Ward v. Oakley Co.

• Decision Date: 14 June 1954
• Citation: 125 Cal.App.2d 840,271 P.2d 536
• Court: California Court of Appeals Court of Appeals
• Parties: WARD v. OAKLEY CO. et al. Civ. 19850.

Page 536

271 P.2d 536

125 Cal.App.2d 840

WARD v. OAKLEY CO. et al.

Civ. 19850.

District Court of Appeal, Second District, Division 2, California.

June 14, 1954.

Jerome Weber, Los Angeles, for appellant.

James G. Scarborough, Leonard Comegys and J. Gregg Evans, Los Angeles, for respondents Oakley.

Chase, Rotchford, Downen & Drukker, and Otto M. Kaus, Los Angeles, for respondents Crail.

McCOMB, Justice.

From a judgment in favor of defendants predicated upon the sustaining without leave to amend of their demurrer to plaintiff's second amended complaint in an action to recover damages under section 377 of the Code of Civil Procedure for the wrongful death of plaintiff's two children, plaintiff appeals.

Facts: The second amended complaint purports to allege 8 causes of action. The first 4 apply to the wrongful death of plaintiff's decedent James Elwood Ward, Jr., and the last 4 are identical except in that they apply to the wrongful death of plaintiff's decedent William Gerard Ward. Therefore we shall refer hereafter to the first and fifth causes of action as the first cause of action, to the second and sixth as the second, etc.

Defendants Oakley Company, J. W. Oakley and Bella W. Oakley will be referred to as defendants Oakley; defendants Crail Brothers, Rotary Materials Company and Ed Crail will be referred to as defendants Crail; and plaintiff's decedents as plaintiffs.

The second amended complaint alleged the following facts in the respective causes of action:

First Cause of Action.

Defendants Oakley were the owners of a portion of Bixby Slough and on September 8, 1951, defendants Crail were lessees of the land owned by defendants Oakley; on that day plaintiffs lost their lives; the land owned by the Oakleys and leased by the Crails was almost covered by a large body of water, namely Bixby Slough; the shoreline of the water varies with the seasons; the slough receives water from a large watershed; the water flowing into the slough carries with it silt, colloids and a relatively small quantity of fine sand; the colloidal materials thus carried into the slough are so fine in texture as to remain suspended in solution and in the course of geological time great quantities of these colloids have become deposited to great depths on the bed of the slough and these materials are commercially adaptable.

Defendants Crail, under agreement with defendants Oakley engaged in a mining operation in the course of which they removed from the slough hundreds and thousands of tons of these colloids by means of a bucket and drag line for commercial use; great quantities of these colloids were deposited on the upland and 'elsewhere in the submerged areas.'

The colloidal material deposited on the upland, when dehydrated, is firm, but when submerged becomes viscuous plastic solid which reverts to a semi-plastic state when agitated by running, walking or wading.

A deposit of such colloids was on the shore near a rock and oil driveway on Vermont Avenue and this deposit had no vegetable growth on it, forming convenient access to the water; this deposit was covered with sand in certain places. The lands involved are near major highways, near a housing development which accommodates two thousand children, and are an attractive play area for children. There have been six previous drownings in the water in previous years, involving children under the age of twelve and parts of the land not affected by the mining operation were not unsafe for walking, wading or swimming; the mining operation has been abandoned without precaution to safeguard children, the area remains accessible, but was unposted and unguarded; the dangerous condition of the area is not apparent or obvious to children and it is practical to fence it or to take other precautions; defendants knew, or should have known, that children were accustomed to play on the land and that children would not discover the danger because of their youth. The condition of the soil is also said to be the artificial result of the mining operation. Defendants permitted the children to come onto the area by their failure to take any measures to warn them against entering the area or by their failure to take any precautions to prevent harm to the children.

It is also alleged that plaintiffs entered with the 'consent, express or implied, of defendants and each of them' and were dragged and sucked under by the mud while wading.

Second Cause of Action.

The second cause of action repeats in substance all the allegations of the first, except the conclusion that the children entered with the consent, express or implied of defendants and adds the allegation that there was a dredging barge on the water which was used by defendants in connection with the mining operation; that the youngsters were drowned while wading to or around the barge and that defendants permitted children to play around the barge.

Third Cause of Action.

