King v. Lennen

• Decision Date: 31 December 1959
• Citation: 1 Cal.Rptr. 665,53 Cal.2d 340,348 P.2d 98
• Court: California Supreme Court
• Parties: , 348 P.2d 98 John Laurence KING et al., Appellants, v. Donald E. LENNEN et al., Respondents. L. A. 25591

Page 665

1 Cal.Rptr. 665

53 Cal.2d 340, 348 P.2d 98

John Laurence KING et al., Appellants, v. Donald E. LENNEN et al., Respondents.

L. A. 25591.

Supreme Court of California

Dec. 31, 1959.

Hirson & Horn and George Zucker, Los Angeles, for appellants.

Belcher, Kearney & Fargo, Belcher, Henzie & Fargo and Lester E. Olson, Los Angeles, for respondents.

GIBSON, Chief Justice.

Plaintiffs brought this action for damages for the wrongful death of their son, Boyd, who drowned in defendants' swimming pool. A general demurrer to the complaint was sustained without leave to amend, and plaintiffs have appealed from the ensuing judgment.

The allegations of the complaint may be summarized as follows: Defendants' property was located on the northwest corner of an intersection, and they maintained an artificial swimming pool on the premises about 30 feet from one of the streets. Along that street defendants had partially constructed a concrete block wall with an opening four feet wide directly opposite the pool, and facing the other street was a wood rail fence with openings through which children could readily enter. Defendants permitted their cow, two dogs, and three horses to roam freely near the pool. The animals and the pool could be seen by children of tender years who regularly used the streets adjacent to defendants' premises, and, as defendants knew or should have known, such children, attracted by what they saw, habitually entered the premises and played with the animals and in and about the pool. The water in the pool was three and one-half feet deep at the shallow end and nine feet at the deep end. It was dirty and opaque, and its depth could not be ascertained by looking into it. A sharp drop divided the shallow from the deep water, there were no steps, ladders, rails, or other fixtures to assist a person in the pool to hold on or to climb out, and the walls and bottom of the pool were lined with a slippery plastic material. Boyd, who was one and one-half years old, lived with his parents on the southeast corner of the intersection diagonally across from defendants. During the five months immediately preceding the accident, defendants' teen-age daughter had been employed as a baby sitter by plaintiffs for compensation, and in order to entertain Boyd on these occasions, as defendants knew or should have known, their daughter would bring him to their home and permit him to play with the animals near the pool, with the result that he became attracted to the animals and the pool. Due to the frequency of the babysitting arrangement the relationship was a continuing one, and, by reason of the relationship, Boyd on the date of his death was on the premises at the express invitation of defendants. No adults were present between 6 a. m. and 6 p. m. on weekdays, including the day when at approximately 11 a. m. Boyd's body was found at the bottom of the pool. The pool constituted a dangerous condition and an unreasonable risk of bodily harm to children of tender years, who could not reasonably be expected to realize or appreciate the danger, and Boyd was attracted to the pool without knowledge of the danger. The usefulness of maintaining the pool was slight as compared with the risk involved, and reasonable safeguards could have been provided at small cost.

The rule set forth in section 339 of the Restatement of Torts has been adopted as the law of this state with respect to the liability of a possessor of land for the death of or injury to a child trespasser. Garcia v. Soogian, 52 Cal.2d 107, 338 P.2d 433, 435; Courtell v. McEachen, 51 Cal.2d 448, 457, 334 P.2d 870; Reynolds v. Willson, 51 Cal.2d 94, 103, 331 P.2d 48. The section reads: 'A possessor of land is subject to liability for bodily harm to young children trespassing thereon caused by a structure or other artificial condition which he maintains upon the land, if (a) the place where the condition is maintained is one upon which the possessor knows or should know that such children are likely to trespass, and (b) the condition is one of which the possessor knows or should know and which he realizes or should realize as involving an unreasonable risk of death or serious bodily harm to such children, and (c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling in it or in coming within the area made dangerous by it, and (d) the utility to the possessor of maintaining the condition is slight as compared to the risk to young children involved therein.'

As we explained in Garcia v. Soogian, 52 Cal.2d 107, 338 P.2d 433, 435, the question of liability must be decided in the light of all the circumstances and not by arbitrarily placing cases in rigid categories on the basis of the type of condition involved. We also pointed out in that case (52 Cal.2d at page 111, 338 P.2d at pages 435, 436 (that the circumstance that a condition giving rise to injury is common in character does not necessarily exclude liability, that the ability to appreciate danger varies with the age and mental capacity of the child, and that what is important is not whether conditions are common in character but whether their dangers are fully understood by children. In Courtell v. McEachen, 51 Cal.2d 448, 458, 334 P.2d 870, we held that a young trespassing child who was injured by a common condition, namely, fire or embers, might recover under the law applicable to trespassing children and that it was for the trier of fact to determine whether the child was injured by a risk not obvious to her. While a child is more likely to be aware of a dangerous condition which is common than of one which is unusual (see Garcia v. Soogian, 52 Cal.2d at page 111, 338 P.2d at page 435), it seems obvious that the common nature of a danger, such as that of drowning in a pool, should not bar relief if the child is too young to realize the danger. Even very young children cannot always be kept under the supervision of their parents, and the question whether a parent in a wrongful death case was guilty of contributory negligence in permitting his young child to play unattended near the defendant's property will ordinarily be for the trief of fact.

A number of cases decided before Garcia v. Soogian, supra, 52 Cal.2d 107, 338 P.2d 433 and Courtell v. McEachen, supra, 51 Cal.2d 448, 334 P.2d 870, reasoned that the 'attractive nuisance' doctrine does not apply unless the dangerous condition is uncommon and different from natural conditions which exist everywhere and that a body of water, natural or artificial, is a common danger and therefore, as a matter of law, will not subject the possessor to liability for the drowning of a trespassing child, even if that child is too...