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District Court of Appeal, First District, Division 1, California.

Michael Anthony O'KEEFE, Plaintiff and Appellant, v. SOUTH END ROWING CLUB, a corporation, Defendant and Respondent.

Civ. 21838.

Decided: June 30, 1965

Silvers, Hauer, & O'Neill, San Francisco, for appellants. O'Connor, Moran, Cohn & Lynch, George Olshausen, San Francisco, for respondent.

Plaintiff appeals from a judgment of nonsuit entered in an action for damages for personal injuries.

‘A nonsuit may be granted only where, disregarding conflicting evidence on behalf of the defendants and giving to plaintiff's evidence all the value to which it is legally entitled, therein indulging in every legitimate 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.’ (Reynolds v. Willson (1958) 51 Cal.2d 94, 99, 331 P.2d 48, 51; Blumberg v. M & T. Incorporated (1949) 34 Cal.2d 226, 229, 209 P.2d 1; Estate of Lances (1932) 216 Cal. 397, 400, 14 P.2d 768.)

Viewing the evidence under these applicable rules and in the light most favorable to plaintiff, we set forth the following pertinent facts.

On March 14, 1959, at about noon, plaintiff, a boy then fifteen years and nine months of age, was injured in diving from a pier of defendant South End Rowing Club into the waters of the San Francisco Bay. He had been at the Rowing Club several times before that date, including three or four occasions that year. His companions present at the time of the accident had also been on the premises on previous occasions. There was testimony by plaintiff and two of his friends that there had always been present a group of boys and girls of plaintiff's age who were swimming in the waters in front of defendant's beach and diving off defendant's pier. He testified that on the day he was injured there were approximately twenty boys and girls. On the particular occasion, as well as on prior occasions, there were also adults, some of them club members, in front of the club house and in the water.

On the day of the accident plaintiff and two friends, Joseph Cardinale and Tom Zaloco, following their usual procedure, entered the club property simply by walking along the beach from the nearby Aquatic Park where they had undressed and donned swimming trunks. They were never expressly invited by anybody from the Rowing Club to use the premises, but they were never told by anybody that they could not stay on the premises or use the facilities for swimming or diving. On one prior occasion plaintiff and his companions had been approached by somebody from the club (not identified in the record), and had been told not to build a fire on the beach but had not been told to leave or not to use the beach or pier. Neither plaintiff nor any of his companions on the day of the accident had ever seen any signs indicating that their presence was forbidden, that swimming or diving was prohibited, that they should keep off the pier extending from the club to the bay or that there were any dangerous conditions in the area. Plaintiff testified that he had never been given any instructions by anyone from the Rowing Club with respect to the use of the pier or the swimming facilities.

After plaintiff arrived at the club premises on the day of the accident he first ‘swam around’ and then got upon the pier and dove into the water. He testified that he did not always dive off the same side; that he did not remember from which side he dove first but that at the time he was injured it was from the west side; that altogether he dove three or four times before taking the dive that culminated in his accident; and that when he dove off the east side of the pier he was not able to tell how deep the water was and did not touch bottom but swam to the shore. He did not see any obstacles in the water. He also stated that over the three or four months preceding the accident he had dived off the pier ten or fifteen times. Under cross-examination, he testified that he knew the water where he dove was somewhere between five and six feet.

Plaintiff's witness, Joe Cardinale, testified that plaintiff dove off the pier twice on the day of the accident; that he appeared to have no trouble at all on the first dive; and that he observed nothing unusual about the second dive which was made from the opposite side of the pier.

Plaintiff's witness, Thomas Zaloco, whose deposition was read into evidence, testified that plaintiff first dove off the east side of the pier and then off the west side, whereupon the accident took place; that plaintiff dove from a point about halfway out on the pier; that the pier was about four feet above the water at this point; that Zaloco could not tell before the accident how deep the water was at this point; but that after the accident he found that it was about four feet deep.

At the time of the accident plaintiff was a sophomore in high school. He was a healthy active boy of average intelligence and had taken swimming and diving lessons at school. He had been swimming since he was twelve or thirteen years old. Under cross-examination he stated that he knew it was wrong to dive into shallow water.

On March 14, plaintiff's last dive was off the west side of the pier and it was performed in an ordinary fashion, with his arms and head pointing out, not straight down, and going into the water before the rest of his body. After that he lost consciousness and his body arose and floated face down on the water. For our present purposes, it is enough to say that plaintiff was severely injured, losing the use of his lower extremities and retaining little ability to move his upper extremities.

