SPENCE, J., Dissenting.
It has been said that “hard eases make bad law.” Such appears to be the situation here; but this case is a hard one only in the sense that a young child has suffered an unfortunate injury. The question involved, however, is whether liability for that unfortunate injury was properly imposed upon the defendant landowners under the circumstances presented by the record. I am of the opinion that such liability was not properly imposed, and that the majority opinion sustains an order which cannot be sustained under the settled law of this state.
The fundamental question presented is whether there was a violation of any duty owed by the defendant landowners toward the trespassing child. This question in turn depends upon the nature and extent of any duty owed by the defendant landowners toward the trespassing child with respect to the condition of the landowners’ premises.
The answer to this fundamental question cannot be determined by a mere reference to section 1714 of the Civil Code, which provides in general terms that liability may ordinarily be predicated upon “want of ordinary care.” The application of that section is not universal, as it depends upon the relationship of the parties. Traditionally, as will be seen from the authorities hereinafter cited, the duty of a landowner toward a trespasser with respect to the condition of the premises has been held by this court, and practically every other court, to be definitely less than the general duty to exercise ordinary care, which last mentioned duty is owed [107]by the landowner to the business visitor. There is sound reason for this differentiation in the nature of the duty owed, and it is firmly embedded in our law. It is neither an anomaly nor a mere remnant of ancient law. On the contrary, a somewhat similar concept is embodied in comparatively recent legislation which denies liability for mere want of ordinary care where the parties stand in the relationship of the driver of an automobile and his social guests, whether the latter be adults or children. (Yeh. Code, § 403.)
Heretofore, three members of this court have expressed their dissatisfaction with the settled law of this state on the subject of the duty owed by the landowner to trespassing children. Their views are set forth in the dissenting opinion of Mr. Justice Traynor in Knight v. Kaiser Co., 48 Cal.2d 778, 785-792 [312 P.2d 1089]. They there advocated “disapproving the former cases.” (P. 792.) While I do not agree that the numerous prior decisions should be disapproved, Mr. Justice Traynor made a forthright approach to the problem in that dissent. The dissenting justices in Knight v. Kaiser Co., supra, have now joined in the opinion prepared by Mr. Justice Shenk. That opinion purports to distinguish, rather than to disapprove, the prior decisions in which liability has been denied, but I am of the opinion that no tenable distinction can be made. In other words, the majority opinion here cannot be reconciled with the prior decisions, and the labored but futile attempt of the majority opinion to bring them into harmony has the unfortunate result of leaving the law in hopeless confusion.
Before discussing the applicable authorities, a brief statement- should be made concerning the record in this case. The material facts are not in dispute. With respect to the status of the child, there is no question but that the child was a trespasser. Defendants had done everything possible, by their words and by their acts, to deny the existence of any invitation, express or implied, to any child to enter the premises where the swimming pool was located, unaccompanied by the parents. In any event, this point is immaterial, as the child could not have had any status greater than that of a permittee or social visitor (Ashley v. Jones, 126 Cal.App.2d 328, 332 [271 P.2d 918]; 65 O.J.S., Negligence, § 35d, pp. 495-496), and the trial court properly instructed the jury that “it would make no difference whether the boy was a trespasser, or a permittee because, under the [108]facts of this case, the defendants would be under no greater duty to him if he was a permittee on the premises than if he was a trespasser.” This instruction follows the rule enunciated by Mr. Justice Shenk in Powers v. Raymond, 197 Cal. 126, 131 [239 P. 1069], that even as to a “licensee,” the landowner owes “no duty except to abstain from wilful or wanton injury.” This rule has been reiterated in several later decisions of this court. (Knight v. Kaiser Co., supra, 48 Cal.2d 778, 781; Palmquist v. Mercer, 43 Cal.2d 92, 102 [272 P.2d 26]; Oettinger v. Stewart, 24 Cal.2d 133, 137-138 [148 P.2d 19, 156 A.L.R. 1221].)
With respect to the condition of the pool, the exhibits and all the testimony show that the water was clear and that the bottom of the pool, together with the small amount of leaves, silt and algae thereon, was plainly visible. Thus the condition shown involved nothing more than the common, obvious condition which is ordinarily incident to any body of water, natural or artificial.
