Swan v. The Riverside Bathing Beach Company

• Citation: 132 Kan. 61,294 P. 902
• Decision Date: 10 January 1931
• Docket Number: 29,601
• Parties: JOHN A. SWAN and MARY A. SWAN, Appellants, v. THE RIVERSIDE BATHING BEACH COMPANY, Appellee
• Court: United States State Supreme Court of Kansas

294 P. 902

132 Kan. 61

JOHN A. SWAN and MARY A. SWAN, Appellants, v. THE RIVERSIDE BATHING BEACH COMPANY, Appellee

No. 29,601

Supreme Court of Kansas

January 10, 1931

Decided January, 1931.

Appeal from Montgomery district court; JOSEPH W. HOLDREN, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. NEGLIGENCE--Public Swimming Pool as Nuisance. The rule announced and stated in Gorman v. City of Rosedale, 118 Kan 20, 234 P. 53, and Gilliland v. City of Topeka, 124 Kan. 726, 262 P. 493, followed to the effect that a swimming pool constructed and equipped in the usual modern manner is not a nuisance, although attractive to children.

2. SAME--Children as Invitees--Care Required of Owner. Ordinary care with respect to children who have not reached the age where they are able to understand, appreciate and avoid danger, may include a duty to take precautions to protect them, which would not be necessary in case of adults or older children, but the owner or operator of a place to which children are invited is not ordinarily an insurer of their safety and can be held liable only when he has been guilty of negligence involving a breach of duty owed to such children.

3. SAME--Duty of Swimming Pool Operator to Child Patrons. Where the parents of a nine-year-old girl sent her with friends to a modern swimming pool, providing her with the entrance fee, and she had been there four times before and was a good swimmer and could go anywhere in the pool, it was not negligence to permit her to enter the pool without giving her the special attention of a guard.

4. SAME--Proximate Cause--Evidence. Where on the floor of a swimming pool at which there were guards and not less than a hundred patrons present, the body of a nine-year-old girl was found ten or twenty minutes after she was told by her people to come out and dress, and there was no evidence of any struggle or outcry and nothing to indicate any danger or distress, except the expressed inability of her friends to find her, as related at length in the opinion following, negligence as the proximate cause of the unfortunate death was not established.

A. L. Billings, of Independence, for the appellants.

John Bertenshaw, Kirke C. Veeder, both of Independence, and O. W. Julien, of Kansas City, Mo., for the appellee.

OPINION

HUTCHISON, J.:

This is an action by the parents of Helen Swan to recover for her wrongful death by reason of the negligence of the defendant, the Riverside Bathing Beach Company, owning and operating a swimming pool or bathing beach in the city of Independence. Various acts of negligence on the part of the defendant, its manager, matron and guards are alleged as the direct and proximate cause of her death by drowning in the swimming pool on Sunday afternoon, August 14, 1927. The answer consisted of an admission as to the death at that time, the maintenance and operation of the pool, the keeping of life-saving guards and attendants, a general denial as to all other allegations and a plea of contributory negligence. The reply was a general denial. The appeal is by the plaintiffs from the ruling of the trial court in sustaining a demurrer to the evidence of the plaintiffs and rendering judgment for defendant for costs. Appellants make no claim of negligence as to the construction of the pool or as to the care and attention given the deceased after her body was discovered on the floor of the pool.

Appellants cite a number of decisions in cases from Kansas and other states as to liability for injuries to children by those maintaining attractive nuisances, and connect the discussion of them with the presentation of the case when it was here before on the question of the sufficiency of the petition. ( Swan v. Riverside Bathing Beach Co., 128 Kan. 230, 276 P. 796.) Of course, the feature of the necessity of special care and attention to children is in any case where a child is injured or loses its life by the negligence of another, but the question of attractive nuisance is entirely eliminated in this state from cases where the injury or death occurs at or in a modern swimming pool, as was held in the case of Gorman v. City of Rosedale, 118 Kan. 20, 234 P. 53, and later in Gilliland v. City of Topeka, 124 Kan. 726, 262 P. 493, where it was held:

" A swimming pool in a public park of a city, constructed of concrete and equipped with the usual swimming-pool accessories, is not a nuisance, although attractive to children." (Syl.)

The appellants have alleged specific omissions and acts of negligence on the part of the defendant, and the sufficiency of the proof must be limited to such allegations instead of permitting the proof to make a prima facie case by relying upon the doctrine of res ipsa loquitur. (Byland v. Powder Co., 93 Kan. 288, 144 P. 251.)

It is urged that it was negligence on the part of the defendant to permit a girl only nine years of age to enter the swimming pool without the special attention of a guard, and if the guards were too busy to give her the necessary attention she should have been excluded until such time as a special guard might give her such attention. She had been there four times before, was a good swimmer and went anywhere in the pool. Her parents did not accompany her but sent her with Mr. and Mrs. Mitchell, who were taking their daughter three years older, the parents furnishing the necessary entrance fee. The fee was paid by Mrs. Mitchell to Mrs. Wilson, the matron in charge of the office, who saw the girl and furnished her and the Mitchell girl a basket in which to put their clothing and later took the basket and gave them a check for it and passed them into the pool. The water at one end of the pool was two feet deep and at the other about nine feet. Mr. and Mrs. Mitchell went to the other side of the pool and sat there on a bench about six feet from the north side of the pool under the shade of a large umbrella. Was it negligence to permit such a girl to enter the pool under such circumstances without the special attention of a guard? The rule in this respect is expressed in the following paragraphs under the subject of negligence in Corpus Juris:

" The rule that no person is an insurer of the safety of others applies with respect to children, and one whose act or omission has resulted in injury to a child cannot be held liable therefor unless he has been guilty of negligence, involving a breach of duty owed to the child, even though the child be so young as not to be chargeable with contributory negligence." (45 C. J. 701.)

"The rule requiring the owner or person in charge of property to keep it safe for invitees applies, of course, to infant invitees, and, as the characteristics of children are proper matters for consideration in determining what is ordinary care with respect to them, there may be a duty to take precautions with respect to children of tender years which would not be necessary in the case of adults or children who have reached an age when they are able to understand, appreciate, and avoid danger. The owner or person in charge is not, however, an insurer of the safety of infant invitees." (45 C. J. 838.)

The evidence shows that Helen remained in the pool forty-five minutes, the Mitchell daughter, Katherine, and Mrs Mitchell's sister, Ruby, being with her much of the time, besides about a hundred or more people being in the pool most of the afternoon. After forty-five minutes, Mrs. Mitchell told the girls--that is, Helen and Katherine--to go out and dress. Then she and Mr. Mitchell walked around the pool to the office and dressing room. The girls obeyed and went to the steps of the pool. Helen was in the shallow water at the bottom of the steps when Katherine said to her, "Come on, Helen," and Helen replied, "I think I will go back," or "I will go back for some more swimming." That was the last the testimony shows she was seen alive. It was from ten to twenty minutes from the time Mrs. Mitchell told the girls to go out and dress until Helen was discovered on...