Lynch v. Motel Enterprises, Inc., 18574

• Decision Date: 15 November 1966
• Docket Number: No. 18574,18574
• Citation: 248 S.C. 490,151 S.E.2d 435
• Parties: Ruby LYNCH and Franklin Lynch, Co-Administrators of the Estate of Jimmy Ray Lynch, Respondents, v. MOTEL ENTERPRISES, INC., Trading as Holiday Inn of Florence, Appellant.
• Court: South Carolina Supreme Court

Page 435

151 S.E.2d 435

248 S.C. 490

Ruby LYNCH and Franklin Lynch, Co-Administrators of the Estate of Jimmy Ray Lynch, Respondents, v. MOTEL ENTERPRISES, INC., Trading as Holiday Inn of Florence,

Appellant.

No. 18574.

Supreme Court of South Carolina.

Nov. 15, 1966.

C. Weston Houck, of Willcox, Hardee, Houck, Palmer & O'Farrell, Florence, for appellant.

Hyman & Morgan, Dusenbury, Dusenbury & McKenzie, Florence, for respondents.

BRAILSFORD, Justice.

On July 9, 1964, the lifeless body of Jimmy Lynch, a seven year old, mentally defective child, was found in the swimming pool of Holiday Inn of Florence, which was owned and operated by the defendant, Motel Enterprises, Inc. Drowning was the cause of death. This action was brought under Section 10--1951, Code of 1962, for the benefit of the child's surviving parents, and, after the death of the father, was continued for the benefit of the mother. ¹ The defendant appeals from a verdict and judgment in favor of plaintiff for $4,000.00 actual damages and $1,000.00 punitive damages, assigning as error the refusal of its motion for judgment notwithstanding the verdict upon the several grounds on which that motion was based and on which a motion for the direction of a verdict had been made at the trial.

The complaint contained allegations appropriate to the recovery of damages for the death of the child on the theory that the pool was an 'attractive nuisance', and on the alternative theory of recovery for injuries to children in premises liability cases stated in Franks v. Southern Cotton Oil Co., 78 S.C. 10, 58 S.E. 960, 12 L.R.A., N.S., 468, and in subsequent decisions which have recently been applied by this court in Everett v. White, 245 S.C. 331, 140 S.E.2d 582. The answer of the defendant denied the allegations of the complaint charging it with responsibility for the death of the child, and pled that the parents were guilty of contributory negligence and willfulness in failing to exercise proper parental control over the child and in allowing him to 'run loose' on the streets of Florence.

We are committed to the view that the owner or occupier of land may be liable for injuries to children of tender years, whether licensees or trespassers, in either of two situations. We quote from Everett, supra, 245 S.C. 331, 140 S.E.2d 582:

'While the decision in the Franks case, supra, 78 S.C. 10, 58 S.E. 960, is usually regarded as resting upon the attractive nuisance doctrine, the following excerpt from Thompson on Negligence, which states that doctrine and the alternative ground of recovery to which we have referred, was quoted with approval in the opinion:

"'* * * We now come to a class of decisions which hold the landowner liable in damages in the case of children injured by dangerous things suffered to exist unguarded on his premises, where they are accustomed to come with or without license. These decisions proceed on one or the other of two grounds: (1) That where the owner or occupier of grounds Brings or artificially creates something thereon which from its nature is especially Attractive to children, and which at the same time is dangerous to them, he is bound, in the exercise of social duty and the ordinary offices of humanity, to take reasonable pains to see that such dangerous things are so guarded that children will not be injured by coming in contact with them. (2) That although the dangerous thing may not be what is termed an 'attractive nuisance'--that is to say, may not have especial attraction for children by reason of their childish instincts--yet where it is so Left exposed that they are likely to come in contact with it, and where their coming in contact with it is obviously dangerous to them, the person so exposing the dangerous thing should reasonably anticipate the injury that is likely to happen to them, from its being so exposed, and is bound to take reasonable pains to guard it, so as to prevent injury to them."' 245 S.C. 336, 337, 140 S.E.2d 585.

The defendant contends, with strong support in the record, that the action was prosecuted in the lower court solely on the 'attractive nuisance' doctrine. However, the alternative theory of...