The situation in this case is therefore controlled by the rules set forth in the numerous cases denying liability for injuries to trespassing children incurred by encountering the common, obvious hazards incident to such bodies of water. (Melendez v. City of Los Angeles, 8 Cal.2d 741 [68 P.2d 971] ; Peters v. Bowman, 115 Cal. 345 [47 P. 113, 598, 56 Am. St. Rep. 106]; Wilford v. Little, 144 Cal.App.2d 477 [301 P.2d 282]; Lake v. Ferrer, 139 Cal.App.2d 114 [293 P.2d 104] ; Ward v. Oakley Co., 125 Cal.App.2d 840 [271 P.2d 536]; Betts v. City & County of San Francisco, 108 Cal.App.2d 701 [239 P.2d 456] ; Demmer v. City of Eureka, 78 Cal.App.2d 708 [178 P.2d 472] ; King v. Simon Brick Co., 52 Cal.App.2d 586 [126 P.2d 627]; Beeson v. City of Los Angeles, 115 Cal.App. 122 [300 P. 993]; Reardon v. Spring Valley Water Co., 68 Cal.App. 13 [228 P. 406]; Polk v. Laurel Kill Cemetery Assn., 37 Cal.App. 624 [174 P. 414].) Those rules clearly dictate a reversal here, and it is worthy of note that this court has recently treated those rules as settled when it denied hearings in the latest cases involving swimming pools (Wilford v. Little, supra, and Lake v. Ferrer, supra), without a dissenting vote being recorded. The cited authorities are based upon the concept expressed by Dean Prosser in commenting upon section 339 of the Restatement of the Law of Torts, where he says: ‘ ‘ There are some dangers common in the community which any child of sufficient age to be allowed at large may be expected to understand and appreciate—such as the usual risks of fire and [109]water, ...” (Prosser on Torts, 2d ed., pp. 441-442) ; and these authorities are summarized in the California Annotation to the Restatement of Torts at pages 141-142 by the unequivocal statement that “There is no liability for drowning of children in ponds or reservoirs under the attractive nuisance doctrine.”
The majority opinion concedes that “It is established in this state that a private swimming pool is not an attractive nuisance as a matter of law.” That opinion nevertheless bases its affirmance upon its conclusion that the evidence was sufficient to justify the imposition of liability either (1) under the theory embodied in section 339 of the Restatement of the Law of Torts, or (2) under the so-called “trap” theory. I cannot agree. Where the evidence is uncontradicted, the question of the sufficiency of the evidence to bring the condition within any exception to the general rule limiting the liability of the landowner to trespassers has been treated by the above-mentioned authorities as a question of law for the court. Here the evidence was uncontradicted. There was no showing of any condition presenting anything but the common, obvious danger ordinarily incident to any body of water. It therefore follows as a matter of law under the cited authorities that liability was improperly imposed.
Considering first the so-called “trap” theory, it may be doubtful whether that theory is in truth an exception to the general rule governing the question of the liability of the landowner to trespassers. The purposeful creation or wanton maintenance of a concealed condition constituting a true “trap” might properly be regarded as a violation of the general duty of the landowner to refrain from any “wilful or wanton” injury to the trespasser, whether adult or child. But whether liability under the “trap” theory be deemed to come under the general rule or under an exception thereto, liability has never been imposed in this state under the “trap” theory, or any other theory, for any common, obvious condition incident to a body of water, natural or artificial. On the contrary, liability under the “trap” theory can only be based upon a “hidden danger” (65 C.J.S., Negligence, § 38, pp. 503-504) or a “concealed danger” (35 Cal.Jur.2d, Negligence, §100, p. 609).
That the “trap” theory is wholly inapplicable here is made crystal clear by comparison of two prior cases of this court: Sanchez v. East Contra Costa Irr. Co., 205 Cal. 515 [271 P. 1060], and Melendez v. City of Los Angeles, supra, [1108] Cal.2d 741. In the Sanchez case, this theory was applied and liability was imposed. There the small boy “fell into the main canal which, at the time of the accident, was filled with about three feet of water, and then, evidently, slipped into the syphon at the bottom of this three feet of water. The water in the canal was muddy and the opening of the syphon could not be seen. The body of the child was recovered from a place some fifteen feet down in the syphon.” (P. 516.) The court there said: “It is a matter of common knowledge that children playing on the edge of a shallow body of water will be tempted to play in the water and to reach into it, and while defendant need not have guarded against this open and obvious stream of water, under numerous California decisions, we think a different rule applies where an apparently harmless, shallow stream of water contains a large opening into which anyone might slip, which opening is wholly unguarded and completely concealed from view. . . . The children assumed the risk of the open, obvious, notorious danger incident to the canal, containing about three feet of water; but. they did not assume the risk of an unknown, concealed, and unguarded danger.” (Pp. 517-518.) Thus, it was held that the common, obvious risk of the open stream with its muddy water and slippery banks did not come within the “trap” theory, but the risk created by the uncommon and concealed syphon did come within that theory.
