KEITH REYNOLDS, a Minor, etc., Respondent, v. MELVILLE E. WILLSON et al., Appellants, 51 Cal. 2d 94

SHENK, J. This an appeal by the defendants from an order denying their motion for a judgment notwithstanding the verdict in an action for personal injuries. The plaintiff is Keith Reynolds, a boy 2 years and 3 months of age at the time of the accident which occurred on January 31, 1953. He is the youngest son of Dr. and Mrs. William J. Reynolds, Jr., who were living at the time with their family of four children at the southeast corner of Wilson Avenue and Buckingham Way in the Fig Garden residential district in the city of Fresno. The defendants, Mr. and Mrs. Melville E.

Willson, occupied their residence at the southwest corner of Van Ness Avenue and Buckingham Way. The homes of the two families occupy the full frontage of the block on Buckingham Way between Wilson and Van Ness Avenues with a vacant lot between the houses. The defendants’ lot faces on Van Ness Avenue with a frontage of 135 feet, and extends 285 feet on Buckingham Way. Their residence was built in 1930 in what was then a sparsely settled subdivision. The area has since developed into a well occupied

section with some 30 families residing in the immediate vicinity. At the time of the accident, approximately 50 or 60 children ranging in age from two years to teenage resided in the neighborhood. An elementary school is located a few blocks away. The defendants had occupied this property since April 1951. At the rear of their property the defendants maintained a swimming pool. It is about 20 by 40 feet in dimensions and in depth is graduated from about 3 feet on its north side to 9 feet 4 inches on its south side.

The shallow portion is toward Buckingham Way with steps leading down from ground level in the northwest corner. A stucco wall extends most of the way around the defendants’ property. There is a 10% foot opening in the wall on the Buckingham Way side in the garage area with gate bolts on each side of the opening but no gate was then maintained. A concrete pavement forms an apron in front of the garage and leads into a walkway toward the residence and into a walkway to dressing rooms back of the garage.

Buckingham Way is not a through street, is relatively free from traffic and children were accustomed to resort to it for recreation. The swimming pool was visible therefrom by children and adults through the open gateway. At the time of the accident the cost of installing a gate in the opening in the stucco wall was not more than $25. The Willsons and the Reynolds were neighborly and invitations to use the swimming pool were extended by the Willsons to the Reynolds and their children. The Reynolds took advantage of the invitation and used the pool on many occasions.

Other children in the neighborhood enjoyed a like privilege during the swimming season which ended in September. A general condition, attached by the defendants to the use of the pool, was to the effect that when small children were to use the pool or play in the adjoining area, an adult should be present. The plaintiff was taken to the pool when adults were present during the swimming seasons of 1951 and 1952. On at least one occasion Mrs. Willson observed the plaintiff making his way toward the pool unattended and she returned him to his home.

At the close of the 1952 season the water in the pool was only partially drained. At the close of previous seasons it had been fully drained. Mr. Willson testified that the pool was left in a partially filled condition at the close of the 1952 season in order to prevent his and other children from playing therein and injuring themselves on the concrete surface. At the time of the accident water covered the concrete floor about to the base of the steps at the shallow end of the pool. Near the center of the floor was an abrupt decline to deeper water.

In the winter months just prior to the accident the pool, as thus partially filled, had accumulated dir.t, decayed leaves from nearby trees, and other decomposed material. Algae and other substances had accumulated and settled on the concrete surface beneath the water, causing it to become slippery when stepped upon. On the day of the accident Mrs. Reynolds left in the early morning with her three older children for Yosemite Valley. Dr. Reynolds left for his office a little later. The plaintiff child stayed at home in the care of a maid-housekeeper.

She put the child down in his room for his nap about 3:30 in the afternoon. When he was supposedly asleep she engaged in a telephone conversation in another room. In about 15 minutes she returned to the boy’s room and found him missing. Apparently he had climbed out of a window. She searched the home and neighborhood but failed to find him. Dr. Reynolds returned to his home about 4 p. m. He joined in the search. He entered the defendants’ yard through the opening in the wall on Buckingham Way which led to the swimming pool and saw the boy lying face down in the water. He went into the pool to rescue the child.

