Mozier v. Parsons, No. 71,816

• Court: United States State Supreme Court of Kansas
• Writing for the Court: HOLMES
• Citation: 887 P.2d 692,256 Kan. 769
• Docket Number: No. 71,816
• Decision Date: 04 January 1995
• Parties: John O. MOZIER, Jr., and Nancy G. Mozier, Plaintiffs, v. Charles PARSONS and Brenda Parsons, Defendants.

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887 P.2d 692 256 Kan. 769 John O. MOZIER, Jr., and Nancy G. Mozier, Plaintiffs,
v.
Charles PARSONS and Brenda Parsons, Defendants. No. 71,816. Supreme Court of Kansas. Jan. 4, 1995.

Syllabus by the Court

1. Elements of the attractive nuisance theory of recovery are stated and considered.

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2. Generally, swimming pools, whether public or private, do not constitute an attractive nuisance and are not subject to the attractive nuisance doctrine, although we do not rule out the remote possibility that there could be a highly unusual and aggravated factual situation that might support consideration of the attractive nuisance doctrine for injuries sustained in a swimming pool.

3. A swimming pool, public or private, does not belong in the same class with instrumentalities and places regarded as attractive nuisances.

Mark C. Owens, of Bennett, Lytle, Wetzler, Martin & Pishny, L.C., of Prairie Village, argued the cause, and Peter A. Martin, Redstone, CO, was with him on the briefs for plaintiffs.

Zackery E. Reynolds, of Fort Scott, argued the cause and was on the brief for defendants.

HOLMES, Chief Justice:

This case is before the court on a question certified by the United States District Court for the District of Kansas pursuant to the Uniform Certification of Questions of Law Act, K.S.A. 60-3201 et seq.

United States District Judge G.T. Van Bebber has certified to this court the following question:

"In a negligence action involving injury to a child, can the attractive nuisance doctrine be used to establish liability when the injury occurred in a residential swimming pool" 852 F.Supp. 925.

The relevant facts of this case have been outlined in the certifying court's Memorandum and Order as follows:

[256 Kan. 770] "On April 21, 1991, the Moziers were social guests at the home of defendants Charles and Brenda Parsons. The Parsons had completed installation of a swimming pool on their property just two weeks earlier. Those present had been swimming in the pool during the afternoon and then returned to the house for supper. Some time after supper Emily left the house. She was later found floating in the pool. She was not breathing and had no heart beat. Resuscitation efforts at the pool side and the hospital served only to restore breathing with the aid of a respirator. Heart beat was restored after emergency treatment at the hospital. Emily never regained consciousness, but did blink her eyes and make some slight movement. She died two days later.

"Emily was a generally well-behaved 3 1/2 year old girl who listened to her parents and other adults. On the day of the accident, Emily was told by her parents and Brenda Parsons not to go near the pool without an adult. Emily was old enough to understand what that meant. Emily's parents were present at the Parsons' home at all times that day with Emily, and had not specifically entrusted the supervision of Emily to the Parsons. At the same time, both families informally shared responsibility for supervising each other's children.

"The Parsons' home is located on a 60 acre tract in rural Bourbon County, just outside of Fort Scott, Kansas. The nearest house is approximately a quarter of a mile away, and their pool is shielded from public view by the house. The Parsons did not install a fence or any other safety devices at the time their pool was completed. The doors leading from the house to the pool area had latches that were out of Emily's reach, but they were not locked or latched at the time of the accident. There had been no injuries at the pool prior to this accident.

"Prior to installing the pool, the Parsons discussed the desirability of a fence as a safety measure with Kendall Baumann, the pool salesman and installer. The Parsons ultimately decided against installing a fence because of the cost, the fact that there were no neighbors nearby, and information that they had received indicating that a fence was not required by their insurer. Baumann supplied the pool, but Charles Parsons acted as owner-contractor. Baumann also described other safety devices such as door locks and alarms which would alert residents when someone left the house. Baumann furnished the

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Parsons with safety pamphlets which contained information regarding the propensity of children to be attracted to pools. The Parsons finally did install a fence in 1993 after the birth of their youngest child, at a cost of $800.00."

