Knight v. Kaiser Co.

312 P.2d 1089, 48 Cal. 2d 778, 1957 Cal. LEXIS 228

• Court: California Supreme Court
• Decided: June 28, 1957
• Docket: S. F. 19697
• Status: Published

Opinions

McCOMB, J.

From a judgment predicated upon the sustaining of defendant’s demurrer to plaintiff’s third amended complaint without leave to amend in an action to recover damages for the death of plaintiff’s son, plaintiff appeals.

The amended complaint, in substance, alleged that plaintiff was the natural mother of decedent, Johnny William Bass, Jr., 10 years of age; that defendant owned and maintained premises in Stockton on which it had placed or caused to be placed large piles of sand and gravel and, adjacent thereto, a large conveyor belt; that no fences, guards or railings were placed around these sand and gravel piles or a portion of the conveyor belt; that a road or pathway was close to these objects and children were in the habit of playing upon the sand and gravel piles and the conveyor belt; that defendant knew or should have Imown the conditions existing involved an unreasonable risk of death or serious bodily harm to children playing on the sand and gravel piles; and that on August 20, 1953, plaintiff’s son, while playing upon the premises and digging in one of the sand piles, was asphyxiated when it collapsed upon him.¹

Plaintiff contends that the facts alleged in the complaint as amended state a cause of action within the “attractive nuisance” doctrine. This contention is untenable.

Where the facts are undisputed, as in the instant case, it is a question of law whether or not the facts alleged fall within the scope of the “attractive nuisance” doctrine. (Nicolosi v. Clark, 169 Cal. 746, 747 et seq. [147 P. 971, L.R.A. 1915F 638] ; Hernandez v. Santiago Orange Growers Assn., 110 Cal.App. 229, 236 [4] [293 P. 875] ; cf. Loftus v. Dehail. 133 Cal. 214, 218 [65 P. 379].)

Applying this rule to the admitted facts in the present case, it is conceded that defendant maintained upon its premises large sand and gravel piles and a large conveyor belt; that decedent while playing and digging in one of the sand piles was asphyxiated when it collapsed upon him.

It is the general rule that where a person goes upon the premises of another without invitation, as a bare licensee, and the owner passively acquiesces in his presence, if any injury is sustained by the licensee by reason of a mere defect in the premises the owner is not liable for negligence, for the licensee has assumed the risk himself. The owner of property does not assume any duty to one who is on his' premises by permission only and as a mere licensee, except for wanton or willful injury inflicted upon the licensee while on the premises. (Means v. Southern Calif. Ry. Co. 144 Cal. 473, 479 [77 P. 1001, 1 Ann.Cas. 206] ; Ward v. Oakley Co., 125 Cal.App.2d 840, 844 [1] [271 P.2d 536] ; Fisher v. General Petr. Corp., 123 Cal.App.2d 770, 777 [5] [267 P.2d 841] ; Koppelman v. Ambassador Hotel Co., 35 Cal.App.2d 537, 540 [2] [96 P.2d 196]; Herzog v. Hemphill, 7 Cal.App. 116, 118 [93 P. 899].)

The law is also established that in the absence of circumstances which bring a case under the “attractive nuisance” doctrine, an owner of land owes no other duty to a child trespassing on his premises than he owes to an adult trespasser. (Peters v. Bowman, 115 Cal. 345, 349 [47 P. 113, 598, 56 Am.St.Rep. 106].)

To the general rule there is this exception: If an owner of land maintains thereon what is commonly called an “attractive nuisance,” the owner is liable for injuries resulting to a trespassing child. (See Prosser on Torts (2d ed. 1955), pp. 438 et seq.; Sanchez v. East Contra Costa Irr. Co., 205 Cal. 515, 518 [2] [271 P. 1060].)

In view of the foregoing rules and the facts alleged in the complaint, this question is presented: Does a sand pile constitute an “attractive nuisance,” i.e., a fact which places liability upon the owner of property for injtiries to a trespassing child?2

This question must be answered in the negative. It is settled that a body of water, natural or artificial, does not constitute an “attractive nuisance” that will subject the owner to liability for trespassing children who are attracted thereto and are drowned. (Peters v. Bowman, supra, pp. 347 et seq.; Ward v. Oakley Co., supra, p. 845 [2] ; Demmer v. City of Eureka, 78 Cal.App.2d 708, 710 [1] [178 P.2d 472].)

