McWilliams v. Guzinski

237 N.W.2d 437, 71 Wis. 2d 57, 87 A.L.R. 3d 871, 1976 Wisc. LEXIS 1205

• Court: Wisconsin Supreme Court
• Decided: January 20, 1976
• Docket: 77 (1974)
• Status: Published

Opinions

Day, J.

The order appealed from overrules the defendants’ demurrer and the question here is whether the complaint states a cause of action in negligence under the “attractive nuisance” doctrine.¹

The action was brought by the mother of a deceased child for damages sustained by her as a result of the drowning of her four-year-old son, Joseph, in a backyard swimming pool owned by the defendants, Mr. and Mrs. Thomas Guzinski. It is alleged that the pool is surrounded by a fence constructed in a “basket weave” manner, presenting a “natural stepladder” at each support post. The sole allegation in the complaint concerning the fence’s gates is “that on July 11, 1972 there were two gates in the fence and that on information and belief on July 11, 1972 and at all times material hereto neither of those gates were locked.”

For a substantial period of time prior to the drowning, children of “tender years” had allegedly been accustomed to playing in the swimming pool, and the defendants knew of such activity. The deceased, Joseph Ajack, resided in the vicinity of the Guzinski home and allegedly waded, swam, and played in the swimming pool frequently with other children, and with the defendants’ knowledge.

At about 4:30 p.m. on July 11, 1972, Joseph was playing and wading in and about the swimming pool, and was allegedly unaware that without proper supervision there are inherent dangers involved in wading and playing in a swimming pool. Joseph got into the swimming pool area, fell into the pool, and drowned. The complaint alleges that Joseph was “unaware of the danger and hazard incident thereto . . .” and further alleges that he was “attracted thereby and allured thereto.”

The complaint alleges that the defendants negligently failed to guard and protect the swimming pool “in such a way that it would be impossible for children to get to and into the swimming pool in their usual practice of playing and running around the swimming pool . . . ,” that defendants negligently failed to maintain a proper fence with locked gates so as to make the same safe for children who might be attracted to the swimming pool, and that they failed to “provide any protection or safeguard of any kind for children and infants known to be attracted to and using the swimming pool and playing in and about the same . . . ,” that the swimming pool was attractive to children, and was known by the defendants to be likely to attract and allure children to play in and around the same, and that the negligence of the defendants was the sole and proximate cause of the death of Joseph.

The allegations of the complaint are designed to bring the case within the doctrine of attractive nuisance, the requirements for which have been recently set forth in the case of Kempen v. Green Bay & Miss. Canal Co. (1974), 66 Wis. 2d 185, 187, 224 N. W. 2d 202, which reiterated the language originally used in Angelier v. Red Star Yeast (1934), 215 Wis. 47, 53, 254 N. W. 351:

(1) “. . . that the . . . [possessor of real estate] maintained, or allowed to exist, upon his land, an artificial condition which was inherently dangerous to children being upon his premises

(2) “that he knew or should have known that children trespassed or were likely to trespass upon his premises

(3) “that he realized or should have realized that the structure erected or the artificial condition maintained by him was inherently dangerous to children and involved an unreasonable risk of serious bodily injury or death to them

(4) “that the injured child, because of his youth or tender age, did not discover the condition or realize the risk involved in going within the area, or in playing in close proximity to the inherently dangerous condition;”

(5) “and that safeguards could reasonably have been provided which would have obviated the inherent danger without materially interfering with the purpose for which the artificial condition was maintained.”