The third cause of action incorporates all the allegations of the first cause of action and adds allegations to the effect that the condition created and maintained by defendants was a public nuisance.

Fourth Cause of Action.

The fourth cause of action includes the allegations of the first concerning the ownership of the land, the lease to defendants Crail for the purpose of engaging in a mining operation which resulted in excavations being made below the water level. It further alleges the abandonment of the mining operation without fencing the so-called excavations.

Questions: First: Did the first count allege a cause of action under the provisions of section 342, ¹ Volume 2, Restatement of the Law of Torts, 1934, p. 932 and the decision in Newman v. Fox West Coast Theatres, 86 Cal.App.2d 428, 194 P.2d 706?

No. Where a person goes on premises of another without invitation and as a bare licensee, and the owner of the property acquiesces in his presence, if injury is sustained by reason of a mere defect in the premises the owner is not liable since the licensee takes all the risks arising from the condition of the premises. (Fisher v. General Petroleum Corp., 123 Cal.App.2d 770, 267 P.2d 841.)

In Fisher v. General Petroleum Corp., supra, it was expressly held that the rule announced in section 342 of the Restatement of the Law of Torts, supra, so far as it pertained to licensees was not the law in California. (See Fisher v. General Petroleum Corp., supra, 123 Cal.App.2d 770, 267 P.2d 841.)

With reference to Newman v. Fox West Coast Theatres, supra, the case merely held that where as in such case defendants' failure to comply with its duty constituted active negligence, under the law in California defendant was liable. In the present case there is no allegation of active negligence on the part of defendants, nor may any inference thereof be drawn from the facts which are alleged. Likewise in the Newman case plaintiff was an invitee, while in the case at bar the injured parties were merely licensees. Therefore Newman v. Fox West Coast Theatres, supra, is not here applicable.

Since in the instant case count I alleged that plaintiffs were merely licensees on defendants' property, and there is a total absence of any allegation of an overt act on the part of defendants or either of them which resulted in the unfortunate accident, the above stated rule is here applicable and the trial court properly sustained the demurrer to the first count.

Second: Did the second count state a cause of action on the theory that defendants maintained an attractive nuisance?

No. It is settled that a body of water, natural or artificial, does not constitute an attractive nuisance which will subject the owner to liability for trespassing children who are attracted thereto and are drowned. (Peters v. Bowman, 115 Cal. 345, 347 et seq., 47 P. 113, 598; Demmer v. City of Eureka, 78 Cal.App.2d 708, 710, 178 P.2d 472.)

There is an exception to this rule where the death of a child is caused by an artificial, uncommon, dangerous and concealed contrivance constituting a trap, which can be readily safeguarded without destroying its usefulness or imposing upon the owner an undue burden. (Sanchez v. East Contra Costa Irr. Co., 205 Cal. 515, 518, 271 P. 1060; Faylor v. Great Eastern, etc., Co., 45 Cal.App. 194, 199, 187 P. 101.)

The essential elements of a cause of action under the 'hidden or concealed trap' exception are (a) that the dangerous hazard causing death be artificially created by the owner, (b) it be so concealed as to constitute a trap, and (c) that it can be readily guarded without destroying its usefulness or placing upon the owner an undue burden.

Count II alleges that the attractive nuisance consisted of a barge maintained on the premises by defendants. However, there is no allegation that the barge caused or contributed to the death of either minor. Under these circumstances the maintenance of the barge does not bring the case under the attractive nuisance doctrine, despite the conclusion stated in the pleading that its maintenance in connection with the mining operations constituted such a nuisance. There is a total absence of any allegation of a causal connection between the maintenance of the barge or the beach surrounding the waterway, or the beach surrounding the slough, and the unfortunate drownings. In fact from the pleading the contrary appears, the allegation being that the deaths were caused by the dangerous mud beneath the waters.

The discussion in the following cases shows that plaintiffs have failed to allege a cause of action under the attractive nuisance doctrine as applied in California:

Beeson v. City of Los Angeles, 115 Cal.App. 122, 300 P. 993, was a suit by a parent to recover damages for the death of her ten-year old son who fell into a water hold in a storm drain maintained by the defendant and was drowned. Judgment in favor of the defendant after the sustaining of a demurrer to plaintiff's amended complaint was affirmed on appeal and ...