Because of the slippery condition of the bottom, he was unable to carry him to the steps. As soon as possible artificial respiration was administered. Adrenalin was injected directly into the boy’s heart. An ambulance was called and upon its arrival oxygen was administered, and the boy was taken to a hospital. He was unconscious for five or six days and at the end of 10 days was paralyzed. Since that time he has made a partial recovery but is afflicted with the symptoms of cerebral palsy and his brain and nervous system are permanently damaged.

The plaintiff, through his father as guardian ad litem, sued for damages on behalf of the child and obtained a verdict in the sum of $50,000. The defendants do not complain of the amount. The action was brought apparently on three theories of liability; first, on the theory outlined in

section 339 of the Restatement of the Law of Torts, which provides as follows: “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 second was on the theory that if

section 339 is not applicable to the facts of the case or should not be followed, another basis of liability was the physical condition of the pool, maintained as it was at the time of the accident as constituting a peril in the nature of a “trap” as that term has come to be known to the law of this state. The third theory was that under the facts the defendants owed to the plaintiff the duty of ordinary care as an invitee on the premises.

The action was commenced and the litigation was conducted throughout on behalf of the plaintiff, by allegation, proof, argument to the jury and on appeal, on all three theories, and from the standpoint that the liability of the defendants depended on questions of fact to be determined by the jury. As noted, the jury returned a verdict in favor of the plaintiff and the only question to be determined on the appeal is whether there is sufficient competent evidence in the record to support the verdict on any of the theories relied upon.

The rules which govern the disposition of a motion for judgment notwithstanding the verdict, as in this case, are familiar. Such a motion may be granted only if a motion for a directed verdict should have been granted (Code Civ. Proc., § 629). The power of the court to direct a verdict is subject to the same limitations as its power to grant a non-suit. (Pellett v.

Sonotone Corp. (1945), 26 Cal.2d 705, 708 [160 P.2d 783, 160 A.L.R. 863].) 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. (Estate of Lances (1932), 216 Cal. 397, 400 [14 P.2d 768]; see also 24 Cal.Jur., p. 913, and cases cited.) In conformity with the foregoing rules the main if not the only problem presented is whether (disregarding all conflicting evidence favorable to the defendants), there is sufficient substantial evidence to support the verdict on any tenable theory of liability.

It is contended by the plaintiff that the theory of liability prescribed by

section 339 of the Restatement of the Law of Torts, above quoted, is applicable to the facts of the case; that the conditions therein required to impose such liability have been met, and that such a theory is not inconsistent with, but is in conformity with the law of this state. To meet the requirements of

section 339 of the Restatement of the Law of Torts, it appears that the defendants were the possessors of the land; that the swimming pool was a structure artificially constructed thereon; that the plaintiff was an infant of tender years and a trespasser at the time of the accident as contemplated by the section; that the nature of the structure was such that the defendants knew that children were likely to trespass thereon; that the condition in which the pool was maintained at the time was such that the defendants realized or should have realized it involved an unreasonable risk of death or serious bodily harm to children; that because of his youth the plaintiff did not discover the condition of the pool or realize the risk involved in coming within the area made dangerous by it, and that the cost of making it safe against children was slight as compared to the risk to young children trespassing thereon.

With the limitations placed upon the reviewing court in the consideration of the evidence on an appeal of this sort it must be concluded that the conditions necessary to establish liability on the theory of

section 339 have been met. The defendants maintain that if this be so and liability thus attaches under their situation the doctrine of attractive nuisance will apply to every possessor of land maintaining a private swimming pool. But such is not the ease. It is established in this state that a private swimming pool is not an attractive nuisance as a matter of law. (Lake v. Ferrer (1956), 139 Cal.App.2d 114 [293 P.2d 104] ; Wilford v.

