Earnest v. Regent Pool, Inc.

• Decision Date: 27 January 1972
• Docket Number: 6 Div. 852
• Parties: Grover C. EARNEST v. REGENT POOL, INC., a Corporation.
• Court: Alabama Supreme Court

Page 313

257 So.2d 313

288 Ala. 63

Grover C. EARNEST v. REGENT POOL, INC., a Corporation.

6 Div. 852.

Supreme Court of Alabama.

Jan. 27, 1972.

Hare, Wynn, Newell & Newton and James J. Thompson, Jr., Birmingham, for appellant.

Spain, Gillon, Riley, Tate & Ansley and William F. Denson, III, Birmingham, for appellee.

McCALL, Justice.

In this case, the father sues to recover damages for the wrongful death of his nine year old son, allegedly drowned in the swimming pool of the defendant, Regent Pool, Inc., a corporation.

The complaint, as amended, contains three counts. The defendant's amended demurrer to this complaint was sustained and the plaintiff, declining to plead further, moved the court for a judgment of nonsuit, because of this adverse ruling. A judgment of nonsuit was duly entered whereby the cause was dismissed and the plaintiff was taxed with the costs for which execution was to issue. The plaintiff has appealed from the adverse judgment. He makes six assignments of error on the record, all of which challenge the trial court's order sustaining the defendant's demurrer to the complaint. The question then, concerns the sufficiency of any of the three counts of the complaint as tested by the demurrer.

Count one, charging simple negligence is as follows:

'Plaintiff sues for the death of his minor son, Jacob Earnest, to-wit, 9 years of age, and claims of the defendants the sum of Five Hundred Thousand Dollars ($500,000.00) as damages for that heretofore on, to-wit, April 1, 1968, the defendants owned, operated, managed or maintained a swimming pool in Jefferson County, Alabama, at, to-wit, the Regent Forest area of Shades Mountain in the police jurisdiction of Vestavia Hills, Alabama, which said pool was known as Regent Pool, Inc.; and plaintiff avers that on said occasion the defendants were the owners or proprietors of the premises upon which said pool was located or were responsible for the care, condition and state of repair of said pool and premises, including a fence which surrounded the perimeter of said premises. And plaintiff avers that many members of the public, including children, had for a long time prior to April 1, 1968, constantly and persistently come upon said premises, and plaintiff avers that such children constantly and persistently visited said premises for the purpose of playing thereon in and about the area of said pool, and plaintiff avers that such children did in fact constantly and persistently use the said premises, including said pool, as a play area and that said practice and said use of the defendants' premises was open and notorious and that the defendants knew, or from facts within their knowledge or from the exercise of due care should have known of said practice and said use of said premises by members of the public, including children. And plaintiff avers that on the occasion referred to herein said pool was dangerous and defective for use by minor children such as the plaintiff's said son in that said pool was partially filled with water, which said water was dirty and dark and partially contaminated, and that said water had collected to a depth of approximately six feet in the deepest portion of said pool in such a fashion that the water level was several feet below the edge or outside perimeter of said pool; and plaintiff further avers that there were no hand-holds or ropes or ladders in that area of the pool so partially filled with water as aforesaid; and plaintiff further avers that said pool was dangerous and defective in that the bottom of the said pool was slimy and slippery and that the water covering the bottom of the pool in this area was so dark and dirty that the bottom of said pool could not be seen, and that there were no signs or other indications warning of the depth of said pool in said area; and plaintiff further avers that said pool was dangerous and defective in that it was constructed in a hollow at a point on said premises below the level of the adjacent hills and terrain and in such a fashion that allowed water to drain into the said pool from the adjacent terrain, carrying with it dirt and silt.

'And plaintiff avers that on, to-wit April 1, 1968, the plaintiff's said minor son, while in the company of his brother, went onto said premises and that while present there on said occasion attempted to play and swim in said pool which was then in the dangerous and defective condition herein-above described, and that on account of said dangerous and defective condition of said pool and as a proximate consequence thereof the plaintiff's said minor son was drowned.

'And plaintiff avers that the defendants, who knew or should have known of the presence of children such as the plaintiff's minor son, who constantly and persistently came upon said premises as aforesaid, were negligent in that they negligently caused or negligently allowed the said pool to be in and remain in the dangerous and defective condition described hereinabove; and that said defendants were negligent in that they negligently failed to properly and safely maintain said premises, including said pool; and that the defendants were negligent in that they negligently failed to provide or maintain an adequate fence or other safeguard to prevent children from entering upon said premises and playing there in and about the area of said pool; and that, further, the defendants were negligent in failing to provide adequate and proper warnings of the dangerous and defective condition of said pool that existed thereon as hereinabove described; and plaintiff avers that as a proximate consequence of said negligence of the defendants the plaintiff's said minor son was drowned.'

The gravamen of this count is laid in the averments that the defendant's premises, upon which the swimming pool was located, were, for a long time prior to the accident, constantly and persistently visited by members of the public, including children, who used them as a play area, that the defendant knew of this practice or use, or should have known of it, that the defendant was negligent in causing or allowing the swimming pool to be in a dangerous and defective condition, as described in the above count, without providing or maintaining an adequate fence or safeguard around the premises to prevent children from entering them and playing in and about the pool, and in not posting signs to warn them of the dangerous and defective condition of the pool.

The plaintiff does not proceed upon the attractive nuisance doctrine in this count. He submits that the attraction of the dangerous condition on the defendant's premises is merely evidentiary and relevant only to the question of negligence.

It is to be noted from reading the count that the perimeter of the defendant's premises was surrounded by a fence. There is no allegation as to how the deceased entered the fenced-in area, only that the fence was inadequate to prevent children from entering upon the premises and playing in and about the area of the pool. It seems to us that any kind of invitation to enter the enclosed area is countered by the existence of a fence. The fence which surrounded the perimeter of the premises informs those who come thereon that what lies beyond is private. Fullerton v. Conan, 87 Cal.App.2d 354, 197 P.2d 59.

A toleration of trespassers does not alter their status. Alabama Great Southern R.R. Co. v. Green, 276 Ala. 120, 159 So.2d 823; Ellison v. Alabama Marble Co., 223 Ala. 371, 136 So. 787.

Therefore for aught appearing the deceased was a trespasser on the defendant's premises at the time of his unfortunate death. The law has long been settled in this state that a child, as well as an adult, may be a trespasser. Southern Ry. Co. v. Forrister, 158 Ala. 477, 48 So. 69; Ford v. Planters' Chem. & Oil Co., 220 Ala. 669, 126 So. 866; Luallen v. Woodstock Iron & Steel Corp., 236 Ala. 621, 184 So. 182. And the general rule is that the only duty owed to a trespasser is not to willfully or wantonly injure him, City of Dothan v. Gulledge, 276 Ala. 433, 163 So.2d 217, or negligently injure him after his peril is discovered. Atlantic Coast Line R. Co. v. French, 261 Ala. 306, 74 So.2d 266; Birmingham So. R.R. Co. v. Kendrick, 247 Ala. 573, 25 So.2d 419; Highland Avenue & Belt R.R. Co. v. Robbins, 124 Ala. 113, 27 So. 422...