Everett v. White

• Decision Date: 11 February 1965
• Docket Number: No. 18305,18305
• Citation: 140 S.E.2d 582,245 S.C. 331
• Parties: Andre M. EVERETT by his Guardian Ad Litem, Robert J. Everett, Respondent, v. D. L. WHITE, Appellant.
• Court: South Carolina Supreme Court

Page 582

140 S.E.2d 582

245 S.C. 331

Andre M. EVERETT by his Guardian Ad Litem, Robert J Everett, Respondent, v. D. L. WHITE, Appellant.

No. 18305.

Supreme Court of South Carolina.

Feb. 11, 1965.

Whaley & McCutchen, Donald V. Richardson, III, Columbia, for appellant.

Monteith & Monteith, Columbia, for respondent.

BRAILSFORD, Justice.

This is an action to recover damages for personal injuries sustained by a five year old boy when he fell into a hole containing water, debris and other material. This hole had been excavated by the defendant in the course of constructing a house at the site of the accident. The defendant demurred to the complaint for insufficiency of facts to state a cause of action and has appealed from an order of the circuit court overruling the demurrer.

We here summarize the complaint, which must be construed liberally in favor of the pleader ¹ and sustained if the facts alleged, and inferences reasonably deducible therefrom, entitle plaintiff to relief on any theory of the case, ² even though different from that on which he may have supposed himself entitled to recover. ³

During the times referred to in the complaint, the defendant was engaged in the construction of a house. With his knowledge and consent, children from the neighborhood, including plaintiff, were accustomed to play on the work site. In the course of the construction, defendant excavated a hole about five feet long and between five and six feet deep, which he left open and exposed for a considerable period of time. This hole became 'practically filled' with mud, water, slime and debris, creating a condition which the defendant knew, or should have known, was an attractive nuisance and a dangerous condition for minor children playing and using said lot with his permission and with his knowledge and consent. On March 13, 1963, the plaintiff and other children of the neighborhood were playing on said lot with the knowledge and consent of the defendant. While so doing, the plaintiff 'fell in said hole' and became submerged under the mud, water and other materials accumulated therein. Before being rescued and revivied, plaintiff lost consciousness and ceased to breathe, and has suffered serious and permanent after effects from his submersion. The conduct of the defendant in leaving this dangerous condition exposed on the premises where, to his knowledge and with his consent, children were accustomed to play and would likely come in contact with it, and where, on March 13, 1963, he knew that plaintiff was playing, without taking any precaution to guard or give warning of the hazard or to avoid injury to him or to them, was negligent, reckless and willful and the proximate cause of plaintiff's injuries.

The defendant argues his appeal under two heads, contending that the complaint fails to state cause of action under the attractive nuisance doctrine because, (1) the facts alleged show that the condition complained of was open and obvious, even to small children, involving no latent peril or hidden danger, and (2) no facts are alleged showing that plaintiff was attracted to the peril which caused his injury.

As to the first point, we disagree with defendant's contention that the condition described in the complaint did not involve the probability of injury to a child of immature judgment. It is inferable from the facts alleged that the appearance of the small hole, 'practically filled' with water, mud and other material, would not have alerted a small child to the peril which it presented. Instead, these facts suggest that the appearance of the hole, especially to a small child, was that of an ordinary puddle, normally harmless to the child, although, in its effects, sometimes highly exasperating to the mother. We are satisfied that the complaint sufficiently alleges the existence on the premises of a hidden danger or peril involving unreasonable risk of injury to a small child.

Defendant's second point, which has been stated, rests upon the assumption that the complaint is demurrable unless the facts alleged state a cause of action under the attractive nuisance doctrine. This is a misconception, as has been seen, even if the pleader intended to invoke this doctrine as the foundation of plaintiff's right of recovery. Our true inquiry is whether the facts alleged state a cause of action against the defendant on any theory of tort liability. If so, the demurrer was properly overruled.

Parallel with the attractive nuisance doctrine, which has been adopted by this Court in a number of decisions, we have long recognized, under appropriate circumstances, a right of recovery for injuries to a child from a dangerous condition of premises although the element of attractiveness is absent and the child does not occupy the status of invitee or business visitor.

In Franks v. Southern Cotton Oil Co., 78 S.C. 10, 58 S.E. 960, 12 L.R.A., N.S., 468, a complaint, based on attractive nuisance principles, for the death of a ten year old child by drowning in a reservoir maintained by the defendant was sustained against demurrer for insufficiency of facts. The opinion in Franks refers to our earlier decision in Bridger v. Railroad Company, 25 S.C. 24, as having followed 'the doctrine announced in Sioux City [& P. R. Co.], etc., v. Stout, 17 Wall. (U.S.) 657, 21 L.Ed. 745, the first of what are known as the turntable cases, in which it was held that an infant could recover for an injury causing him damages as the result of a failure on the part of the railroad company to keep its turntable locked or properly guarded.' 78 S.C. 13, 58 S.E. 960.

The Bridger case involved turntable injuries to a playing child and the submission of the question of liability to the jury was sustained, apparently on ordinary concepts of negligence and proximate cause. The court referred to several classes of cases in which 'the question of negligence, such as would make the party in default responsible, may arise,' including: '3d. Where the injury is inflicted by some instrumentality belonging to the defendant, not, however, at the time under the immediate direction of the defendant or his agent, but the injury is received by the party bringing himself in contact therewith, and in that way sustaining said injury.' 25 S.C. 28. The issues arising in cases of this class were stated to be, 'whether the instrumentality was in itself a dangerous one; whether, being dangerous and capable of inflicting injury, it was located and left in an exposed place, unguarded and unprotected; and especially whether the party injured was mentally incapable of knowing and appreciating the danger, either from want of age or otherwise, and of the impropriety of his intermeddling with it.' 25 S.C. 29. The court did not rationalize...