Fitch v. Selwyn Village, No. 530

Docket NºNo. 530
Citation68 S.E.2d 255, 234 N.C. 632
Case DateDecember 12, 1951
CourtUnited States State Supreme Court of North Carolina

Page 255

68 S.E.2d 255
234 N.C. 632
FITCH,
v.
SELWYN VILLAGE, Inc.
No. 530
Supreme Court of North Carolina.
Dec. 12, 1951

Shannonhouse, Bell & Horn, Charlotte, for plaintiff, appellant.

Francis H. Fairley, Charlotte, for defendant, appellee.

DENNY, Justice.

The overwhelming weight of authority in this country is to the effect that ponds, pools, lakes, streams, reservoirs, and other bodies of water, do not per se constitute attractive nuisances. 56 Am.Jur., Waters, section 436, page 850. 'The attractive nuisance doctrine generally is not applicable to bodies of water, artificial as well as natural, in the absence of some unusual condition or artificial feature other than the mere water and its location.' 65 C.J.S., Negligence, § 29(12) j, p. 475.

It is, therefore, not negligence per se to maintain an unenclosed pond, pool, lake, or reservoir on one's premises. Barlow v. Gurney, 224 N.C. 223, 29 S.E.2d 681; Hedgepath v. Durham, 223 N.C. 822, 28 S.E.2d 503.

[234 N.C. 635] It is generally held, however, in this jurisdiction that where one maintains an artificial lake, pond, or reservoir, and children of tender years are attracted thereto and it becomes a common resort for such children to gather and play, 'and it appears that the owner knows or by the exercise of ordinary care should know that it is being so used, then it becomes his duty to exercise ordinary care to provide reasonably adequate protection against injury. Failure so to do constitutes an act of negligence. ' Barlow v. Gurney, supra [224 N.C. 223, 29 S.E.2d 682]; Hedgepath v. Durham, supra; Cummings v. Dunning, 210 N.C. 156, 185 S.E. 653; Brannon v. Sprinkle, 207 N.C. 398, 177 S.E. 114; Gurley v. Southern Power Co., 172 N.C. 690, 90 S.E. 943; Starling v. Selma Cotton Mills, 171 N.C. 222, 88 S.E. 242; Starling v. Selma Cotton Mills, 168 N.C. 229, 84 S.E. 388, L.R.A. 1915D, 850. But, we know of no decision in this or any other jurisdiction, where the owner of land has been held liable for failure to erect a fence or other obstruction to protect small children from obtaining access to a branch or creek upon his premises which flows in its natural state.

It is a matter of common knowledge that streams of water are attractive to children, and that thousands of them flock to them during each year for the purpose of wading or swimming in their cool and refeeshing waters, or to fish therein, notwithstanding the common dangers that may exist in such use of our natural streams.

The rule with respect to liability for these dangers which exist...

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22 practice notes
  • Nelson v. Freeland, No. 216A98.
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • December 31, 1998
    ...Abrogation of the Traditional Common Law of Premises Liability, 44 U. Kan. L.Rev. 175, 179 (1995); see also Fitch v. Selwyn Village, 234 N.C. 632, 634, 68 S.E.2d 255, 257 (1951) (discussing attractive-nuisance doctrine); De-Haven v. Hoskins, 95 N.C.App. 397, 400, 382 S.E.2d 856, 858 (discus......
  • Chelsea Amanda Brooke Cobb By v. Town of Blowing Rock, No. COA09–1443.
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • July 5, 2011
    ...condition. Rather, they rely on several decisions involving the attractive nuisance doctrine. See, e.g., Fitch v. Selwyn Vill., 234 N.C. 632, 635, 68 S.E.2d 255, 257 (1951). The attractive nuisance doctrine raises the standard of care owed to trespassing children relative to that owed to no......
  • Udy v. Calvary Corp., No. 1
    • United States
    • Court of Appeals of Arizona
    • August 17, 1989
    ...aff'd, 214 Ga. 187, 104 S.E.2d 83 (1958) (steep ravine at edge of leased premises was open and obvious); Fitch v. Selwyn Village, Inc., 234 N.C. 632, 68 S.E.2d 255 (1951) (duty to guard and warn children was parents'); Roberson v. City of Kinston, 261 N.C. 135, 134 S.E.2d 193 (1964) (follow......
  • Wiles v. Metzger, Nos. 89-165
    • United States
    • Supreme Court of Nebraska
    • August 23, 1991
    ...v. Curran Const. Co., 151 Mont. 468, 443 P.2d 894 (1968) (cave-in of a ditch used for waterline construction); Fitch v. Selwyn Village, 234 N.C. 632, 68 S.E.2d 255 (1951) (drowning in a deep creek adjacent to a residential development); and Anderson v. Reith-Riley Const. Co., 112 Ind.App. 1......
  • Request a trial to view additional results
22 cases
  • Nelson v. Freeland, No. 216A98.
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • December 31, 1998
    ...Abrogation of the Traditional Common Law of Premises Liability, 44 U. Kan. L.Rev. 175, 179 (1995); see also Fitch v. Selwyn Village, 234 N.C. 632, 634, 68 S.E.2d 255, 257 (1951) (discussing attractive-nuisance doctrine); De-Haven v. Hoskins, 95 N.C.App. 397, 400, 382 S.E.2d 856, 858 (discus......
  • Chelsea Amanda Brooke Cobb By v. Town of Blowing Rock, No. COA09–1443.
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • July 5, 2011
    ...condition. Rather, they rely on several decisions involving the attractive nuisance doctrine. See, e.g., Fitch v. Selwyn Vill., 234 N.C. 632, 635, 68 S.E.2d 255, 257 (1951). The attractive nuisance doctrine raises the standard of care owed to trespassing children relative to that owed to no......
  • Udy v. Calvary Corp., No. 1
    • United States
    • Court of Appeals of Arizona
    • August 17, 1989
    ...aff'd, 214 Ga. 187, 104 S.E.2d 83 (1958) (steep ravine at edge of leased premises was open and obvious); Fitch v. Selwyn Village, Inc., 234 N.C. 632, 68 S.E.2d 255 (1951) (duty to guard and warn children was parents'); Roberson v. City of Kinston, 261 N.C. 135, 134 S.E.2d 193 (1964) (follow......
  • Wiles v. Metzger, Nos. 89-165
    • United States
    • Supreme Court of Nebraska
    • August 23, 1991
    ...v. Curran Const. Co., 151 Mont. 468, 443 P.2d 894 (1968) (cave-in of a ditch used for waterline construction); Fitch v. Selwyn Village, 234 N.C. 632, 68 S.E.2d 255 (1951) (drowning in a deep creek adjacent to a residential development); and Anderson v. Reith-Riley Const. Co., 112 Ind.App. 1......
  • Request a trial to view additional results

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