Eberhardt, Presiding Judge.
Mrs. Evelyn G. Grooms brought suit against Montega Corporation alleging that the defendant was engaged in the construction of an apartment complex and had bulldozed an excavation on the site in which surface waters from a heavy rain accumulated, creating a pond which was [334]*334about nine feet deep at the lower end. Her son, Orlando Grooms, aged 12, was drowned in the pond when he jumped into it for the purpose of rescuing his little four-year-old sister who had either fallen or jumped into the water and was in distress.
The defendant took depositions of plaintiff and her husband and, based upon these, together with an affidavit of defendant’s president and a surveyor’s plat of the construction site, moved for summary judgment. In opposition to the motion plaintiff submitted the affidavit of an employee of the defendant, who asserted that on several occasions he had observed children playing around the job site and that he had suggested to the defendant’s president that the excavation be filled or fenced. Also submitted was the affidavit of a witness who stated he had seen plaintiffs children go onto the construction site toward the pond; that shortly afterwards he saw the little girl in the water in apparent distress; that decedent jumped into the water, after which affiant went to the pond, jumped in and rescued the little girl but failed in rescuing decedent, who was later found and brought up from the bottom of the pond by another. The accident happened about 8:30p.m., June 17, 1971.
It appears that the excavation was made for the purpose of burying trash and debris which accumulated in the course of the construction (the burning of it being prohibited under Code Ann. Ch. 88). There was a chain link fence along the line between the Montega property and plaintiffs property which was too high for the children to have climbed; it had been necessary for them to go around it in order to get on the defendant’s property. There was a barbed wire strand above the fence. The excavation was approximately 45 feet from the nearest property line. Defendant’s president testified that the plaintiffs children "had never been invited upon the premises, had never been [335]*335employed to do any job for Montega Corporation, were not authorized to be on the land, and were upon it without the knowledge of Montega Corporation.” The motion for summary judgment was denied and defendant, obtaining a certificate for review, appeals. Held:
1. The evidence submitted, both in support of and in opposition to the motion, discloses that plaintiffs daughter was a trespasser and that her son was at most a bare licensee, to whom the defendant owed no duty save that of refraining from wilfully and wantonly injuring them. Atlantic C. L. R. Co. v. O’Neal, 180 Ga. 153, 156 (178 SE 451); Washington v. Trend Mills, 121 Ga. App. 659 (2) (175 SE2d 111). One’s status as a trespasser, licensee or invitee is not determined by his age or his capacity, mental or physical. Crosby v. Savannah Electric &c. Co., 114 Ga. App. 193, 196 (150 SE2.d 563); Atlanta & West Point R. Co. v. West, 121 Ga. 641, 646 (49 SE 711, 67 LRA 701, 104 ASR 179). It does not appear that the defendant had knowledge of the presence of the children on its premises on the occasion involved. It is not contended that the children were expressly invited to come onto defendant’s premises, and the facts appearing do not support a claim of implied invitation. Savannah F. & W. R. Co. v. Beavers, 113 Ga. 398 (39 SE 82, 54 LRA 314); McCall v. McCallie, 48 Ga. App. 99 (7) (171 SE 843); Fickling v. City Council of Augusta, 110 Ga. App. 330 (138 SE2d 437); Crosby v. Savannah Electric &c Co., 114 Ga. App. 193 (1, 2, 6), supra. That an owner may have permitted children to play upon his premises, or that there may be conditions thereon which are alluring to them does not amount to an implied invitation to children to go upon his land. Southern Cotton Oil Co. v. Pierce, 145 Ga. 130 (88 SE 672); Atlantic C. L. R. Co. v. Corbitt, 150 Ga. 747 (105 SE 358); Atlantic C. L. R. Co. v. O’Neal, 180 Ga. 153, supra; Seaboard A. R. Co. v. Young, 20 Ga. [336]*336App. 291 (93 SE 29); Manos v. Myers-Miller Furn. Co., 32 Ga. App. 644 (124 SE 357); Haley Motor Co. v. Boynton, 40 Ga. App. 675 (150 SE 862); Smith v. Ga. Power Co., 43 Ga. App. 210 (158 SE 371); Brown v. Bone, 85 Ga. App. 22 (68 SE2d 190).
The placing of the chain link fence on the property line between the lands of plaintiff and defendant emphasizes a lack of invitation.
