LATIMER V. CITY OF CLOVIS, 1972-NMCA-040,
83 N.M. 610, 495 P.2d 788 (Ct. App. 1972)
ROBERT LEE LATIMER, as administrator of
the estate of MACK
ALLEN GRAYES, deceased, Plaintiff-Appellant,
vs.
CITY OF CLOVIS, Defendant-Appellee
COURT OF APPEALS OF NEW MEXICO
1972-NMCA-040, 83 N.M. 610, 495 P.2d 788
Appeal from the District Court of Curry
County, Blythe, Judge
PAUL PHILLIPS, Albuquerque, New Mexico,
DAVID W. BONEM, QUINN and BONEM, Clovis, New Mexico, Attorneys for Appellant.
DENNIS J. FALK, MODRALL, SEYMOUR,
SPERLING, ROEHL & HARRIS, Albuquerque, New Mexico, HARRY L. PATTON, Clovis,
New Mexico, Attorneys for Appellee.
WOOD, chief Judge, wrote the opinion. I
CONCUR:
Lewis R. Sutin, J., Ray C. Cowan, J.
(specially concurring)
{*612} WOOD, Chief
Judge.
{1} This is a wrongful death
case. The trial court granted defendant's motion for summary judgment. The
issue is the propriety of the summary judgment. We discuss each of the reasons
the trial court listed in granting the summary judgment. They are: (1) no
liability under the doctrine of attractive nuisance; (2) absence of negligence
on the part of defendant; (3) assumption of risk by and negligence of decedent;
(4) negligence of parents as proximate cause and assumption of risk by parents;
and (5) no act of defendant was the proximate cause and there was an
independent intervening cause. Issue No. 6, raised by defendant, is that
plaintiff failed to attack a basis for granting the summary judgment.
{2} Facts and inferences
supported by the record are:
{3} Mack Allen Grayes, age 5,
drowned after falling into water in a fenced swimming pool located in
defendant's park. The park was across the street from where Mack lived with his
mother, brothers and sister. The family had lived at this location for
approximately five years.
{4} The park is open the
entire year; the pool is open from June to September. A contractor, in
connection with submitting a bid for construction work at the pool, inspected
the pool on or about April 7, 1969. At the time of this inspection there was no
collection of water any place within the pool area. On the accident date, April
18, 1969, water had collected in the deep end of the pool to a depth of slightly
less than six feet. There is an "estimate" that the water had
collected after a rain.
{5} On the accident date, the
mother, accompanied by her children, went to the park to play softball. She
gave her sons permission to play on the swings. After playing on the swings,
monkey bars and see-saw, running some races and wrestling with one another, the
boys' attention was directed to a hole in the fence around the pool.
{6} The boys were: Mike
Grayes, age 7, Mack and his twin brother Mark, and a friend named Gregory. Mike
saw the hole in the fence and asked the other boys if they wanted to come into
the pool with him. They went through the hole in the
{*613}
fence. They went down into the dry portion of the pool, threw rocks into
the water in the deep end and played around the edge of the pool before Mack
fell in. The estimated time from entry into the pool area until Mack's fall is
ten minutes.
{7} The estimated distance
from the pool to where the mother was playing softball varies from 50 feet to
one-half block. The pool area was visible from where the mother was playing
softball. The mother could have seen the boys enter the pool area if she had
kept an eye on them.
{8} The Grayes children had
been specifically warned about the hazards of water. According to the mother,
they knew or should have known of the dangers related to water. The mother had
told Mike not to go into the pool area when it was closed. She had warned Mack
to stay away from the pool; that the water was not safe.
{9} Mike had seen other, and
older, children climb the fence and go into the pool area, but the time and
date of this observation is not clear. On the day of the accident, the mother
did not know the boys had entered the pool area, and Mike had forgotten he
wasn't supposed to be in the pool area. According to the grandfather, he had
explained the danger of water but Mack, the deceased, "wasn't aware of it
because he was too young;" he had no knowledge of danger.
{10} There is nothing
indicating that prior to April 18, 1969, anyone knew that water had collected
in the deep end of the pool. The boys saw the water after entering through the
hole in the fence. The affidavit of defendant's superintendent of parks states
that he is in charge of the upkeep and maintenance of the park and pool; that
he had been in and around the park pursuant to his duties as superintendent and
was unaware that water had collected in the deep portion of the pool until
subsequent to the drowning.
{11} There is nothing
indicating how long the hole had existed in the fence. The grandfather
characterized the hole in the fence as a three foot opening and stated that
anybody that had been there should have seen the opening. The mother and Mike
stated they were unaware of the hole prior to the accident. The park
superintendent made no statement in his affidavit concerning the hole. There is
nothing in the record indicating either knowledge or lack of knowledge on the
part of the City concerning the hole.
{12} The mother and the
father of the Grayes boys were divorced; the father had abandoned his family;
the father's whereabouts were unknown; the mother had custody of the children.
Is there liability under the doctrine of attractive
nuisance?
{13} The elements of the
doctrine of attractive nuisance are stated in Saul v. Roman Catholic Church of
Arch. of Santa Fe,
75 N.M. 160,
402 P.2d 48 (1965) and Klaus v. Eden,
70 N.M.
371,
374 P.2d 129 (1962). Defendant asserts that three of the elements are
absent. Since all elements must concur if the doctrine is to be applied,
Saul
, supra, we consider each of the allegedly missing elements.
{14} 1. One element is: The
place where the condition is maintained is one upon which the possessor knows
or should know that children are likely to trespass. Klaus v. Eden, supra. Defendant
asserts the question is whether the City had knowledge or should have had
knowledge that children came into the pool area to play at a time when the pool
was closed. It asserts: "* * * There is nothing in the record to indicate
any actual knowledge of trespassing children on the part of the representatives
of the City of Clovis. * * *"
{15} Absent some evidence
showing how long the hole in the fence had existed, we agree that there is
nothing in the present record showing that the City knew or should have known
that children were likely to trespass in the pool area. However, there is also
nothing in the record showing the absence of the requisite knowledge.
{16} Defendant had the burden
of showing an absence of the requisite knowledge.
{*614}
Brock v. Goodman,
83 N.M. 580,
494 P.2d 1397, decided February 11, 1972;
Sanchez v. Shop Rite Foods,
82 N.M. 369,
482 P.2d 72 (Ct. App. 1971). Since no
such showing was made, summary judgment on the basis of this element of the
doctrine of attractive nuisance was improper.
{17} The City's argument is
directed at an absence of a showing by the plaintiff that a factual issue
existed as to this element. The argument is misdirected. Until defendant made a
prima facie showing that there was no fact issue as to this element, plaintiff
was not required to show that a fact issue existed. Brock v. Goodman, supra;
Sanchez v. Shop Rite Foods, supra. Summary judgment as to this element was
improper.
{18} 2. Another allegedly
missing element is: 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 children. Klaus v. Eden, supra.
{19} Defendant states:
"For the City of Clovis to be held liable, under this element, the
knowledge, actual or implied, had to be of the accumulation of water. The
undisputed facts clearly show that there could have been no such
knowledge." Further: "It is obvious that the collection of water had
accumulated only a very short time prior to the accident, that the water could
not be seen unless an individual actually entered the pool area and certainly,
under these circumstances, knowledge of the water cannot be imputed to the City
of Clovis. * * *"
{20} Assuming, as defendant
contends, that the hole in the fence is of no consequence in considering this
element (a point we do not decide), the issue is not whether plaintiff has
shown that the City knew or should have known of the water in the pool. The issue
is whether defendant made a showing that the City did not know or should not
have known about the water in the pool.
{21} Defendant's showing is
that no water was in the pool on or about April 7th, that almost six feet of
water was in the deep end of the pool on April 18th and an "estimate"
that the water collected after a rain. The superintendent in charge of upkeep
and maintenance of the pool states he was unaware of the water prior to the
accident. This is an affirmative indication of lack of knowledge by the City.
It is not a showing that the City should not have known about the water since
the superintendent states that he was in and around the park pursuant to his
duties. Those duties included maintenance of the pool. There is a factual issue
as to whether the City should have known about the water in the pool.