It is plaintiff's position on appeal that the above evidence would support a verdict in his favor on two theories of liability: First, that plaintiff was an invitee on the premises to whom defendant owed a duty of ordinary care; and second, assuming plaintiff was only a licensee or trespasser, that defendant was liable under the doctrine of attractive nuisance. It is defendant's position that plaintiff was not an invitee and that whether he was a licensee or a trespasser the evidence affords no basis of liability.

‘It is the purpose for which a person is upon the premises of another which renders him an invitee rather than a licensee.’ (Popejoy v. Hannon (1951) 37 Cal.2d 159, 169, 231 P.2d 484; in accord: Smith v. Kern County Land Co. (1958) 51 Cal.2d 205, 208, 331 P.2d 645; Speece v. Browne (1964) 229 Cal.App.2d 487, 490, 40 Cal.Rptr. 384; Bylling v. Edwards (1961) 193 Cal.App.2d 736, 739, 14 Cal.Rptr. 760; Sockett v. Gottlieb (1960) 187 Cal.App.2d 760, 765, 9 Cal.Rptr. 831; Cain v. Friend (1959) 171 Cal.App.2d 806, 808, 341 P.2d 753; Yazzolino v. Jones (1957)153 Cal.App.2d 626, 636, 315 P.2d 107; Free v. Furr (1956) 140 Cal.App.2d 378, 383, 295 P.2d 134; Ashley v. Jones (1954) 126 Cal.App.2d 328, 332, 271 P.2d 918, 920.) ‘As a general rule, if that purpose is one of common interest or mutual advantage the person is considered an invitee while a licensee is inferred where the object is the mere pleasure or benefit of the visitor.’ (Ashley v. Jones, supra; in accord: Smith v. Kern County Land Co., supra; Speece v. Browne, supra; Bylling v. Edwards, supra, pp. 739–740, 14 Cal.Rptr. 760; Sockett v. Gottlieb, supra; Cain v. Friend, supra, pp. 808–809, 341 P.2d 753; Yazzolino v. Jones, supra.) If the purpose of the visit is connected with the business conducted on the premises, the visitor is an ‘invitee’ or ‘business visitor.’ (Oettinger v. Stewart (1944) 24 Cal.2d 133, 136, 148 P.2d 19, 156 A.L.R. 1221; Kircher v. Atchison, T. & S. F. Ry. Co. (1948) 32 Cal.2d 176, 186, 195 P.2d 427; Crane v. Smith (1943) 23 Cal.2d 288, 297, 144 P.2d 356; Clawson v. Stockton Golf etc. Club (1963) 220 Cal.App.2d 886, 896, 34 Cal.Rptr. 184; Miller v. Desilu Productions, Inc. (1962) 204 Cal.App.2d 160, 165, 22 Cal.Rptr. 36.)

Plaintiff does not lay claim to the status of an invitee because of any economic benefit to defendant (Prosser on Torts, (3d ed.) pp. 394–396; Rest., Torts, § 332) or because of any ‘common interest or mutual advantage’ (Ashley v. Jones, supra) within the rationale of the foregoing cases. He claims that he was an invitee because (a) he was using the premises for the purposes intended by defendant club and (b) the premises were public since they constituted a public swimming pool as defined in Health and Safety Code section 24100.

In support of his first argument plaintiff relies on the alternative theory for imposing a higher duty of care upon the occupier of land under which, as stated by Prosser (Prosser, op. cit., pp. 398–399), the basis of liability is ‘a representation to be implied when he encourages others to enter to further a purpose of his own, that reasonable care has been exercised to make the place safe for those who come for that purpose.’ (P. 398.) Plaintiff also relies, somewhat obliquely we think, on Weyburn v. California Kamloops, Inc. (1962) 200 Cal.App.2d 239, 19 Cal.Rptr. 357 in which the court referred to the aforementioned ‘alternative theory’ of liability and quoted an illustration of it given by Dean Prosser.1 To supply the ingredient of invitation or ‘encouragement’ and establish the essential implied assurance or ‘representation’ of ordinary care, thereby bringing the theory into play in the instant case, plaintiff maintains that the by-laws of the South End Rowing Club, received in evidence, show that swimming and aquatic sports, among others, were clearly not limited to defendant's members2 and that therefore nonmembers were invited.