2. "The owner owes no duty to a licensee to inspect the premises or to prepare a safe place for his reception. Cobb v. First Nat. Bank of Atlanta, 58 Ga. App. 160 (2a, b) (198 SE 111); Restatement, Torts 2d, § 342; Prosser, Torts (3d Ed.) Ch. 11, § 60.” Kahn v. Graper, 114 Ga. App. 572, 577 (150 SE2d 10); St. Clair v. City of Macon, 43. Ga. App. 598 (159 SE 758); Butler v. Brogdon, 110 Ga. App. 352 (138 SE2d 604).
There is much similarity in the facts and in the positions of the parties here and in Bowers v. Texas Co., 65 Ga. App. 874 (16 SE2d 765), where, holding that an injured child, whether trespasser or licensee, had no cause of action against the owner, it was asserted: "As a general rule, the owner of private grounds is under no obligation to keep them in a safe condition for the benefit of trespassers, intruders, idlers, bare licensees, or others who come upon them, not by any invitation, express or implied, but for their own purposes, their pleasure, or to gratify their curiosity, however innocent or laudable their purpose may be.”
3. An open pond of water, whether natural or artificial does not, of itself, constitute a mantrap. Savannah F. & W. R. Co. v. Beavers, 113 Ga. 398, supra; Crawford v. Pollard, 55 Ga. App. 702 (191 SE 162); Crews v. Slappey, 110 Ga. App. 496 (138 SE2d 919). Cf. Todd v. Armour & Co., 44 Ga. App. 609 (162 SE 394); Etheredge v. Central R. Co., 122 Ga. 853 (50 SE 1003). As to what constitutes a mantrap, see generally Crosby v. Savannah Electric &c. Co., 114 Ga. App. 193, 198, [337]*337supra; Kahn v. Graper, 114 Ga. App. 572, 576, supra; Wilder v. Gardner, 39 Ga. App. 608 (147 SE 911); Stowe v. Gallant-Belk Co., 107 Ga. App. 80 (3a) (129 SE2d 196); Baxley v. Williams Const. Co., 98 Ga. App. 662, 670 (106 SE2d 799).
4. The turntable or attractive nuisance doctrine does not apply to ponds or other water hazards. Savannah F. & W. R. Co. v. Beavers, 113 Ga. 398, supra; St. Clair v. City of Macon, 43 Ga. App. 598, supra; McCall v. McCallie, 48 Ga. App. 99, supra; Fickling v. City Council of Augusta, 110 Ga. App. 330, 332, supra; Crews v. Slappey, 110 Ga. App. 496, supra; Venable v. Langford, 116 Ga. App. 257, 258 (157 SE2d 34).
5. Since it appears that the deceased was a trespasser, or, at most a bare licensee, the defendant "would not be liable for anything but affirmative acts amounting to wilfulness.” Baxley v. Williams Const. Co., 98 Ga. App. 662, 670, supra. No such affirmative acts on the part of the defendant appear, by pleading or by evidence.
6.
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Eberhardt, Presiding Judge.
Mrs. Evelyn G. Grooms brought suit against Montega Corporation alleging that the defendant was engaged in the construction of an apartment complex and had bulldozed an excavation on the site in which surface waters from a heavy rain accumulated, creating a pond which was [334]*334about nine feet deep at the lower end. Her son, Orlando Grooms, aged 12, was drowned in the pond when he jumped into it for the purpose of rescuing his little four-year-old sister who had either fallen or jumped into the water and was in distress.
The defendant took depositions of plaintiff and her husband and, based upon these, together with an affidavit of defendant’s president and a surveyor’s plat of the construction site, moved for summary judgment. In opposition to the motion plaintiff submitted the affidavit of an employee of the defendant, who asserted that on several occasions he had observed children playing around the job site and that he had suggested to the defendant’s president that the excavation be filled or fenced. Also submitted was the affidavit of a witness who stated he had seen plaintiffs children go onto the construction site toward the pond; that shortly afterwards he saw the little girl in the water in apparent distress; that decedent jumped into the water, after which affiant went to the pond, jumped in and rescued the little girl but failed in rescuing decedent, who was later found and brought up from the bottom of the pond by another. The accident happened about 8:30p.m., June 17, 1971.