Little (1956), 144 Cal.App.2d 477 [301 P.2d 282].) The manner of its maintenance and use may, however, be such as to impose the duty of ordinary care on the possessor toward children of tender years notwithstanding they may technically occupy the position of trespassers at the time. That is the theory of liability imposed by

section 339 whether the structure maintained be a swimming pool or some other artificial structure maintained upon his property. The plaintiff does not rely solely upon the liability of

section 339 but takes the position that the verdict is also sufficiently supported on both of the other two theories. With this we must agree at least as to the second theory. The second theory is that the possessor of land is liable for the negligent maintenance on his premises of an artificial instrumentality which might constitute a dangerous contrivance in the nature of a “trap” and be encountered by children of tender years incapable of contributory negligence, and who are known by the possessor to enter or would be expected to enter his premises as trespassers. Such a case was Sanchez v.

East Contra Costa Irr. Co. (1928), 205 Cal. 515 [271 P. 1060]. There the defendant had constructed a syphon under a creek for the purpose of conveying therein the water of its drainage canals. The plaintiff’s 5-year-old son was playing in the shallow water of the canal, was sucked into the syphon and drowned. In an action by the father for the wrongful death of his son it was held that without some warning of its presence the defendant was liable for the negligent maintenance of the syphon. All of the elements necessary to establish liability under the doctrine of ordinary care were found to be present.

The court held the canal with its unguarded syphon to be the “trap” and with it the shallow water as the bait of the trap. The Sanchez case was preceded by the case of Faylor v. Great Eastern Q. Min. Co. (1919), 45 Cal.App. 194 [187 P. 101], where the defendant was held liable for the negligent maintenance of an unguarded tunnel of a quicksilver mine. In an action for the wrongful death of a boy entering the tunnel, the negligent maintenance of the tunnel was held to have constituted a trap even though the status of the boy at the time was that of a trespasser. Other cases to the same effect are Long v.

Standard Oil Co. (1949), 92 Cal.App.2d 455 [207 P.2d 837], and Blaylock v. Jensen (1941), 44 Cal. App.2d 850 [113 P.2d 256]. Liability on the trap theory is well established. Under it the test of ordinary care may be applied although the injured party be a trespasser. As so established in this state it is not necessary that the damage or harm be inflicted by conscious intention or design on the part of the possessor of the premises.

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. It should be said here, that it is the generally accepted rule as recognized by comment (

b) to

section 339, that the duty of the possessor does not extend to dangerous conditions on the land which are obvious even to children, such as the usual risks of fire, water, falling from a height and the like (see Prosser on Torts, 2d ed. 1955, 441-442). When however, there are, in addition to the usual risks, concealed dangers not obvious, especially to children, the trap theory may be applied. In view of the fact that the order must be affirmed for other reasons, it is unnecessary to determine the extent to which the defendants owed a duty to the plaintiff as an alleged invitee.

It is true beyond question that the plaintiff was included among those invited by the defendants to use the pool, but a limitation was imposed by them that young children should not be permitted to use it except when an adult was in attendance. What effect that limitation and the extent of such an invitation generally had upon the duty of the defendants toward the plaintiff under the circumstances we do not decide. The defendants rely on Wilson v.

City of Long Beach (1945), 71 Cal.App.2d 235, where it is said at page 241 [162 P.2d 658, 163 P.2d 501] : “The following from 38 American Jurisprudence 779 is applicable: ‘The accepted view is that the tender age of a child, rendering it incapable of looking out for its own safety, does not raise a duty where none otherwise exists. ...

It is said that the responsibility for avoiding injury to a trespassing child from defective or dangerous premises lies with the parent or legal custodian of the child rather than with the proprietor of the premises.’ In 19 California Jurisprudence 624 a similar statement occurs: ‘In the absence of circumstances which bring a case under the attractive nuisance doctrine, it is said that an owner of land owes no other duty to a child who is trespassing . . . than he owes to an adult trespasser.’ ’’ The foregoing, insofar as it purports to state the general principles concerning the duty of a land owner to a trespassing child is incomplete.