{22} Defendant asserts it had
no duty to inspect or police the pool "* * * in order to discover whether
there is any condition which will be likely to harm trespassing children. * *
*" McFall v. Shelley,
70 N.M. 390,
374 P.2d 141 (1962). We agree; however,
this statement does not conflict with this element of the doctrine. This
element is not concerned with "any condition" but with conditions
involving unreasonable risks. The test of foreseeability of harm to a child
under the particular circumstances is the crucial consideration. Saul v. Roman
Catholic Church of Arch. of Santa Fe, supra. If the water hazard in this case
was not an unreasonable risk as a matter of law, see Mellas v. Lowdermilk,
58
N.M. 363,
271 P.2d 399 (1954), certainly a factual question exists concerning
that risk.
{23} Summary judgment as to
this element was improper.
{24} 3. The third allegedly
missing element is: The children, because of their youth, do not discover the
condition or realize the risk involved in intermeddling in it or coming within
the area made dangerous by it. Klaus v. Eden, supra.
{25} Defendant asserts Mack,
the deceased, knew or should have known of the perils of water. It asserts that
this knowledge is affirmatively shown by the deposition testimony of the mother
as to the warnings she gave to her sons, and by
{*615}
Mike's admission that such warnings had been given. The fact that warnings
had been given does not eliminate the question of whether there was a
realization of the risk. Selby v. Tolbert,
56 N.M. 718,
249 P.2d 498 (1952)
states:
"* * * Even though cautioned not to go near the trailer
by his parent, the natural attraction of the object and its condition
outweighed the direction of the parent in the mind of the child. This is a
justifiable case for the application of the attractive nuisance doctrine."
{26} Although warnings had
been given, Mike stated that he had forgotten he wasn't supposed to go in the
pool [area]. Further, the grandfather stated that Mack, the deceased, didn't
know of the danger because he was too young. A factual issue existed as to the
deceased's appreciation of the risk.
{27} Defendant asserts,
however, that as to water hazards, the doctrine of attractive nuisance does not
apply as a matter of law. It contends that the doctrine does not apply where
the hazard is patent; that there must be a hidden or unusual element of danger.
See Barker v. City of Santa Fe,
47 N.M. 85,
136 P.2d 480 (1943). The rationale
is that waters embody perils that are deemed obvious to children of the
tenderest years. Support for this view is found in Mellas v. Lowdermilk, supra;
see also, Foster v. United States, 183 F. Supp. 524 (D.N.M. 1959). In our
opinion, the language in
Mellas , supra, has been modified by subsequent
decisions of the New Mexico Supreme Court. Martinez v. Louis Lyster, General
Contractor, Inc.,
75 N.M. 639,
409 P.2d 493 (1965) states:
"* * * this court has never sanctioned attempts to place
cases involving the doctrine of attractive nuisance in a rigid category on the
basis of the type of condition involved. Whether the maintenance of a specific
condition can give rise to liability for harm to trespassing children must
necessarily turn on the facts of the particular case."
See also, Saul v. Roman Catholic Church Arch. of Santa Fe,
supra.
{28} A related contention is
that the doctrine should not apply to water hazards because such "* * *
hazards exist everywhere and that children who are old enough to roam without
parental supervision should be aware of such hazards. * * *" Annot. 16
A.L.R.3d 25, § 8 at 90 and § 27 at 158 (1967). The answer to this contention is
that the attraction may outweigh the awareness of the hazard, even when the
child has been warned about the hazard. Selby v. Tolbert, supra. The doctrine
of attractive nuisance is a recognition of the habits and characteristics of
young children - their natural curiosity and lack of judgment. Klaus v. Eden,
supra.
{29} The third element was
not missing as a matter of law. There being a factual issue as to this element,
summary judgment was improper.
{30} The trial court erred in
granting summary judgment on the basis there was no liability under the
attractive nuisance doctrine.
Absence of negligence on the part of defendant.
{31} Even though there are
factual issues concerning the applicability of the attractive nuisance
doctrine, defendant would not be liable in this case unless it was negligent.
Mellas v. Lowdermilk, supra, as explained in Martinez v. C. R. Davis
Contracting Company,
73 N.M. 474,
389 P.2d 597 (1964). Compare Subsection E,
Restatement of Torts 2d § 339 (1965). The trial court ruled that defendant was
not negligent under the attractive nuisance doctrine and, also, that defendant
was not negligent independent of the doctrine.
