Plotzki v. Standard Oil Co. of Ind.

• Decision Date: 02 June 1950
• Docket Number: No. 28638,28638
• Parties: PLOTZKI v. STANDARD OIL CO. OF INDIANA.
• Court: Indiana Supreme Court

Page 632

92 N.E.2d 632

228 Ind. 518

PLOTZKI v. STANDARD OIL CO. OF INDIANA.

No. 28638.

Supreme Court of Indiana.

June 2, 1950.

Daniel F. Kelly, Hammond, Rae M. Royce, Hammond, Bomberger, Morthland & Royce, Hammond, of counsel, for appellant.

Richard, P. Tinkham, Hammond, John F. Beckman, Jr., Hammond, for appellee.

STARR, Judge.

The sold question here presented is the correctness of the ruling of the trial court in sustaining a demurrer to appellant's fifth amended complaint on the ground that the same did not state facts sufficient to constitute a cause of action.

This complaint is in one paragraph and is brought to recover for the wrongful death of Donald William Plotzki, son of the appellant. The complaint alleges that the said Donald William Plotzki died on June 16, 1944, at which time he was eleven years of age. That some time in the year of 1944 the defendant caused to be made an excavation on its real estate located in Hammond, Indiana. That said excavation was made about fifty yards from New York Avenue in said city and was in plain view from the sidewalk on and along the west side of said avenue and became filled with water; that the portion of the said avenue nearest to said excavation is in an area in said city inhabited and frequented by large numbers of children; that the bottom of said pool was unevently excavated in a careless and negligent manner and that at certain places a small boy of the age of said Donald William Plotzki could wade, and at other points there were sharp drop-offs and holes, to-wit: about eight (8) feet in depth, made by the excavation of defendant; that the water in the pool was not clear and that the bottom could not be seen by children wading therein. That on the 16th day of June, 1944, appellant's said son was attracted and went to said pool and that while wading therein stepped into one of said drop-offs and was drowned. That he had no knowledge of the uneven excavation of said pool or the numerous drop-offs and deep holes therein which were permitted to remain therein by defendant, and that he was entrapped by said drop-offs and deep holes and was too young to apprehend the alleged inherent dangers of said pool. That at the time of his death and prior thereto he and other children attracted to said pool were not warned in any manner by this defendant against said inherent dangers in said pool and that the proximate cause of his death was the negligence of the defendant and the breach of duty of the defendant toward children of tender age in maintaining and permitting the existence of said attractive nuisance, and failing to warn the said Donald William Plotzki of the dangers involved in his wading in said pool. Appellant also alleged that at the bottom of the pool and in the deep holes were pieces of foundation, rocks, cans, weeds and other debris but no other facts were alleged showing that this debris had any connection with decedent's death.

The demurrer was sustained on the ground that the facts alleged did not establish that the artificially created pond was an attractive nuisance.

It is our opinion that this demurrer was properly sustained. By the law of Indiana and the overwhelming weight of authority in this country a pond, pool, lake, stream or other body of water does not constitute an attractive nuisance. It was well said by Judge Flanagan in Anderson v. Reith-Reilly Construction, 1942, 112 Ind.App. 170, 44 N.E.2d 184, 185: 'Nature has created streams, lakes and pools which attract children. Lurking in their waters is always the danger of drowning. Against this danger children are early instructed so that they are sufficiently presumed to know the danger that if the owner of private property creates an artificial pool on his own property, merely duplicating the work of nature without adding any new danger, and a child, without invitation, ventures on the private property, enters the pool and is drowned, the owner is not liable because of having created an 'attractive nuisance."

To the same effect see City of Evansville v. Blue, 1937, 212 Ind. 130, 8 N.E.2d 224; Indianapolis Water Co. v. Harold, 1908, 170 Ind. 170, 83 N.E. 993; Wood v. Consumers Co., 1948, 334 Ill.App. 530, 79 N.E.2d 826; Stendal v. Boyd, 1898, 73 Minn. 53, 75 N.W. 735, 42 L.R.A. 288, 72 Am.St.Rep. 597; Thompson v. Illinois Central R. Co., 1913, 105 Miss. 636, 63 So. 185, 47 L.R.A.,N.S., 1101; Peters v. Bowman, 1896, 115 Cal. 345, 47 P. 113, 47 P. 598, 56 Am.St.Rep. 106. This rule applies to a pond created artificially provided that it merely duplicates the work of nature without adding any new dangers. Anderson v. Reith-Reilly Construction, supra; Peters v. Bowman, supra; Phipps v. Mitze, 1947, 116 Colo. 288, 180 P.2d 233.