Insofar as it assumes to place the responsibility on the parents and relieve a third party tortfeasor it does not state the law. On the contrary the negligence if any of the parents is not imputable to the child in an action by the latter. (Crane v. Smith (1943), 23 Cal.2d 288, 301 [144 P.2d 356] ; Zarzana v. Neve Drug Co. (1919), 180 Cal. 32, 35-37 [179 P. 203, 15 A.L.R. 401]; Staggs v. Atchison, Topeka & S. F. Ry. Co. (1955), 135 Cal.App.2d 492 [287 P.2d 817].) Otherwise the foregoing statement may be accepted in its generalities but the relevant facts do not bring the present case within its application.

We think the correct rule is stated in

section 339 of the Restatement of the Law of Torts. However, it is asserted by the defendants that

section 339 is not applicable under the law of this state; that the cases in this state are inconsistent with the declarations of liability and duties stated in that section. Upon examination it is found that this is not so. For example in Peters v. Bowman (1896), 115 Cal. 345 [47 P. 113, 598, 56 Am.St.Rep. 106], it appeared that the plaintiff’s son was drowned when he fell from a raft on a pond on the defendant’s premises. The court there held that the doctrine of the turntable cases had no application to a standing body of water.

No dangerous condition existed in the pond other than that common to most bodies of water—the possibility of drowning. The pond was regarded by the court as a natural condition on the land and the facts indicate that the decedent was capable of appreciating the hazard of going upon the pond. In Melendez v. City of Los Angeles (1937), 8 Cal.2d 741 [68 P.2d 971], the decedent, a boy of 11 years, was drowned in a pool of water created by the defendant city’s storm drain. A 7-foot hole was located below the drain outlet in an otherwise shallow pool. That hole was concealed by the muddy condition of the water.

The court distinguished Sanchez v. East Contra Costa Irr. Co., supra, 205 Cal. 515 (citing Peters v. Bowman, supra, 115 Cal. 345), on the ground that the danger of drowning in a body of water is an open danger known to all.

Section 339 of the Restatement of the Law of Torts is cited by the court apparently with approval and as consistent with the law of this state. In Polk v. Laurel Hill Cemetery Assn. (1918), 37 Cal.App. 624 [174 P. 414], the decedent, a child of 8 years, fell into and drowned in a reservoir which the defendant maintained on its premises. The court held that the so-called turntable cases were of no application and affirmed the judgment sustaining the demurrer.

It was held that no dangerous conditions existed in the maintenance of the reservoir; that if any dangers existed they were visible to all and were apparent to a child of the decedent’s years, and (relying on Peters v. Bowman, supra (1896), 115 Cal. 345) that trespassers must bear the risks of injuries inflicted by such visible dangers. The opinion states at page 634 that a pond of water is not to be included in the same class with turntables and dangerous machinery. In Reardon v.

Spring Valley Water Co. (1924), 68 Cal.App. 13 [288 P. 406], the decedent, a child of 5 years, boarded a row boat on defendant’s reservoir, fell from the boat, and was drowned. The court held on the authority of the Peters and Polk decisions that the plaintiff failed to state a cause of action. In Beeson v. City of Los Angeles (1931), 115 Cal.App. 122 [300 P. 993], the decedent, a 10-year-old boy, drowned after falling into a water filled hole in the defendant’s storm drain. The court pointed out that a pond of water is not in and of itself an attractive nuisance in California.

The facts do not show that any unusual hazard was present in the pool. The court distinguished the Sanchez case, supra, reciting the facts which made the syphon in that case a “danger and a trap.” In King v. Simons Brick Co. (1942), 52 Cal.App.2d 586 [126 P.2d 627], damages were sought for the wrongful death of plaintiff’s 12-year-old son, who drowned in a water filled excavation on the defendant’s premises.

The pit was filled with opaque water and it was alleged 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. ...” Factually, the King ease was close to the Melendez case.