{32} "Negligence"
encompasses within its meaning the concepts of foreseeability of harm to the person
injured and of the duty to use ordinary care. N.M.U.J.I. 12.1 through 12.4.
Martin v. Board of Education of City of Albuquerque,
79 N.M. 636,
447 P.2d 516
(1968); Giese v. Mountain States Telephone & Telegraph Co.,
{*616} 71 N.M. 70,
376 P.2d 24 (1962). In
relation to the doctrine of attractive nuisance, see Martinez v. Louis Lyster,
General Contractor, Inc., supra; Saul v. Roman Catholic Church of Arch. of
Santa Fe, supra. Defendant asserts that the facts in this case show an absence
of these concepts and, therefore, an absence of negligence.
{33} There is really "*
* * nothing different in the so-called law of attractive nuisance and the
general law of negligence, except that involved is a recognition of the habits
and characteristics of very young children. * * *" Klaus v. Eden, supra.
Where the circumstances provide a factual basis for application of the doctrine
then "* * * a higher degree of care is required to be exercised in order
that they [young children] may not be injured or killed by property or
instrumentalities which they should not approach or become involved with. * *
*"
Klaus , supra. This "higher duty" requirement is
simply this: "* * * As the danger that should reasonably be foreseen
increases, so the amount of care required also increases." N.M.U.J.I.
12.2. Thus, the attractive nuisance doctrine encompasses the same concepts of
"foreseeability" and "duty" that are the basis of the
general law of negligence.
{34} Having failed to show
that there were no factual issues under the three elements of the doctrine
which were attacked, defendant also failed to show there were no factual issues
as to negligence based on that doctrine. Summary judgment was improperly
granted on the basis that there was no negligence under the doctrine.
{35} We now consider the
ruling that, independent of the attractive nuisance doctrine, the defendant was
not negligent.
{36} A municipality may be
negligent if it has actual or constructive knowledge of the condition causing
injury. Bryan v. City of Clovis,
54 N.M. 235,
220 P.2d 703 (1950). Thus,
defendant may be negligent if it knew or should have known of the water hazard
in this case. Primus v. City of Hot Springs,
57 N.M. 190,
256 P.2d 1065 (1953).
In discussing the elements of the attractive nuisance doctrine, we held that
defendant failed to make a showing, sufficient for summary judgment, that
defendant should not have known of the water collected in the pool and should
not have known of the likelihood of children to trespass. Thus, there is a
failure to show that defendant could not reasonably foresee the drowning.
Summary judgment could not be properly granted on the basis of lack of
foreseeability. See Bogart v. Hester,
66 N.M. 311,
347 P.2d 327 (1959).
{37} In addition to the
element of foreseeability there is the concept of duty. That duty depends on
the status of Mack, the deceased. In discussing the attractive nuisance
doctrine, we assumed that plaintiff's status was that of a trespasser. Klaus v.
Eden, supra. Our concern here is with decedent's status independent of the
doctrine. Again, we assume, but do not decide, that decedent was a trespasser.
{38} Generally speaking, a
defendant owes no duty to an undiscovered trespasser except to refrain from
wilfully or wantonly injuring the trespasser. Where, however, the trespasser is
discovered or reasonably should have been anticipated, the duty is that of
ordinary care to prevent injury to the trespasser. These views are illustrated
by N.M.U.J.I. 10.3 which states:
"An owner owes no duty to a trespasser unless his
presence on the premises is either known or from facts and circumstances should
reasonably have been anticipated. However, the owner is under a duty not to
willfully or wantonly injure a trespasser.
"If an owner knows or from facts known to him should
reasonably anticipate the presence of a trespasser in a place of danger then
the owner is under a duty to use ordinary care to prevent injury to him."
{39} The committee comment to
N.M.U.J.I. 10.3 states: "No New Mexico case expressly states the duty
owing to a discovered trespasser but the general principles
{*617}
covered in the foregoing instruction are found in the cases of Chavez v.
Torlina,
15 N.M. 53,
99 P. 690 (1909) and Bogart v. Hester,
66 N.M. 311,
347
P.2d 327. * * *"
{40} Before defendant's duty
to decedent, as an assumed trespasser, can be decided, it must first be
determined whether defendant should reasonably have anticipated the trespasser.