We hold here that an insufficiently guarded swimming pool maintained in a residential area may be inherently dangerous to a child four years of age. Having determined this, the question becomes what precautionary steps the owner must take to eliminate the danger, such as are reasonable and do not materially interfere with use of the pool. The allegation as to the “basket-weave” nature of the fence lacks sufficient specificity to indicate that the fence was not a reasonable safeguard, and while the complaint does say that it could be climbed, the height of that fence is not set forth, nor the ease or lack of it with which a four-year-old could surmount such obstacle. However, the complaint does allege that there were two gates which were not locked and, as we must permit “all reasonable inferences” from the allegations in the construction of a complaint on demurrer (Purtell v. Tehan (1966), 29 Wis. 2d 631, 139 N. W. 2d 655), the inference that the unlocked gate made the pool accessible to this four-year-old child either because it was in fact open, or because it was easily pushed open, may be made. We do not agree with the complaint that a pool owner must make it “impossible” for children to get into the pool by the erection of artificial barriers. The safeguards must only be reasonable, and the question of whether the safeguards employed by defendants in this case were reasonable cannot be determined at this stage of the proceedings.

Many previous cases in this court have dealt with the problem of “attractive nuisance,” and particularly with the question of what constitutes an “inherently dangerous” condition. In Kempen, supra, a seven-and-a-half-year-old child fell from a “spillway or canal overflow” into an adjoining river and was drowned. This court held that a conclusory allegation that the spillway was inherently dangerous was insufficient to state a cause of action, and that additional allegations would be necessary to show that the spillway was constructed in such a manner that the risks were not apparent to the drowned child. The court stated:

“. . . the allegation in the complaint here, that the spillway or canal overflow was inherently dangerous to children, is a conclusion, not admitted by demurrer, and . . . in the absence of allegations as to a defect in the structure or other peculiar circumstance, which was hidden from the child or which a child would fail to appreciate because of his immaturity, a child must be held to knowledge and appreciation of the obvious risks involved in going along or in playing in close proximity to a spillway or canal overflow, even though the complaint alleges that he was unaware of such risks.” Kempen at page 192 (emphasis supplied).

One of the leading Wisconsin cases on “inherent danger” is Schilz v. Walter Kassuba, Inc. (1965), 27 Wis. 2d 390, 134 N. W. 2d 453, where a ten-year-old child had been injured in a fall from a large pipe protruding from the ground. The court spoke of the obviousness of the danger to the child, saying:

“The risk involved in [playing on the pipes] was simple and obvious. Indeed the challenge offered by the risk of falling is probably what provided the fun. There is no suggestion of any surprising danger, such as instability of the pipes, or unusual slipperiness.” Schilz at page 394.

The court concluded that, in the absence of any allegation that the pipes were deceptively dangerous, the complaint was insufficient:

“It appears generally to be the rule that a child is bound to appreciate a simple and obvious danger of falling from an object or structure, but is not bound to appreciate a danger presented or exaggerated by a defect in the structure or other peculiar circumstance, which is hidden from the child or which a child would fail to appreciate because of his immaturity.

“We conclude that an allegation that the four pipes, as described in the instant complaint, were inherently dangerous to children is a conclusion, not admitted, by demurrer, and that as a matter of law plaintiff must be held to knowledge and appreciation of the obvious risk of falling from the pipes even though the complaint alleged she was unaware of it.” Schilz at pages 396, 397 (emphasis supplied). .

The court went on to quote with approval a comment to the Restatement, Torts 2d, p. 203, sec. 339:

“There are many dangers, such as those of fire and water, or of falling from a height, which under ordinary conditions may reasonably be expected to be fully understood and appreciated by any child of an age to be allowed at large. To such conditions the rule stated in this Section ordinarily has no application, in the absence of some other factor creating a special risk that the child will not avoid the danger, such as the fact that the condition is so hidden as not to be readily visible, or a distracting influence which makes it likely that the child will not discover or appreciate it.” (Emphasis supplied.)

The term “of an age to be allowed at large” is not self-defining. Does it refer merely to a child’s physical ability to walk a distance? We think not. It must refer to the child’s possession of maturity sufficient to travel “at large” on his own, unsupervised. Does travel “at large” include crossing of busy highways or intersections, for example, or venturing into a neighbor’s backyard for a look at the swimming pool? Whether a four-year-old may be “at large” to the extent revealed by the facts and circumstances of this case is a question for the finder of fact.