As far as attractiveness to children is concerned, there is no significant difference between a body of water and a sand pile. Pools of water and sand piles duplicate the work of nature and are not uncommon. In fact, a pool of water is far more dangerous than a sand pile, which in and of itself is not dangerous. The dangers connected with and inherent in a sand pile are obvious to everyone, even to a child old enough to be permitted by its parents to play unattended.

Sand piles may be attractive to children, but they are also of a common and ordinary nature and are found in numerous places, quite frequently in the child’s own backyard. It is common for children to play in sand piles and to dig holes and make excavations in them. They are early instructed by their parents as to the danger of cave-ins. Hence, the owner of private property who maintains thereon a sand pile that merely duplicates the work of nature and to which no new dangers have been added should not be liable to a trespassing child for injuries under the “attractive nuisance” doctrine.

In Restatement of the Law of Torts, volume 2, section 339, page 922, it is said that the duty of the possessor of land “does not extend to those conditions the existence of which is obvious even to children and the risk of which is fully realized by them. This limitation of the possessor’s liability to conditions dangerous to children, because of their inability to appreciate their surroundings or to realize the risk involved therein, frees the possessor of land from the danger of liability to which he would otherwise be subjected by maintaining on the land the normal, necessary and usual implements which are essential to its normal use but which reckless children can use to their harm in a spirit of bravado or to gratify some other childish desire and with as full a perception of the risks which they are running as though they were adults.” (Cf. 28 A.L.R.2d (1953), § 4, p. 200.)

In Anderson v. Reith-Riley Const. Co., 112 Ind.App. 170 [44 N.E.2d 184], defendant removed a large amount of sand from its property, leaving a hole 100 feet long, 50 feet wide and 10 feet deep, with perpendicular walls. Plaintiff’s son, nine years of age, was attracted to the hole, where he excavated below the surface and was killed in a cave-in which followed. The court held that defendant was not liable under the “attractive nuisance” doctrine, saying at page 185: “Nature has created streams, lakes and pools which attract children. Lurking in their waters is always the danger of drowning. Against this danger children are early instructed so that they are sufficiently presumed to know the danger that if the owner of private property creates an artificial pool on his own property, merely duplicating the work of nature without adding any new danger, and a child, without invitation, ventures on the private property, enters the pool and is drowned, the owner is not liable because of having created an ‘ attractive nuisance. ’

“Nature has created cliffs and embankments which attract children. And here again is always the danger of falling oyer the cliffs or down the embankments. Against these dangers children are early instructed so that they are sufficiently presumed to know the danger that if the owner of private property by excavating for a basement on his own property, thereby creates an artificial cliff, and a child, without invitation, ventures on the private property and falls into the excavation, the owner is not liable because of having created an ‘attractive nuisance.’

“Another common danger in cliffs and embankments is that of cave-ins from excavation below the surface. And it is common for children in play to make such excavations in the sides of cliffs and embankments for the purpose of creating caves, tunnels, etc. So they are early instructed as to the danger of cave-ins and are sufficiently presumed to know the danger that if the owner of private property by excavating on his own property, creates an artificial cliff or embankment, merely duplicating the work of nature without adding any new dangers, and a child, without invitation, ventures on the private property, excavates below the surface and is injured or killed by a resultant cave-in, the owner is not liable because of having created an ‘attractive nuisance.’ Nor does the rule change with the varying texture of the earth. The danger is the same danger, real and obvious, with only the percentage of probability of the occurrence increased or decreased with the earth’s fineness or firmness.

‘‘ The essence of the rule that the doctrine of attractive nuisance does not apply to cases where the danger is one which is obvious and common to nature, against which children are presumed to have received early instruction, was recognized by our Supreme Court in the case of City of Evansville v. Blue (1937), 212 Ind. 130 [8 N.E.2d 224, 229], There a boy of 11 was drowned in a municipal swimming pool. Justice Fansler speaking for the court said:

“ ‘ Healthy boys of eleven years and younger must be deemed to know the perils of deep water, and it must be recognized that it is in the nature of boys to venture where it is dangerous. But it is none the less negligent for one. who is not a good swimmer to venture into deep water, and, - ordinarily, boys no more than adults may voluntarily and negligently put themselves in a position of known danger and charge others with responsibility for protecting them agaipst; their own voluntary acts. ’ ”

In Puckett v. City of Louisville, 273 Ky. 349 [116 S.W.2d 627], plaintiff instituted an action against defendant city for injuries sustained by plaintiff’s 11-year-old child, who had gone upon defendant’s lot containing a hole about four feet deep. The child undermined the embankment with a spoon, causing it to cave in and injure her. The court held that defendant was not liable under the “attractive nuisance” doctrine.