In discussing the elements of the attractive nuisance doctrine we held that
defendant failed to make a showing, sufficient for summary judgment, that
defendant should not have known of the likelihood that children would trespass.
Thus, there was a failure to show whether decedent was to be characterized as a
discovered or undiscovered trespasser and a failure to show the extent of the
duty that defendant owed to decedent. Summary judgment could not be properly
granted on the basis of no breach of duty.
{41} There being a failure to
show the extent of the duty owed and a failure to show a lack of foreseeability,
the trial court erred in granting summary judgment on the basis that there was
no negligence independent of the attractive nuisance doctrine.
Assumption of risk by and negligence of decedent.
{42} The trial court ruled
that decedent "assumed the risk and was negligent."
{43} In discussing the
elements of the attractive nuisance doctrine, we held that defendant failed to
show that Mack, age 5, realized the risk involved. In so holding we referred to
the statement of the grandfather that Mack did not know of the danger because
he was too young. For assumption of risk to apply, Mack must have known of the
dangerous situation. O'Neil v. Furr's, Inc.,
82 N.M. 793,
487 P.2d 495 (Ct.
App. 1971); see Hinojosa v. Nielson,
83 N.M. 267,
490 P.2d 1240 (Ct. App.
1971). The trial court erred in granting summary judgment on the basis that
decedent assumed the risk. On remand, this defense will be controlled by
Williamson v. Smith,
83 N.M. 336,
491 P.2d 1147 (1971).
{44} New Mexico decisions
have held that a seven year old child may be negligent. Marrujo v. Martinez,
65
N.M. 166,
334 P.2d 548 (1959). New Mexico Uniform Jury Instructions limit the
question of ordinary care on the part of a child to those seven years of age or
older, but presume a child under seven years of age is incapable of
contributory negligence. N.M.U.J.I. 12.5 (Directions for Use) and 12.6. Frei v.
Brownlee,
56 N.M. 677,
248 P.2d 671 (1952) indicates a five year old child
cannot be contributorily negligent. On the basis of the foregoing, we are of
the opinion that the five year old decedent could not be contributorily
negligent as a matter of law. The trial court erred in granting summary
judgment on the basis that decedent was negligent.
Negligence of parents as proximate cause and assumption of
risk by parents.
{45} The trial court ruled
that the mother and father of decedent were negligent and that such negligence
was the proximate cause of the death. It also ruled that the mother and father
assumed the risk of the injury or death.
{46} If a statutory
beneficiary of the proceeds in a wrongful death action is contributorily
negligent, that beneficiary may not share in the proceeds. Baca v. Baca,
71
N.M. 468,
379 P.2d 765 (1963); see N.M.U.J.I. 13.3 and 13.4; Sanchez v. J.
Barron Rice, Inc.,
77 N.M. 717,
427 P.2d 240 (1967). Defendant asserts that the
mother and father of decedent were the statutory beneficiaries of the decedent.
Section 22-20-3, N.M.S.A. 1953. It is on this basis that defendant asserts the
negligence of the parents was the proximate cause of the death and barred
recovery.
{47} Defendant contends the
mother was negligent because she was playing softball, forgot to watch out for
her children and failed to exercise reasonable parental care. It claims the
father was negligent because he abandoned his family and failed to render any
type of parental control over the decedent. "* * * To be negligent, * * *
[each of the parents] =618 must have failed to act as a reasonably prudent
person in the exercise of ordinary care. 'Ordinary care' is a relative term; it
depends upon the circumstances. N.M. UJI 12.2, and cases therein cited."
White v. City of Lovington,
78 N.M. 628,
435 P.2d 1010 (Ct. App. 1967). Under
the circumstances of this case defendant did not show there was no issue of
material fact as to the negligence of the parents.
{48} In addition, even if
either of the parents was negligent, reasonable minds could differ as to
whether such negligence was the proximate cause of the death. Fitzgerald v.
Valdez,
77 N.M. 769,
427 P.2d 655 (1967); Dahl v. Turner,
80 N.M. 564,
458 P.2d
816 (Ct. App. 1969). Here, on the showing in the record, reasonable minds could
differ on the question of proximate cause.