It appears that the excavation was made for the purpose of burying trash and debris which accumulated in the course of the construction (the burning of it being prohibited under Code Ann. Ch. 88). There was a chain link fence along the line between the Montega property and plaintiffs property which was too high for the children to have climbed; it had been necessary for them to go around it in order to get on the defendant’s property. There was a barbed wire strand above the fence. The excavation was approximately 45 feet from the nearest property line. Defendant’s president testified that the plaintiffs children "had never been invited upon the premises, had never been [335]*335employed to do any job for Montega Corporation, were not authorized to be on the land, and were upon it without the knowledge of Montega Corporation.” The motion for summary judgment was denied and defendant, obtaining a certificate for review, appeals. Held:
1. The evidence submitted, both in support of and in opposition to the motion, discloses that plaintiffs daughter was a trespasser and that her son was at most a bare licensee, to whom the defendant owed no duty save that of refraining from wilfully and wantonly injuring them. Atlantic C. L. R. Co. v. O’Neal, 180 Ga. 153, 156 (178 SE 451); Washington v. Trend Mills, 121 Ga. App. 659 (2) (175 SE2d 111). One’s status as a trespasser, licensee or invitee is not determined by his age or his capacity, mental or physical. Crosby v. Savannah Electric &c. Co., 114 Ga. App. 193, 196 (150 SE2.d 563); Atlanta & West Point R. Co. v. West, 121 Ga. 641, 646 (49 SE 711, 67 LRA 701, 104 ASR 179). It does not appear that the defendant had knowledge of the presence of the children on its premises on the occasion involved. It is not contended that the children were expressly invited to come onto defendant’s premises, and the facts appearing do not support a claim of implied invitation. Savannah F. & W. R. Co. v. Beavers, 113 Ga. 398 (39 SE 82, 54 LRA 314); McCall v. McCallie, 48 Ga. App. 99 (7) (171 SE 843); Fickling v. City Council of Augusta, 110 Ga. App. 330 (138 SE2d 437); Crosby v. Savannah Electric &c Co., 114 Ga. App. 193 (1, 2, 6), supra. That an owner may have permitted children to play upon his premises, or that there may be conditions thereon which are alluring to them does not amount to an implied invitation to children to go upon his land. Southern Cotton Oil Co. v. Pierce, 145 Ga. 130 (88 SE 672); Atlantic C. L. R. Co. v. Corbitt, 150 Ga. 747 (105 SE 358); Atlantic C. L. R. Co. v. O’Neal, 180 Ga. 153, supra; Seaboard A. R. Co. v. Young, 20 Ga. [336]*336App. 291 (93 SE 29); Manos v. Myers-Miller Furn. Co., 32 Ga. App. 644 (124 SE 357); Haley Motor Co. v. Boynton, 40 Ga. App. 675 (150 SE 862); Smith v. Ga. Power Co., 43 Ga. App. 210 (158 SE 371); Brown v. Bone, 85 Ga. App. 22 (68 SE2d 190).
The placing of the chain link fence on the property line between the lands of plaintiff and defendant emphasizes a lack of invitation.
2. "The owner owes no duty to a licensee to inspect the premises or to prepare a safe place for his reception. Cobb v. First Nat. Bank of Atlanta, 58 Ga. App. 160 (2a, b) (198 SE 111); Restatement, Torts 2d, § 342; Prosser, Torts (3d Ed.) Ch. 11, § 60.” Kahn v. Graper, 114 Ga. App. 572, 577 (150 SE2d 10); St. Clair v. City of Macon, 43. Ga. App. 598 (159 SE 758); Butler v. Brogdon, 110 Ga. App. 352 (138 SE2d 604).
There is much similarity in the facts and in the positions of the parties here and in Bowers v. Texas Co., 65 Ga. App. 874 (16 SE2d 765), where, holding that an injured child, whether trespasser or licensee, had no cause of action against the owner, it was asserted: "As a general rule, the owner of private grounds is under no obligation to keep them in a safe condition for the benefit of trespassers, intruders, idlers, bare licensees, or others who come upon them, not by any invitation, express or implied, but for their own purposes, their pleasure, or to gratify their curiosity, however innocent or laudable their purpose may be.”
3. An open pond of water, whether natural or artificial does not, of itself, constitute a mantrap. Savannah F. & W. R. Co. v. Beavers, 113 Ga. 398, supra; Crawford v. Pollard, 55 Ga. App. 702 (191 SE 162); Crews v. Slappey, 110 Ga. App. 496 (138 SE2d 919). Cf. Todd v. Armour & Co., 44 Ga. App. 609 (162 SE 394); Etheredge v. Central R. Co., 122 Ga. 853 (50 SE 1003). As to what constitutes a mantrap, see generally Crosby v. Savannah Electric &c. Co., 114 Ga. App. 193, 198, [337]*337supra; Kahn v. Graper, 114 Ga. App. 572, 576, supra; Wilder v. Gardner, 39 Ga. App. 608 (147 SE 911); Stowe v. Gallant-Belk Co., 107 Ga. App. 80 (3a) (129 SE2d 196); Baxley v. Williams Const. Co., 98 Ga. App. 662, 670 (106 SE2d 799).
