Haden v. Hockenberger & Chambers Co.

• Court: Nebraska Supreme Court
• Writing for the Court: Heard before WHITE, C.J. BOSLAUGH and McCOWN, JJ., and LYNCH and BURKE; LYNCH
• Citation: Haden v. Hockenberger & Chambers Co., 228 N.W.2d 883, 193 Neb. 713 (Neb. 1975)
• Decision Date: 08 May 1975
• Docket Number: Nos. 39767,39768,s. 39767
• Parties: Dick F. HADEN, Appellant, v. HOCKENBERGER & CHAMBERS COMPANY, a corporation and Gerald Loeffler, d/b/a Loeffler Construction Company, Appellees. Donald HADEN, through and by his father and next friend, Dick F. Haden, Appellant, v. HOCKENBERGER & CHAMBERS COMPANY, a corporation and Gerald Loeffler, d/b/a Loeffler Construction Company, Appellees.

Page 883

228 N.W.2d 883

193 Neb. 713

Dick F. HADEN, Appellant, v. HOCKENBERGER & CHAMBERS COMPANY, a corporation and Gerald Loeffler, d/b/a Loeffler Construction Company, Appellees.

Donald HADEN, through and by his father and next friend, Dick F. Haden, Appellant, v. HOCKENBERGER & CHAMBERS COMPANY, a corporation and Gerald Loeffler, d/b/a Loeffler Construction Company, Appellees.

Nos. 39767, 39768.

Supreme Court of Nebraska.

May 8, 1975.

Syllabus by the Court

1. A person on the premises of another, without the permission of the owner, who is of sufficient age, mentality, experience, and ability to observe, realize, and avoid a particular danger or peril is an adult trespasser and cannot recover under the special rule pertaining to children.

2. The attractive nuisance doctrine has no application to pools, poonds, or other bodies of water, articial or natural, where there exist no unusual traps or hazards.

3. The attractive nuisance doctrine does not apply to machinery in a static condition unless there is evidence that the machinery is enticing and inherently dangerous to indiscriminating children of tender years.

Robak & Geshell, Columbus, for appellant.

Jewell, Otte, Gatz & Collins, Norfolk, Walker, Luckey, Whitchehead & Sipple, Walter, Albert, Leininger & Grant, Noyes W. Rogers, Columbus, Moyer & Moyer, Madison, for appellees.

Heard before WHITE, C.J. BOSLAUGH and McCOWN, JJ., and LYNCH and BURKE, District Judges.

LYNCH, District Judge.

Dick Haden and his son Donald filed separate actions against the defendants for damages resulting when Donald dived from a parked drag line into an artificial lake.

The defendants filed separate motions for summary judgment in each case which were submitted to the trial court on the pleadings and depositions of Donald Haden, his companion, Donal Geis, and president of defendant Hockenberger & Chambers Company, Willis M. Ferguson. The motions were sustained, the plaintiffs appealed, and the cases were consolidated fro presentation to this court.

The facts which are clear and uncontroverted are as follows: Hockenberger & Chambers Company owned a development area which included a lake. Gerald Loeffler, doing business as Loeffler Construction Company, had a drag line parked adjacent to the lake. At the time of the accident Donald Haden was 16 years, 9 months old, a senior in high school, who participated in track, was active in the Civil Air Patrol, worked and managed his own money, drove the family automobile, and was considered of average intelligence. On September 17, 1972, Donald and Donal Geis went to the lake, waded in the water, checked its depth, and climbed to the cab of the drag line from where Donald plunged head first into the water, suffering severe injuries. The two had been swimming in the lake several times during the summer, there were no foreign objects on the lake's sandy bottom, it was not practical to fence the area, 'No Trespassing' and Keep Out' signs had been posted, and Mr. Ferguson had received a request to fence the lake. Donald and his companion were trespassers.

The plaintiffs contend that the pond and drag line, individually and together, constituted an attractive nuisance, and that the defendants were negligent in failing to anticipate that children would be attracted to dive from the drag line into the lake and in failing to warn and to adopt adequate safety precautions.

The defendants denied that the attractive nuisance doctrine applied in these cases, alleged that the sole proximate cause of the accident was the negligence of the plaintiff, Donald Haden, and contended further that the only duty owed to him as a trespasser was to refrain from willful or wanton negligence.

The plaintiffs correctly argue that this court has adopted the variously referred to 'attractive nuisance,' 'turntable,' 'infant trespasser,' or 'special rule' doctrine as enunciated in Restatement, Torts 2d, § 339, Artificial Conditions Highly Dangerous to Trespassing Children. See ...