White v. Kanawha City Co.

• Decision Date: 08 May 1945
• Docket Number: C. C. Nos. 699,700.
• Citation: 34 S.E.2d 17,127 W.Va. 566
• Parties: WHITE v. KANAWHA CITY CO. AUSTIN v. SAME.
• Court: West Virginia Supreme Court

34 S.E.2d 17

127 W.Va. 566

WHITE v. KANAWHA CITY CO.

AUSTIN v. SAME.

C. C. Nos. 699, 700.

Supreme Court of Appeals of West Virginia.

May 8, 1945

Syllabus by the Court.

1. The so-called 'attractive nuisance' doctrine is not recognized in this state.

2. An artificial pool of water, or pond, is not per se a 'dangerous instrumentality'.

3. A declaration which merely alleges a dam to be one hundred feet long, forty-six feet wide at one end, twenty-six feet wide at the other, ten feet wide at the center, and twenty-five feet high, the inside or waterside of which is surfaced with concrete and sloped at an angle of forty-five degrees, which creates a pool of water three hundred and fifty feet long with a depth of twenty to twenty-five feet, does not show the same to be a dangerous instrumentality, requiring precautions for the safety of children of tender years, whether trespassers or licensees.

4. The owner of premises on which there is a dam and pool of water, without any feature or element which amounts to a concealed danger or trap, is not liable for the death of a child of tender years by drowning therein, even though such dam or pool is unguarded by fencing or otherwise, and is without notices against trespassing.

5. Knowledge by one on whose premises there is a dam and pool of water that children of tender age use the same for swimming and other play, does not require such owner to take precautions to prevent such practice or to make the premises safe for such use.

Lee Blessing & Steed and T. G. Nutter, all of Charleston, for plaintiffs.

Kay Casto & Amos, Steptoe & Johnson, Stanley C. Morris, and E. Loyd Leckie, all of Charleston, for defendant.

ROSE Judge.

The declarations in these two cases are precisely alike, except that in the White case the deceased youth is alleged to have been twelve years of age, while in the Austin case the age of the deceased is fourteen years, and in the latter case the death of the deceased in the White case is pleaded as tending to show knowledge on the part of the defendant of the dangerous character of its premises. The cases, therefore, were argued and submitted together.

The actions were brought in the court of common pleas of Kanawha County. Identical demurrers to the declarations were interposed and sustained, and the cases certified to the circuit court of that county. The circuit court found the decision of the court of common pleas clearly right, and, in turn, certified to this Court the questions of law arising upon said demurrers.

The declaration in the White case will be discussed first. The claim is based upon the theory that the defendant is liable for the death of the deceased child, twelve years of age, by downing in a pool of water created by a dam on its land immediately adjacent to a public highway, without out proper protection to children of tender age who might be attracted thereto for play in and about the water.

The grounds assigned in the demurrer are as follows:

'1. The declaration fails to charge actionable negligence or lack of care on the part of defendant.

'2. The declaration fails to show breach by the defendant of any duty owed by it to the plaintiff.

'3. The pool alleged to have been maintained by the defendant, as described in the declaration, is in no sense an inherent hazard to life or dangerous instrumentality or, even to children, an attractive nuisance.

'4. The plaintiff's decedent was of such age as not to be legally within the purview of the attractive nuisance doctrine, or the dangerous instrumentality doctrine.

'5. The declaration is otherwise defective upon its face and insufficient in law.'

The first and fifth grounds of demurrer are to be disregarded. At most they are merely tantamount to a general demurrer, and demurrers of this character are abolished by Code, 56-4-36. The briefs and argument at bar are directed almost exclusively to the grounds stated or implied in the third ground assigned in the demurrer, to which we shall first direct our attention.

The declaration alleges 'that said dam and pool of water is made attractive, is uninclosed, lies open and exposed, is without reasonable protection for the safety of those using said highway, and thos resorting to said dam and pool of water, for play, recreation, amusement and swimming, * * * and a dangerous hazard to all persons who resort to same for the purposes aforesaid, particularly small children and boys who resort there for play, recreation, and swimming * * *; that said defendant owed a duty to exercise reasonable care to avoid injury to children and others whom it had directly and by implication, allured, permitted, suffered and invited to use, play on, around, and in said pool of water, and on and around said dam, and a duty to keep the same reasonably safe so as not to injure or kill those resorting thereto as aforesaid, particularly did it owe such duty plaintiff's decedent, a child of tender years, to-wit, twelve years of age, * * *'.