If Joseph A jack was “of an age to be allowed at large,” the Restatement comment suggests that he should be held to understand common dangers, such as those of water bodies. While this principle was properly applied to prevent liability to the older children, ages seven and ten, involved in the Kempen and Schilz Cases, we conclude that it is not applicable here: a four-year-old may be “of an age to be allowed at large” to a limited extent, and yet will not be held, as a matter of law, to an appreciation of the hazards of a swimming pool. Kem/pen and Schilz both recognize the existence of this situation; in the passages quoted above, both cases state that a child will not be held to knowledge of even a simple and obvious danger which he might “fail to appreciate because of his immaturity.” This is precisely the situation in the present case.

In Thiel v. Bahr Construction Co. (1961), 18 Wis. 2d 196, 108 N. W. 2d 573, this court was confronted with a similar situation involving an obvious danger to a very young child: a four-year-old was injured by an oil-burning flare maintained at a sewer construction site in a residential area. The danger of the flare would have been obvious to anyone old enough to understand fire. As to a four-year-old, however, this court held that the question of whether the danger was obvious could not be resolved on demurrer, nor could the reasonableness of safeguards be adequately evaluated without a full record:

“The question raised is too grave to be resolved as a matter of law from the pleadings before us. The issue can be raised in the answer to the complaint and testimony produced at the trial as to the general use of flares of the type used by the defendant in sewer-construction work; also as to whether or not there are other devices such as electric lights, battery-operated lights, lanterns, or glass-inclosed flares that can provide an effective warning without an undue burden being placed upon the defendant when small children are known to be in the vicinity of the work being done. A proper determination of the issue can only be made from a record reflecting all of the facts and circumstances leading up to the injury.” Thiel at 200.

In the present case we hold, similarly, that whether or not Jospeh Ajack could be held to appreciate the danger of the pool, and the reasonableness of defendants’ safeguards, cannot be decided at this point. Where the complaint alleges that a four-year-old gained entrance to an insufficiently protected swimming pool located in a residential area, it is sufficient to withstand demurrer.

Other courts have allowed attractive nuisance actions where children have been injured or drowned in private swimming pools. Samson v. O’Hara (Fla. App. 1970), 239 So. 2d 151, permitted a suit where the child was only eighteen months old, although there was an additional allegation that the pool gate had been left standing open. Giacona v. Tapley (1967), 5 Ariz. App. 494, 428 Pac. 2d 439, allowed an attractive nuisance action where a five-year-ojd had crawled through a hedge surrounding the pool. King v. Lennen (1959), 53 Cal. 2d 340, 1 Cal. Rptr. 665, 348 Pac. 2d 98, allowed an attractive nuisance suit where the child involved was only eighteen months old, although the pool was protected only by an easily penetrated rail fence.

In Staley v. Security Athletic Assn. (1963), 152 Colo. 19, 380 Pac. 2d 53, the court upheld the granting of a directed verdict against the plaintiff where his four-year-old son had been drowned in a swimming pool owned by a private club. The pool area was closed, enclosed by a chain-link fence six-feet high with a three-strand barbed-wire apron at the top extending at an angle of about 45 degrees from the pool. Although the single gate was locked, its bottom was about eight inches above the center of the somewhat concave pedestrian dirt path leading to and from the pool, creating the apparent means of entry. The court held that the defendant had made every reasonable effort to keep people out of the pool area by proper fencing, noting that the defendant “was not obliged to erect and maintain an impenetrable wall around the area or to make it boy proof. . . .” It is clear that in the Staley Case the plaintiff was unable to prove the fifth element in a cause of action for attractive nuisance, in that safeguards had reasonably been provided which obviated any inherent danger. Although the Staley court also held that the presence of the water was a danger obvious to a child four years of age, we find that conclusion unpersuasive. Whether the danger here was obvious to this four-year-old is a question of fact to be resolved in the trial court.

By the Court. — Order affirmed.

1 This case arose prior to our holding in Antoniewicz v. Reszczynski (1975), 70 Wis. 2d 836, 236 N. W. 2d 1, and we make no comment here concerning the effect of that case, if any, on attractive nuisance doctrine.