4. The turntable or attractive nuisance doctrine does not apply to ponds or other water hazards. Savannah F. & W. R. Co. v. Beavers, 113 Ga. 398, supra; St. Clair v. City of Macon, 43 Ga. App. 598, supra; McCall v. McCallie, 48 Ga. App. 99, supra; Fickling v. City Council of Augusta, 110 Ga. App. 330, 332, supra; Crews v. Slappey, 110 Ga. App. 496, supra; Venable v. Langford, 116 Ga. App. 257, 258 (157 SE2d 34).
5. Since it appears that the deceased was a trespasser, or, at most a bare licensee, the defendant "would not be liable for anything but affirmative acts amounting to wilfulness.” Baxley v. Williams Const. Co., 98 Ga. App. 662, 670, supra. No such affirmative acts on the part of the defendant appear, by pleading or by evidence.
6. "A person who creates or maintains a pond of water upon private premises is under no duty to maintain it in a condition of safety, as against dr'owning, for children who, with ’the mere acquiescence and knowledge of the owner but without express and implied invitation, come upon the premises and go in the pond.” St. Clair v. City of Macon, 43 Ga. App. 598 (1), supra.
"One who makes an excavation upon his land is not bound to so guard it as to prevent injury to children who come upon it without his invitation, express or implied but who are induced to do so merely by the alluring attractiveness of the excavation and its surroundings.” Savannah F. & W. R. Co. v. Beavers, 113 Ga. 398, supra. That the excavation may be filled with water does not change this rule. Crawford v. Pollard, 55 Ga. App. 702, supra; McCall v. McCallie, 48 Ga. App. 99, supra; Crews v. Slappey, 110 Ga. App. [338]*338496, supra. That the excavation was not itself fenced so that children could not get to it does not impose liability on the owner. Savannah F. & W. R. Co. v. Beavers, 113 Ga. App. 398, supra.
7. "The reasoning of these decisions, some of which are cited infra, is that the maintenance of a pond does not expose persons not invited on the land to an unreasonable risk of harm . . . This is true regardless of the location of the pond or water hazard with a traveled way or its general accessibility. McCall v. McCallie, 48 Ga. App. 99, supra; Crawford v. Pollard, 55 Ga. App. 702, supra. The artificial character of the water hazard has no bearing on liability or nonliability. McCall v. McCallie, 48 Ga. App. 99, supra. A deep hole or ledge under water imposes no liability upon the landowner for the drowning of a child either under the attractive nuisance doctrine or on the theory of actual negligence. McCall v. McCallie, 48 Ga. App. 99, supra. Neither does the fact that the water in which the child drowned was muddy. Savannah F. & W. R. Co. v. Beavers, 113 Ga. 398, supra. Even the fact that children are accustomed to play at the place of danger with knowledge of the owner gives rise to no implied invitation. St. Clair v. City of Macon, 43 Ga. App. 598, supra; McCall v. McCallie, 48 Ga. App. 99, supra; Crawford v. Pollard, 55 Ga. App. 702, supra.” Fickling v. City Council of Augusta, 110 Ga. App. 330, 332, supra. That there may have been water-logged floating rafts in the water, which the children tried to get on and because of lack of support, drowned, does not give rise to a cause of action against the owner. Crews v. Slappey, 110 Ga. App. 496, supra. Nor does it matter that the bottom of the water hazard may be muddy and sticky.
8. (a) "Counsel invoke a further rule, or alleged rule, viz., that the [deceased] went into a place of danger lawfully to rescue [his] sister, and therefore was rightfully there and entitled to protection. The defendant had a right [339]*339to rely upon [its] right to privacy, and to believe that [its] premises would only be invaded by those whom [it] should choose to invite and warn against the dangers of the place. Was [it], then, bound to suppose that somebody might trespass, and to have someone on hand to warn and protect some possible rescuer of an imaginary trespasser? We think not.” Ryan v. Towar, 128 Mich. 463, 480 (87 NW 644). In Ryan it appeared that the defendant had an overshot water wheel and a pit beneath filled with water. Plaintiff, aged between 12 and 13 years, saw her eight-year-old sister playing on the wheel and get caught between the wheel and the side of the pit in the water. In an effort to rescue the sister plaintiff was injured. For some time it had been the custom of children to play on the wheel as they went by it on their way home from school.
