Staley v. Security Athletic Ass'n

• Decision Date: 25 March 1963
• Docket Number: No. 20093,20093
• Parties: Edward Levi STALEY and Marilyn Staley, Plaintiffs in Error, v. SECURITY ATHLETIC ASSOCIATION, a Colorado Corporation, Defendant in Error.
• Court: Colorado Supreme Court

Page 53

380 P.2d 53

152 Colo. 19

Edward Levi STALEY and Marilyn Staley, Plaintiffs in Error, v. SECURITY ATHLETIC ASSOCIATION, a Colorado Corporation Defendant in Error.

No. 20093.

Supreme Court of Colorado, En Banc.

March 25, 1963.

Robert E. McLean, Marjorie Worland McLean, Denver, Jack K. Agee, Benjamin W. Fann, Colorado Springs, for plaintiffs in error.

Murray, Baker & Wendelken, Gerald W. Bennett, Colorado Springs, for defendant in error.

HALL, Justice.

The parties appear here as in the trial court. We refer to plaintiffs in error as the plaintiffs or the parents, and to the defendant in error as the defendant.

In this action plaintiffs sought to recover damages for the alleged wrongful death by drowning of their four year old son, Edwards.

In 1958 the defendant, a non-profit corporation, organized for the purpose of providing swimming and other recreation facilities for its members consisting of some one hundred and eighty families of the community, constructed a swimming pool in Security Village, El Paso County, Colorado. The pool was thirty feet by sixty feet and the pool area one hundred feet by one hundred and fifty feet. The pool area was enclosed by a chain-link fence, six feet high, and with a three-strand barbed wire apron at the top extending at an angle of about forty-five degrees away from the pool.

There was only one gate for pedestrians leading to and from the pool area; it was six feet high, conforming to the balance of the fence, except the three strands of barbed wire on top were perpendicular instead of at an angle.

The pool had been closed for the 1960 season prior to October. It had not been drained for the reason that it was of a construction type requiring it be filled at all times.

On October 11, 1960, the pool area was enclosed as above outlined and the gate was locked. The bottom of the gate was about eight inches above the center of the somewhat concave pedestrian dirt path leading to and from the pool.

On October 11, 1960, at about 12:30 P.M., the bodies of Edward and a four year old neighboring playmate were found in the deep end of the pool. They had died from drowning.

Much of the testimony dealt with the question as to how the boys may have gained access to the pool area, the plaintiffs contending that access must have been gained by crawling under the gate. A review of the record does not serve to eliminate the element of mystery surrounding their means of gaining entrance to the pool area. In any event they did gain entrance thereto and for four year old boys to have gone under or over the gate was an achievement that could not have been reasonably anticipated.

The law is well settled in Colorado that a landowner owes no duty to make or keep his premises safe for trespassers.

'* * * The owner of premises is liable for injuries resulting from active negligence to trespassers whose presence is known or, in the exercise of care, ought to be known.' Krause v. Watson Bros. Transp. Co., 119 Colo. 73, 200 P.2d 387.

Counsel for plaintiffs recognize this rule, but contend that the pool, located in a populous area, near a highway or street, constituted an attractive nuisance, and that under the doctrine of attractive nuisance the defendant was answerable in damages for Edward's death.

At the complation of testimony of both plaintiffs and defendant, the trial court, on motion of defendant, instructed the jury to return a verdict for defendant, and after denying a motion for new trial entered judgment accordingly.

Plaintiffs seek reversal and urge as reasons therefor that the trial court erred in:

1. Granting defendant's motion for a directed verdict in its favor.

2. Denying plaintiffs' motion for a directed verdict in plaintiffs' favor leaving for consideration of the jury only the question of the amount of damages to be awarded.

Colorado has given recognition to the attractive nuisance doctrine and has applied the same in certain factual situations as to enable a trespassing child to recover for injuries suffered while occupying such position.

In Kopplekom v. Colo. Cement Pipe Co., 16 Colo.App. 274, 64 P. 1047, 54 L.R.A. 284, in which a child 'too young to realize the danger' was killed while playing with other children in rolling heavy pipes on an open and unguarded lot.

Denver City Tramway Co. v. Nicholas, 35 Colo. 462, 84 P. 813, a case in which a boy under the age of thirteen years, in playing with the trolley on some parked streetcars caused them to move and suffered injuries.

Public Service Co. v. Petty, 75 Colo. 454, 226 P. 297, in which an eighteen months old child put its hand in some unguarded machinery and was injured.

Simkins v. Dowis, 100 Colo. 355, 67 P.2d 627, where it was held that a merry-go-round was an attractive nuisance and that an eight year old trespassing boy might recover damages for injuries sustained on the merry-go-round.

Other cases under different facts deny liability on the ground that the agency or object alleged to be an attraction is not an unusual thing or an unusual attraction, and in such cases trespassers must take the premises as they find them and cannot recover from the landowner.

In Hayko v. Colorado and Utah Coal Co., 77 Colo. 143, 235 P. 373, 39 A.L.R. 482, a nine year old boy trespassed on the defendant's lands and entered a rough board shack, visible from where pedestrians usually passed, and found in the shack some dynamite caps. In an effort to remove the contents from the container the cap exploded, injuring the boy. In affirming the action of the trial court in directing a verdict for the defendant, this court said:

'* * * we prefer to rest our decision upon the grounds above discussed, viz. the owner of land owes no duty to a mere trespasser, young or old. While he...