Mazurkiewicz v. Pawinski

• Decision Date: 04 October 1966
• Citation: 145 N.W.2d 186,32 Wis.2d 211
• Parties: Judith MAZURKIEWICZ, a minor, by Wm. E. McCarty, her gdn. ad litem et al., Plaintiffs-Respondents, v. Edward C. PAWINSKI, Defendant-Appellant, Jeffrey Palmerscheim et al., Defendants-Respondents.
• Court: Wisconsin Supreme Court

Page 186

145 N.W.2d 186

32 Wis.2d 211

Judith MAZURKIEWICZ, a minor, by Wm. E. McCarty, her gdn. ad

litem et al., Plaintiffs-Respondents, v. Edward C. PAWINSKI, Defendant-Appellant, Jeffrey Palmerscheim et al., Defendants-Respondents.

Supreme Court of Wisconsin.

Oct. 4, 1966.

Prosser, Zimmermann & Wiedabach, Milwaukee, for appellant.

Krawczyk & Duginski, Milwaukee, for plaintiffs-respondents.

HANLEY, Justice.

Appellant contends the complaint does not allege sufficient facts to state a cause of action upon the attractive nuisance theory which permits a child of tender years to recovery under certain circumstances whether or not she is a trespasser. The attractive nuisance doctrine is grounded in negligence. ¹ It was applied in Angelier v. Red Star Yeast & Products Company ² decided in Wisconsin in 1934.

In Schilz v. Walter Kassuba, Inc. (1965) 27 Wis.2d 390, 134 N.W.2d 453, the court reiterated the elements of an attractive nuisance cause of action as follows:

"(1) '* * * that the former maintained, or allowed to exist, upon his hand, an artifical condition which was inherently dangerous to children being upon his premises.' * * *

"(2) '* * * that he knew or should have known that children trespassed or were likely to trespass upon his premises.' * * *

"(3) '* * * that he realized or should have realized that the structure erected or the artificial condition maintained by him was inherently dangerous to children and involved an unreasonable risk of serious bodily injury or death to them.' * * *

"(4) '* * * that the injured child, because of his youth or tender age, did not discover the condition or realize the risk involved in going within the area, or in playing in close proximity to the inherently dangerous condition.' * * *

"(5) '* * * that safeguards could reasonably have been provided which would have obviated the inherent danger without materially interfering with the purpose for which the artificial condition was maintained.' * * *"

The complaint does not allege the elements (4) and (5) above set forth requiring an allegation that the plaintiff minor, because of her youth or tender age did not discover the condition or realize the result involved and an allegation that safeguards could reasonably have been provided to obviate the inherent danger without materially interfering with the purpose of the condition created. Therefore the complaint does not state a cause of action based upon the theory of attractive nuisance.

The issue appears to be whether the water ski jump located in an accessible area can be deemed inherently dangerous to children even if alleged to be so. The complaint merely describes the structure as being elevated at one end and sloping to the water level at the opposite side. There are no allegations of hidden dangers, moving parts, or defective parts. We infer from the complaint that children used the water ski jump for sliding and jumping into the water. The result involved in doing so was simple and obvious, and we have said the term 'inherently dangerous' which we use in this context means as 'highly dangerous' or 'per se dangerous' used elsewhere. ³

We have pointed out that: '(t)he question whether a condition is inherently dangerous to children involves the question whether the danger is such as would be obvious to children.' ⁴

In a comment to the rule as set forth in the Restatement it is said:

'The duty * * * does not extend to those conditions the existence of which is obvious even to children and the risk of which is fully realized by them. * * *' ⁵

We have stated:

'* * * It appears generally to be the rule that a child is bound to appreciate a simple and obvious danger of falling from an object or structure, but is not bound to appreciate a danger presented or exaggerated by a defect in the structure or other peculiar circumstance which is hidden from the child or which a child would fail to appreciate because of his immaturity.' ⁶

A water ski jump resting on the ground in a public park was held not to be inherently dangerous to children:

'Here we have an object that was constructed appropriately to serve its function. To equip it with 'guards' or 'rails to keep children from sliding off the sides,' * * * would seriously impair if not completely destroy its usefulness as a water ski jump. The only risk attendant upon its use as a slide when thus resting upon the ground was perfectly obvious, the hazard of falling off the upper end or ever (sic) either side. No sign warning of this hazard would be necessary for any adult nor for most children, even children of tender years. * * * There was involved no hidden risk, no element of entrapment, no moving machinery to impose upon defendant a duty toward plaintiff to install guard rails, post warning signs or take other precautions for plaintiff's protection should he choose to use this ski jump as a slide.' ⁷

It appears the minor plaintiff needed no such warning. She had previously to the fall requested the defendant, Jeffrey Palmerscheim, to remove his boat from its position tied to the structure.

