Lohrenz v. Lane, 64618

Citation787 P.2d 1274
Decision Date27 February 1990
Docket NumberNo. 64618,64618
PartiesMichael R. LOHRENZ and Regina "Jeannie" Lohrenz, individually and as parents and next friends of Justin Michael Lohrenz, Appellants, v. Richard Ray LANE, L.J. Flippin and Ted Fry, Appellees.
CourtSupreme Court of Oklahoma

Appeal from the District Court of Tulsa County; Jane P. Wiseman, Trial Judge.

Two year old son of Appellants received profound injuries stemming from oxygen deprivation after falling in pond on Appellee Lane's property. Appellants sought to recover damages from Lane on theory that pond constituted an attractive nuisance. Trial court granted summary judgment in favor of Lane, finding that on facts stated by parties, Appellants had no cause of action against Lane. Appellants are challenging that ruling.

AFFIRMED.

Briggs, Patterson, Eaton & Berg by Dale J. Briggs, Tulsa, for appellants.

Gibbon, Gladd & Associates by Richard D. Gibbon and Thomas E. Baker, Tulsa, for appellees.

LAVENDER, Justice:

During the early part of 1982 Appellants (Lohrenzes) moved into a trailer house on a small lot in a rural area near Broken Arrow, Oklahoma. In April of the same year Appellee Lane acquired a fifteen acre tract of land to the south of and adjoining the property rented by Appellants. On the northwest corner of the Lane property there was a low-lying area containing a spring. In June, 1982, Appellee Lane hired a contractor to improve upon the low-lying area by clearing out debris and constructing an enlarged earthen dam. The resulting pond was located about one hundred fifty feet from Appellants' trailer house. The pond was used for watering purposes by the horses and ducks which Appellee Lane kept on his fifteen acres.

Late on the afternoon of October 31, 1982, Appellants returned to their home after eating at a local cafeteria. Appellant Jeannie Lohrenz and her eleven year old sister went into the house while Appellant Michael Lohrenz remained in the yard. Two year old Justin Lohrenz was last noticed following his mother and aunt up the stairs to the entrance of the trailer house. After it became apparent that Justin had not come into the trailer house, a search was initiated to find him. Justin was found floating in two feet of water in the above described pond. He survived, but suffered profound injuries as a result of oxygen deprivation from the near drowning.

Appellants initiated the present action against Appellee Lane, and also named as defendants their own landlord and the contractor who constructed the pond on Appellee Lane's property. Appellants sought the recovery of damages stemming from Justin's injuries from these named defendants on negligence theories. We are concerned here only with the trial court's ruling granting summary judgment in favor of Appellee Lane. The trial court found that, under the facts presented, no cause of action existed as to Lane. 1 On appeal, "... this Court will uphold a ruling sustaining a Motion for Summary Judgment if the facts before the trial court present no genuine issues of material fact." 2

It is apparent upon review of the materials presented to this court, that the controversy in the present case centered over whether the pond on Lane's property constituted an attractive nuisance. The trial court, relying on prior precedent from this Court, 3 ruled that no cause of action existed as against Appellee Lane. This ruling followed the holdings of the cited cases in that a pond, such as in question here, does not, as a matter of law, constitute an attractive nuisance in the absence of any inherent hidden danger. On appeal, Appellants argue that this Court should now abandon existing precedent in order to find that a cause of action exists against Appellee Lane.

I.

Appellants' first argument urges this Court to abandon its adherence to the common law principles governing the duty owed by a landowner to one coming on his property. Oklahoma has followed the common law rule that the duty is less to one on the property without permission, express or implied, then to one lawfully on the property. These distinctions were most recently expressed in Sutherland v. Saint Francis Hospital, Inc., 4 and in Woodis v. Oklahoma Gas and Electric Co. 5 As noted in Sutherland, the common law status classifications which determine the degree of care due from the landowner have received statutory recognition. 6

Appellants would have this Court adopt the position taken by the Supreme Court of California in Rowland v. Christian, 7 in which that court abandoned the classification concept of invitee, licensee and trespasser as determinative of a landowner's duty. Rowland held that the "proper" test is to decide whether an owner, in the management of his property, has acted as a reasonable man would in view of the probability of injury to others. While status may have a factual bearing on liability, it is not determinative of the duty owed. 8 Appellant argues that this is the modern view and that to follow the common law would be to maintain an "ancient and archaic citadel of class privilege" which is out of step with current trends of Tort Law.

