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District Court of Appeal, Fourth District, California.

Keith REYNOLDS, a minor, by his guardian ad litem, William J. Reynolds, Jr., Plaintiff and Respondent, v. Melville E. WILLSON and Rayona E. Willson, Defendants and Appellants.*

Civ. 5360.

Decided: March 18, 1957

Leonard, Hanna & Brophy, by Donald R. Brophy, San Francisco, Stammer, McKnight & Barnum, and Wild, Christensen, Barnard & Wild, Fresno, for appellants. Bruce Walkup, San Francisco, Dubsick & Helon, by Nicholas H. Dubsick, and William B. Boon, Fresno, for respondent.

Since defendants have appealed only from the order denying their motion for judgment notwithstanding the verdict, the disposition of this appeal is covered by certain prescribed principles. It may be granted only if the motion for directed verdict should have been granted Code Civ.Proc.Sec. 629. The same rules apply as in the case of a motion for directed verdict. Washer v. Bank of America, 87 Cal.App.2d 501, 505, 197 P.2d 202. The power of the court to direct a verdict is subject to the same limitations as its power to grant a nonsuit. Pellett v. Sonotone Corporation, 26 Cal.2d 705, 708, 160 P.2d 783, 160 A.L.R. 863. A non-suit or directed verdict may be granted only when, disregarding conflicting evidence and giving to plaintiff's evidence all the value to which it is legally entitled, therein indulging in every ligitimate inference which may be drawn from that evidence, the result is a determination that there is no evidence of sufficient substantiality to support a verdict in favor of the plaintiff, if such verdict were given. In re Estate of Lances, 216 Cal. 397, 400, 14 P.2d 768. Where, however, it is manifest that reasonable minds can draw but one inference and that inference points inevitably to the insufficiency of plaintiff's evidence, then the law will step in and deny a recovery under the verdict. Washer v. Back of America, supra.

William J. Reynolds, Jr., as guardian ad litem of his minor son Keith Reynolds, brought this action for damages for personal injuries to the son on January 31, 1953, he having climbed down into and slipped in a partially filled private swimming pool maintained by defendants upon their adjoining residential property. A trial by jury resulted in a judgment for plaintiff for $50,000. No complaint is made as to the amount of the judgment. Keith, then aged two years and three months, lived with his parents and older brothers and sisters at 4140 N. Wilson Avenue (S. E. Corner of Wilson and Buckingham Way) in the Fig Garden residential area in Fresno. Defendants lived at 4137 Van Ness Boulevard (S. W. Corner of Van Ness and Buckingham.) Buckingham Way is the cross-street between Van Ness and Wilson, and it runs in an East-West direction. Van Ness and Wilson both run north and south. The rear or most easterly property line of the home of Keith's parents was also the rear and most westerly property line of defendants' property. The two properties were separated by a solid masonry wall about five feet high, six inches thick and 162 feet in length. It extended east on the Buckingham side of defendants' residence toward Van Ness for about 80 feet. There then is an opening, 10 ft. 6 inches wide for a paved driveway or side entrance to the garage, yard and pool area. The wall then continues easterly toward Van Ness for 49 feet and thence south to the corner of the house. Near the house is a 3-foot opening for a gate. On the opposite or south side of the lot the fence is of about equal length and height. The Willson residence occupies the front portion of the lot, which lot measures approximately 280 feet by 140 feet facing east on Van Ness. A large 2-story garage occupies the northwest corner of the lot at the rear and a concrete swimming pool, about 20 by 40 feet, graduated from 3 feet to 9 feet 4 inches in depth, is located in the southwest corner at the rear of the lot. There is a considerable amount of shrubbery and trees on the property. As thus enclosed, the view of the swimming pool is obstructed to the height of the fence and by the length and width of the garage to persons passing along Buckingham, with the exception of the 10-foot 6-inch passageway. The Willsons' home and swimming pool were built in 1932, and they moved onto the property in April, 1951. The Reynolds family moved into their home in 1950. That district, which was previously considered urban, has been built up to a great extent with large residences. There is a grade school about four blocks east of Van Ness and 50 to 60 children, ranging in age from two to ten years, lived in the surrounding neighborhood at the time. May played in the streets and on the various lots and some walked by defendants' residence on Buckingham on their way to school. It appears that the Willsons and Reynolds were neighborly and invitation was extended to the Reynolds and their children to use the swimming pool in the warm season, but with the admonition that some adult must be present on all such occasions. Evidently they and other neighbors took advantage of this invitation with the conditions attached. This invitation was extended from one season to another. Keith was taken to the pool by his father or mother two to four times a week during the 1951 season, and the children also played on the grass and mound surrounding the pool. At the close of the 1952 season the water in the pool was only partially drained, apparently for preservation of the concrete. The two previous winters it had been fully drained. On the date of the injury it was filled over the concrete floor up to the steps leading down in the shallow end. Near the center of the floor was a rather sudden decline to deeper water. It appears that in the four winter months, as thus partially filled, it had accumulated much filth and dirt, and algae had formed on the surface of the concrete floor, causing the lower portion to become very slippery and dangerous to anyone who would step on it. Photographs reflecting this condition are in evidence showing the boy's footprints in the mud or dirt, leading from the steps. They indicated he was running or walking around in the shallow water, and then the footprints led to the center portion where the sudden decline commenced or where the ‘pool drops off at a rapid angle’. A scuff mark is indicated at that point and no further footprints are shown.

On the day of January 31, 1953, Mrs. Reynolds left Keith in charge of her maid at her home. He became interested in the construction of a building across Buckingham. He was put to bed at 3 p. m. and when the maid was busy on the telephone, the boy climbed out of the low French window of the bedroom and disappeared. The maid looked around the neighborhood for him and at the new building across the street, but was unable to find him. Later, Mr. Reynolds came home, was informed of the facts and he immediately went to the Willsons' home and the swimming pool and found the boy face down in the water in the pool. He endeavored to lift him out but he slipped and almost fell because of the slippery condition of the pool. He finally pulled him out and administered artificial respiration. He injected adrenaline directly into the boy's heart. About 30 minutes later very weak heartbeats were heard. The boy was unconscious for six days and at the end of ten days was completely paralyzed. There was brain damage and he never became normal.

It is defendants' contention that the recovery in this action cannot be supported by the doctrine or theory of ‘attractive nuisance’, an exception to the general rule of a landowner's liability or duty to a trespasser, or any other theory, citing Baugh v. Beatty, 91 Cal.App.2d 786, 205 P.2d 671; and Copfer v. Golden, 135 Cal.App.2d 623, 288 P.2d 90.

It is the general rule accepted in California that a body of water, natural or artificial, such as a swimming pool, in and of itself, is not an attractive nuisance as that term is generally used, and will not ordinarily subject an owner to liability for trespassing children who are attracted thereto and are drowned. Wilford v. Little, 144 Cal.App.2d 477, 301 P.2d 282.

Ward v. Oakley Co., 125 Cal.App.2d 840, 271 P.2d 536, involved the death of children while wading in defendants' slough. This subject, and the several late cases involving that doctrine, were fully discussed in that case and need not be here repeated. Some exceptions are there noted, particularly Sanchez v. East Contra Costa Irrigation Co., 205 Cal. 515, 518, 271 P. 1060, where defendant company maintained a canal and a syphon leading from it. A child was playing at the edge of the canal, fell into it and then into the syphon, which could not be seen because of the muddy water. A recovery was allowed, not because the canal was an attractive nuisance but upon the theory of the concealed danger of the syphon and that the shallow water in the canal was the ‘bait of the trap’. It stated that the child assumed the risk of the open obvious danger incident to the canal but did not assume the risk of the unknown concealed and unguarded danger, i. e., the concealed syphon. Also discussed was Faylor v. Great Eastern Quicksilver Mining Co., 45 Cal.App. 194, 187 P. 101, 103, where it was held that the rule of non-liability was not to be applied in ‘instances where the owner maintains on his land something in the nature of a trap, or other concealed danger, known to him, and as to which he gave no warning to others'. Betts v. City and County of San Francisco, 108 Cal.App.2d 701, 239 P.2d 456, relied upon by defendants, is also cited in Ward v. Oakley, supra. There a seven-year-old boy was drowned in a public park reservoir when he slipped down a steep, mossy, wet spillway into the water. Plaintiff sought recovery under the hidden or concealed danger theory. The appellate court reversed the judgment on the ground that the hazard causing death was an open source of danger and the perils thereof should have been obvious to the boy.