The Sanchez case was later distinguished by this court in Melendez v. City of Los Angeles, supra, 8 Cal.2d 741, where liability was denied. This court there affirmed a judgment entered following the sustaining of a demurrer without leave to amend on the ground that neither the ‘ ‘ attractive nuisance ’ ’ doctrine nor the “trap” doctrine was applicable. There it was alleged that the two young boys were drowned in an artificial pool where the “deep hole in this pool was completely concealed by the muddy condition of the water in the pool.” (P. 743.) This court applied the rule of Beeson v. City of Los Angeles, supra, 115 Cal.App. 122, which it declared to be “on all fours,” and held the decision there to be consistent with the Sanchez case on the ground that the “concealed hole was not an artificial contrivance or appliance maintained by the owner. . . .” (P. 746.) This court further said with respect to the Sanchez case, “In the latter case there was a concealed contrivance which no one would suspect.” (P. 747.) This distinction is stressed in 1 Within, Summary of California Law, 1946 ed., pp. 748, et seq., where it is said that [111]it is only “where the natural or artificially created body of water contains an additional artificial contrivance constituting a concealed danger or trap,” that “recovery may be allowed.” (P. 750.) While the decision in the Melendez case has been criticized on the ground that the facts there may have been sufficient to show a “concealed” or “hidden” danger (26 Cal.L.Rev. 159; 11 So.Cal.L.Rev. 534), it has never heretofore been suggested that the Sanchez case or any other case in this state has sanctioned the imposition of liability under the “trap” theory unless the condition constituted a “concealed” or “hidden” danger. Nevertheless the “trap” theory is invoked in the majority opinion here upon the authority of the Sanchez case. The inapplicability of the Sanchez case to the common, obvious condition here is apparent from reading that opinion, and is emphasized by the opinion in the Melendez ease.
Turning now to the consideration of section 339 of the Restatement of the Law of Torts, the majority opinion appears to give that section the force of a legislative enactment nullifying our prior decisions, and extending the exceptions to the general rule to conditions other than those falling within the so-called “attractive nuisance” exception or the “trap” exception, as defined by our decisions. Of course, the Restatement does not have the force of a legislative enactment and in any event, section 339, properly construed, has never heretofore been interpreted by this court as declaring a rule purporting to extend those exceptions. On the contrary, reference has been made to that section in our decisions in which liability has been denied (Knight v. Kaiser Co., supra, 48 Cal.2d 778; Melendez v. City of Los Angeles, supra, 8 Oal.2d 741), and the section has been treated as establishing tests consistent with such decisions. The decisions have further stressed the harshness of any exceptions to the general rule limiting the liability of the landowner to the trespasser and have cautioned against the extension of such exceptions. (Knight v. Kaiser Co., supra, 48 Cal.2d 778, 784; Wilford v. Little, supra, 144 Cal.App.2d 477, 480; Lake v. Ferrer, supra, 139 Cal.App.2d 114, 118.) Heedless of that caution, the majority opinion now has apparently given section 339 its broadest possible interpretation and thereby sanctions the extension of the heretofore well-defined exceptions into ill defined fields. Any such exemption to cover the situation here is obviously inconsistent with our [112]prior decisions as well as with the language employed in the opinions.
