Lohrenz v. Lane

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Lohrenz v. Lane
1990 OK 18
787 P.2d 1274
61 OBJ 571
Case Number: 64618
Decided: 02/27/1990
Supreme Court of Oklahoma

MICHAEL R. LOHRENZ AND REGINA "JEANNIE" LOHRENZ, INDIVIDUALLY AND AS PARENTS AND NEXT FRIENDS OF JUSTIN MICHAEL LOHRENZ, APPELLANTS,
v.
RICHARD RAY LANE, L.J. FLIPPIN AND TED FRY, APPELLEES.

Appeal from the District Court of Tulsa County; Jane P. Wiseman, Trial Judge.

¶0 Two year old son of Appellants received profound injuries stemming from oxygen deprivation after falling in pond on Appellee Lane's property. Appellants sought to recover damages from Lane on theory that pond constituted an attractive nuisance. Trial court granted summary judgment in favor of Lane, finding that on facts stated by parties, Appellants had no cause of action against Lane. Appellants are challenging that ruling.

AFFIRMED.

Briggs, Patterson, Eaton & Berg by Dale J. Briggs, Tulsa, for appellants.

Gibbon, Gladd & Associates by Richard D. Gibbon and Thomas E. Baker, Tulsa, for appellees.

LAVENDER, Justice:

[787 P.2d 1275]

¶1 During the early part of 1982 Appellants (Lohrenzes) moved into a trailer house on a small lot in a rural area near Broken Arrow, Oklahoma. In April of the same year Appellee Lane acquired a fifteen acre tract of land to the south of and adjoining the property rented by Appellants. On the northwest corner of the Lane property there was a low-lying area containing a spring. In June, 1982, Appellee Lane hired a contractor to improve upon the low-lying area by clearing out debris and constructing an enlarged earthen dam. The resulting pond was located about one hundred fifty feet from Appellants' trailer house. The pond was used for watering purposes by the horses and ducks which Appellee Lane kept on his fifteen acres.

¶2 Late on the afternoon of October 31, 1982, Appellants returned to their home after eating at a local cafeteria. Appellant Jeannie Lohrenz and her eleven year old sister went into the house while Appellant Michael Lohrenz remained in the yard. Two year old Justin Lohrenz was last noticed following his mother and aunt up the stairs to the entrance of the trailer house. After it became apparent that Justin had not come into the trailer house, a search was initiated to find him. Justin was found floating in two feet of water in the above described pond. He survived, but suffered profound injuries as a result of oxygen deprivation from the near drowning.

¶3 Appellants initiated the present action against Appellee Lane, and also named as defendants their own landlord and the contractor who constructed the pond on Appellee Lane's property. Appellants sought the recovery of damages stemming from Justin's injuries from these named defendants on negligence theories. We are concerned here only with the trial court's ruling granting summary judgment in favor of Appellee Lane. The trial court found that, under the facts presented, no cause of action existed as to Lane.

¶4 It is apparent upon review of the materials presented to this court, that the controversy in the present case centered over whether the pond on Lane's property constituted an attractive nuisance. The trial court, relying on prior precedent from this Court,

I.

¶5 Appellants' first argument urges this Court to abandon its adherence to the common law principles governing the duty owed by a landowner to one coming on his property. Oklahoma has followed the common law rule that the duty is less to one on the property without permission, express or implied, then to one lawfully on the property. These distinctions were most recently expressed in Sutherland v. Saint Francis Hospital, Inc.,

¶6 Appellants would have this Court adopt the position taken by the Supreme Court of California in Rowland v. Christian,

¶7 We would first note that, during the time period since Rowland, several states

¶8 There is no reason to consider, as Appellants urge, the abolition of the distinctions drawn between the status of those lawfully on the land of another, since our consideration of such a holding would not avail Appellants of any relief in this case. The materials presented to the trial court clearly establish that the child was on Appellee Lane's property against Lane's wishes and without an implied invitation, and [787 P.2d 1277] therefore, was a trespasser.

¶9 Human nature being what it is, our natural tendency is to want to help ease the suffering of this small child and his parents. However, our classification principles have evolved over many years as a means of weighing the individual rights of a property owner against the rights of the public at large. As judges, we are accountable for interpreting the law according to precedent and sound public policy. We are not afforded the luxury of indulging in sympathetic tendencies at another's expense. At this time, we do not find support to depart from the common law principles governing the duty owed by a landowner to one upon his property without express or implied permission.

II.

¶10 The second argument presented by Appellants is to urge this Court to reverse the position taken in the cases cited to the trial court

¶11 However, the key to the present case is that no question exists as to whether the doctrine applies since, by law it does not. "A pond of water, whether natural or artificial, is not an "attractive nuisance" i[n] absence of any hidden, inherent dangers."