In Lake v. Ferrer, 139 Cal.App.2d 114, 293 P.2d 104 (Hearing in the Supreme Court denied) a child two and a half years old went onto a neighbor's land, being directed there by a pool and a lustrous metallic ladder rising about three feet above the level of the pool, and was drowned. It was there held that the attractive nuisance doctrine had no application under the facts; that no matter how young a child may be, its age will not cast its care upon a stranger nor give rise to a duty where none otherwise would exist. It then applies the rule adopted in Whalen v. Streshley, 205 Cal. 78, 81, 269 P. 928, 929, 60 A.L.R. 445, to the effect that ‘Unless the case falls within the doctrine of the turntable cases—a doctrine which this court and others have refused to extend—the plaintiff may not recover * * *.’ Another late case involving swimming pools is Wilford v. Little, supra. There, the children could see the swimming pool and diving board from adjacent property. A four and a half year old boy was attracted thereto by the diving board and pool. The lad jumped or fell from the diving board and drowned. It was held that the attactive nuisance doctrine was not applicable.

In King v. Simons Brick Co., 52 Cal.App.2d 586, 126 P.2d 627, a child, aged 12 years, was drowned in an unguarded pool of water in a clay pit dug by defendant on its own property adjacent to a populated area. After reviewing the several cases, beginning with Peters v. Bowman, 115 Cal. 345, 47 P. 113, 598, to that date, it held that the doctrine of attractive nuisance did not apply to the facts and that it is only in those cases where a dangerous trap on the premises, otherwise safe, is concealed from view or when an artificial device attractive to children is left exposed and upon premises accessible, open and unguarded, that the owner is liable for damages resulting by reason of injuries to children who are attracted to the premises by such contrivances. From these authorities we must reasonably conclude that the swimming pool, in and of itself, was not an attractive nuisance. The pivotal question is whether plaintiffs have shown sufficient facts or circumstances which would bring them within the exception noted.

The rule in California is stated in Copfer v. Golden, 135 Cal.App.2d 623, 288 P.2d 90, 92. There is quotes from Restatement of the Law of Torts, Sec. 339, p. 920, and says:

“A possessor of land is subject to liability for bodily harm to young children trespassing thereon caused by a structure or other artificial condition which he maintains upon the land, if

“(a) the place where the condition is maintained is one upon which the possessor knows or should know that such children are likely to trespass, and

“(b) the condition is one of which the possessor knows or should know and which he realizes or should realize is involving 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 intermeddling in it or in coming within the area made dangerous by it, and

“(d) the utility to the possessor of maintaining the condition is slight as compared to the risk to young children involved therein.”

See also Long v. Standard Oil Co., 92 Cal.App.2d 455, 207 P.2d 837, 842, where a four-year-old child fell into a ditch excavated by defendant for repair of its pipeline near a housing project and drowned. Muddy water had partially filled the excavation and a judgment for damages was sustained. It quotes the Comment on Clause (c) in Restatement of the Law of Torts above mentioned, page 925, where it is said:

‘A possessor of land is * * * under a duty to keep so much of his land as he knows to be subject to the trespasses of young children, free from artificial conditions which involve an unreasonably risk of death or serious bodily harm to them. This does not require him to keep his land free from conditions which even young children are likely to observe and the full extent of the risk involved in which they are likely to realize. The purpose of the duty is to protect children from dangers which they are unlikely to appreciate and not to protect them against harm resulting from their own immature recklessness in the case of known danger * * *.’

It cited Blaylock v. Jensen, 44 Cal.App.2d 850, 113 P.2d 256, 257, where, in upholding a judgment for plaintiff it is said:

‘The conclusion of the trial court may be sustained under the general rule that a landowner may not construct or maintain a trap or pitfall into which he knows or has reason to believe that a trespasser will probably fall. The liability of the owner in such cases depends upon the circumstances surrounding the maintenance of the ‘trap’, the extent of the danger involved and the comparative ease or difficulty of preventing the danger without disturbing or impairing the usefulness of the thing which is claimed to be a trap or pitfall.'

