Mullins v. Pannell

Decision Date21 September 1972
Docket Number8 Div. 491
Citation266 So.2d 862,289 Ala. 252
CourtAlabama Supreme Court
PartiesCharles L. MILLINS, a minor of the age of 12 years, who sues by his father and next friend Dallas J. Mullins v. M. H. PANNELL.

Ronald P. Thompson, Albertville, for appellant.

Camp, Page, Williams & Spurrier, Huntsville, for appellee.

PER CURIAM.

This is an appeal from the rulings of the trial court in sustaining defendant's demurrers to the one count of the original complaint, and to the several counts added thereto by amendment. Plaintiff below, appellant here, took a nonsuit based upon such adverse rulings, and assigns as error the adverse rulings of the court in sustaining defendant's demurrers, and has appealed as authorized by statute. Tit. 7, § 819, Code 1940.

There are four assignments of error, all relating to the same rulings. Both sides have submitted their briefs and arguments in bulk, and we will so consider them as a unit.

This is a personal injury action by Charles L. Mullins, a minor 12 years of age, who sues by his father and next friend, Dallas J. Mullins, against M. H. Pannell, seeking to recover damages for injuries which he alleges he suffered on to-wit: June 11, 1969, while on the premises of defendant, under the so-called 'turntable,' or 'attractive nuisance' cases. The complaint originally contained only one count in simple negligence. Defendant's demurrer thereto being sustained, plaintiff amended by adding Counts II, III, and IV, and by later adding Count V. All counts are in simple negligence. Defendant's demurrers, assigned separately and severally to each count as last amended, were sustained. There is no effort to analyze each count and point out wherein the same was sufficient as against the demurrer interposed, and we will not attempt to do so since all of the counts are based upon the same attractive nuisance theory, and the allegations are substantially the same.

Plaintiff alleges in substance that he was attracted to defendant's premises by a tree with low limbs, some of which were dead and very weak; that the tree was habitually played in and around by children; that defendant had allowed debris to gather around and lay on the ground under and around said tree; that a dog house and some scraps of lumber or planks or boards were also about and under said tree, all of which combined together constituted an obvious danger, or an attractive nuisance, to the children who played in and around said tree, or who climbed into the tree, with the knowledge and permission of defendant; and plaintiff avers that he was attracted to and did play in and around said tree, and that while climbing said tree, a dead limb thereon, on which plaintiff was standing, broke and plaintiff was caused to fall, landing on a portion of the debris, planks, or boards lying under said tree, resulting in the injuries and damages for which he sues. Plaintiff charges defendant with negligence in maintaining, allowing, or permitting such an attractive nuisance to exist on his premises, whereby plaintiff suffered his injuries and damages as a proximate result of defendant's said negligence.

Plaintiff argues strenuously his right to recover under the attractive nuisance doctrine that one who knowingly allows or permits an attractive nuisance on his premises where children are likely to come in contact therewith, and where such contact may be dangerous, has a duty to use such care as the circumstances may require to protect others from harm or injury from such dangerous instrumentality; and that the attractive nuisance doctrine may be implied from the nature of the place, its accessibility, use and alluring qualities calculated to attract children of immature judgment and lack of appreciation of danger.

Defendant contends that the plaintiff was a trespasser, and that the property owner owes no duty to a trespasser except not to willfully or intentionally harm or inflict injury upon him. Plaintiff was a licensee at most under Count V and a trespasser under the averments in the other counts. It is a well...

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17 cases
  • Skelton By and Through Roden v. Twin County Rural Elec. Ass'n, 90-CA-0523
    • United States
    • Mississippi Supreme Court
    • December 31, 1992
    ...the trees) cannot be the basis for imposition of liability based upon the attractive nuisance doctrine." See also Mullins v. Pannell, 289 Ala. 252, 266 So.2d 862 (1972); Salter v. Deweese-Gammill Lumber Co., 137 Miss. 229, 240, 102 So. 268, 270 (1924) (alleged nuisance must be unusually all......
  • Laster v. Norfolk Southern Ry. Co., Inc.
    • United States
    • Alabama Supreme Court
    • January 16, 2009
    ...by any action of the defendants, but, instead, was a natural condition of the land." 553 So.2d at 102. Also, in Mullins v. Pannell, 289 Ala. 252, 255, 266 So.2d 862, 864 (1972), this Court held that "[n]atural objects, such as a tree, are not regarded as constituting an attractive nuisance.......
  • Foster v. Alabama Power Co.
    • United States
    • Alabama Supreme Court
    • February 20, 1981
    ...the duty owed by a landowner depends on the status of the injured party in relation to the defendant's land. See Mullins v. Pannell, 289 Ala. 252, 266 So.2d 862 (1972); Autrey v. Roebuck Park Baptist Church, 285 Ala. 76, 229 So.2d 469 (1969). If the injured party is determined to have been ......
  • Cassel v. Price
    • United States
    • Florida District Court of Appeals
    • April 7, 1981
    ...dismissal of a complaint was affirmed in an Alabama case involving facts somewhat similar to those presented here, Mullins v. Pannell, 289 Ala. 252, 266 So.2d 862 (1972). In that case it was alleged that children played in and around the tree, and climbed the tree, with the knowledge and pe......
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