¶12 Appellants ask us to now overrule existing precedent and hold that a pond falls under the attractive nuisance doctrine. We find no support for this. While it is reasonable to impose on landowners a higher duty of care if the doctrine applies in order to achieve a reasonable balance between competing societal interests, it is not reasonable to impose on a landowner the burden of eliminating all possible sources of injury which may exist on his property. We decline today, to impose such a burden on landowners.

¶13 Appellants also argue that the cases apparently relied upon by the trial court are no longer viable because the California case,

¶14 We also find no merit to Appellants assertion that certain building codes adopted in Wagoner County, where the accident occurred, which require the fencing of swimming pools, should be read to impose a duty to fence any analogous body of water. A clear distinction can be drawn between the dangers of a steep-sided swimming pool, normally associated and in close conjunction with a residence, and a pond such as involved in the present case, located in a rural area and serving as a water source for livestock.

III.

¶15 Appellants' final argument is that there exists evidence of wanton conduct on the part of Appellee Lane which should be submitted to the jury. The evidence of wantonness which Appellants cite, is that Lane maintained the pond on his premises with knowledge that children, and in particular the infant Justin, lived in the area and were known to trespass, that the fence around Lane's property was in disrepair and that there existed an open space between two sections of fence.

¶16 As previously stated, a landowner owes the trespasser a duty from committing a willful, wanton or intentional harm. In "well-considered and exhaustive opinions" this court has held that a wanton act is "equivalent to and synonymous with" gross negligence.

¶17 However, this court in City of Mangum v. Powell

A body of water - either standing, as in ponds and lakes, or running, as in rivers and creeks, or ebbing and flowing, as on the shores of seas and bays - is a natural object incident to all countries which are not deserts. Such a body of water may be found in or close to nearly every city or town in the land; the danger of drowning in it is an apparent open danger, the knowledge of which is common to all; and there is no just view consistent with recognized rights of property owners which would compel one owning land upon which such water, or part of it, stands and flows, to fill it up, or surround it with an impenetrable wall.

Under these facts, Appellee Lane was under no duty to fence out his neighbor's child. Therefore, the condition of the fence was neither relevant to nor conclusive of any wanton act. We affirm the summary judgment in that, no such evidence, as presented in this case, was sufficient to raise a question of wantonness.

IV.

This was a tragic accident and Appellants have suffered a bitter loss in the well-being of their child. However, it was an accident. Just as we can not fault [787 P.2d 1279] parents, in preventing a small active child from briefly escaping supervision, neither can we impose liability on an adjoining landowner whose property did no more than furnish a condition, open and obvious and without hidden danger, which made the injury possible. The judgment of the trial court is AFFIRMED. Appellees request for attorney's fees is denied for want of statutory authority.

¶18 All the Justices concur.

Footnotes:

1 See Oklahomans for Life, Inc. v. State Fair of Oklahoma, Inc., 634 P.2d 704 (Okla. 1981) (grant of summary judgment which has effect of letting one party out of case is an appealable final judgment.)

2 Weldon v. Seminole Mun. Hosp., 709 P.2d 1058, 1061 (Okla. 1985).

3 Atchison, T. & S.F. Ry. Co. v. Powers, 206 Okl. 322, 243 P.2d 688 (1952); City of Mangum v. Powell, 196 Okl. 306, 165 P.2d 136 (1946).

4 595 P.2d 780 (Okla. 1979).

5 704 P.2d 483 (Okla. 1985).

6 76 O.S. 1981 § 12 .

7 69 Cal. 2d 108, 70 Cal. Rptr. 97, 443 P.2d 561 (1968).

8 Rowland, 69 Cal. 2d at 118, 70 Cal. Rptr. at 104, 443 P.2d at 568.

9 See Webb v. City of Sitka, 561 P.2d 731 (Alaska 1977); Mile High Fence Co. v. Radovich, 175 Colo. 537, 489 P.2d 308 (1971); Pickard v. City of Honolulu, 51 Hawaii 134, 452 P.2d 445 (1969); Cates v. Beauregard Elec. Coop., 328 So. 2d 367 (La. 1976); Ouellette v. Blanchard, 116 N.H. 552, 364 A.2d 631 (1976); Basso v. Miller, 40 N.Y.2d 233, 386 N.Y.S.2d 564, 352 N.E.2d 868 (1976); Mariorenzi v. Joseph DiPonte, Inc., 114 R.I. 294, 333 A.2d 127 (1975). See also Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 79 S. Ct. 406, 3 L. Ed. 2d 550 (1959) (declining to apply licensee/invitee distinctions to admiralty law).