Appellant further contends the complaint does not state a cause of action for nuisance because it does not allege facts that the alleged nuisance had a causal connection with the accident.

The complaint merely alleges on this point that the water ski jump was erected and maintained without authority to do so from the Wisconsin public service commission and that the commission refused to grant approval to maintain said structure on Big Muskego lake. The complaint does not allege that the structure was a public nuisance. However, respondent contends and the trial court agreed that under the following statutory provisions the structure was a public nuisance.

Sec. 30.12, Stats., provides as follows:

'30.12 Structures and deposits in navigable waters prohibited; exceptions; penalty. (1) General Prohibition. Unless a permit has been granted by the public service commission pursuant to statute or the legislature has otherwise authorized structures or deposits in navigable waters, it is unlawful:

'(a) To deposit any material or to place any structure upon the bed of any navigable water where no bulkhead line has been established; or

'(b) To deposit any material or to place any structure upon the bed of any navigable water beyond a lawfully established bulkhead line.

'(2) Permits to Place Structures or Deposits in Navigable Waters. (a) The public service commission may, upon application and after notice and hearing, grant to any riparian owner a permit to build or maintain for his own use a structure otherwise prohibited by statute, provided such structure does not materially obstruct navigation or reduce the effective flood flow capacity of a stream and is not detrimental to the public interest.

'(b) A riparian owner may place a layer of sand or other similar material on the bed of a lake adjacent to his property for the purpose of improving recreational use upon obtaining approval as stated in this paragraph. An application for approval to put sand or other similar material on the bed of a lake for such purpose shall be made to the public service commission. Thereupon the commission shall notify the conservation director of such application, and the latter shall cause an inspection to be made of such proposal and of the location involved and shall report in writing to the public service commission whether the proposal will materially impair navigation or be inconsistent with the public interest. Thereafter the public service commission may disapprove such application in the event it finds the proposed work will materially impair navigation or be detrimental to the public interest. If the commission does not disapprove within 10 days after receipt of the report of the conservation director, approval is deemed granted. The applicant shall be notified by mail as to the manner of disposition of his application.

'(3) Penalty. Any person violating this section or any term or condition of a permit issued pursuant thereto shall be fined not more than $1,000 or imprisoned not more than 6 months or both.'

Sec. 30.15, Stats., provides as follows:

'30.15 Penalty for unlawful obstruction of navigable waters. (1) Obstructions Penalized. Any person who does any of the following shall forfeit not more than $50 for each offense:

'(a) Unlawfully obstructs any navigable waters and thereby impairs the free navigation thereof.

'(b) Unlawfully places in navigable waters or in any tributary thereof any substance that may float into and obstruct any such waters or impede their free navigation.

'(c) Constructs or maintains in navigable waters, or aids in the construction or maintenance therein, of any boom not authorized by law.

'(d) Constructs or places any structure or deposits any material in navigable waters in violation of s. 30.12 or 30.13.

'(2) Exceptions. Subsection (1) does not apply to the floating or movement of logs or timber in navigable waters, or the necessary use of temporary booms in the course of such floating or movement or the cutting of weeds in such waters with the consent of the conservation commission.

'(3) Each Day a Separate Violation. Each day during which an obstruction exists in violation of sub. (1) is a separate offense.

(4) Obstructions are Public Nuisances. Every obstruction constructed or maintained in or over any navigable waters of this state in violation of this chapter and every violation of s. 30.12 or 30.13 is declared to be a public nuisance, and the construction thereof may be enjoined and the maintenance thereof may be abated by action at the suit of the state or any citizen thereof.'

The intent of...