We need not enter upon a detailed analysis of defendant's by-laws. It is sufficient to say that nowhere in the by-laws, including the section relied on by plaintiff (see fn. 2, ante) do we find any provision stating, or from which it can be reasonably inferred, that defendant's premises were thrown open to the public generally. Indeed, as defendant points out to us, when section two is read together with other by-law provisions any possibility of an inference of public invitation is nullified.3 Nor is there elsewhere in the record any evidence establishing or form which it may be inferred that, as distinguished from a mere tacit permission of the use of its facilities by nonmembers, the general public were invited to use them. As defendant correctly argues, such an invitation cannot be inferred from a warning not to build fires. Assuming that the above ‘alternative theory’ of liability may be invoked in harmony with California law, the fact remains that the evidence in the present record does not justify its application.

Nor does Weyburn v. California Kamloops, Inc., supra, 200 Cal.App.2d 239, 19 Cal.Rptr. 357, give plaintiff any comfort. In that case, plaintiff had been invited on the court stating that ‘neither the facts campsite by one of defendant's members and was injured when he tripped or fell over a projecting pipe. A judgment of nonsuit rendered on plaintiff's opening statement and the pleadings was reversed, the court stating that ‘neithr the facts pleaded nor the opening statement precluded the production of evidence proving that the plaintiff here was an ‘invitee’ or ‘business visitor.’ This is true whether the ‘economic benefit’ rule of the Restatement or the ‘representation implied by encouragement’ theory stated by Dean Prosser, be applied.' (P. 243.) Weyburn referred to Rovegno v. San Jose K. of C. Hall Assn. (1930) 108 Cal.App. 591, 291 P. 848, an action for wrongful death in which a judgment of nonsuit was reversed where decedent, a member of the Knights of Columbus, an unincorporated association was drowned in a swimming pool of the Knights of Columbus Hall Association, a corporation, used for social and athletic purposes by the members of the unincorporated association and also referred to certain landlord and tenant cases involving injuries to ‘invited’ guests of tenants. (Sockett v. Gottlieb, supra, 187 Cal.App.2d 760, 9 Cal.Rptr. 831; Yazzolino v. Jones, supra, 153 Cal.App.2d 626, 315 P.2d 107; Rau v. Redwood City Woman's Club (1952) 111 Cal.App.2d 546, 245 P.2d 12.) All of the foregoing cases are distinguishable from the instant one. Plaintiff here was not an invited guest of defendant club or any of its members, nor, as we have seen, was he a member of any class to which defendant had extended expressly or impliedly a general invitation.

We turn to consider whether plaintiff was an invitee because of the possible application of Health and Safety Code section 24100.4 This section is found in article 3 (Swimming Pool Sanitation) of chapter 1 (Health and Safety of Bathers) of division XX (Miscellaneous Health and Safety Provisions) of said code. Defendant's premises in the instant case were those of a private club and not a ‘public swimming and bathing place.’ Plaintiff cites Askew v. Parker (1957) 151 Cal.App.2d 759, 312 P.2d 342 in support of his argument that since the term ‘public’ does not have a fixed and definite meaning, the question whether the Rowing Club's premises were public within the scope of the above statute must remain one of fact for the jury's determination. In that case, where the defendant owners of a private swimming pool mailed written invitations to all teenage children in the community to use the pool free of charge, it was held that the pool was a ‘public swimming pool’ within the meaning of section 24100 since it was one ‘which is commonly and regularly used by many persons in a community pursuant to a general invitation issued to a large or indeterminate group, such as an entire community, as opposed to an invitation to a specific occasion or occasion.’ (Emphasis added.) (P. 763, 321 P.2d p. 345.) Askew is thus distinguishable on its facts from the instant case.

We therefore conclude that plaintiff was not an invitee of defendant on either basis asserted by him and proceed to inquire whether recovery could have been sustained under the doctrine of attractive nuisance.

The rule set forth in section 339 of the Restatement of Torts has been adopted as the law of this state defining the liability of a possessor of land for the death of or injury to trespassing children. (Reynolds v. Willson, supra, 51 Cal.2d 94, 103, 331 P.2d 48; Courtell v. McEachen (1959) 51 Cal.2d 448, 457, 334 P.2d 870; Garcia v. Soogian (1959) 52 Cal.2d 107, 110, 338 P.2d 433; King v. Lennen (1959) 53 Cal.2d 340, 343, 1 Cal.Rptr. 665, 348 P.2d 98; Schaffer v. Claremont Country Club (1959) 168 Cal.App.2d 351, 355, 336 P.2d 254; Gutirrez v. Southern Pacific Co. (1959) 174 Cal.App.2d 866, 869, 345 P.2d 326; Helguera v. Cirone (1960) 178 Cal.App.2d 232, 236, 3 Cal.Rptr. 64; Hickey, Jr. v. Nulty (1960) 182 Cal.App.2d 237, 240–241, 5 Cal.Rptr. 914; Herrera v. Southern Pacific cific Ry. Co. (1961) 188 Cal.App.2d 441, 447, 10 Cal.Rptr. 575.)

