located upon a publicly owned beach of the Boise River frequented by hundreds of children for play and bathing purposes. The processing of gravel at that site had been discontinued long since and the plant removed. The excavated area, being unused, had grown up with weeds about the shores of the pit and along the inlet. The pond had a deceptive appearance of being shallow, was accessible without barrier or obstruction by trails through the weeded area across an adjoining air field and across the lands of the defendant, and plainly visible. That the defendant 'maintained and allowed to exist upon the said premises, open, easy of access and unbarred[70 Idaho 311] by protective fences, gates or other devices, and approached by trails of a nature such as to appeal to the adventuresome spirit of small boys, and apparently innocuous, but actually deadly place, towit, the water filled, weedgrown pit and waterway aforesaid, alluring, attractive and inviting to small boys, neither needed by nor used by the defendant in the current conduct of its business. And upon the said pit, the defendant, having full knowledge of the attractive character of the said deadly, dangerous and alluring place created by it, the defendant placed, or suffered to be and remain floating, a makeshift raft, composed of a disconnected section of a plank fence formerly used by the defendant at another part of its said lands, constituting an irresistable attraction to small boys.' That Gary Lee, in company with other children, was enticed, attracted and impliedly invited upon defendant's property and into the waters of the pit, where he was drowned. Plaintiff then sets out nine specific particulars in which it is alleged defendant was negligent, which may be condensed as follows: (1) In maintaining the conditions described. (2) Permitting the pit to remain filled with water without attempting to shut off or close the inlet from the river. (3) Failing to erect fences or barriers. (4) Failing to erect warning signs. (5) Impliedly inviting deceased upon the premises. (6) Failing to warn the child by caretaker. (7) Failing to keep the premises clear of undergrowth. (8) Suffering open, well travelled paths to exist leading toward the pit. (9) Failing to recognize the proximity of the pit to the shore of the river frequented by children.

With respect to these facts, it will be assumed, as a matter of common knowledge, that a pit or excavation in a gravel formation in close proximity to a river will fill with water by seepage, to or near the level of the river water. Hence the existence of the inlet or the failure to close it would not constitute negligence. It is also to be noted that the plaintiff does not charge negligence in the failure of the defendant to fill the pit or level the area. In this connection it may be fairly assumed that the removal of large quantities of gravel below the level of an adjacent stream would ordinarily leave an excavation which could not be filled without burdensome expense.

The 'attractive nuisance' doctrine had its origin in the 'turntable cases,' and emanated from the Supreme Court of the United States, in Sioux City and Pacific R. R. v. Stout, 17 Wall. 657, 21 L.Ed. 745; 43 L.R.A. 148. It was adopted by this court in York v. Pacific & Northern Ry. Co., 8 Idaho 574, 69 P. 1042. Many jurisdictions refuse to recognize the doctrine, 36 A.L.R. 67-109.

General propositions supported by a great majority of the mass of decisions from those jurisdictions where the doctrine is accepted may be stated as follows:

[70 Idaho 312] To render the owner liable the structure or condition maintained or permitted on his property, must be peculiarly or unusually attractive to children; the injured child must have been attracted by such condition or structure; the owner must know, or the facts be such as to charge him with knowledge, of the condition, and that children are likely to trespass and be injured; the structure or condition must be dangerous and of such a character that the danger is not apparent to immature minds. Decisions and annotations, 36 A.L.R. 1-294; 45 A.L.R. 973-993;

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53 A.L.R. 1328-1356; 60 A.L.R. 1427-1455; 8 A.L.R.2d 1231-1392; 45 C.J. 763-767; and other authorities cited in this opinion.

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. Best v. District of Columbia, 291 U.S. 411, 54 S.Ct. 487, 78 L.Ed. 882; Thomas v. Pocatello P. & I. Co., 7 Idaho 435, 63 P. 595; Cox v. Alabama Water Co., 216 Ala. 35, 112 So. 352, 53 A.L.R. 1336; Kansas City v. Siese, 71 Kan. 283, 80 P. 626; Cicero State Bank v. Dolese & Shepard Co., 298 Ill.App. 290, 18 N.E.2d 574; Saxton v. Plum Orchards, La.App., 34 So.2d 423; Barnhart v. Chicago M. & St. P. Ry., 89 Wash. 304, 154 P. 441, L.R.A.1916D, 443; Smith v. McGolderick Lbr. Co., 124 Wash. 363, 214 P. 819; Polk v. Laurel Hill Cemetery Ass'n, 37 Cal.App. 624, 174 P. 414; Reardon v. Spring Valley Water Co., 68 Cal.App. 13, 228 P. 406; Beeson v. City of Los...