The background of section 339, which throws some light upon its proper interpretation, is considered at length in Prosser on Torts, 2d ed., pp. 432, et seq. The author recognizes that “in general, the possessor of land is not liable for harm to trespassers caused by his failure to put the land in a reasonably safe condition for their reception, ...” (Prosser on Torts, 2d ed., p. 432.) He then notes the qualification or exception adopted in most jurisdictions and known as the “attractive nuisance” doctrine or “turntable” doctrine, which makes the occupier of land liable for conditions which are “highly dangerous to trespassing children.” (Ibid., p. 438; emphasis added.) He further notes that said doctrine is not recognized at all in several jurisdictions, where it is denounced “as a piece of sentimental humanitarianism that imposes an undue burden upon landowners and industry, is founded on sympathy rather than law or logic, and gives the jury a free hand to express its feelings for the child out of the defendant’s pocket.” (Ibid., p. 439.) He states that “the courts which accept the principle are notably cautious in applying it, and have voiced occasional expressions of doubt about it. The tendency has been to seek some middle ground which will allow recovery in a limited group of cases, without protecting all children against everything.” (Ibid., p. 439.) Dean Prosser approves section 339 as offering such middle ground. In construing the section, he states that “some possibility of danger, not unreasonably great, is not enough; . . .” and that “There are some dangers common in the community which any child of sufficient age to be allowed at large may be expected to understand and appreciate—such as the usual risks of fire and water,...” (Ibid., pp. 441-442.) Thus, Dean Prosser’s interpretation of section 339 appears to be in line with the above-mentioned authorities denying liability for injuries sustained by trespassing children in encountering the common, obvious dangers of bodies of water, natural and artificial.
From this historical background, it seems evident that section 339 was intended merely to follow the rules generally adopted by the courts of those jurisdictions, including California, which had theretofore recognized the so-called “attractive nuisance ’ ’ exception; and to formalize and rationalize that exception. It does not appear that it was intended to equate the duty of the landowner toward the trespassing child [113]with the duty imposed by section 1714 of our Civil Code, for if it had been so intended, the draftsman of section 339 of the Restatement of the Law of Torts could have expressed that intention in relatively few words. While text writers, other than Dean Prosser, have generally approved section 339 and have been critical of the courts which have refused to recognize any exception to the general rule, they do not appear to be entirely in agreement as to the section’s proper interpretation.
This court adopted the “attractive nuisance” exception at an early date, but it has not heretofore attempted to interpret section 339 of the Restatement of the Law of Torts or to discuss definitively its relation to our decisions. As above indicated, it has apparently deemed said section to be in accord. The opportunity is now presented for this court clearly to define its position, and I think that it should grasp that opportunity. This the majority opinion has failed to do. It states that “the conditions necessary to establish liability on the theory of section 339 have been met”; it makes a futile attempt to distinguish the prior decisions; it declares that “recovery is granted or denied depending on the facts of each case”; and it makes the bald statement that “Recovery in the present case is consistent with the established law of this state.” In my opinion, the majority opinion will serve only to confuse rather than to clarify the settled law in this important field.
Any proper interpretation of section 339 of the Restatement of the Law of Torts must be made in the light of both its background and its wording. It should be noted that its heading confines its application to “Artificial Conditions Highly Dangerous to Trespassing Children” (emphasis added), and that subdivision (b) of the section confines its application to a condition involving “an xmreasonable risk of death or serious bodily harm to such children.” (Emphasis added.) It therefore does not purport to cover every condition which presents some danger or risk of harm, but only conditions which are “highly dangerous” and which present1 ‘ unreasonable risk ’ ’ of harm. If confined as its wording indicates, the section is entirely in line with the prior decisions of this court. If extended as the majority opinion indicates, the section is entirely out of harmony with those decisions. It further appears that any use of the unqualified words “danger” or “risk” in any discussion of the section simply ignores its fundamental requirements.
[114]There are those who would equate the requirements of section 339 with mere foreseeability of harm to trespassing children or with the provisions of section 1714 of the Civil Code. The wording of section 339 negatives the soundness of such an interpretation. Furthermore, such interpretation would not be based upon reason. There is possible foreseeability of harm to children under practically all conditions which exist either on their home premises or on the property of others. It is a matter of common knowledge that children are venturesome; that they wander at will; and that they may get into difficulty anywhere. Thus there is foreseeability of harm wherever they may play. It may be in the natural or artificial conditions found in our public parks and playgrounds, or it may be in the natural or artificial conditions found on private property. Private property exists from the shores of our ocean to the peaks of our mountains. Both public and private property embrace such natural conditions as precipitous cliffs and the irregular shore lines of bodies of water, such as bays, streams, lakes, and ponds. They likewise embrace such common, artificial conditions as lakes, swimming pools, fish ponds, walls, fences, buildings under construction, and piles of building materials used for construction purposes. These ordinary conditions, presenting only common and obvious danger or risk of harm to the trespassing child, are not of the type which has heretofore been held to fall within any of the above-mentioned exceptions. On the contrary, even with respect to public property, recovery has been denied for injuries incurred by slipping or falling into pools of water, natural or artificial. (Melendez v. City of Los Angeles, supra, 8 Cal.2d 741; Betts v. City & County of San Francisco, supra, 108 Cal.App.2d 701; Beeson v. City of Los Angeles, supra, 115 Cal.App. 122.)