Section 339 reads: ‘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 as 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.’ The question of liability under the foregoing rule must be decided in the light of all the circumstances of the particular case ‘and not by arbitrarily placing cases in rigid categories on the basis of the type of condition involved without giving due consideration to the effect of all the factors in a particular situation.’ (Garcia v. Soogian, supra, 52 Cal.2d 107, 110, 338 P.2d 433; King v. Lennen, supra, 53 Cal.2d 340, 343, 1 Cal.Rptr. 665, 348 P.2d 98.)

It is clear at the outset that condition (a) of the rule has been met in the instant case. There is evidence in the record that on a number of previous occasions groups of boys and girls of plaintiff's age were on defendant's premises, were swimming in the adjacent water and diving from defendant's pier. On some of these occasions members of the club were in the area. On this evidence the jury could have reasonably concluded that defendant knew or had reason to know that children were likely to trespass on its premises and pier.

Does the evidence satisfy subdivision (b) of the rule? It shows that defendant Rowing Club maintained a pier on its premises which extended into and over the waters of the bay. Four photographs offered by defendant, received in evidence, and acknowledged by plaintiff as representing in general the place where the accident happened, disclose this structure extending from the innermost part of the beach, over and across the beach and out into the water. At the outermost end of the pier they disclose defendant's boat launch, identified from the photographs as such by the witness Joe Cardinale, together with what appears to be the pulleys and other gear of the launch attached to an overhead beam supported by upright beams and considerably higher than the platform of the pier. Cardinale testified that he had seen youngsters dive from the top of the launch. Defendant argues that the pier itself involved no unreasonable risk of serious bodily injury to a trespassing child and that the San Francisco Bay was not an artificial condition so as to fall within the rule here invoked, but a natural condition. As we see it, it is not the waters of the bay which constitute the basis of defendant's liability but the pier itself which provided children with a place from which to dive into the bay. It is this available and inviting vantage point considered in relation to the particular circumstances of its location which must be examined as a factor in any liability. While plaintiff received his injuries in the water, this is not a case where the condition causing the injury was a body of water in and of itself.

In the instant case defendant's pier constituted a continuous diving platform extending over a sloping beach and over waters which, it can be reasonably concluded, were of varying and increasing depths. The photographs disclose that no fences, railings, or other protective devices lined its sides and no gate or barricade prevented entry upon it. ‘Evidence of the existence of a particular condition, relationship, or status * * * before and after an act in question is admissible to indicate the existence of the same status, condition, or relationship at the time of the act. [Citations.]’ (Blank v. Coffin (1942) 20 Cal.2d 457, 463, 126 P.2d 868, 871.) It is obvious that the pier would not be used for diving in the area immediately adjacent to the water's edge. But at what point along its remaining length did all risk that the diver would hit bottom, disappear? There was evidence susceptible of the inference that farther out on the pier the depth of the water was not discernible. When plaintiff made his first dives off the east side, he could not tell how deep it was and did not touch bottom. Thomas Zaloco did not know before the accident how deep the water was at the place on the west side where plaintiff made his final dive. Yet while plaintiff did not touch bottom on the east side, his dive resulting in his injuries, which according to Joe Cardinale was made directly across the pier and off the west side, was subsequently found to have been in waters only about four feet deep.

The proclivities of boys of plaintiff's age to jump or dive into water from all kinds of prominences, natural and artificial, are well known. Unquestionably in the instant case the defendant possessor of the premises, knowing of the past activities of trespassing children, could reasonably expect them to indulge such proclivities on its pier. The crucial question is whether the pier would involve unreasonable risk of harm to them in the course of their doing so. ‘It is quite obviously not a matter which can be reduced to absolute rules. As in other negligence cases, the unreasonable character of the risk must be determined by weighing the probability that some harm will occur, and its gravity if it does occur, against the burden of taking precautions against it.’ (Prosser, Trespassing Children, 47 Cal.L.Rev. Rev. 427, 452.) The mere fact that the pier may have had some commonplace characteristics will not prevent recovery (Garcia v. Soogian, supra, 52 Cal.2d 107, 111, 112, 338 P.2d 433; Prosser on Torts, supra, p. 379) and there is ‘no justification for regarding the commonness of a condition as having a decisive significance independent of the obviousness of the risk.’ (Garcia v. Soogian, supra, at p. 111, 338 P.2d at p. 435.) It was probable that some harm might come to those diving from the pier since the water was not of a uniform depth. It is a reasonable inference that defendant Rowing Club, which was organized for rowing, swimming and aquatic sports and whose members were known to have been present in the area, had reason to know about the aforesaid condition. In our opinion the evidence was sufficient to warrant a finding by a trier of fact that defendant should have realized that the pier was a dangerous place for children to dive from. We conclude that the evidence is sufficient to satisfy condition (b) of the rule.

