Edwards v. Maule Industries, Inc., 62-203

• Decision Date: 27 November 1962
• Docket Number: No. 62-203,62-203
• Parties: Frank Ellison EDWARDS, as the Father of Kenneth Edwards, a minor child, now deceased, Appellant, v. MAULE INDUSTRIES, INC., a Florida corporation, Appellee.
• Court: Florida District Court of Appeals

Page 5

147 So.2d 5

Frank Ellison EDWARDS, as the Father of Kenneth Edwards, a minor child, now deceased, Appellant, v. MAULE INDUSTRIES, INC., a Florida corporation, Appellee.

No. 62-203.

District Court of Appeal of Florida, Third District.

Nov. 27, 1962.

Monroe Gelb, Miami, for appellant.

Dean, Adams, Fischer & Gautier, Miami, for appellee.

Before PEARSON, TILLMAN, C. J., and HORTON and CARROLL, JJ.

PEARSON, TILLMAN, Chief Judge.

Frank Ellison Edwards sued the defendant, Maule Industries, inc., for the death of his minor child. The complaint sounded in negligence under the attractive nuisance doctrine. The trial court dismissed the complaint without leave to amend and the plaintiff brings this appeal. We affirm.

It should be pointed out that the plaintiff did not apply for permission to amend his complaint, nor does he now urge error upon the court's failure to grant leave to amend.

The complaint ¹ in essence alleged that the defendant maintained a pile or piles of sand so placed upon its property as to be attractive to children; that said sand was left without adequate or sufficient supports so that one walking upon the sand was likely to topple and fall and sink within the sand; further, that the plaintiff's minor child, 13 years of age, went upon this sand and that the sand pile caved in on top on him. Appellant and appellee agree that the issue is whether or not the sand pile as described constituted an attractive nuisance. Are the facts alleged sufficient to state a cause of action under this doctrine? The many cases in this state discussing the attractive nuisance doctrine clearly establish that for the doctrine to be applicable, two separate elements must exist: the condition maintained by the defendant must be attractive to children and the condition must be inherently dangerous and constitute a trap. Allen v. William P. McDonald Corp., Fla.1949, 42 So.2d 706; Carter v. Livesay Window Co., Fla.1954, 73 So.2d 411; Larnel Builders, Inc. v. Martin, Fla.App.1958, 105 So.2d 580.

In accord with this principal, certain conditions, although attractive to children, have been held not to be within the application of the doctrine because they were not inherently dangerous. In Banks v. Mason, Fla.App.1961, 132 So.2d 219, a swimming pool without a fence, guard rail or safety device was held not to be an attractive nuisance ; see Adler v. Copeland, Fla.App.1958, 105 So.2d 594. Miller v. Guernsey Construction Co., Fla.App.1959, 112 So.2d 55 held that an unfinished building in the orderly process of construction was not an attractive nuisance. In Hunter v. J. C. Turner Lumber Co., 187 F.Supp. 646 (N.D. Fla.1960), holding that under the circumstances there extant stacked lumber was not an attractive nuisance, the United States District Court for the Northern District of Florida noted the absence of an allegation that the lumber was so stacked as to constitute a hidden defect to trap the unwary.

Our research has not revealed, nor has there been cited to us, a case in any jurisdiction holding that a sand pile unconnected with a condition constituting an additional danger is of itself an attractive nuisance. To allege that because the sand pile was left '* * * without adequate or sufficient supports. * * *' it '* * * did cave in on top of said minor child' is a nonsequitur. Human experience does not supply the necessary characteristics to an ordinary sand pile which would constitute it an attractive nuisance inasmuch as there is no hidden element of danger existing therein.

Because an essential allegation will not be imported into a declaration by inference ² and the allegations of a complaint are construed most strongly against the pleader, ³ we conclude that the plaintiff failed to allege facts sufficient to show that the condition maintained by the defendant on its property was inherently dangerous. The complaint, therefore, failed to state a cause of action under the attractive nuisance doctrine. This being true and the facts alleged being insufficient to state a cause of action without the aid of the doctrine, the court correctly dismissed the complaint.

Affirmed.

1 The complaint except for formal allegations was as follows:

'I.

'That the said defendant, on and before the 8th day of October, 1961, was the owner of and did manage and control certain real property located in the...