Lockridge v. Standard Oil Co., Ind., 18440

Citation114 N.E.2d 807,124 Ind.App. 257
Decision Date15 October 1953
Docket NumberNo. 18440,18440
PartiesLOCKRIDGE v. STANDARD OIL CO., Inc. (INDIANA).
CourtCourt of Appeals of Indiana

Byron E. Bamber, Hammond, for appellant.

Richard P. Tinkham, John F. Beckman, Tinkham, Beckman & Kelly, Hammond, for appellee.

KENDALL, Chief Judge.

Appellant brought this action to recover damages for the wrongful death of appellant's son, William Arthur Lockridge, eight years of age, by reason of drowning in a pond of water on appellee's land.

The amended complaint alleged in substance that on June 16, 1945, and prior thereto, appellee owned and controlled certain lands in Whiting, Indiana, lying between two public streets, or highways that the appellee maintained an excavation in close proximity to one of the streets, and that the bottom of said excavation was uneven, had drop-offs and holes seven to eight feet in depth; that the excavation was filled with water and that appellee kept, or harbored, a small raft in the pool; that the pool with the floating raft were visible from one of the streets and that children frequented said pool and were accustomed to wading and swimming therein and playing on the raft; that appellee had knowledge thereof and that the same constituted an attractive nuisance; that appellant's son was so attracted to the pool, and, while playing with the raft, fell into the water and drowned.

It is further alleged that the child went to the pool in question without knowledge of appellant who was at the time in the armed services; that the appellee company negligently failed to take any precaution to guard or warn children of the danger and further negatives any contributory negligence on the part of the child alleging that the child was too young to apprehend the danger which was alleged in the complaint.

Appellee company filed a demurrer to the amended complaint attaching memorandum in support thereof substantially as follows: (a) The appellee owed no duty to the child except not to injure him wilfully; (b) A child eight years of age is presumed to know and appreciate that the pool described in appellant's complaint is a danger which is obvious and common to nature, and (c) The pool of water described in the complaint does not constitute an attraction to children within the 'attractive nuisance' doctrine under the law of Indiana.

The demurrer was sustained by the court after which appellant refused to plead over and judgment was rendered against appellant and that the appellee company recover its costs.

The appellant assigns as error the court's ruling in sustaining appellee's demurrer to the amended complaint. The sole question, therefore, presented to this court is the correctness of the ruling of the trial court.

It is to be noted that the pond, or pool of water, involved in this litigation is the same and identical pool or pond which the Supreme Court in the case of Plotzki v. Standard Oil Co., 1950, 228 Ind. 518, 92 N.E.2d 632, 643, held did not constitute an 'attractive nuisance' and, therefore, the Plotzki boy, age eleven years, at the time he was drowned therein was a trespasser to whom Standard Oil Company owed no duty except to avoid wilfully injuring him. The appellant, however, contends that the Plotzki case, supra, is not controlling here because of two distinguishable circumstances. First, they allege that the appellee harbored a floating raft on the pool which was not present when the Plotzki boy lost his life, and, second, the appellant's decedent was a boy eight years old when he was drowned while the Plotzki boy was three years older and possessed greater knowledge of the dangers involved and a mature judgment concerning them.

The complaint in the Plotzki case, supra, and the present case both contained allegations of negligence that there were sharp drop-offs and holes in the bottom of the pool; that the water in the pool was not clear and could not be seem by children therein.

It is admitted that the pool was in open view from the street upon which the raft is alleged to have been. No allegation is made in the amended complaint that there was any hidden or latent defect to the raft or that said raft was in itself inherently dangerous. Appellant merely alleges that the raft was kept and harbored by the appellee upon the body of water in question. Regardless of the raft when the boy went into the body of water there was one danger and that was the danger of drowning. This type of danger was obvious and well known to a boy of this age. It generally is well known to children of tender years, equally well to adults, that going into such a body of water constituted a danger that is ever-present in any type of water be it a pond, lake, river, reservoir or open stream. To successfully come within the exception of the general rule, we believe the rule to be that the danger must be hidden or it must be a latent danger or the conditions or instrumentality must be inherently dangerous in itself. We see no reason how the raft in open view in a body of water which is visible was more inherently dangerous than the stepladder in the case of Neal v. Home Builders, Inc., Ind.Supp., 1953, 111 N.E.2d 280, 285; or the log bridge in Indianapolis Water Co. v. Harold, 1908, 170 Ind. 170, 83 N.E. 993.