In Zagar v. Union Pac. R. Co., 107 Kan. 240 [214 P. 107], it was held that defendant was not liable for injuries to a boy 13% years of age who was injured as the result of earth falling upon him from a cave dug on defendant’s land by other boys. The “attractive nuisance” doctrine was held not applicable to these facts. (See p. 109.)

It is thus evident that the sand pile did not constitute an ‘ ‘ attractive nuisance. ’ ’ This conclusion is in accord with the generally accepted rule,—to restrict and limit, rather than to extend, the doctrine of “attractive nuisance.” It is a doctrine to be applied cautiously and only when the facts come strictly and fully within the rule. (See Lake v. Ferrer, 139 Cal.App.2d 114, 117 [3] [293 P.2d 104); 65 C.J.S. (1950), § 29(14), p. 479.)

Finally, it is to be noted that if it is conceded that the conveyor belt mentioned in the pleading might constitute an “attractive nuisance,” there is no allegation that it caused or contributed to decedent’s death. There is a total absence of an allegation of a causal connection between the conveyor belt and his unfortunate death. Under these circumstances, the maintenance of the conveyor belt does not bring the case under the “attractive nuisance” doctrine. (Ward v. Oakley Co., supra, p. 846 [5].)

The judgment is affirmed.

Shenk, J., Schauer, J., and Spence, J., concurred.

1 The material parts of the amended complaint are as follows: “IV. That at all times herein mentioned the defendants owned, maintained, operated and controlled those certain premises located in the City of Stockton, County of San Joaquin, State of California, and more commonly known and designated as the 1100 Block, North Union Street, Stockton, California.

“V. That prior to and on or about the 20th day of August, 1953 the defendants had placed or caused to be placed and had maintained or caused to be maintained large sand and gravel piles and a large conveyor belt on the said 1100 Block, North Union Street, all of which were adjacent to each other, and no fences, guards or railings were placed around said sand or gravel piles or around a portion of the said conveyor belt; that in addition thereto there was a road, or pathway, proceeding along side the said sand and gravel piles and the said conveyor. That children of tender age were in the habit of being upon and playing upon the said premises and the said sand and gravel piles and conveyor belt, and by the ordinary predilections and impulses of normal children were attracted to and induced to come and to be upon and to play upon the said premises, said sand and gravel piles and conveyor belt; all of which was well known to the defendants, its servants, agents and employees, or by the exercise of reasonable care on their part would have been known to them. That the defendants knew and realized, or should have known and realized,' that the said sand piles, gravel piles and conveyor involved an unreasonable risk of death or serious bodily harm to children playing on the same as aforesaid in that the children could be injured or killed from falling from the same, from the same falling upon them and in other manners and ways.

“That said children because of their youth were unable to and did not discover the condition or realize the risk involved in intermeddling in said condition or coming within the area made dangerous by the same. That a fence, guard or railing would have prevented said children from coming upon and being upon said premises and condition and from inter-meddling in same.

“VI. That on or about the 20th day of August, 1953, at or about 7:20 p. M. of said day, the said Johnny William Bass, Jr., having been attracted to and induced to come upon and be upon and to play upon the said premises, the said sand and gravel piles and the said conveyor belt.as aforesaid, was playing upon the same, and being of the age of ten (10) years and being of tender and immature years and by reason of his age and immaturity, being unable to perceive or appreciate the danger confronting him and without fault on his part was situated and playing as aforesaid. That at said time and place the defendants, and each of them, did carelessly and negligently maintain, operate and control the said premises owned by the defendants and known and designated as the 1100 Block of North Union Street, in that the said defendants negligently and carelessly failed to place any fences, guards or railings or other means of excluding small children from the area around said sand or gravel piles or around a portion of the said conveyor belt. That by reason of the negligence and carelessness of the defendants, and each of them, as aforesaid, and as a proximate result thereof, the said Johnny William Bass, Jr., while playing and digging OTi and in the same piles was asphyxiated, resulting in his death, when one of said sand piles collapsed upon him while he was playing and digging on or in the same.”

2 See Prosser on Torts (2d ed. 1955), supra.