City of Mangum v. Powell

• Decision Date: 08 January 1946
• Docket Number: 31971.
• Citation: 165 P.2d 136,196 Okla. 306,1946 OK 2
• Parties: CITY OF MANGUM v. POWELL et al.
• Court: Oklahoma Supreme Court

165 P.2d 136

196 Okla. 306, 1946 OK 2

CITY OF MANGUM v. POWELL et al.

No. 31971.

Supreme Court of Oklahoma

January 8, 1946

Appeal from District Court, Greer County; W. P. Keen, Judge.

Suit by Verda Powell and another against the City of Mangum, a municipal corporation, for damages resulting from death by drowning of plaintiffs' son. From verdict and judgment in favor of plaintiffs, the defendant appeals.

Reversed.

Syllabus by the Court.

Ordinarily a city engaged in the construction of a public park, where children are yet prohibited from playing upon the premises by police rule, is not liable in damages resulting from drowning of a ten year old boy in a lake or pond thereon, which lake though artificial, is essentially like a natural lake.

Hollis Arnett, City Atty., of Mangum, for plaintiff in error.

W. T. Jeter and Homer Windle, both of Mangum, for defendants in error.

WELCH J.

The judgment was entered against the city upon jury verdict in plaintiffs' action for damages resulting from death by drowning of their ten year old son.

Defendant here asserts:

'The evidence in this case is insufficient to sustain any sort of judgment against the City of Mangum, and

'The lake or pond in which Dwain Powell drowned, being a reproduction of a natural lake and not being equipped with any diving boards, docks, rafts or other paraphernalia of any kind was not an attractive nuisance.'

The facts are as follows: In June, 1940, defendant purchased some twenty-eight acres of rough canyon land lying immediately adjacent to the defendant city. Said city had practically surrounded the land on three sides. Defendant had commenced the improvement of the lands for park purposes. To the date of the unfortunate occurrence, May 14th, 1941, a number of roadways had been constructed thereon, and there had been constructed an artificial lake by the placing of a dam across a ravine or canyon. The proposed park had not been officially opened for public use, though the roads had considerable use. The grounds were police patrolled and it was strictly against police regulations for children to play upon the grounds or around and in the lake.

On the day plaintiff's son was drowned in this lake, he was upon the grounds without the permission or knowledge of his parents, and against police rules. His body was found in the lake clad in bathing trunks and his street clothes were found on the shore near the water.

Shortly prior to his death the police had warned him and other youngsters from the lake and premises and some time after such warning the police had taken him and another youngster from the premises to the city hall and had released them from custody upon their promise to remain away from the premises.

Prior to the city's purchase of the land the same seems to have been a favored play grounds for some of the young boys for more than thirty years.

At the time of drowning there were no fences or barriers around the lake, nor were any warning or danger signs posted. At the time, the city was building a stadium and making other improvements on the land in preparation of opening the premises to the public as a city park. The lake had been constructed and water impounded therein for beautification and irrigation purposes. No diving boards, piers, bath houses or other recreational equipment had been placed at or upon said lake at the time of the occurrence mentioned. No essential difference exists between the small lake so constructed and a natural lake or pond.

We think the following authorities amply sustain defendant's contentions: City of Grandfield v. Hammonds et al., 100 Okl. 75, 227 P. 140; City of Hominy v. Musick, 137 Okl. 246, 278 P. 1094; Turner v. Durant Cotton Oil Co., 96 Okl. 31, 219 P. 892; Polk v. Laurel Hill Cemetery Ass'n, 37 Cal.App. 624, 174 P. 414; Harper v. City of Topeka, 92 Kan. 11, 139 P. 1018, 51 L.R.A.,N.S., 1032; and City of Tulsa v. Harman, 148 Okl. 117, 299 P. 462.

The Grandfield case is to the effect that without an invitation, express or implied, no duty of active care arises and the rule applies to infants, pointing out certain well recognized exceptions and distinctions which were not present there nor here. The same general rules and theory of law are announced and applied in the Musick case, pointing out that gross negligence amounting to wantonness would take a case without the rule.

The Turner case points out that the owner of property ordinarily has the right to make such use of his property as others throughout the country.

The Polk case points to the distinction between a dangerous condition which can be rendered safe without destroying its purpose and usefulness, and one which cannot be so safeguarded. The rule of the turntable case is therein discussed and distinguished in a case much like the present one. Therein the court said [37 Cal.App. 624, 174 P. 418]:

'* * * A pond of water, it may be conceded, is always attractive to youngsters; but the dangers connected with and inherent in a lake or pond of water, natural or artificial, are obvious to evcerybody--even to a child old enough to be permitted by its parents to go about and play unattended upon the streets or in the public parks. It would not conform to the dictates of common reason to say that a child of the age of eight years, or even much younger, does not know and fully realize that a fall into a pond of water or a deep reservoir would result in injury to him, if not in his death. But there is no necessity for abstract reasoning upon the proposition, for we think it thoroughly settled by the decisions that a pond of water, whether natural or artificial, is not to be included in the same class with turntables and other complicated machinery, the inherent dangers of which are not obvious to a child.'

In that same opinion is found the following quotation from a former opinion of the same court (Peters v. Bowman, 115 Cal. 345, 47 P. 113, 598, 56 Am.St.Rep. 106):

"But the rule of the turntable cases is an exception to the general principle that the owner of land is under no legal duty to keep it in a safe condition for others than those whom he invites there, and that trespassers take the risk of injuries from ordinary visible causes; and it should not be carried beyond the class of cases to which it has been applied. And the cases to which the rule has been applied, so far as our attention has been called to them, are nearly all cases where the owner of the land had erected on it dangerous machinery, the consequences of meddling with which

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