{49} The trial court erred in
granting summary judgment on the basis that the parents were negligent and
their negligence was the proximate cause of the death.
{50} As to assumption of
risk, defendant failed to show that either of the parents knew of the water
hazard. This is sufficient to prevent application of the doctrine of assumption
of risk. O'Neil v. Furr's, Inc., supra; Hinojosa v. Nielson, supra. The trial
court erred in granting summary judgment on the basis that the parents assumed
the risk.
No act of defendant was the proximate cause and there was
an independent intervening cause.
{51} The trial court ruled
that no act of the defendant was the proximate cause and that "* * * the
actions of the mother and other children playing with decedent on the date of
the accident constituted independent intervening causes which were the
proximate cause of the accident and injury. * * *"
"A partial definition of proximate cause is '* * * that
which * * * produces the injury, and without which the injury would not have
occurred. * * *' Thompson v. Anderman, 59 N.M. 400, 285 P.2d 507 (1955). For an
intervening act to be an independent cause, Thompson v. Anderman, supra,
states: '* * * Such intervening cause must be sufficient in and of itself to
break the natural sequence of the first negligence. * * *"
"* * * If reasonable minds might differ on these issues,
the matter is for the jury. * * *"
{53} On the record before us,
reasonable minds might differ as to what caused the death; thus, there were
factual issues as to proximate cause and independent intervening cause.
Defendant having failed to show an absence of a material fact issue as to these
matters, the trial court erred in ruling that no act of the defendant was the
proximate cause and erred in ruling that actions of others were an independent
intervening cause.
Failure to attack a basis for granting the summary
judgment.
{54} A portion of the summary
judgment reads: "* * * [T]he Court * * * finds that the Complaint fails to
state a cause of action and that there is no genuine issue as to any material
fact in this action and that Defendant * * * is entitled to Summary Judgment as
a matter of law for the following reasons." The summary judgment then
listed the specific reasons, each of which has been discussed and held to be
erroneous.
{55} Defendant contends that
the summary judgment was based, in part, on a "finding" that the
complaint failed to state a cause of action. It asserts that plaintiff failed
to attack this ruling and, therefore, the summary judgment should be affirmed.
{56} The summary judgment
does state that the complaint fails to state a cause of action and there is no
issue as to any material fact. The reasons for these rulings are stated; they
are the five specific reasons
{*619} held
to be erroneous. "* * * Appellant's brief in chief must point up the
claimed error with reference to the trial court's reasons. * * *" Wilson
v. Albuquerque Board of Realtors,
81 N.M. 657,
472 P.2d 371 (1970). Each of the
specific reasons for the summary judgment having been attacked, there is no
merit to the claim that plaintiff failed to attack one of the bases for
granting the summary judgment.
{57} In conclusion, the
granting of the summary judgment was error. In so holding we have answered the
contentions advanced by defendant in support of the summary judgment. This does
not mean, however, that we have adopted defendant's contentions as to the
posture of this case. Specifically, we have not ruled that defendant's
liability is to be determined solely on the basis of the water in the pool.
Consideration must be given to the fact, undisputed in this appeal, that there
was a hole in the fence. Nor have we ruled on decedent's status; specifically,
we have not ruled that decedent, playing in a public park, was or was not a
trespasser when he entered through the hole in the fence.
{58} The summary judgment is
reversed. The case is remanded for further proceedings consistent with this
opinion.
Lewis R. Sutin, J., Ray C. Cowan, J. (specially concurring)
COWAN, Judge (specially concurring)
{60} I concur with the
majority that the summary judgment should be reversed, but solely on the ground
that the record shows genuine issues of material fact on the questions of
negligence, contributory negligence, proximate cause and intervening cause. In
my opinion, the majority misconstrue summary judgment Rule 56(c). Its
application is properly applied in Klaus v. Eden,
70 N.M. 371,
374 P.2d 129
(1962). See also my dissent in Brock v. Goodman,
83 N.M. 580,
494 P.2d 1397,
decided February 11, 1972. Additionally, the doctrine of attractive nuisance
has no application to the facts of this case. That doctrine should not be
extended to include swimming pools, either public or private, they having
become a now commonplace family recreational facility.