The above-cited authorities, and practically all the decisions in this state, have laid down rules which follow a consistent pattern as follows: (1) that as a general rule, the landowner owes no duty to the trespasser or licensee with respect to the condition of the premises except “to abstain from wilful or wanton injury”; (2) that there is a limited exception to this general rule with respect to children, which exception is embraced within the so-called “attractive nuisance” doctrine, or its counterpart as embodied in section 339 of the Restatement of the Law of Torts; (3) that such exception produces harsh results and should therefore he strictly limited rather than extended; (4) that it should never be applied to common, [115]obvious dangers but only to situations involving at least some uncommon or concealed danger; (5) that the danger of the conditions ordinarily incident to the maintenance of a body of water, natural or artificial, is a common, obvious danger rather than an uncommon or concealed danger; and (6) that in a ease involving such a common, obvious danger it should be held as a matter of law that such type of danger does not fall within any exception to the general rule so as to permit the imposition of liability upon the landowner. It appears to me that the decision in the present case is destructive of this consistent pattern.
The necessity for clarification by this court of the meaning of section 339 is apparent from a reading of Copfer v. Golden, 135 Cal.App.2d 623 [288 P.2d 90], upon which the District Court of Appeal relied in its opinion in the present case. (Reynolds v. Willson (Cal.App.), 308 P.2d 464.) The Gopfer ease did not involve a body of water, but its reasoning shows that section 339 was there construed in a manner which would equate its requirements merely with section 1714 of the Civil Code. There the injury to the trespassing child occurred when it fell from a trailer parked on the premises of the owner. There is nothing in that opinion to indicate that the trailer was anything other than a lawful type of trailer presenting only the common, obvious risks which might be presented by any type of trailer upon which a child might see fit to climb. For aught that appears, it was the type of vehicle which could have been lawfully parked upon the streets without incurring liability to children who might have climbed upon and fallen from it. Nevertheless, the court there sustained a judgment imposing liability where the injury occurred when the trespassing child climbed upon and fell from the trailer while parked on the owner’s property. In my opinion, the court there placed an erroneous interpretation upon section 339 and further, reached the wrong result on the facts even under its own erroneous interpretation of the section. There was no petition for hearing by this court. I believe that this court should disapprove Gopfer v. Golden, supra, and should clearly enunciate this court’s interpretation of section 339 for the guidance of the bench and bar. That case and its interpretation of section 339 was made the cornerstone of the opinion of the District Court of Appeal in the present case, when it declared that “The rule in California is stated in Copfer v. Golden, 135 Cal.App.2d 623 [288 P.2d 90].” (Reynolds v. Willson, supra, (Cal.App.) 308 [116]P. 2d 464.) It is the only ease cited in the briefs or by the District Court of Appeal which has any tendency to support the conclusion reached by the majority, and yet the majority opinion fails expressly to approve or disapprove, or even to mention it.
Of the cases which are cited in the majority opinion, all are in accord with the views expressed in this dissent, and none lend support to the majority. In Faylor v. Great Eastern Q. Min. Co., 45 Cal.App. 194 [187 P. 101], it was declared that the particular danger of an unguarded “stope” in the darkness of the mining tunnel “was distinctly a concealed danger” (p. 203), and the court clearly distinguished the cases involving the common, obvious danger of bodies of water, natural or artificial (p. 202).
