Maher v. City of Casper

• Decision Date: 06 June 1950
• Docket Number: Nos. 2457,2458,s. 2457
• Citation: 219 P.2d 125,67 Wyo. 268
• Parties: MAHER, v. CITY OF CASPER. GRIFFIN, v. CITY OF CASPER.
• Court: Wyoming Supreme Court

Page 125

219 P.2d 125

67 Wyo. 268

MAHER, v. CITY OF CASPER.

GRIFFIN, v. CITY OF CASPER.

Nos. 2457, 2458.

Supreme Court of Wyoming.

June 6, 1950.

John J. McIntyre, Casper, for appellants.

William H. Brown, Jr., Casper, for respondent.

BLUME, Justice.

The two cases herein, which have been consolidated for hearing, involve the drowning of two boys on the premises hereinafter mentioned on July 3, 1947. The court sustained a demurrer to the second amended petitions herein, and plaintiffs electing to stand upon the pleadings, judgments were entered in favor of the defendant. From these judgments the respective plaintiffs have appealed.

The facts in the two cases herein are identical, inasmuch as the boys were drowned at the same time and in the same place, and were companions. The second amended petitions allege the appointment of the respective plaintiffs as administrators of the deceased boys, and that the defendant is a city of the first class. Further allegations are as follows:

'3. On or about the 10th day of August, 1931, the defendant became the owner in fee simple of the real estate described as Lot 1 and Lot 2 (less a 5.69 acre tract in the northwest corner of said lot), in Section 3, Township 33 North, Range 79 West; also the S 1/2 SW 1/4 SE 1/4 of Section 34, Township 34 North, Range 79 West, 6th P.M., by purchase and under a warranty deed from the Wyoming National Bank of Casper, Trustee. Ever since that time it has owned and does now own such real estate.

'4. Said real estate is adjacent to but outside the corporate limits of the City of Casper, and during all the time that it has been owned by said city it has been open to the Casper public and used for various purposes by citizens and residents of Casper. Its use during that time has been principally as a playground for children and as a recreation ground for adults. It has also been used, during that time, as a pasture for livestock by private individuals, under a lease or leases from the City of Casper, and the city has derived gain and profit from such leases. In connection with this use, a riding academy was maintained and operated on said land for several years. Residents and citizens of Casper have also, during that time, been permitted to haul from said real estate gravel and building materials for private building and construction purposes. In some cases charges were made by the city for such materials and in some cases no charges were made.

'5. On and about July 3, 1947, said real estate was being used only for a public playground and recreation ground and for the operation of said riding academy. Such uses were constant and continual and with the full knowledge and acquiescence of the City.

'6. During the time said City owned said real estate it has purposely and intentionally devoted it to the uses herein described. At no time has it ever excluded or attempted to exclude children or the public from said property, but instead it has kept and maintained the property as a playground and recreation ground, inviting and permitting its use as such during all the time it has been publicly owned.

'7. Prior to August 10, 1931, private individuals removed gravel from the property herein described, causing and leaving a large excavation or gravel pit thereon. Inside this gravel pit, these individuals did additional digging for gravel from a deeper vein, using a drag line for such deep operations. In so doing they created and caused a steep, perpendicular and very irregular bluff within the pit. Beyond this bluff, they piled a large quantity of discarded and unusable earth. At present the top of this pile of earth is approximately on a level with the top of said bluff and about fifteen or twenty feet away from it. In between is a deep valley or channel the bottom of which is fifteen feet beneath the top of said bluff.

'8. Since these operations, water has filled the bottom of the gravel pit, concealing and hiding said bluff and the valley beneath it. This water also conceals and hides the pile of earth, except for a dead tree stump which extends above the surface of the water. Said water is not clear, and there is no visibility beneath its surface. The portion of the pit above the bluff forms a sandy ledge or shelf, which is now partially covered with water in such a manner as to make a sandy beach. The beach has a water front of about 300 feet, and the water on it is very shallow. The shallowness extends out to said bluff, which is ten to twenty feet from the water's edge. There is then a sudden drop-off at this point from the sandy beach, the water being about two feet deep at the edge of the bluff and about fifteen feet deep at the bottom. The tree stump on the top of the pile of earth and extending out of the water, however, causes a false appearance of shallowness out to it.

