McCormick v. Williams

• Decision Date: 12 December 1964
• Docket Number: No. 43838,43838
• Citation: 194 Kan. 81,397 P.2d 392
• Parties: Cloyde D. McCORMICK and Jessie McCormick, Appellants, v. Marvin D. WILLIAMS and Donna F. Williams, Appellees.
• Court: Kansas Supreme Court

Page 392

397 P.2d 392

194 Kan. 81

Cloyde D. McCORMICK and Jessie McCormick, Appellants, v. Marvin D. WILLIAMS and Donna F. Williams, Appellees.

No. 43838.

Supreme Court of Kansas.

Dec. 12, 1964.

Rehearing Denied Jan. 29, 1965.

Syllabus by the Court

In an action to recover for the drowning of a child in a swimming pool, based on the attractive nuisance doctrine, the record is examined and it is held the trial court did not err in sustaining a demurrer to plaintiffs' evidence.

Russell Cranmer, Wichita, argued the cause, and Gerald L. Michaud and M. William Syrios, Wichita, with him on the briefs for appellants.

Donald R. Newkirk, Wichita, argued the cause, and Wayne Coulson, Paul R. Kitch, Dale M. Stucky, Gerrit H. Wormhoudt, Philip Kassebaum, John E. Rees, Robert T. Cornwell, Willard B. Thompson, David W. Buxton and Hugo T. Wedell, Wichita, of counsel, with him on the briefs for appellees.

HATCHER, Commissioner.

This is an appeal from an order sustaining a demurrer to plaintiffs' evidence in an action for the wrongful death of a child based on the attractive nuisance doctrine.

No issue is presented by the pleadings, and there is no conflict in the facts as disclosed by plaintiffs' evidence.

The defendants lived at 712 South Terrace Drive, Wichita, Kansas. Their back yard was enclosed with a whith picket fence about two and a half feet to three feet high. When opened, the gate into the back yard was pulled shut with a spring where it was caught by a strong latch. In the rear of the back yard was a swimming pool. The swimming pool was of the usual modern type and had a fence around it about six feet high.

At the time of the incident under consideration the gate into the swimming pool was open. There was a diving board at the east end of the pool. The water was about six feet deep and was covered with a layer of snow and rotten ice. Bushes and evergreens obscured the view to the swimming pool from the gate into the back yard and from the street or sidewalk along the back yard. The pool was visible over the fence at the south side of the house.

In May, 1960, the plaintiffs moved into a house at 745 South Terrace Drive, Wichita Kansas, a few houses down and across the street from the defendants.

The plaintiffs had a son Lloyd Charles, six and a half years old. A few days before the unfortunate occurrence he came home and asked his mother if she knew that Jill had a swimming pool. His mother answered that she did but he was not to go near it. Jill was the daughter of the defendant and was in the same school room as the plaintiffs' child.

On February 8, 1961, Lloyd Charles got out of school at 3:30 o'clock p. m. He got home between 3:30 o'clock p. m. and 3:40 o'clock p. m. He ate a piece of apple pie and went outside and built a snowman in the front yard. He came back in the house and was in from 4:30 to 5:00 o'clock p. m., at which time he went back outside. He was wearing his O.D. coat with the hood, gloves, jeans and his daddy's overshoes. His mother checked on him a little after 5:30 o'clock p. m. Later, she went out to call him in but couldn't find him.

The police were called and an extended search was made for the child. Tracks were found leading through the gate of defendants' back yard to the swimming pool, through the gate into the swimming pool and to the diving board. The ice was broken under the end of the diving board and an investigation disclosed the body of the child at the bottom of the pool.

The plaintiffs' evidence disclosed facts substantially as presented. The trial court sustained a demurrer thereto and plaintiffs have appealed.

The sole question presented for review is whether the evidence tends to establish any liability on the part of the defendants under the attractive nuisance doctrine. We are forced to conclude that it does not.

As a direct approach to the question involved, it may be suggested that this court has squarely held that a swimming pool does not belong in the same class with instrumentalities regarded as attractive nuisances, and that the question of attractive nuisance is entirely eliminated in this state from cases where the injury or death occurs at or in a modern swimming pool.

In Gilliland v. City of Topeka, 124 Kan. 726, 262 P. 493, we held as a matter of law:

'A swimming pool in a public park of a city, constructed of concrete and equipped with the usual swimming-pool accessories, is not a nuisance, although attractive to children.' (Syl.)

Again in Swan v. Riverside Bathing Beach Co., 132 Kan. 61, 294 P. 902, we repeated:

'The rule announced and stated in Gorman v. City of Rosedale, 118 Kan. 20, 234 P. 53, and Gilliland v. City of Topeka, 124 Kan. 726, 262 P. 493, followed to the effect that a swimming pool constructed and equipped in the usual modern manner is not a nuisance, although attractive to children.' (Syl. 1.)

The rule applicable to swimming pools is no doubt influenced by the general rule that liability under the attractive nuisance doctrine must be based upon latent, not patent, dangers. (McGaughey v. Haines, 189 Kan. 453, 458, 370...