KING v. LENNEN (1959)

Action for damages for the wrongful death by drowning of plaintiffs' son, Boyd, aged one and one-half years, in a private swimming pool owned and maintained by defendants. A demurrer to the amended complaint having been sustained without leave to amend, judgment was entered adverse to plaintiffs and they appeal.

The amended complaint attempts to state two causes of action. Count I contains the following allegations: Plaintiffs and their two minor children lived on the southeast corner of Superior Street and White Oak Avenue in Northridge; defendants and their three minor children lived on the northwest corner, diagonally opposite to plaintiffs' house. There were no sidewalks on either street: On the White Oak (easterly) side of defendants' lot there was a wood rail fence, so constructed that small children could climb between the railings and enter the premises. On the southerly side fronting on Superior there was a partially completed cement block wall having a four foot opening intended eventually to accommodate a door or gate.

April 20, 1956, the body of plaintiffs' son, Boyd, was discovered at the bottom of defendants' swimming pool. The southerly edge of the pool was 30 feet north of Superior Street. The pool was 20 feet wide and 40 feet long and was filled with water to a depth of 3 1/2 feet on its southerly end and 9 feet on its northerly end. There was a sudden drop from shallow water to deep water near the center of the pool. A tubular metal pipe and connecting rubber hose extended out of one side of the pool onto the curbing and a diving board extended over the deep end. The walls and bottom of the pool were lined with a slippery plastic material. There were no steps, ladders, rails or other fixtures attached to the sides of the pool. On the date of the accident, the water was dirty, stagnant and opaque, its depth could not be ascertained visually and a child under water could not be seen from the surface of the pool.

Defendants owned a cow, two dogs and three horses and permitted them to roam at large in the vicinity of the pool. The pool and the animals could be seen by small children on Superior Street. Many of the neighborhood children became attracted to the premises and often entered them in order to play with the pets beside the pool. It is alleged that although defendants were employed full-time and were away from the premises on weekdays, including the day of the accident, they knew or in the exercise of ordinary care should have known of these facts, and it is also alleged that the children came onto the premises by virtue of an implied invitation from the Lennens to do so.

For five months prior to the accident defendants' teenage daughter, Carol, had been acting as a baby-sitter for plaintiffs' children pursuant to arrangements for compensation agreed upon by the respective parents. When plaintiffs' son, John, was taking a nap, Carol would bring Boyd to her parents' home and allow him to play with the family pets in the vicinity of the pool. As a result, Boyd became attracted to the pool and to the animals, having no knowledge of any danger. Plaintiffs allege: ‘[B]y reason of the frequent occurrence of said baby-sitting arrangement * * *, said relationship up to and on the date of the death of the said minor * * * was a continuing one, and by reason thereof the said minor * * * on the date of his death was on the premises of said defendants at the express invitation of said defendants and said defendants received compensation therefor.’

It is finally alleged that the swimming pool was a dangerous condition containing hidden and unrecognizable dangers to small children and involving an unreasonable risk of harm, that its usefulness was slight in comparison to the risk, and that the pool constituted a trap whose perils they could not reasonably be expected to appreciate. Plaintiffs allege that defendants were negligent in failing to enclose and barricade the pool, in failing adequately to enclose the premises and in failing to exercise reasonable supervision over the pool and the surrounding area.

Count II incorporates by reference the factual allegations of the first count and alleges that defendants intentionally maintained a dangerous condition on the premises with a reckless and wanton disregard for the lives and safety of small children.

The question for decision is whether the amended complaints states the substance of a cause of action for negligence, as alleged in the first count, or for wilful misconduct, as alleged in the second count. We are of the opinion that the complaint does not state a cause of action against defendants and that the demurrer was properly sustained.

In urging that the demurrer should have been overruled as to Count I, plaintiffs contend that they have alleged sufficient facts to state a cause of action upon three distinct theories of negligence, namely, that the pool was an artificial condition highly dangerous to trespassing children, that it was a trap, and that Boyd was an invitee to whom defendants owed a duty of due care.