Marino v. Valenti, 118 Cal.App.2d 830, 259 P.2d 84, 95, involved an eleven-year-old child trespassing on defendant's property, entering an old shack and finding dynamite caps, the explosion of which resulted in injuries. The court, in discussing the question as to whether it was the shack or the caps which constituted the attractive nuisance, held that where a trespassing child is injured, ‘whether we look upon caps as an attraction within an attraction or as a concealed highly dangerous condition, a ‘trap’, on the premises', the liability is measured by the test indicated in section 339 of Restatement of the Law of Torts. See also Lopez v. Capitol Co., 141 Cal.App.2d 60, 66, 296 P.2d 63.

Considering the facts and allowable inferences and deductions from the evidence in the instant case, in the light of that section, it appears that the swimming pool, partially filled with water, with its floor in the muddy and slippery condition described, particularly at the sudden decline of the floor of the pool at the point indicated, was ‘(a) the place where the condition is maintained is one upon which he possessor knows or should know that such children are likely to trespass', particularly since the Reynolds had accepted the defendants' invitation to come upon and use the swimming pool area on previous occasions subject to having an adult present. It is quite apparent that the injured child did not have knowledge of the exception. There is evidence of a statement by Mrs. Willson that she knew other children had entered the pool in the past when no adult was present, and that she was quite shocked to find them there. There is other evidence that this swimming pool area was partially visible to children passing by on the street; that on one occasion Keith was found wandering in defendants' yard alone, was returned to his mother, and was found headed that way on another occasion. As to subdivision (b), that defendants knew or should have known or realized the condition, as described, might involve serious bodily harm to such trespassing children, defendant himself testified he knew of the ‘slippery nature of the sedimentary deposit on the bottom of the pool’ and would not expect a two or three year old child to have the knowledge and appreciation which he did of that condition. That it was muddy and quite slippery and would be an unreasonable risk for a child or grown person to walk upon it cannot be well disputed. As to subdivision (c), that the child, two years and three months old, because of his youth did not discover or realize the risk involved in coming within the area made dangerous by it, is sufficiently established to support such a finding. Copfer v. Golden, supra, 135 Cal.App.2d at page 628, 288 P.2d at page 93; Prosser on Torts, p. 617, sec. 77. As to subdivision (d), concerning the requirement that ‘the utility to the possessor of maintaining the condition is slight as compared to the risk to young children involved therein’, plaintiffs claim (1) that the pool could have been emptied as it had been in previous years, or cleaned and the water replaced without any appreciable cost; (2) that the entire pool could have been fenced; and (3) that a gate could have been installed across the 10 1/2 foot opening at a very small cost.

As to claims (2) and (3) our attention has not been called to any statutory requirement that swimming pools, as such, in Fresno, must be fenced against children or that inconvenient gate enclosures in driveways must be maintained for this purpose. The cases cited are not this far reaching in their requirements as to swimming pools.

There may be some merit to the first claim. The general principle of law running through the several cases is that the questions presented under Restatements, particularly subdivisions (a), (b), and (c) and (d) above specified, and whether there was a concealed dangerous structure or artificial condition or ‘trap’ maintained upon the land are generally questions of fact to be determined by the jury, and if there is sufficient evidence supporting such a finding an appellate court is bound by the recognized rule. While the question as to whether the evidence of the maintenance of the condition in the pool at the time, as described, constituted a dangerous condition or ‘trap’, is a close one, we must assume that the jury was fully and properly instructed on this subject. We conclude that from the evidence and allowable inferences the jury was justified in so finding. Copfer v. Golden, supra; Faylor v. Great Eastern Quicksilver Mining Co., 45 Cal.App. 194, 204, 187 P. 101; Sanchez v. East Contra Costa Irrigation Co., 205 Cal. 515, 271 P. 1060; Marino v. Valenti, 118 Cal.App.2d 830, 850, 259 P.2d 84; Montgomery Ward & co. v. Ramirez, Tex.Civ.App., 127 S.W.2d 1034, 1036; Lambert v. Western Pacific Railroad Co., 135 Cal.App. 81, 89, 26 P.2d 824; Blaylock v. Jensen, 44 Cal.App.2d 850, 113 P.2d 256; Long v. Standard Oil Co., 92 Cal.App.2d 455, 207 P.2d 837; Eaton v. R. B. George Investments, Inc., 152 Tex. 523, 260 S.W.2d 587.

Order affirmed.

GRIFFIN, Acting Presiding Justice.

MUSSELL, J., concurs. BARNARD, P. J., being disqualified, did not participate herein.