Limberhand v. Big Ditch Co.

• Citation: 218 Mont. 132,706 P.2d 491,42 St.Rep. 1460
• Decision Date: 26 September 1985
• Docket Number: No. 84-418,84-418
• Parties: Connie LIMBERHAND, Individually, and as Personal Representative of the Estate of Jaylon Limberhand, Deceased Minor, Plaintiff and Appellant, v. BIG DITCH COMPANY; City of Billings; Ken Nicholson and Allen Nicholson, each individually and d/b/a Apple Creek Property Management, Inc., Defendants and Respondents.
• Court: Montana Supreme Court

Page 491

706 P.2d 491

218 Mont. 132

Connie LIMBERHAND, Individually, and as Personal Representative of the Estate of Jaylon Limberhand Deceased Minor, Plaintiff and Appellant, v. BIG DITCH COMPANY; City of Billings; Ken Nicholson and Allen Nicholson, each individually and d/b/a Apple Creek Property Management, Inc. Defendants and Respondents.

No. 84-418.

Supreme Court of Montana.

Submitted May 2, 1985.

Decided Sept. 26, 1985.

Moses Law Firm; Paul M. Warren, argued, Billings, for plaintiff and appellant.

Crowley, Haughey, Hanson, Toole & Dietrich, Don Harris, argued, Billings, for Big Ditch Co.

Keefer, Roybal, Hanson, Stacey & Jarussi, J. Dwaine Roybal, argued, Billings, for City of Billings.

Jardine, Stephenson, Blewett & Weaver, Lon T. Holden, argued, Great Falls, for Nicholson.

Ted J. Doney, Helena, for Mont. Water Development Ass'n, amicus curiae.

SHEEHY, Justice.

Appellant, Connie Limberhand, brought this action in the District Court, Thirteenth Judicial District, Yellowstone County, to recover damages for the alleged wrongful death of her 18-month-old son, Jaylon, who drowned in an irrigation ditch.

The irrigation ditch was a lateral from the main channel of the Big Ditch which was constructed early in this century by the Minnesota and Montana Land Improvement Company and subsequently acquired by the Big Ditch Company, which currently owns and operates the ditch and laterals. Big Ditch Company owns the right-of-way where the ditches flow but it does not own the adjacent land. This particular lateral originates west of the City of Billings and ends at Nina Clare Street, approximately one mile within the Billings city limits. Water from the ditch system, including the lateral, is used to irrigate agricultural and other lands.

Apple Creek Apartments, an apartment complex owned and managed by Ken and Allen Nicholson, who do business under the various corporate names appearing above, are located on lands which border the irrigation ditch where Jaylon Limberhand drowned on June 27, 1981. It appears from the record here, though not clearly (unfortunately, all the parties here have failed adequately to develop the applicable facts, and some of the facts herein stated are gleaned from their briefs), that Apple Creek Apartments are located west of Rehberg Lane and west of a daycare center, which also abuts the irrigation ditch, and which is completely fenced. A fence separates the Apple Creek Apartments on the south side from other residential property. Apple Creek Apartments consists of two buildings, one larger than the other and between the buildings and extending northward from one of them toward the ditch is a paved parking lot which abuts the ditch easement, perhaps within 30 feet of the irrigation ditch.

As admitted by the Nicholsons, on the day of the accident, Connie Limberhand and her young son were guests of certain tenants residing at the Apple Creek Apartments. Jaylon Limberhand apparently wandered away from his mother, left the apartment where they were visiting, crossed the parking lot which separates the apartment complex from the ditch, and slipped or fell into the ditch. Jaylon survived for 1 day in the hospital.

Plaintiff predicates liability as to the City of Billings on the grounds that the City, in the enforcement of its ordinances, failed to declare the open irrigation ditch here a public nuisance and to order the ditch closed or other protective measures taken by Big Ditch Company to prevent drowning accidents.

Each of the named defendants moved the court for a summary judgment in their respective favors, and the District Court granted summary judgments as to all of the defendants.

Connie Limberhand appeals to this Court from each summary judgment against her. She poses the following issues on appeal:

1. With respect to Big Ditch Company the District Court erred in holding that:

(a) Connie Limberhand had not met the elements of attractive nuisance as a basis of liability against Big Ditch.

(b) Connie Limberhand did not state a cause of action in negligence against Big Ditch.

(c) The City Ordinances place no additional duty or burden upon Big Ditch Company.

2. With respect to the City of Billings, Connie Limberhand argues the District Court erred in holding that the City of Billings was under no duty to act and declare the irrigation ditch a nuisance and require implementation of protective devices.

