Kempen v. Green Bay & Mississippi Canal Co.
| Decision Date | 20 December 1974 |
| Docket Number | No. 337,337 |
| Citation | 224 N.W.2d 202,66 Wis.2d 185 |
| Parties | Leo L. KEMPEN et al., Respondent, v. GREEN BAY & MISSISSIPPI CANAL CO., et al., Appellants. |
| Court | Wisconsin Supreme Court |
H. R. Klueter, Wausau, for appellants.
Patterson, Froehlich, Jensen & Wylie, Appleton, for respondent; John G. Wylie, Appleton, of counsel.
In overruling defendants' demurrer, the trial court determined that the plaintiffs' complaint adequately stated a cause of action in negligence 1 under the attractive-nuisance theory which permits a child of tender years to recover under certain circumstances whether or not such child is a trespasser. 2 In this state the required elements for such attractive-nuisance cause of action are five in number, with a complaint in an action brought under the attractivenuisance doctrine, required to allege:
Two points are raised by defendants in contending that the complaint here does not allege all of the five necessary elements for a cause of action for attractive nuisance. The first claim is that this complaint fails to allege that the canal company realized or should have realized that its structure or artificial condition was inherently dangerous to children and involved an unreasonable risk of serious bodily injury or death to them, as required by element (3) of the fivefold test. The trial court held that: '. . . Paragraphs 7 and 9 of the complaint can, with liberal construction, be read to allege such an element.' Additionally, on appeal, plaintiffs argue that the allegation in the complaint that the canal company 'maintained, or allowed to exist' a spillway or canal overflow which was inherently dangerous to children and that it 'knew and/or should have known' that children trespassed or were likely to trespass upon its premises adds support to the trial court conclusion on the first of two challenges. We uphold the trial court holding on this point. While there is no specific allegation that the canal company realized or should have realized that the artificial condition maintained or allowed to exist by it was inherently dangerous, we find it a reasonable inference from all of the allegations of the complaint that it at least should have realized that the artificial condition allowed to exist was inherently dangerous to children.
The second challenge to the sufficiency of the complaint is that it '. . . entirely fails to describe the spillway or canal overflow nor does it provide any basis for the plaintiffs' conclusion that the spillway or overflow was inherently dangerous to children. . . .' The complaint does stop at alleging only that the defendant maintained a spillway or canal overflow which 'was inherently dangerous to children being upon the premises.' In the Schilz Case, this court specifically held an allegation that an artificial condition maintained was 'inherently dangerous to children' to be '. . . a conclusion, not admitted by demurrer. . . .' 4 There a trial court order overruling a demurrer was reversed with the trial court not precluded from allowing the plaintiff to plead over '. . . if she is able to allege additional facts which, consistent with this opinion show an inherently dangerous condition.' 5
The basic reason for requiring more than an allegation of 'inherently dangerous to children' is spelled out in Schilz. There the complaint alleged that a collection of large pipes in an accessible area was "of a dangerous character with respect to children . . .." 6 The court acknowledged that from the complaint it could be inferred that the pipes were sufficiently close together so that a child '. . . might step or jump from one to another and think it fun to do so, . . .' 7 but added, '. . . The risk involved in doing so was simple and obvious. . . .' 8 It noted that in the complaint there was '. . . no suggestion of any surprising danger, such as instability of the pipes, or unusual slipperiness.' 9 It found the general rule to be that '. . . a child is bound to appreciate a simple and obvious danger of falling from an object or structure, but is not bound to appreciate a danger presented or exaggerated by a defect in the structure or other peculiar circumstance, which is hidden from the child or which a child would fail to appreciate because of his immaturity.' Holding the allegation, 'inherently dangerous' to be demurrably insufficient, the court concluded that '. . . as a matter of law plaintiff must be held to knowledge and appreciation of the obvious risk of falling from the pipes even though the complaint alleged she was unaware of it.' 10 With a spillway or canal overflow, as with a collection of large-sized pipes, more than the conclusion 'inherently dangerous' must be alleged to withstand demurrer.
The same test on demurrer was applied in the Mazurkiewicz Case, 11 and the same result reached. That case involved a water ski jump on a public lake. The complaint alleged that ". . . the said structure, which structure was dangerous by its nature, at a location which said defendant knew or should have known was used as a recreational area by children, and . . . was attractive to children." 12 The court noted that there were no allegations '. . . of hidden dangers, moving parts, or defective parts. . . .' 13 It restated the rule in Schilz that a child ". . . is bound to appreciate a simple and obvious danger, . . ." 14 and held, at the demurrer stage, that the complaint failed to state a cause of action since '. . . as a matter of law plaintiff must be held to knowledge and appreciation of the obvious result of falling from the ski jump.' 15
More recently, in the Kastenson Case, 16 this court applied the same test and rule in finding that '. . . an allegation that plywood sheets leaning against a plow, as described in the complaint, were inherently dangerous to children is a conclusion, not admitted by demurrer . . ..' 17 There the necessary allegations were in the complaint, but the court upheld the appellant's contention that '. . . even if the facts alleged are taken as true, the placement of plywood sheets against a plow in an open space does not result in an...
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