The court in sustaining a demurrer stated at page 590: “It is only in those cases where a dangerous trap on 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____” In Demmer v. City of Eureka (1947), 78 Cal.App.2d 708 [178 P.2d 472], decedent, a 10-year-old boy, was drowned when he fell from a floating log. Again, no dangerous condition or trap existed in the body of water except the ever present danger of drowning.

The danger was held to be open and obvious to any one including the trespassing boy. In another ease (Betts v. City & County of San Francisco (1952), 108 Cal.App.2d 701 [239 P.2d 456]) the decedent, a 7-year-old child, was drowned in a reservoir owned by the defendant city. The child entered the reservoir area by climbing a picket fence. He slipped on a moss-covered spillway, fell into the reservoir and drowned. It was held that the spillway was an obvious hazard visible to anyone with no liability for its maintenance on the part of the defendant. In Ward v.

Oakley Co. (1954), 125 Cal.App.2d 840 [271 P.2d 536], two of the plaintiff’s minor children (of an undisclosed age) were drowned when wading in a slough on the defendant’s premises. The mud under the surface of the water consisted of a deposit of fine sand and colloidal materials. The complaint alleged that when the children waded into the slough, they were dragged and sucked under the water by the mud; that the dangerous condition of the area was not apparent or obvious to children and that it was practical to fence the slough and to take other precautions. Six children had previously drowned in the slough.

It was held that the attractive nuisance doctrine did not apply to bodies of water but that recovery might be had if a “hidden or concealed trap” could be shown. The opinion states the essential elements of a cause of action under the trap theory to be: “(

a) that the dangerous hazard causing death' be artificially created by the owner, (

b) it be so concealed as to constitute a trap, and (

c) that it can be readily guarded without destroying its usefulness or placing upon the owner an undue burden.” The court reviews many eases bearing on this subject and concludes that the peculiar characteristic of the mud was that of a natural rather than an artificial condition. Knight v. Kaiser Co. (1957), 48 Cal.2d 778 [312 P.2d 1089], does not preclude the application of

section 339 of the Restatement of the Law of Torts to the present case. In that ease, the decedent, a boy of 10, was suffocated when one of the defendant’s sand piles collapsed on him. The sand was stored on the defendant’s private property along with other building material, machinery and supplies. The discussion in that ease emphasizes the obvious nature of the hazard involved in playing or digging in a sand pile. This court stated at page 782: “In Restatement of the Law of Torts, volume 2,

section 339, page 922, it is said that the duty of the possessor of land ‘does not extend to those conditions the existence of which is obvious even to children and the risk of which is fully realized by them. This limitation of the possessor’s liability to conditions dangerous to children, because of their inability to appreciate their surroundings or to realize the risk involved therein, frees the possessor of land from the danger of liability to which he would otherwise be subjected by maintaining on the land the . . . implements which are essential to its normal use. . . .’ ” It was held, consistent with

section 339 of the Restatement of the Law of Torts, that the hazard of playing in the sand pile is an open and obvious one for which the possessor could not, under the facts of that case, be held liable. From the foregoing cases and others which might be cited, it is apparent that recovery is granted or denied depending on the facts of each case. Where the elements of

section 339 have been fulfilled or the existence of a trap has been sufficiently shown recovery has ordinarily been awarded on the basis of want of ordinary care on the part of the defendant. Where, as in the cases relied on by the defendant, one or more elements of

section 339 have failed of proof and no evidence of a trap or other basis of liability proved, recovery has been denied. Recovery in the present case is consistent with the established law of this state. The order is affirmed. Gibson, C. J., Carter, J., and Traynor, J., concurred. The defendant Melville E. Willson testified that after the close of the 1952 swimming season he realized that the condition in which he had left the pool after the former season was unsatisfactory even for the safety of his own children, so he decided to try to make it safer by partially filling it.

This he did in December, the month before the accident happened. It was after the pool had been thus partially filled that the algae accumulated under the shallow water naar the steps. It was in evidence that the aperture in the fence through which the plaintiff gained access to the pool could have been closed or otherwise made safe from entrance by children at an expenditure of about $25.