3. With respect to defendants Nicholsons, Connie Limberhand argues the District Court erred in holding that adjacent landowners owed no duty to the decedent to protect in anyway against drowning accidents on lands adjacent to the Nicholsons' land holdings.

We affirm the summary judgment granted by the District Court in favor of the City of Billings. We reverse the summary judgments entered in favor of Big Ditch Company and the Nicholsons, and remand to the District Court for further proceedings in accord with this opinion.

I. Big Ditch Company

A. Attractive Nuisance

The doctrine of attractive nuisance is recognized in Montana and we have recognized the Restatement (Second) of Torts Sec. 339 as setting forth the elements necessary to establish an attractive nuisance. Big Man v. State (Mont.1981), 626 P.2d 235, 240, 38 St.Rep. 362, 368; Gagnier v. Curran Construction Company (1968), 151 Mont. 468, 473, 474, 443 P.2d 894, 897, 898; Driscoll v. Clark (1905), 32 Mont. 172, 80 P. 1. Whether the doctrine of attractive nuisance should be applied to drowning incidents in irrigation ditches has not been clearly stated by us.

It is true that in Fusselman v. Yellowstone Valley Land and Irrigation Co. (1917), 53 Mont. 254, 163 P. 473, this Court made reference to the elements of attractive nuisance in sustaining a directed verdict by the District Court against a plaintiff seeking damages for the drowning death in an irrigation ditch in Livingston of a three-year-old girl. In 1917, this Court was of the opinion that in a pleading for injuries received upon the defendant's property, the complaint must disclose by what right the injured party was upon the premises. In Fusselman, we held that because of the failure of the plaintiff to allege that the decedent was attracted to the canal or that by reason of its peculiar attractiveness, she went upon the canal and met her death, the complaint failed to state a cause of action under the doctrine of the turntable cases.

In the case before us, Connie Limberhand contends that the doctrine of attractive nuisance is applicable as to the Big Ditch Company and that she meets here the elements of attractive nuisance as set forth in Restatement (Second) of Torts, Sec. 339. Big Ditch apparently accepts the applicability of the attractive nuisance doctrine to this case, but contends the elements are not met.

A problem exists with respect to the automatic application of the attractive nuisance doctrine to ordinary irrigation ditches. While such irrigation ditches are artificially constructed, for the most part they have natural characteristics, and there may be little to distinguish them from the numerous streams, rivers and creeks that occur naturally in Montana, and flow in many instances through towns, villages and cities. The attractive nuisance doctrine is not quite applicable to such artificial bodies of water; otherwise it could be contended that a landowner through whose property a natural stream flows is in reality maintaining an attractive nuisance.

It is because courts have failed to recognize the distinction between bodies of water having natural characteristics and other artificial bodies such as swimming pools, sewage treatment plants and the like, that there appears to be a disparity in the holdings of courts with respect to drowning incidents in artificial bodies of water. For example, the rule announced in Fusselman, that there must be an implied invitation to a child to come upon the owner's land in order to hold the owner liable is not the law of this state today. There are, however, cases in this State and others from which a proper rule can be drawn.

Troglia v. Butte Superior Mining Company (9th Cir.1921), 270 F. 75, was a case involving an eleven-year-old boy who drowned while swimming in a pond on the premises of the defendant mining company. The pond had been constructed to furnish water to a mill, and was formed by damming a small stream. The pond was 100 feet long and 75 feet wide and from 1 to 12 feet deep. It was not enclosed. There were notices posted around it which said "no trespassing," "private property," "10 feet deep," and "keep away." Nonetheless, boys swam there in summer as a matter of practice. This particular decedent was strong, in the seventh grade and able to read. After two hours of swimming in the pond, he apparently got cramps and drowned. The mining company had an attendant for a pump nearby.

In Troglia, the Court of Appeals stated:

The degree of care required of one who maintains on his land an artificial pool for a useful purpose is not greater than that required of one through whose land flows a natural stream, and he is bound to no special care or precaution for the protection of children who are in the habit of swimming in the same, unless there is in the pool some peculiar danger, in the nature of a hidden peril or trap for the unwary, of which he has or ought to have knowledge.

270 F. at 76.

It is noteworthy that Troglia was decided in 1921 before the decision in Erie v. Tompkins (1938), 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, but nevertheless, Troglia spoke a rule applicable to a Montana decedent.

In a recent case before the Ninth Circuit, Harmon v. Billings Bench Water Users Association (9th Cir.1985), 765 F.2d 1464, the Court of Appeals reversed a summary judgment in favor of the ditch company granted by the federal district court in a drowning case in Montana. The Court of Appeals in Harmon accepted as settled that the attractive nuisance doctrine was applicable to irrigation...