We would first note that, during the time period since Rowland, several states 9 have followed California's lead in totally abandoning status classifications. However, in contrast, a number of courts which have more recently considered the issue, have expressed continued adherence to the common law principles of duty based on status as a proper balance between the rights of a landowner and those of the general public. 10 Still other jurisdictions have abandoned such distinctions only as between those rightfully on the landowners property, while retaining the status classification of trespasser as evoking a lower level of duty on the part of the landowner. 11

There is no reason to consider, as Appellants urge, the abolition of the distinctions drawn between the status of those lawfully on the land of another, since our consideration of such a holding would not avail Appellants of any relief in this case. The materials presented to the trial court clearly establish that the child was on Appellee Lane's property against Lane's wishes and without an implied invitation, and therefore, was a trespasser. 12

Human nature being what it is, our natural tendency is to want to help ease the suffering of this small child and his parents. However, our classification principles have evolved over many years as a means of weighing the individual rights of a property owner against the rights of the public at large. As judges, we are accountable for interpreting the law according to precedent and sound public policy. We are not afforded the luxury of indulging in sympathetic tendencies at another's expense. At this time, we do not find support to depart from the common law principles governing the duty owed by a landowner to one upon his property without express or implied permission.

II.

The second argument presented by Appellants is to urge this Court to reverse the position taken in the cases cited to the trial court 13 and to find that a pond could be an attractive nuisance. In Oklahoma, this doctrine of attractive nuisance requires a balancing of the interest of society in children, against the inherent right of a landowner or proprietor in the enjoyment of his property. 14 While the defendants would generally be under no duty to trespassers, other than to avoid willfully, wantonly or intentionally harming them, the attractive nuisance doctrine provides an exception to this rule. When children of tender age are injured as a result of their trespass, bringing them into contact with a dangerous condition on the premises, the attractive nuisance doctrine imposes a higher duty of care by the landowner. 15 Listed in Knowles v. Tripledee Drilling Co., Inc., are factors to be considered in determining whether this doctrine applies. 16 Generally, such issues must be submitted to a jury.

However, the key to the present case is that no question exists as to whether the doctrine applies since, by law it does not. "A pond of water, whether natural or artificial, is not an "attractive nuisance" i[n] absence of any hidden, inherent dangers." 17 No evidence of any hidden danger was presented to the trial court.

Appellants ask us to now overrule existing precedent and hold that a pond falls under the attractive nuisance doctrine. We find no support for this. While it is reasonable to impose on landowners a higher duty of care if the doctrine applies in order to achieve a reasonable balance between competing societal interests, it is not reasonable to impose on a landowner the burden of eliminating all possible sources of injury which may exist on his property. We decline today, to impose such a burden on landowners.

Appellants also argue that the cases apparently relied upon by the trial court are no longer viable because the California case, 18 cited as the source in many of those cases for the rule of law that a natural appearing pond could not be an attractive nuisance, has been specifically overruled by a later California case. 19 We find this argument unpersuasive. We adhere instead to cases from Oklahoma and elsewhere which have held the doctrine of attractive nuisance does not apply to a pond or other body of water having natural characteristics and no hidden dangers. 20

We also find no merit to Appellants assertion that certain building codes adopted in Wagoner County, where the accident occurred, which require the fencing of swimming pools, should be read to impose a duty to fence any analogous body of water. A clear distinction can be drawn between the dangers of a steep-sided swimming pool, normally associated and in close conjunction with a residence, and a pond such as involved in the present case, located in a rural area and serving as a water source for livestock.

III.

Appellants' final argument is that there exists evidence of wanton conduct on the part of Appellee Lane...

To continue reading

Request your trial
15 cases
  • Little by Little v. Bell
    • United States
    • Mississippi Supreme Court
    • August 6, 1998
    ...App.3d 846, 600 N.E.2d 1088, 1093 (1991); Markle v. Hacienda Mexican Restaurant, 570 N.E.2d 969, 976 (Ind.Ct.App.1991); Lohrenz v. Lane, 787 P.2d 1274, 1276 (Okla.1990); Kirschner v. Louisville Gas & Elec., 743 S.W.2d 840, 844 (Ky.1988) ("[W]e reject [the] assertion that we should abolish t......
  • Death of Lofton v. Green
    • United States
    • Oklahoma Supreme Court
    • October 17, 1995
    ...Spillers, 199 Okla. 311, 185 P.2d 465 (1947). Also more recently we held a rural stock pond was not an attractive nuisance, Lohrenz v. Lang, 787 P.2d 1274 (Okla.1990). Because of these two decisions, the trial court in this case refused to allow the question of whether the Greens' pool was ......
  • Nelson v. Freeland
    • United States
    • North Carolina Supreme Court
    • December 31, 1998
    ...Caroff v. Liberty Lumber Co., 146 N.J.Super. 353, 369 A.2d 983, certif. denied, 74 N.J. 266, 377 A.2d 671 (1977); Lohrenz v. Lane, 787 P.2d 1274 (Okla.1990). ...
  • Salt River Valley Water Users' Ass'n v. Superior Court, In and For County of Maricopa
    • United States
    • Arizona Court of Appeals
    • October 21, 1993
    ...there is in or about the artificial stream some peculiar danger, in the nature of a hidden peril or trap for the unwary); Lohrenz v. Lane, 787 P.2d 1274 (Okla.1990); Pratt v. Mitchell Hollow Irrigation Co., 813 P.2d 1169 (Utah 1991); Ochampaugh v. City of Seattle, 91 Wash.2d 514, 588 P.2d 1......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT