King v. Simons Brick Co.

MOORE, P. J.

The question for determination in this case is whether under the doctrine of attractive nuisance the father of a twelve-year-old boy who has been drowned in a body of opaque water in a clay pit dug by defendant on its own adjacent to a populous area, may recover for the loss of his child who played in the pool.

In substance the facts alleged in the amended complaint are that the defendant, a brick and tile manufacturer in the city of Santa Monica, caused the soil and clay to be removed from a portion of its property, leaving a huge pit of about four acres in area; that within five years prior to the of this action defendant deepened two acres of the pit to an average depth of 25 feet below the surface of the adjoining land and street levels; that defendant ceased its excavation on said property and abandoned the active conduct of its business more than five years prior to the filing of this action; that thereafter defendant permitted water to accumulate in the pit to such extent that it overflowed the higher acres of the pit and covered one-half acre of the "upper bottom surface” thereof from 2 to 18 inches in depth; that the surface of one-half acre of the pool so created has been at approximately the same distance below the street level as the remaining surface of the pit which was not covered by water; that the surface of the pit for a distance of several hundred feet along the water’s edge, on August 4, 1941, the day on which Virgil King was drowned, had been slightly and gently sloping and appeared extremely shallow; that for several weeks prior thereto the water was cloudy and opaque and wholly prevented visual determination of its depth; that the water served no useful purpose and could have been removed at a nominal expense without impairing the value of the property; that for many weeks prior to August 4th the accumulated water constituted a lure and an attraction to the children of the neighborhood, who desired to wade and bathe therein; that by reason of the method of excavating the areas of the bottom of the pit the shallow areas of water descended precipitously to the lowest portions of the pit and constituted a deception and trap to the children playing in

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the shallow parts, who were unable to swim and who were unaware of the existence of the deeper waters; that plaintiff’s son, Virgil, age 12, was one of such children; that the pit was located adjacent to a populous area in which several hundred children resided; that access to the pit was available to the children and to the deceased Virgil by numerous paths to the unsubmerged areas of the bottom of the pit; that on August 4, 1941, and for many months prior thereto, negligently maintained the pit and its accumulated waters and neglected to post signs or warnings at or near the pit with reference to the depth of the water, and neglected to do anything reasonably designed and calculated to prevent entry of children into such waters, although it knew that the accumulated waters attracted the children and that any child entering the pit and bathing therein was in imminent danger of falling into the depths and drowning; that the deceased Virgil was twelve years of age and unable to swim; that he entered the pit for the purpose of bathing; that he had no knowledge of the deeper portions of the waters; that after he had waded for awhile in the pit from an unsubmerged projection of the land, in waters 18 inches deep, he plunged again into the waters at about the same point, only to reach instantly a depth of 18 feet, from which he was unable to swim, and was drowned, to plaintiff’s damage in the sum of $10,000.