Lovin v. Town of Hamlet

90 S.E.2d 760 (1956)

243 N.C. 399

John V. LOVIN, Administrator of the Estate of Donald Charles Lovin, Deceased v. The TOWN OF HAMLET.

No. 453.

Supreme Court of North Carolina.

January 13, 1956.

*762 Z. V. Morgan, Hamlet, for defendant-appellant.

Pittman & Webb, Rockingham, for plaintiff-appellee.

BARNHILL, Chief Justice.

In considering the complaint to determine whether it states a cause of action, a distinction must be drawn between the construction and maintenance of the park as such and the construction and maintenance of the lake. The attractive nuisance *763 doctrine has no application to the maintenance of the park. It is maintained for the amusement, entertainment, and recreation of children of the defendant town, and such children are at least impliedly invited to visit the park and to make use of the swings, slides, wading pool and playground. Furthermore, there is no allegation that plaintiff's intestate lost his life through the use of any of the instrumentalities constructed and maintained for the entertainment of children.

A person has the right to maintain an unenclosed pond or pool on his premises. It is not an act of negligence to do so. Hedgepath v. City of Durham, 223 N.C. 822, 28 S.E.2d 503; Barlow v. Gurney, 224 N.C. 223, 29 S.E.2d 681, and cases cited; Fitch v. Selwyn Village, 234 N.C. 632, 68 S.E.2d 255; Stribbling v. Lamm, 239 N.C. 529, 80 S.E.2d 270.

The case in which the attractive nuisance doctrine was formulated and applied involved a turntable. Sioux City & P. R. Co. v. Stout, 17 Wall. 657, 84 U.S. 657, 21 L. Ed. 745. Hence the cases dealing with attractive nuisances have come to be known as the turntable cases. Ordinarily liability under this doctrine, which was adopted for the protection of infants of tender years, is established by proof that children were in fact attracted by the instrumentality or condition which caused injury or death and that such children had been attracted to such instrumentality or condition to such an extent and over such a period of time that any person of ordinary prudence would have foreseen that injury or death was likely to result. Barlow v. Gurney, supra.

When the complaint is considered in the light of the principles enunciated in the turntable cases, it is singularly defective in two respects: (1) There is no allegation as to where, how, or under what conditions plaintiff's intestate fell into the lake. Certainly he did not wade in water eight feet deep. His body must have been drawn to the place where it was located by the suction of the water flowing through the spillway. (2) While the plaintiff alleges with some elaboration that (a) the agents and officials of the defendant knew, or by the exercise of ordinary care should have known, that the natural curiosity of children would lead them into the deep water of said lake at said dam and thereby cause said children to be drowned, and (b) said children would be hurt or drowned by falling into or wading into the deep water of the lake, there is no supporting allegation of fact that children were accustomed to wade in the lake or to play in the lake from the banks thereof or to play along the water's edge in such manner and to such extent as to put the agents and officials of defendant on notice.

As the complaint may merely constitute a defective statement of a good cause of action, we refrain from any further discussion thereof which might tend to chart the course of the trial in the event the plaintiff should elect to amend.

While plaintiff, relying on Atkins v. City of Durham, 210 N.C. 295, 186 S.E. 330, and White v. City of Charlotte, 211 N.C. 186, 189 S.E. 492, conceded that the maintenance of the park was a governmental function, he was apparently inadvertent to our decision in Purser v. Ledbetter, 227 N.C. 1, 40 S.E.2d 702. See also Annotation 142 A.L.R. 1340.

What was said by Connor, J., in White v. Charlotte, supra, is obiter dictum. Governmental function and liability for negligence are diametrically opposed unless liability for negligence is expressly provided by statute.

It appears, therefore, that we have one case, Atkins v. City of Durham, supra, in which it is held that the maintenance of a park and playground is a governmental function and another case, Purser v. Ledbetter, supra, in which it is held that the maintenance of such playground or park is not a governmental function. We need not now determine which decision will be followed. We are content to rest our decision at this time solely on the deficiency of the allegations contained in the complaint. *764 The question of governmental immunity will be answered when it is squarely presented for decision.

The plaintiff may seek leave to amend if he is so advised. Teague v. Siler City Oil Co., 232 N.C. 469, 61 S.E.2d 345.

The judgment entered in the court below is

Reversed.

HIGGINS, J., took no part in the consideration or decision of this case.