Severance v. Rose, 17194

• Decision Date: 05 June 1957
• Docket Number: No. 17194,17194
• Citation: 151 Cal.App.2d 500,311 P.2d 866
• Court: California Court of Appeals Court of Appeals
• Parties: Jerome Neal SEVERANCE, an Infant, by Jerome Severance, his Guardian ad litem, Plaintiff and Appellant, v. Robert George ROSE et al., Defendants, John P. Riley, Defendant and Respondent.

Page 866

311 P.2d 866

151 Cal.App.2d 500

Jerome Neal SEVERANCE, an Infant, by Jerome Severance, his Guardian ad litem, Plaintiff and Appellant, v. Robert George ROSE et al., Defendants John P. Riley, Defendant and Respondent.

No. 17194.

District Court of Appeal, First District, Division 1, California.

June 5, 1957.

Bergen Van Brunt, Allan L. Shapiro, San Francisco, for appellant.

Boyd & Taylor, San Francisco, for respondent.

FRED B. WOOD, Justice.

Plaintiff, a boy of 10 at the time, was injured while playing on a water ski jump. Judgment of nonsuit was rendered in favor of defendant John P. Riley. Plaintiff presents two issues upon this appeal. Was there sufficient evidence to present these questions to the jury: (1) Did Riley own this water ski jump at the time of the accident? (2) If he did, was he negligent, did he violate a duty he owed the plaintiff in respect to this water ski jump? We will consider the latter question first.

This ski jump was typical of such devices: An inclined plane supported or buoyed up at one end by air-tight drums. This one was about 6 1/2 feet wide by 26 feet long. One end rested upon the ground; the other was about seven feet from the ground. It had no wheels or other moving parts.

It was in a portion of a public park which was adjacent to a yacht harbor and used for the parking of automobiles, navy rafts, boat trailers and other similar objects. It was near a pile of navy rafts and about 300 to 400 feet distant from a playground area equipped with swings, slides and similar apparatus. There intervened a grove of trees with several picnic tables interspersed among them.

Several years before the accident, during Riley's absence from home, the ski jump had been taken from his yard to the park by persons unknown to him, but he had seen it at the park sometime during the year preceding plaintiff's accident. He thought it had been used each year for the Shark Derbies. He said that only of the skiers that wanted to use it could use it. He thought it had been used every year for a long time.

One morning plaintiff went to the park and played on the swings and other apparatus at the playground. He saw this large slide and went over and played on it. He would push himself up backwards and then slide down. He would make a mound of his jacket, sit on it and slide down. He played on it about 15 minutes before he fell. Just before he fell he was sitting down and pushing himself up backwards, using his hands and feet. He started from the bottom and worked himself up about three-quarters of the way from the bottom. He was getting toward the edge. So, he tried to push himself back and then fell off the edge, a distance of about five and a half feet to the ground.

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,' as plaintiff alleges defendant should do, 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 either side. No sign warning of this hazard would be necessary for any adult nor for most children, even children of tender years. And it appears as a fact that the minor plaintiff needed no such warning. He was aware of the hazard of falling over the side. He testified, 'I was pushing myself up backwards, and I was getting toward the edge, so I tried to push myself back and I went off the side.' 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.

The applicable legal principles we find expounded and the case law reviewed in the recent case of Lopez v. Capital Co., 141 Cal.App.2d 60, 296 P.2d 63, (hearing by Supreme Court denied). There, it appeared that a seven year old boy was injured when he climbed upon and fell from a scaffold erected upon a public sidewalk for use in remodeling an office building. Demurrers were sustained to the original and three amended complaints. Plaintiff then refused to further amend, and appealed.

In affirming the judgment the court discussed the attractive nuisance doctrine, indicating various types of situations in which it has been applied, 'cases where hidden dangers exist which would be outside the experience of young children, including cases involving drowning under certain conditions, access to dynamite or dynamite caps, movable machinery, high tension wires, and boards piled near where children play, in a manner that is inherently unsafe.' 141 Cal.App.2d at page 65, 296 P.2d at page 65. The court then observed that thus far 'the doctrine has never been applied in a case involving only an opportunity to climb upon something, the danger of falling...