(b) "Loss of life incurred in rescuing another from a situation of peril gives rise to no cause of action against one who is guilty of no negligence, either as to the person whose safety was imperiled or as to the rescuer after his efforts to make the rescue had begun.” (Emphasis supplied.) Jackson v. Standard Oil Co., 98 Ga. 749 (1) (26 SE 60). Hence, in Fickling v. City Council of Augusta, 110 Ga. App. 330, supra, we held that no cause of action was alleged for the death of a nine-year-old child who drowned in defendant landowner’s pond while attempting to rescue another child in distress in the pond, since "The owner or occupier of land does not have a duty to protect persons —even small children — not invited on the land from hazards that may exist from the presence of a pond of water, since the maintenance of a pond by the owner or occupier is not an unreasonable risk of harm to persons not invited on the land.”
(c) An owner’s liability for injury or death suffered by one who attempts to rescue another who is in distress must rest upon some negligence or violation of duty to [340]*340the person in distress, since the "apparent necessity for rescue and assistance [is] made necessary by the . . . negligence of the defendant.” Blanchard v. Reliable Transfer Co., 71 Ga. App. 843, 847 (32 SE2d 420). Accord: Atlantic C. L. R. Co. v. Wildman, 29 Ga. App. 745 (1) (116 SE 858); Atlanta & C. A. L. R. Co. v. Leach, 91 Ga. 419 (17 SE 619, 44 ASR 47). "Liability by a defendant to a rescuer must rest on a breach of a duty owed directly by the defendant to the rescuer, or by the defendant to the person whose rescue is attempted.” Brady v. Chicago & N. W. R. Co., 265 Wis. 618, 625 (62 NW2d 415). The negligence must be actionable negligence. The rescue doctrine is applicable only where the situation which invites rescue is created by some tortious act of the defendant. "[Liability in rescue cases is predicated upon a defendant’s conduct in negligently creating the peril which inspired the attempted rescue . . . the doctrine has no application where the defendant’s conduct was not negligent or a tortious wrong.” 57 AmJur2d 608, Negligence, § 228.
Under the pleadings, the evidence and the citations of authority in the foregoing divisions there was simply no negligence on the part of Montega, and no breach of duty owed by it either to the deceased or to his sister.
9. "Our conclusion is that the evidence in this case does not disclose the breach of any duty lawfully due from the defendant. . . to the deceased child, and consequently [would] not warrant a finding that his death was occasioned by its negligence.” Savannah F. & W. R. Co. v. Beavers, 113 Ga. 398, 413, supra. Cf. Frankum v. Farlinger, 35 Ga. App. 305 (132 SE 923). See also Crews v. Slappey, 110 Ga. App. 496, supra; Venable v. Langford, 116 Ga. App. 257, supra.
Since the defendant did not owe the deceased any legal duty which‘it neglected to perform, no action could be maintained against it for negligence on its part. Actionable negligence does not exist in the absence of [341]*341the breach of some legal duty. Savannah F. & W. R. Co. v. Beavers, 113 Ga. 398, supra. The entire absence of blame on the part of the deceased does not establish fault on the part of the defendant. Cook v. Kroger Baking &c. Co., 65 Ga. App. 141, 142 (15 SE2d 531); Simpson v. Brand, 108 Ga. App. 393, 400 (133 SE2d 393).
Argued September 14, 1972
Decided January 5, 1973
Rehearing denied March 1, 1973
Long, Weinberg, Ansley & Wheeler, Sidney F. Wheeler, for appellant.
Garland & Garland, Eugene R. Kiser, for appellee.
10. The evidence submitted in support of the motion, when considered in the light of applicable legal principles, pierced the pleadings, showing the lack of any genuine issue as to any material fact. That which was submitted in opposition to the motion failed to raise or show the existence of such an issue. It appears as a matter of law that defendant was entitled to a summary judgment in its favor.
Judgment reversed.
Bell, C. J., Hall, P. J., Quillian and Stolz, JJ., concur. Pannell, Deen, Evans and Clark, JJ., dissent.