10 See McMullan v. Butler, 346 So. 2d 950 (Ala. 1977); Nicoletti v. Westcor, Inc., 131 Ariz. 140, 639 P.2d 330 (1982); Bailey v. Pennington, 406 A.2d 44 (Del. 1979), app. dismd, 444 U.S. 1061, 100 S. Ct. 1000, 62 L. Ed. 2d 744 (1980) (holding the propriety of a statutory scheme embodying the status classifications); Huyck v. Hecla Mining Co., 101 Idaho 299, 612 P.2d 142 (1980); Bowers v. Ottenad, 240 Kan. 208, 729 P.2d 1103 (1986); Murphy v. Baltimore Gas & Electric Co., 290 Md. 186, 428 A.2d 459 (1981); Astleford v. Milner Enterprises, 233 So. 2d 524 (Miss. 1970); Steen v. Grenz, 167 Mont. 279, 538 P.2d 16 (1975); Buchanan v. Prickett & Son, Inc., 203 Neb. 684, 279 N.W.2d 855 (1979); Caroff v. Liberty Lumber Co., 146 N.J.Super 353, 369 A.2d 983 (1977); Andrews v. Taylor, 34 N.C. App. 706, 239 S.E.2d 630 (1977); Moore v. Denune & Pipic, Inc., 26 Ohio St.2d 125, 55 Ohio Ops.2d 237, 269 N.E.2d 599 (1971); Taylor v. Baker, 279 Or. 139, 566 P.2d 884 (1977); Egede-Nissen v. Cyrstal Mountain, Inc., 93 Wash. 2d 127, 606 P.2d 1214 (1980); Yalowizer v. Husky Oil Co., 629 P.2d 465 (Wyo. 1981). See also Landowner Liability-Injured Party Status, 22 A.L.R. 4th 294, 310 et seq.

11 See Washington Metro. Area Transit Auth. v. Ward, 433 A.2d 1072 (D.C.App. 1981) (retreating from earlier case law abolishing all status distinctions); Wood v. Camp, 284 So. 2d 691 (Fla. 1973) (treating all those invited on to property equally and distinguishing between invited and uninvited licensees.); Poulin v. Colby College, 402 A.2d 846 (Me. 1979); Mounsey v. Ellard, 363 Mass. 693, 297 N.E.2d 43 (1973); Peterson v. Balach, 294 Minn. 161, 199 N.W.2d 639 (1972); O'Leary v. Coenen, 251 N.W.2d 746 (N.D. 1977); Ragnone v. Portland School Dist., 291 Or. 617, 633 P.2d 1287 (1981); Hudson v. Gaitan, 675 S.W.2d 699 (Tenn. 1984); Antoniewicz v. Reszcynski, 70 Wis.2d 836, 236 N.W.2d 1 (1975).

12 See City of Grandfield v. Hammonds, 100 Okl. 75, 227 P. 140 (1924). Even though the child was only technically trespassing, "[t]he infancy of the party injured does not change the situation." Id. at 77, 227 P. at 142. We held that the landowner's duty does not differ when the entrant upon the land is an infant.

13 Supra, note 3.

14 Knowles v. Tripledee Drilling Co., Inc., 771 P.2d 208, 209-210 (Okla. 1989).

15 City of Shawnee v. Cheek, 41 Okl. 227, 137 P. 724 (1913).

16 Knowles, 771 P.2d at 210.

17 Dennis v. Spillers, 199 Okl. 311, 185 P.2d 465 (1947).

18 Peters v. Bowman, 115 Cal. 345, 47 P. 113 (1896).

19 King v. Lennen, 53 Cal. 2d 340, 1 Cal. Rptr. 665, 348 P.2d 98 (1959).

20 In addition to previously cited Oklahoma cases, see e.g., Kinya v. Lifter, Inc., 489 So. 2d 92 (Fla.Ct.App. 1986); Cope v. Doe, 102 Ill. 2d 278, 80 Ill.Dec. 40, 464 N.E.2d 1023 (1984); Humphries v. T.L. James & Co., 468 So. 2d 819 (La. App. 1st Cir. 1985); Limberhand v. Big Ditch Co., 218 Mont. 132, 706 P.2d 491 (1985); Metropolitan Gov't of Nashville and Davidson County v. Counts, 541 S.W.2d 133 (Tenn. 1976); Ochampaugh v. City of Seattle, 91 Wash. 2d 514, 588 P.2d 1351 (1979).

21 Blaylock v. Malernee, 185 Okl. 381, 382-383, 92 P.2d 357, 358 (1939).

22 Id. at 383, 92 P.2d at 358.

23 196 Okl. 306, 165 P.2d 136 (1946).

24 City of Mangum, 196 Okl. at 308, 165 P.2d at 137. (emphasis added).