Kimberlin v. Lear

500 P.2d 1022, 88 Nev. 492, 1972 Nev. LEXIS 507

• Court: Nevada Supreme Court
• Decided: September 7, 1972
• Docket: 6756
• Status: Published

Opinions

OPINION

By the Court, Thompson, J.:

The district court dismissed this wrongful death action against William P. Lear and Reno/Stead Development Co., two of several joined defendants, for the failure of the plaintiffs to state a claim upon which relief could be granted, and found no just reason to delay the entry of appropriate judgments. This appeal followed.

The plaintiffs-appellants are the parents of two children, ages seven and nine, who drowned in a natural body of water on land owned on the day of their accidental deaths by Land Developers, Inc., another defendant against whom this action remains pending. During the Spring of 1969, a dry lake bed, comprising some 56 acres, had become covered with muddy water from the winter’s runoff forming a lake two to four feet deep. In August 1968, several holes, about twenty feet square and fifteen feet deep, were dug in the dry lake bed to test the water table. This was done with the knowledge and consent of William P. Lear who then owned the property.

About six days after Mr. Lear had conveyed the property to Land Developers, Inc., the plaintiffs’ two children were wading in the lake without permission and drowned in one of the test holes. Their claim for relief is premised solely upon the doctrine of attractive nuisance. No other basis for liability is asserted.¹

This court has neither adopted nor rejected the attractive nuisance doctrine. We have mentioned it. Smith v. Smith-Peterson Co., 56 Nev. 79, 45 P.2d 785 (1935); Orr Ditch Co. v. Justice Ct., 64 Nev. 138, 178 P.2d 558 (1947). It is best defined in Rest. Torts 2d, Sec. 339 quoted below.² Liability may be fastened upon the possessor or occupier of the land if (a) the place where the condition is found is one upon which the possessor knows or has reason to know that children are likely to trespass, (b) the condition is one which the possessor should recognize as involving an unreasonable risk of harm to such children, (c) the child, because of his immaturity, either does not discover the condition or does not in fact appreciate the danger involved and, (d) the utility to the possessor of maintaining the condition must be slight as compared with the risk to children. Prosser, Law of Torts, 368-376 (4th ed. 1971). It is apparent that these preconditions to liability usually involve factual determinations which may not be resolved at the pleading stage of litigation.

In the case at hand, however, the district court apparently was persuaded that the attractive nuisance doctrine could not apply to fix liability upon either William P. Lear or Reno/ Stead Development Co., since neither defendant possessed nor occupied the land at the time of the tragic drownings. The possessor was Land Developers, Inc.³ A vendor of real property who parts with title, possession and control of it ceases to be either an owner or an occupier, and generally, all responsibility for the condition of the land shifts to the purchaser. An exception to this proposition does exist. A vendor is under a duty to disclose to the vendee any concealed conditions known to him which involve an unreasonable danger to the health or safety of those upon the premises and which he may anticipate that the vendee may not discover. The failure to make such disclosure may impose liability upon the vendor for injury resulting from such conditions to others upon the land with the consent of the vendee. Rest. Torts 2d, Sec. 353.⁴

Although the plaintiffs-appellants seek refuge in this exception, it cannot avail them since their children were trespassers upon the land of Land Developers, Inc., and were not there present with the consent or in the right of that company. Cf. Belote v. Memphis Development Co., 346 S.W.2d 441 (Tenn. 1961); A-F Corporation v. Caporaletti, 240 F.2d 53 (U.S.App.D.C. 1957); Derby v. Public Service Co., 119 A.2d 335 (N.H. 1955); Southern v. Floyd, 80 S.E.2d 490 (Ga.App. 1954); Herzog v. Capital Co., 164 P.2d 8 (Cal. 1945).

Affirmed.

Batjer and Mowbray, JL, concur.

1 Following the dismissals the plaintiffs-appellants, by a motion for rehearing, sought to have the district court consider NRS 455.010 regarding the duty to safeguard shafts, excavations, or holes, as a possible basis for liability. On the same day, however, they also filed a notice of appeal to this court. Since it is clear from the record that the district court did not rule upon the application of that statute to the circumstances of this case, we shall not consider the point. Britz v. Consolidated Casinos Corp., 87 Nev. 441, 488 P.2d 911 (1971).

2 Rest. Torts 2d, Sec. 339: “A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if (a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and (b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and (c) the children because of their youth do not discover the condition or realize the risk involved in inter-meddling with it or in coming within the area made dangerous by it, and (d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and (e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.”

3 Rest. Torts 2d, Sec. 328E: “A possessor of land is (a) a person who is in occupation of the land with intent to control it or (b) a person who has been in occupation of land with intent to control it, if no other person has subsequently occupied it with intent to control it, or (c) a person who is entitled to immediate occupation of the land, if no other person is in possession under Clauses (a) and (b).”

4 Rest. Torts 2d, Sec. 353: “(1) A vendor of land who conceals or fails to disclose to his vendee any condition, whether natural or artificial, which involves unreasonable risk to persons on the land, is subject to liability to the vendee and others upon the land with the consent of the vendee or his subvendee for physical harm caused by the condition after the vendee has taken possession, if (a) the vendee does not know or have reason to know of the condition or the risk involved, and (b) the vendor knows or has reason to know of the condition, and realizes or should realize the risk involved, and has reason to believe that the vendee will not discover the condition or realize the risk. (2) If the vendor actively conceals the condition, the liability stated in Subsection (1) continues until the vendee discovers it and has reasonable opportunity to take effective precautions against it. Otherwise the liability continues only until the vendee has had reasonable opportunity to discovér the condition and to take such precautions.”