The cases of Blaylock v. Jensen, 44 Cal.App.2d 850 [113 P.2d 256], and Long v. Standard Oil Co., 92 Cal.App.2d 455 [207 P.2d 837], cited in the majority opinion, both involved highly unusual conditions which defendants permitted to exist in close proximity to the highway. The Blaylock case compared the situation to the one mentioned in Loftus v. Dehail, 133 Cal. 214 [65 P. 379], in the following manner: “. . . a cesspool, open and unguarded, yet with its surface covered with a layer of deceptive earth to a level with the adjacent land. Into such a trap anyone, adult or child, might have walked.” (P. 852.) In the Long case, the court pointed to facts taking the case out of the common, obvious danger class and bringing it within the uncommon, concealed danger class. (P. 459.) While both cases appear to have been correctly decided on their facts, the discussion of section 339 again shows the need for clarification of its meaning by this court.
Neither Crane v. Smith, 23 Cal.2d 288 [144 P.2d 356], nor Zarzana v. Neve Drug Co., 180 Cal. 32 [179 P. 203, 15 A.L.R. 401], cited by the majority, is in point, as neither involved a child who was a trespasser or mere licensee. And Staggs v. Atchison, Topeka & S. F. Ry. Co., 135 Cal.App.2d 492 [287 P.2d 817], throws no light whatever on the problem, as it involved the imposition of liability upon the defendant for active negligence in the operation of its train rather than for a claimed violation of any duty owed to trespassers with respect to the condition of defendant’s property. (See also Yamauchi v. O’Neill, 38 Cal.App.2d 703 [102 P.2d 365].)
While this court unquestionably has the power to disapprove prior decisions where it finds compelling reasons for so [117]doing, it likewise has the duty to exercise that power sparingly to the end that the law may possess to a high degree the desirable attributes of certainty and stability. Furthermore, if compelling reasons do appear to this court for disapproving settled rules of law, then this court has the further duty of expressly stating such disapproval and of clearly declaring the new rules which are to replace the old. Those duties cannot be met by declaring in vague terms “that recovery is granted or denied depending on the facts of each case” or by the employment of reasoning which is couched in obscure words and phrases. The bench and bar will be compelled to speculate on the answer to the question: Has this court now departed from the settled law of this state, and if not, what is the effect of the majority opinion? Despite the declaration of the majority that the imposition of liability here is “consistent with the established law of this state,” it fails to sustain that thesis, and it leaves the answer to the above question shrouded in doubt.
In the light of the authorities cited in the majority opinion and those cited in this dissent, it seems entirely clear that the question presented in this case is not an open one. But if it were an open question, there appears to be sound reason for strictly limiting the cases in which the landowner should be held liable for injuries to the trespassing child. Practically all natural and artificial conditions found on private property, including trees, irregular terrain, fences, walls, fish ponds, swimming pools, buildings, building materials, and the like present some danger and risk of harm to the child who would climb upon or play about them. The question therefore is whether there should be imposed upon the landowner the duty to safeguard the trespassing child from the common, obvious risks of harm which such natural and artificial conditions present. Reason dictates that no such duty should be imposed, and that the landowner should be held liable only in those situations presenting at least an uncommon or concealed danger.
The added duty which the majority opinion now apparently imposes does not constitute a “balancing” of the conflicting considerations between the landowner and the trespassing child. The imposition of that added duty has the effect of placing the entire burden upon the landowner. Any attempt by landowners generally to meet that increased burden would require them to build “child-proof” fences and gates around all such natural and artificial conditions. The taking [118]of such precautions would greatly lessen the attractiveness of our urban and suburban developments. While Dean Prosser states that the landowner should not be required “to make his premises ‘child-proof’ ” (Prosser on Torts, 2d ed., p. 444), there appears to be no other way of meeting the added burden which the majority opinion now imposes.
In conclusion, it must be remembered that just as happened here, a tragic accident will occasionally occur. But accidents to children resulting from common, obvious conditions are no more unusual when they are trespassing on the land of others without right than they are when playing on their own premises or on public property where they have a right to be. Danger and reasonable risks of harm are present everywhere. Clearly the play apparatus customarily found in public school yards and in public playgrounds, as well as the conditions found around lakes and ponds in public parks, are all “attractive” to children and present dangers and risks of harm at least equal to those presented by any condition which existed on the premises of the defendant landowners. Nevertheless, all such common, obvious dangers have been consistently held to be insufficient to impose liability. I would adhere to the settled rules and reverse the order.
Schauer, J., and McComb, J., concurred.