Carter v. Skelly Oil Co.

• Decision Date: 08 June 1963
• Docket Number: No. 43145,43145
• Citation: 382 P.2d 277,191 Kan. 474
• Parties: Cameron E. CARTER and Margaret M. Carter, as Administrators of the Estate of William E. Carter, Deceased, Appellees, v. SKELLY OIL COMPANY, a Corporation, Tom Keplinger, Ray Rothgeb, and Al Steinle, Appellants.
• Court: Kansas Supreme Court

Page 277

382 P.2d 277

191 Kan. 474

Cameron E. CARTER and Margaret M. Carter, as Administrators of the Estate of William E. Carter, Deceased, Appellees, v. SKELLY OIL COMPANY, a Corporation, Tom Keplinger, Ray Rothgeb, and Al Steinle, Appellants.

No. 43145.

Supreme Court of Kansas.

June 8, 1963.

Syllabus by the Court

1. A petition alleged in substance that the decedent, an immature boy of thirteen years of age, was attracted to a burning slush pit near an oil well--such pit having vertical walls on the east and west sides and being used for waste materials of an inflammable nature, including a length of worn one-inch rope--and fell into the slush pit catching his clothing on fire, thus causing his injury and resulting death. On appeal it is held: The petition states a cause of action under the attractive nuisance doctrine, all as more particularly set forth in the opinion.

2. The attractive nuisance doctrine is based upon the negligence of the proprietor who fails to protect young children attracted to his premises by some dangerous thing or place artificially created, and where he should have anticipated that the children would be lured into the danger. (Following Brittain v. Cubbon, 190 Kan. 641, 378 P.2d 141.)

Richard M. Driscoll, Russell, argued the cause, and Jerry E. Driscoll, Russell, and Sam C. Oliver, Tulsa, Okl., were with him on the brief, for appellants.

J. Eugene Balloun, Great Bend, argued the cause, and Oscar Ostrum, Russell, was with him on the brief, for appellees.

SCHROEDER, Justice.

This is a negligence action based upon the doctrine of attractive nuisance. It is brought by the administrators of the estate of William E. Carter, deceased, pursuant to authorization granted by the probate court. The trial court overruled the joint and separate demurrers filed by the defendants, and appeal has been duly perfected from such orders.

The only question presented is whether the pleadings state a cause of action under the attractive nuisance doctrine.

The petition alleged that the plaintiffs, the parents of the deceased child, had lived on a quarter section of land in Russell County for ten years, and that the Skelly Oil Company had been operating wells on the land as the oil and gas lessee for a number of years. The individual defendants are employees of Skelly Oil Company.

The petition further alleged that in addition to the deceased child, the plaintiffs had four other young children living at the farm home; that Skelly had recently dug a slush pond or pit about one-fourth of a mile from the home at a well location on the quarter section leased by the plaintiffs as farm tenants, and in a field farmed by the plaintiffs; that the well had been redrilled in order to water flood the Kansas City pay zone, and the new slush pond or pit had been dug only a few days before the 8th day of January, 1961, when William E. Carter lost his life; that the slush pit had been used as a dump for waste material consisting of oil and other inflammable waste material, including a length of worn one-inch rope; and that on January 7, 1961, the defendants set fire to the slush pit and visited the pit once on January 7, and once on January 8, and otherwise left it unattended. The petition then alleged:

'4. That on the afternoon of Sunday, January 8, 1961, decedent, an immature boy of 13 years, between the hours of 2:00 and 6:00 p. m. of said day, while amusing himself, and without the company of anyone, was attracted to and approached said burning slush pit, and apparently was attracted by the fire and on oily 1-inch rope which had been discarded by the employees of defendant Skelly and partially thrown into said slush pit, and then and there attempted to pull it from the pit, or looped it around his body, and got too near to the vertical east wall or side of said slush pit, and either lost his balance, or slipped on the wet, damp soil and fell into said pit, or the edge of said wall crumbled away under his weight causing him to fall into said pit and into the oil fire that was burning therein, the exact facts being unknown to plaintiffs, and set his clothing on fire. That in his efforts to escape, he crossed said pit and crawled out on the opposite side, a distance of about ten feet away from the edge of the pit, before succumbing to said fire.

'5. That in connection with such operations, Skelly and the other defendants were guilty of acts of negligence and carelessness which were the sole and proximate cause of the severe and fatal burns sustained by said William E. Carter, deceased, all of which were directed, approved and ratified by Skelly, as follows, to-wit:

'(a) In failing to make disposition of the slush pit refuse and oily and inflammable substances therein by methods other than by fire or burning.

'(b) In failing to realize that an open unguarded fire would be particularly attractive to boys of immature years, and as such, was an attractive nuisance to them; and that the Carter family had young children living in the vicinity of and in close proximity to said oil well and slush pit, all of which was well known to said defendants.

'(c) In establishing and maintaining a place attractive to children and persons of immature years, well knowing that said burning pit was fraught with hazard and danger to such persons.