The first two theories may be considered together. A private swimming pool is not, as a matter of law, an attractive nuisance. Lake v. Ferrer, 139 Cal.App.2d 114, 293 P.2d 104; Wilford v. Little, 144 Cal.App.2d 477, 301 P.2d 282; Reynolds v. Willson, 51 Cal.2d 94, 331 P.2d 48. However, it was held in the Reynolds case that under section 339 of the Restatement of Torts, the manner of the maintenance and use of a private swimming pool may impose upon the owner the duty of ordinary care toward trespassing children of tender years, and also that the physical condition of a pool may be such as to constitute a trap. Plaintiffs rely heavily on Reynolds. They contend that the factors giving rise to the liability of the defendants in that case are likewise present here. In Reynolds, the plaintiff, a boy aged two, was found face downward in the water on the floor of a partially drained swimming pool having steps leading down to the bottom at the shallow end. Dirt, leaves and other materials had accumulated on the concrete surface beneath the water, causing it to become slippery when stepped on. The court said, at page 101 of 51 Cal.2d at page 5o of 331 P.2d: ‘In the present case the jury was entitled to find that when in December the defendants partially filled the pool with water nearly to the steps in an endeavor to make it safer for their own children they had in effect made it more attractive to young children such as the plaintiff and that by maintaining the pool in its then condition they were guilty of maintaining a trap as to the plaintiff and responsible to him under the doctrine of ordinary care.’

We cannot agree with plaintiffs that the holding in Reynolds is determinative of the case at bar. The facts of the Reynolds case were unique. The case law was exhaustively considered in the majority and dissenting opinions in the case and we deem it unnecessary for us to review it. We are convinced that the present case falls into the category of situations in which liability does not exist. In Reynolds the court was considering a combination of circumstances which created a condition not alleged to have existed in the present case and which do not usually exist in swimming pools. The primary holding in Reynolds was that the partially filled pool and the other conditions constituted a trap for young children. The fact that the pool was only partially filled had direct bearing upon the question whether the condition created an unreasonable risk. Another significant fact was that when the father of the Reynolds boy went into the pool to rescue his son, the bottom was so slippery that he was unable to carry him to the steps. The rule of the Reynolds case should not be held applicable to conditions that are not substantially identical with the unusual conditions which made the pool in that case unusually attractive and dangerous. The Lennens' pool had no extraordinary features not found in the ordinary swimming pool and it was not being maintained in an abnormal condition. There was nothing to attract young children except the water. Therefore, as stated in Reynolds, it was not within the rule of the Restatement. In our opinion, the facts pleaded in the amended complaint, if proved, would furnish no basis for the liability of the Lennens upon either the theory of the Restatement or the theory of a trap.

As we have said, plaintiffs' remaining theory is that Boyd was an invitee on defendants' premises, and it is argued that that question is a factual one to be resolved upon a trial and not one of law to be decided on demurrer. We express no opinion whether the complaint would have been sufficient if it had alleged that Boyd was actually in the care of defendants' daughter at the time of the accident. The complaint does not so allege, and it is conceded by plaintiffs in their brief that on the day of the accident the child was not in her care. We must therefore presume that plaintiffs have stated their case as strongly as they can in their pleading.

Although it is alleged that the Lennens knew their daughter brought Boyd onto the premises when baby-sitting, it cannot be maintained that the child was an invitee on an occasion when he entered the premises without the baby-sitter and of his own volition. The Lennens say in their brief: ‘This theory would make an invitee of the lost and strayed child who wandered into an auto repair shop if its parent had, on a previous occasion, been at the shop for the purpose of having repairs done and happened to have the child along.’ We agree with the reasoning of defendants. In our opinion, the facts pleaded would furnish no basis for the liability of the Lennens upon a theory that Boyd was an invitee.

In urging that the demurrer should have been overruled as to Count II, plaintiffs contend that they have alleged sufficient facts to state a cause of action for wilful misconduct upon a theory that defendants kept the pool in a highly dangerous condition with full knowledge and in reckless disregard of the safety of small children. The argument is untenable. We mentioned earlier that the second count incorporates the factual allegations of Count I; no additional facts are pleaded with the exception of an allegation that the conduct of the Lennens was intentional rather than negligent. The circumstances relied on to show the wilful misconduct of defendants in maintaining the pool are identical with those relied on to show their negligence in maintaining it, and, as we have seen, those facts are wholly insufficient to establish liability for the maintenance of a dangerous artificial condition.

The judgment is affirmed.

SHINN, Presiding Justice.

PARKER WOOD and VALLEÉ, JJ., concur.