The plaintiffs filed both a wrongful death and a survival action against defendants, seeking recovery for the injury and death suffered by their three-and-one-half-year-old daughter. The two actions were consolidated by the trial court. The defendants moved for summary judgment, arguing in part that plaintiffs could not establish willful or wanton negligence on their part as required in cases involving negligent injury to licensees. The plaintiffs responded,[256 Kan. 771] asserting the evidence was sufficient to require that the "attractive nuisance doctrine" question be submitted to the jury, thus raising the standard of care owed by the defendants to one of reasonable care. The district court agreed and denied defendants' motion for summary judgment. Upon defendants' subsequent motion, the district court agreed to certify the question of law before us for consideration.

Before turning to the certified question, review of certain basic principles and background relevant to our discussion is deemed advisable. On numerous occasions this court has set forth the applicable duty of care owed by an occupier of land to persons entering thereon. In Gerchberg v. Loney, 223 Kan. 446, 448-49, 576 P.2d 593 (1978), the court summarized those duties as follows:

"Under the present law of Kansas a trespasser is one who enters on the premises of another without any right, lawful authority, or an express or implied invitation or license. The possessor of premises on which a trespasser intrudes owes a trespasser the duty to refrain from wilfully, wantonly, or recklessly injuring him. [Citations omitted.]

"A licensee is one who enters or remains on the premises of another by virtue of either the express or implied consent of the possessor of the premises, or by operation of law, so that he is not a trespasser thereon. The possessor of premises on which a licensee intrudes owes a licensee the duty to refrain from wilfully or wantonly injuring him. [Citations omitted.] ...

"Under the law in this jurisdiction a social guest has the status of a licensee and his host owes him only the duty to refrain from wilfully, intentionally, or recklessly injuring him. [Citations omitted.]

"An invitee is one who enters or remains on the premises of another at the express or implied invitation of the possessor of the premises for the benefit of the inviter, or for the mutual benefit and advantage of both inviter and invitee. The possessor of premises on which an invitee enters owes a higher degree of care, that of reasonable or ordinary care for the invitee's safety. This duty is active and positive. It includes a duty to protect and warn an invitee against any danger that may be reasonably anticipated."

In the recent decision of Jones v. Hansen, 254 Kan. 499, 867 P.2d 303 (1994), this court abolished the distinction between invitees and licensees, and held that the duty owed by an occupier of land to both categories of plaintiffs is one of reasonable care under all the circumstances. However, the change in law is to be [256 Kan. 772] applied prospectively from the date of the decision and thus does not apply to the facts of this case, which took place in 1991.

In refusing to grant defendants' motion for summary judgment, the district court concluded that sufficient evidence was present to submit the case to a jury on the theory of attractive nuisance. In asserting that the attractive nuisance theory did not apply, the defendants proposed two principal arguments. First, they maintained that the theory was limited to trespassers only, and as the decedent was an invited guest or licensee and not a trespasser, the theory was not applicable. Next, defendants contended that Kansas courts have held that a residential swimming pool is never an attractive nuisance. Specifically, defendants relied upon this court's ruling in McCormick v. Williams, 194 Kan. 81, 397 P.2d 392 (1964), where the court determined that a residential swimming pool was not an attractive nuisance under the facts of the case. In dismissing defendant's first argument, the district court cited to one

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case where this court held that the attractive nuisance theory was applicable when the injured child was a licensee and not a trespasser. See Gerchberg v. Loney, 223 Kan. 446, 576 P.2d 593. The district court also concluded that the language in McCormick regarding swimming pools, relied upon by the defendants here, was "dicta" and "would not be followed by Kansas courts today."

In Gerchberg, we stated the elements of the attractive nuisance theory as follows:

"A possessor of land is subject to liability for bodily harm to children intruding thereon caused by some condition that he maintains on the premises if:

"(1) the possessor knows, or...