The weight of authority is to the effect that the 'attractive nuisance' doctrine does not apply to conditions either natural or artificial which are common to nature, the dangers of which are obvious and known to children. Stendal v. Boyd, 1898, 73 Minn. 53, 75 N.W. 735, 42 L.R.A. 288; Thompson v. Illinois Central Railroad Co., 1913, 105 Miss. 636, 63 So. 185, 47 L.R.A., N.S., 1101; Peters v. Bowman, 1896, 115 Cal. 345, 47 P. 113, 598.

This rule is also announced in the case of Anderson v. Reith-Riley Const. Co., 1942, 112 Ind.App. 170, 44 N.E.2d 184, and cited with approval in the case of Plotzki v. Standard Oil Co., supra.

The general rule is that the turntable, or 'attractive nuisance' doctrine does not apply to a pond unless there is some unusual condition or artificial feature other than the mere water and its location rendering the place peculiarly dangerous to children. The doctrine does not apply to objects attractive and dangerous to children unless the danger is unknown, concealed or hidden. McKenna v. City of Shreveport, 1931, 16 La.App. 234, 133 So. 524. Appellant does not claim that the raft was unknown in the instant case, neither does he claim that there were any latent defects in the raft. In the absence thereof, we believe the general rule to be, based upon sufficient authority, that a raft such as mentioned and described in the amended complaint, and especially in view of the Plotzki case, supra, by which we are bound, does not constitute such an added danger as to come within the exception to the general rule.

In view of the allegation of negligence in the amended complaint, as presented to us, we must assume that the element of danger that did exist, if any, was not latent, but on the contrary was obvious. McKenna v. City of Shreveport, supra. To render the owner liable the structure or condition maintained or permitted on his property must be peculiarly or unusually attractive to children. The injured child must have been attracted by such condition or structure. The owner must know, or the facts be such as to charge the owner with knowledge, of the condition and that children are likely to trespass and be injured. The structure or condition must be dangerous and of such a character that the danger is not apparent to immature minds. Bass v. Quinn-Robbins Co., Idaho, 1950, 216 P.2d 944; 36 A.L.R. 224-237; Erickson v. Minneapolis, St. Paul, S. S. M. R. Co., 165 Minn. 106, 205 N.W. 889, 45 A.L.R. 973-993; 45 C.J. 763-767; See, also, 65 C.J.S., Negligence, § 29.

In the case of Bass v. Quinn-Robbins, supra, , the court said:

'A pool or pond is not an 'attractive nuisance,' such as to render the owner liable for the drowning of a child, where the dangers inherent in it are open and apparent, and there is no hidden, concealed or unusual danger or trap.' (See cases cited therein.)

Under the allegations of negligence of the amended complaint and in view of the Plotzki case, supra, as well as the decision of many other jurisdictions, we do not believe that the raft in itself constituted an open and apparent danger to said child in addition to the water or that there was any hidden, concealed or unusual danger about it or that said raft constituted a trap.

The fact that a raft or other object floats on a body of water such as the one in question does not change the general rule except where the float may conceal an otherwise apparent risk, and this we do not have in the present case Reardon v. Spring Valley Water Co., 1924, 68 Cal.App. 13, 228 P. 406; Rallo v. Heman Construction Co., 1921, 291 Mo. 221, 236 S.W. 632; Bass v. Quinn-Robbins, supra.

The character of the danger as open and obvious or hidden and latent is of prime importance in this case. The doctrine of attractive nuisance is limited in its application to cases where the danger is latent and affords no basis for recovery where the injury complained of was produced by peril of an obvious or patent character. The owner or occupant is entitled to assume that the parents, guardians or those in control thereof will have warned said children to avoid such peril as complained of here. 36 A.L.R. 224.

In the case of Peters v. Bowman, supra [115 Cal. 345, 47 P. 114], the court said:

'A body of water--either standing, as in ponds and lakes; or running, as in rivers and creeks; or ebbing and flowing, as on the shores of seas and bays--is a natural object, incident to all countries which are not deserts. Such a body of water may be found in or close to nearly every city or town in the land; the danger of drowning in it is an apparent open danger, the knowledge of which is common to all; and there is no just view, consistent with recognized rights of...

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