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15 practice notes
  • Kessler v. Mortenson, No. 981847.
    • United States
    • Supreme Court of Utah
    • December 5, 2000
    ...Idaho 466, 757 P.2d 1185, 1187-88 (1988) (declaring the law of attractive nuisance in Idaho to be that of Bass v. Quinn-Robbins Co., Inc., 70 Idaho 308, 216 P.2d 944 (1950)); Carroll v. Jagoe Homes, Inc., 677 N.E.2d 612, 619 n. 3 (1997) (citing Harness v. Churchmembers Life Ins. Co., 241 In......
  • Martinez v. C. R. Davis Contracting Co., No. 7286
    • United States
    • New Mexico Supreme Court of New Mexico
    • January 13, 1964
    ...v. Standard Oil Co., 124 Ind.App. 257, 114 N.E.2d 807; Rallo v. Heman Const. Co., 291 Mo. 221, 236 S.W. 632; Bass v. Quinn-Robbins Co., 70 Idaho 308, 216 P.2d 944; 36 A.L.R. The facts pointed to as supporting a finding of negligence by the contractor are: (1) knowledge that children played ......
  • O'GUIN v. Bingham County, No. 28210.
    • United States
    • United States State Supreme Court of Idaho
    • June 18, 2003
    ...apparent to immature minds; and (4) the plaintiff was attracted onto the premises by such structure/condition. Bass v. Quinn-Robbins Co., 70 Idaho 308, 216 P.2d 944 (1950). If any one of these elements is not established, a claim of attractive nuisance fails. Nelson By and Through Nelson v.......
  • Ochampaugh v. City of Seattle, No. 45492
    • United States
    • United States State Supreme Court of Washington
    • January 5, 1979
    ...of landowner for drowning child, 8 A.L.R.2d 1298-99 (1949). As the Supreme Court of Idaho pointed out in Bass v. Quinn-Robbins Co., 70 Idaho 308, 216 P.2d 944 (1950), the fact that a raft or other object floats on a pond does not change the rule of nonliability, except where the floating ob......
  • Request a trial to view additional results
15 cases
  • Kessler v. Mortenson, No. 981847.
    • United States
    • Supreme Court of Utah
    • December 5, 2000
    ...Idaho 466, 757 P.2d 1185, 1187-88 (1988) (declaring the law of attractive nuisance in Idaho to be that of Bass v. Quinn-Robbins Co., Inc., 70 Idaho 308, 216 P.2d 944 (1950)); Carroll v. Jagoe Homes, Inc., 677 N.E.2d 612, 619 n. 3 (1997) (citing Harness v. Churchmembers Life Ins. Co., 241 In......
  • Martinez v. C. R. Davis Contracting Co., No. 7286
    • United States
    • New Mexico Supreme Court of New Mexico
    • January 13, 1964
    ...v. Standard Oil Co., 124 Ind.App. 257, 114 N.E.2d 807; Rallo v. Heman Const. Co., 291 Mo. 221, 236 S.W. 632; Bass v. Quinn-Robbins Co., 70 Idaho 308, 216 P.2d 944; 36 A.L.R. The facts pointed to as supporting a finding of negligence by the contractor are: (1) knowledge that children played ......
  • O'GUIN v. Bingham County, No. 28210.
    • United States
    • United States State Supreme Court of Idaho
    • June 18, 2003
    ...apparent to immature minds; and (4) the plaintiff was attracted onto the premises by such structure/condition. Bass v. Quinn-Robbins Co., 70 Idaho 308, 216 P.2d 944 (1950). If any one of these elements is not established, a claim of attractive nuisance fails. Nelson By and Through Nelson v.......
  • Ochampaugh v. City of Seattle, No. 45492
    • United States
    • United States State Supreme Court of Washington
    • January 5, 1979
    ...of landowner for drowning child, 8 A.L.R.2d 1298-99 (1949). As the Supreme Court of Idaho pointed out in Bass v. Quinn-Robbins Co., 70 Idaho 308, 216 P.2d 944 (1950), the fact that a raft or other object floats on a pond does not change the rule of nonliability, except where the floating ob......
  • Request a trial to view additional results

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