If this language is to be construed as invoking the so-called 'attractive nuisance doctrine', it is futile. That doctrine is not enforced or recognized in this state. Adams v. Virginian Gasoline & Oil Company, 109 W.Va. 631, 156 S.E. 63; Martino v. Rotondi, 91 W.Va. 482, 113 S.E. 760, 36 A.L.R. 6; Conrad v. Baltimore & O. R. Co., 64 W.Va. 176, 61 S.E. 44, 16 L.R.A.,N.S., 1129; Uthermohlen v. Bogg's Run Co., 50 W.Va. 457, 40 S.E. 410, 55 L.R.A. 911, 88 Am.St.Rep. 884; Ritz v. City of Wheeling, 45 W.Va. 262, 31 S.E. 993, 43 L.R.A. 148. In this position we are in concurrence with the courts of a large number of other jurisdictions, including Virginia, Ohio, Pennsylvania, New York, New Jersey, Massachusetts, Connecticut, Maine, New Hampshire, Vermont, Rhode Island and Michigan. We consider this position not only definitely established in this state, but sound.

With equal clearness, however, this Court has repeatedly announced the principle that one owning, or in control of, that which may be legally considered a 'dangerous instrumentality' is liable for injuries received from failure to take proper care for the protection of persons, particularly children, who might be injured thereby. Parsons v. Appalachian Electric Power Company, 115 W.Va. 450, 176 S.E. 862, 100 A.L.R. 615; Wiseman v. Terry, 111 W.Va. 620, 163 S.E. 425; Colebank v. Nellie Coal & Coke Co., 106 W.Va. 402, 145 S.E. 748; Wellman v. Fordson Coal Company, 105 W.Va. 463, 143 S.E. 160; Diotiollavi v. United Pocahontas Coal Co., 95 W.Va. 692, 122 S.E. 161; Cox v. United States Coal & Coke Co., 80 W.Va. 295, 92 S.E. 559, L.R.A.1918B, 1118.

But the mere existence of an unguarded pool, pond, or reservoir of water, natural or artificial, on land does not of itself render the owner liable for the death of a child drowned therein. Ritz v. City of Wheeling, supra; Grindley v. McKechnie, 163 Mass. 494, 40 N.E. 764; Troglia v. Butte Superior Mining Co., 270 F. 75; Ansell v. City of Philadelphia, 276 Pa. 370, 120 A. 277; Dobbins v. Missouri, K. & T. R. Co., 91 Tex. 60, 63, 41 S.W. 62, 38 L.R.A. 573, 66 Am.St.Rep. 856; Clark v. Manchester, 62 N.H. 577; Eades v. American Cast-Iron Pipe Company, 208 Ala. 556, 94 S. 593; Peters v. Bowman, 115 Cal. 345, 47 P. 113, 598, 56 Am.St.Rep. 106; Robbins v. City of Omaha, 100 Neb. 439, 160 N.W. 749; Barnhart v. Chicago, M. & St. P. R. Co., 89 Wash. 304, 154 P. 441, L.R.A.1916D, 443; Pastorello v. Stone, 89 Conn. 286, 93 A. 529; Blough v. Chicago Great Western R. Co., 189 Iowa 1256, 179 N.W. 840; Thompson v. Illinois Cent. R. Co., 105 Miss. 636, 63 S. 185, 4m L.R.A., N.S., 1101. Such pools exist on every stream of even moderate size in this state. Artificial pools are not in themselves more dangerous. No statute or principle of law requires the owner of land on which such pool exists to protect or warn trespassers, adult or infant, against injuries which may result from their use of the same.

Of course, if some feature or element of the instrumentality or premises operates as a hidden danger or trap, liability may arise against the owner or one in control thereof. Brinilson v. Chicago, etc., R. Co., 144 Wis. 614 129 N.W. 664, 32 L.R.A.,N.S., 359; Penso v. McCormick, 125 Ind. 116, 25 N.E. 156, 9 L.R.A. 313, 21 Am.St.Rep. 211; Kinchlow v. Midland Elevator Co., 57 Kan. 374, 46 P. 703; Briscoe v. Henderson Light & Power Co., 148 N.C. 396, 62 S.E. 600, 19 L.R.A.,N.S., 1116. Peculiar or unusual features in or about pools or...