'9. Since August 10, 1931, children of Casper and many adults also have habitually and continually used said pit for wading and swimming in the summer months and for skating in the winter months. The defendant has, during all that time, had full knowledge of the fact that said pit was being so used, and it has continually acquiesced in such use.'

It was further alleged that the boys about ten years of age were playmates and neither of them could swim and neither of them knew of the existence of the hazard above mentioned; that they both removed their shoes and stockings and waded and played in the shallow water along said beach and being unaware of the drop in the water, they fell down and were drowned; that other children, as well as adults, were drowned previously in the same place and citizens of Casper had complained to the defendant about the dangerous condition of the pit and requested that it be filled in sufficiently to eliminate dangerous drop-offs; that the cost of filling in the pit would not exceed $75.00, and to fence the pit would not cost to exceed $250.00; that defendant negligently failed to take steps to guard the pit and make it safe from dangers; that the negligence of the defendant was the sold cause of the death of the boys. Damages in each case were asked in the sum of $25,000.

In the original petitions and in the first amended petitions plaintiffs relied upon the doctrine of attractive nuisance, under which, when applicable, children, though trespassers, enjoy the status and protection of invitees. 38 Am.Juris. 806. After issues had been joined the cases came on for trial. The defendant objected to the introduction of any evidence on the ground that the petitions failed to state a cause of action. The court sustained the objection, evidently upon the ground that the attractive nuisance doctrine did not apply to the water hazard herein, thus adopting the prevailing rule stated in 56 Am.Juris. 850, as follows: 'The weight of authority is to the effect that ponds, pools, lakes, streams, reservoirs, and other waters do not constitute attractive nuisances, at least in the absence of any unusual element of danger. The natural and ordinary perils thereof are usually deemed to be obvious to children of the tenderest years, and as a general proposition no liability attaches to the proprietor by reason of injury or death resulting therefrom to children who have come upon the land to bathe, skate, or play.' An annotation on the subject is contained in 8 A.L.R.2d page 1254 to page 1392. And see also annotations in 36 A.L.R. 224, 45 A.L.R. 990, 53 A.L.R. 1355, and 60 A.L.R. 1453.

Leave was given to plaintiffs to amend. Thereupon they filed the second amended petitions which contain no allegations concerning the attraction which the water hazard had for the children involved herein. And counsel for plaintiffs, evidently thinking or hoping that he could escape the effect of the above mentioned prevailing rule states in his brief as follows: 'We have tried to make it clear that we do not plead and we do not intend to try our case on the principle of the turntable or attractive nuisance cases. We hold that our children were invitees * * * and that we need to prove only a lack of ordinary care.'

It is accordingly to be determined as to whether or not the children in question here were in fact actual invitees as claimed. We must first consider the allegations of the second amended petitions herein. While the pleadings should be construed liberally, it must be done reasonably, and we should further bear in mind the rule stated in J. M. Carey & Bro. v. City of Casper, Wyo., 213 P.2d 263, 268, to the effect that: "Omitted facts are to be considered as adverse to the pleader under the general presumption that a party will set forth all the facts favorable to his case. * * *" Examining the second amended petitions, it is somewhat difficult to determine what precisely the actual facts herein are. The area of the land in question is, if we understand it correctly, of the extent of approximately 90 acres, a large body of land outside of the city limits (1/4 of a mile away as stated in the brief of counsel for the defendants). It does not appear where the water hazard was located upon the premises, or that it was near any street or highway or any houses or buildings, or how far the children traveled to reach the pool of water in the gravel pit in question, or whether the land in question was fenced or uninclosed. In Paragraph 6 of the second amended petitions it is alleged that the city devoted the land to uses described in the petitions. The term 'devoted' evidently is a conclusion and must be based upon the remaining allegations. It is not alleged that the land was dedicated as a park, or as a place for amusement and that it was accepted by the city as such, or that the land was ever formally, by due act of the city authorities, set aside as a park or a place of amusement, so that the contrary may be inferred. See White v. Kanawha City Co., 127 W.Va. 566, 34 S.E.2d 17, 20. The petitions fail to show that the land was in anywise improved or that...