Lovin v. Town of Hamlet

• Decision Date: 13 January 1956
• Docket Number: No. 453,453
• Citation: 90 S.E.2d 760,243 N.C. 399
• Court: North Carolina Supreme Court
• Parties: John V. LOVIN, Administrator of the Estate of Donald Charles Lovin, Deceased v. The TOWN OF HAMLET.

Page 760

90 S.E.2d 760

243 N.C. 399

John V. LOVIN, Administrator of the Estate of Donald Charles Lovin, Deceased v. The TOWN OF HAMLET.

No. 453

Supreme Court of North Carolina.

Jan. 13, 1956

Z. V. Morgan, Hamlet, for defendant-appellant.

Pittman & Webb, Rockingham, for plaintiff-appellee.

BARNHILL, Chief Justice.

In considering the complaint to determine whether it states a cause of action, a distinction must be drawn between the construction and maintenance of the park as such and the construction and maintenance of the lake. The attractive nuisance doctrine has no application to the maintenance of the park. It is maintained for the amusement, entertainment, and recreation of children of the defendant town, and such children are at least impliedly invited to visit the park and to make use of the swings, slides, wading pool and playground. Furthermore, there is no allegation that plaintiff's intestate lost his life through the use of any of the instrumentalities constructed and maintained for the entertainment of children.

A person has the right to maintain an unenclosed pond or pool on his premises. It is not an act of negligence to do so. Hedgepath v. City of Durham, 223 N.C. 822, 28 S.E.2d 503; Barlow v. Gurney, 224 N.C. 223, 29 S.E.2d 681, and cases cited; Fitch v. Selwyn Village, 234 N.C. 632, 68 S.E.2d 255; Stribbling v. Lamm, 239 N.C. 529, 80 S.E.2d 270.

The case in which the attractive nuisance doctrine was formulated and applied involved a turntable. Sioux City & P. R. Co. v. Stout, 17 Wall. 657, 84 U.S. 657, 21 L.Ed. 745. Hence the cases dealing with attractive nuisances have come to be known as the turntable cases. Ordinarily liability under this doctrine, which was adopted for the protection of infants of tender years, is established by proof that children were in fact attracted by the instrumentality or condition which caused injury or death and that such children had been attracted to such instrumentality or condition to such an extent and over such a period of time that any person of ordinary prudence would have foreseen that injury or death was likely to result. Barlow v. Gurney, supra.

When the complaint is considered in the light of the principles enunciated in the turntable cases, it is singularly defective in two respects: (1) There is no allegation as to where, how, or under what conditions plaintiff's intestate fell into the lake. Certainly he did not wade in water eight feet deep. His body must have been drawn to the place where it was located by the suction of the water flowing through the spillway. (2) While the plaintiff alleges with some elaboration that (a) the agents and officials of the defendant knew, or by the exercise of ordinary care should have known, that the natural curiosity of children would lead them into the deep water of said lake at said dam and thereby cause said children to be drowned, and (b) said children would be hurt or drowned by falling into or wading into the deep water of the lake, there is no supporting allegation of fact that children were accustomed to wade in the lake or to play in the lake from the banks thereof or to play along the...