We also think that it satisfies condition (d) of the rule. A trier of fact could reasonably conclude that adequate precautions could be taken against danger to children divers without imposing any undue or unusual burden on defendant. Fences or railings could have been installed along the completely open and unprotected sides of the pier; access to the pier could have been prevented by a barrier or gate; signs indicating the depth of the water could have been posted; or a life guard or other custodian employed. In any event defendant makes no claim that any precautions would not be ‘slight as compared to the risk to young children involved therein.’

The crux of this case is whether the evidence satisfies condition (c). In a word, did plaintiff appreciate the danger involved? He was almost sixteen years old and of average intelligence. He had been swimming for about three or four years and had taken swimming and diving lessons. He knew it was wrong to dive into shallow water. He had dived off the pier on ten or fifteen previous occasions and, according to his testimony, had made three or four dives before he was injured. He had swum around the area on previous occasions as well as before and during the dives made on the day of the accident. He must have been aware of the manifest fact that the waters were not of uniform depth. We cannot see how a trier of fact could conclude that, in the light of his age, intelligence and experience, plaintiff was unable to discover or appreciate the dangerous condition involved. The danger of diving into waters of an unknown depth was an obvious one and did not cease to be such merely because plaintiff had fortuitously made previous dives without being injured. The risk was ever present. We cannot conclude that he could discard his awareness of it. Condition (c) of the rule has not been met. On this basis, the nonsuit was justified.

We have also concluded that defendant breached no duty to plaintiff as a licensee independently of the doctrine of attractive nuisance. There is no evidence that plaintiff was injured by willful or wanton misconduct or by the negligent exercise of active operations. (See Oettinger v. Stewart, supra, 24 Cal.2d 133, 138–139, 148 P.2d 19, 156 A.L.R. 1221.) Nor is there any evidence of any ‘trap’ or ‘concealed dangerous condition’ giving rise to a duty on defendant's part to warn this plaintiff. (Rest., Torts, § 342; see Blaylock v. Jensen (1941) 44 Cal.App.2d 850, 851–852, 113 P.2d 256; Ashley v. Jones, supra, 126 Cal.App.2d 328, 332, 271 P.2d 918; Yazzolino v. Jones, supra, 153 Cal.App.2d 626, 636, 315 P.2d 107; Miller v. Desilu Productions, Inc., supra, 204 Cal.App.2d App.2d 160, 164, 167, 22 Cal.Rptr. 36.)

The judgment is affirmed.


1.  Prosser states: ‘There is thus a distinction between a landowner who tacitly permits the boys of the neighborhood to play ball on his vacant lot, in which case they are only licensees, and the man who installs playground equipment and throws the lot open gratuitously to the children of the town as offered and provided for the purpose, in which case there is a public invitation.’ (Prosser, op. cit., p. 399.) The foregoing is substantially the same as the excerpt from the second edition of Prosser on Torts quoted in Weyburn.

2.  Plaintiff relies on section 2 of article I of the by-laws which provides: ‘The purpose of this Corporation shall be the pleasure and enjoyment of its members, and the advancement of rowing, handball, swimming, and aquatic sports.’

3.  For example, section 13 (Board of Directors) of article V (Powers and Duties of Officers) provides: ‘In addition to the powers and duties elsewhere in these By-Laws prescribed, the Board of Directors shall: * * * L. Extend, by unanimous vote, for a period not to exceed three months, and upon such terms as they may deem proper, the privileges of membership to such persons or organizations as in their judgment may be entitled to the distinction, and to renew the term of such privilege in their discretion; * * *.’

4.  Health & Saf.Code § 24100 provides: “Public swimming pool,' as used in this article, means any public swimming pool, bathhouse, public swimming and bathing place and all related appurtenances.'

SULLIVAN, Presiding Justice.

MOLINARI and SIMS, JJ., concur.