Appellant takes the position that sharp drops and deep holes in an artificially constructed pool constitute traps and hidden or latent dangers. With this we cannot agree. Such conditions are also found in natural ponds, pools, lakes, streams and other bodies of water, are common to nature and are not foreign to natural ponds, pools, lakes, streams and other bodies of water, and are not considered as traps or hidden dangers. Moran v. Pullman Palace Car Co., 1896, 134 Mo. 641, 36 S.W. 659, 33 L.R.A. 755, 56 Am.St.Rep. 543; Phipps v. Mitze, supra; Fiel v. City of Racine, 1930, 203 Wis. 149, 233 N.W. 611; Washabaugh v. Northern Virginia Construction Co., 1948, 187 Va. 767, 48 S.E.2d 276; McCall v. McCallie, 1933, 48 Ga.App. 99, 171 S.E. 843; Thompson v. Illinois Central R. Co., supra.

Appellant relies strongly upon the case of City of Indianapolis v. Emmelman, 1886, 108 Ind. 530, 9 N.E. 155, 58 Am.Rep. 65, which case is not in point as it involved an excavation in a public street or path or immediately adjacent to it. Under the facts in that case an adult could have recovered for the same injuries. Appellant relies most strongly upon the case of City of Indianapolis v. Williams, 1915, 58 Ind.App. 447, 108 N.E. 387. In our opinion this case was wrongfully decided and is based upon the minority view originally stated in the case of City of Pekin v. McMahon, 1895, 154 Ill. 141, 39 N.E. 484, 27 L.R.A. 206, 45 Am.St.Rep. 114, which case has been many times severely criticized by the courts of other states. See Barnhart v. Chicago, Milwaukee & St. Paul Ry. Co., 1916, 89 Wash. 304, 154 P. 441, L.R.A.1916D, 443; Stendal v. Boyd, supra; Sullivan v. Huidekoper, 1906, 7 A. & E. Ann.Cas. 196, 27 App.Cas. (D.C.) 154; Fiel v. City of Racine, supra; Peters v. Bowman, supra (in opinion on rehearing). The other cases relied upon by the appellant are not cases involving ponds or other bodies of water and are based upon the attractive nuisance doctrine as we understand the same.

For the reasons herein stated the judgment of the trial court is affirmed.

EMMERT, C. J., and GILKISON, J., dissent.

EMMERT, Chief Justice (dissenting).

Courts, in declaring the common law, of necessity lag behind the collective sentiment and judgment of the people in the establishment of duties, rights and remedies. This delay is desirable from the standpoint of the stability of the law. ¹ But when a decision and the reasoning to sustain it retrogresses to the laissez faire philosophy of the Industrial Revolution, an appeal by way of dissent should be made 'to the brooding spirit of the law, to the intelligence of a future day.' Hughes, The Supreme Court of the United States (1947 Edition) p. 68.

It will not be necessary to make an extended examination of the cases, since my brother Gilkison has given exhaustive review of the authorities and the history of the doctrine of attractive nuisance. Before the anomalous dicta in Anderson v. Reith-Riley Const. Co., 1942, 112 Ind.App. 170, 44 N.E.2d 184, and the ubiquitous reasoning in City of Evansville v. Blue, 1937, 212 Ind. 130, 8 N.E.2d 224, there was no doubt that Indiana clearly permitted recovery on the doctrine. Until the decision in this appeal, the latest precedent was Borinstein et al. v. Hansbrough, 1948, Ind.App., 82 N.E.2d 226. We denied transfer in this case, not on any defective petition to transfer, but on the merits. I am unable to perceive any material difference in the force generated by a pile of junk in the Borinstein case, and a pile of sand in the Anderson case, although the sand caused death while the junk only caused a crushed ankle. The result in the City of Evansville case was correct, since the city swimming pool was guarded by two lifeguards who were not shown to be guilty of any negligence, and there was no evidence to establish how long the decedent 'was under the water, or when, or how, he was drowned.' 212 Ind. at page 143, 8 N.E.2d at page 229. But the error in the City of Evansville case lies in the statement made, that as a matter of law, children are guilty of contributory negligence in venturing near deep water. Such contributory negligence is a question for the jury. The gratuitous dicta in the Anderson case with reference to artificial bodies of water is equally fallacious.

The reasoning that there should be no difference, in determining nonliability, between a natural body of water and an artificially created body of water is wholly specious from the standpoint of causation, as well as human experience. The act of God creates a natural body of water, and from common experience we know that society, from the first settlement, accommodates itself and builds with reference to the existing conditions for which no man is responsible. But when man acts affirmatively the general rule is he must use due care under the circumstances to avoid injuring others.

'A long and firmly settled principle of law which has grown out of a well-ordered civil society is that every holder of property, however absolute and unqualified may be his title, holds it under the implied liability that his use of it may be so regulated that it shall [neither] encroach injuriously on the equal enjoyment of their property by others who have...