'(d) In failing to realize that a slush pit fire flares into unusual and intense activity when the surface of the burning pit is stirred, disturbed or agitated, and to take proper precautions against such occurrences.

'(e) In constructing and maintaining an open slush pit with vertical east and west dirt walls wholly unsupported or guarded against undermining by the action of water and other fluids in said pit and winter-time freezing and thawing, thereby making such walls subject to erosion and crumbling and cave-ins.

'(f) In maintaining an open slush pit and using it as a dump for waste materials such as oil, ropes and other obstacles, and thus increasing the fire hazard of such pit.

'(g) In failing to erect and maintain warning signs of any kind in connection with such slush pit, particularly after it had been set on fire.

'(h) In the conduct of said foreman in setting fire to said slush pit without keeping or maintaining anyone as a guard to look after such fire.

'(i) In failing to erect guards, ropes, or other obstructions to prevent approach to the vertical walls of said slush pit.

'(j) In failing to enclose said slush pit and to post adequate barricades and obstructions to prevent children and minors from near approach to said burning pit.

'(k) In failing to take safety precautions of any kind to warn children and others of dangers inherent in a slush pit fire involving highly inflammable oily refuse and particularly in connection with the unsupported walls of said pit.

'(1) That said slush pit at the time hereinafter referred to was entirely open, unguarded and unenclosed by any fence, barricade or obstructions, and particularly the vertical dirt walls thereof, to prevent children and persons of immature years from approaching the edge of said pit.

'6. That by reason of all the acts of negligence and failures to act on part of defendants as aforesaid, he endured and incurred severe, excruciating pain and suffering, and mortal shock, resulting in his death, and that by reason of the premises aforesaid, said decedent suffered intense agony, pain and suffering and indured terrific and mortal shock to his entire system, both bodily and mentally, and finally resulting in his death, all to his damage in the sum of $50,000.00.'

The rules applicable to the instant appeal have been fully stated and discussed in the recent case of Brittain v. Cubbon, 190 Kan. 641, 378 P.2d 141, and in the cases cited therein. These rules will not be restated herein, and further discussion will proceed on the assumption that the reader has familiarized himself with the decision in Brittain.

The appellants contend a slush pit is not an attractive nuisance. In support of this argument the appellants cite decisions and authorities holding: (1) That common and useful appliances or conditions are not so unusual and alluring to children as to furnish the essential elements of dangerous attraction and invitation (Brennan v. Kaw Construction Co., 176 Kan. 465, 271 P.2d 253; McGaughey v. Haines, 189 Kan. 453, 370 P.2d 120; Bruce v. Kansas City, 128 Kan. 13, 276 P. 284, 63 A.L.R. 325; Rhodes v. City of Kansas City, 167 Kan. 719, 208 P.2d 275; and Zagar v. Railroad Co., 113 Kan. 240, 214 P. 107); (2) that if the danger involved is patent the object does not fall within the doctrine of attractive nuisance (Brennan v. Kaw Construction Co., supra; Shank v. Peabody Cooperative Equity Exchange, 186 Kan. 648, 352 P.2d 41; and McGaughey v. Haines, supra); (3) that open fires are not an object of attractive nuisance (W. F. Bradley Lumber Co. v. Crowell, 28 Ala.App. 12, 178 So. 66; Zaia v. Lalex Realty Corp., 287 N.Y. 689, 39 N.E.2d 300; Rush, Appellant v. Plains Township, 371 Pa. 117, 89 A.2d 200; Fitzmaurice v. Connecticut Ry. & Lighting Co., 78 Conn. 406, 62 A. 620, 3 L.R.A.,N.S., 149; Harper v. Cook, 139 W.Va. 917, 82 S.E.2d 427; Smith v. Illinois Cent. R. Co., 177 Iowa 243, 158 N.W. 546, L.R.A.1917F, 1033; Erickson v. Great Northern Ry. Co., 82 Minn. 60, 84 N.W. 462, 51 L.R.A. 645; Lentz v. Schuerman Building & Realty Co., 359 Mo. 103, 220 S.W.2d 58; Eason v. State, 201 Misc. 336, 104 N.Y.S.2d 683, aff'd 280 App.Div. 358, 113 N.Y.S.2d 479; Madden v. Railroad, 76 N.H. 379, 83 A. 129, 39 L.R.A., N.S., 1058; Hancock v. Aiken Mills, Inc., 180 S.C. 93, 185 S.E. 188; Thiel v. Bahr Construction Co., 13 Wis.2d 196, 108 N.W.2d 573; Brannon v. Harmon, 56 Wash.2d 826, 355 P.2d 792; and Skelton v. Sinclair Refining Company [Okl.] 375 P.2d 948; and (4) that an oil and gas lessee does not have any duty to erect a fence or guard around a slush pit. (Mid-Continent Petroleum Corp. v. Rhodes, 205 Okl. 651, 240 P.2d...