Gilliland v. City of Topeka

262 P. 493, 124 Kan. 726, 1928 Kan. LEXIS 346

• Court: Supreme Court of Kansas
• Decided: January 7, 1928
• Docket: No. 27,585
• Status: Published

Opinion

The opinion of the court was delivered by

Burgh, J.;

The action was one for damages for death of a six-year-old child who was drowned in the swimming pool in Ripley park, a public park in the city of Topeka. A demurrer was sustained to the petition, and plaintiffs appeal.

The swimming pool was an artificial pool constructed of cement. It had a sloping bottom which provided varying depths of water, and was equipped with a diving platform, springboards, a bathhouse, and other swimming-pool accessories. While attending a Sunday-school picnic in the park the child went into the pool, got beyond his depth and was drowned. No life guard was on duty at the time. Plaintiffs stand on the proposition that the swimming pool with its equipment and appurtenances was a nuisance attractive to children, and consequently that the city may not avoid liability by invoking the doctrine of exercise of governmental power in maintaining the swimming pool.

The swimming pool was doubtless attractive to children, but it was not a nuisance, producing public annoyance, inconvenience, discomfort or hurt. It was a feature of the park tending to promote public health, happiness and welfare. The accident to plaintiffs’ child was a misfortune greatly to be deplored, but it did not change the essential nature of the place.

In the case of Peters v. Bowman, 115 Cal. 345, a city erected an embankment which caused a pond to form on a vacant lot, in which a boy was drowned. It was held the lot owner was not liable for maintaining an attractive nuisance. The facts in the Peters case were essentially similar to the facts in .the case of Tavis v. Kansas City, 89 Kan. 547, 132 Pac. 185. In the opinion in the Tavis case (p. 553) a quotation was made from the opinion in the Peters case., In the case of Harper v. City of Topeka, 92 Kan. 11, 139 Pac. 1018, a boy seven years old broke through the ice on an artificial pond in a public park of the city and was drowned. It was held the city was not liable for maintaining an attractive nuisance. In the opinion, the quotation from the opinion in the Peters case appearing in the opinion in the Tavis case, was reprinted, (p. 14.) Plaintiffs seize upon the two sentences concluding the quotation from the opinion in the Peters case, making a distinction between common dangers existing in the order of nature, and novel dangers specially created by act of an owner, and argue the concrete swimming pool belongs in the latter class, and constituted an attractive nuisance.. The sentences referred to do not conclude what the court said in the opinion in the Peters case, and what the court had in mind'when speaking of novel dangers specially created is revealed by what follows:

“And such is the rule of the turntable cases, of the lumber-pile cases, and others of a similar character.” (Peters v. Bowman, 115 Cal. 345, 356.)

A swimming pool forming one of the public attractions in a city park does not belong in the same class with the places regarded as attractive nuisances within the rule of the turntable cases, as that rule is applied by this court. (See Gorman v. City of Rosedale, 118 Kan. 20, 234 Pac. 53, and cases cited, pp. 25 and 26.)

The judgment of the district court is affirmed.