Kimberlin v. Lear

¶1dissenting:

¶2Appellants assert that Lear created an attractive nuisance and therefore a cause of action is stated. At this stage of the game we believe that Lear should be held to answer because having caused the holes to be drilled he has a responsibility to inform his vendees that they existed.

¶3Apparently, Nevada has not yet adopted the doctrine of attractive nuisance, Smith v. Smith-Peterson Company, 56 Nev. 79, 85, 45 P.2d 785 (1938), but has referred to it in that case and in Orr Ditch Co. v. Dist. Ct., 64 Nev. 138, 178 P.2d 558 (1947).

¶4The rule is stated in Restatement of the Law of Torts 2d § 339:

Ҥ 339. Artificial Conditions Highly Dangerous to Trespassing Children

A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if

(a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and

(b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve 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 with it or in coming within the area made dangerous by it, and

(d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and

*497(e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.”

¶5We would adopt the doctrine as stated in the Restatement and join the majority of states. See W. Prosser, Trespassing Children, 47 Cal.L.Rev. 426 (1959); Restatement of the Law of Torts 2d Appendix § 339.

¶6Putting aside for the moment the fact that Lear was not the possessor of the land (Restatement of the Law of Torts 2d § 328E), the question as to whether a body of water constitutes an attractive nuisance must be resolved. This court in Orr Ditch, supra, at 167, stated that, “the mere presence of a body of water, such as a pond, or creek, or a conduit such as a canal or ditch, is held by the great majority of the authorities not to be an attractive nuisance.”

¶7Although this position is followed in many instances (see Atchison, T. & S. F. Ry. Co. v. Powers, 206 Okl. 322, 243 P.2d 688 (1952); Mellas v. Lowdermilk, 58 N.M. 363, 271 P.2d 399 (1954); Jones v. Comer, 374 S.W.2d 465 (Ark. 1964)), we believe the better rule, developed in California, to be that Restatement § 339 prevents arbitrary categorization based on type of condition involved (see King v. Lennen, 53 Cal.2d 340, 348 P.2d 98 (1959), where a small artificial swimming pool was held to be an attractive nuisance).

¶8The problem with the instant case is that the boys had to wade through a natural lake or pond to find the artificial hole which was dangerous because of its unexpected depth. Annot., Liability of landowner for drowning of child, 8 ALR2d 1254, 1294, § 36 “Holes or ledges under water.”

¶9As stated by the Florida Court of Appeals in Ansin v. Thurston, 98 So.2d 87, 88 (Fla.App. 1957), there is an exception to the rule that a pond of water is not an attractive nuisance, viz: “. . . the owner of an artificial body of water is not guilty of actionable negligence on account of drowning therein unless it is constructed so as to constitute a trap or unless there is some unusual element of danger lurking about it not existent in ponds generally.” See also Allen v. William P. McDonald Corporation, 42 So.2d 706 (Fla. 1949).

¶10In the instant case, the boys were wading out into a lake on a formerly dry bed with a very even bottom. Suddenly they fell into a large obscured hole. We would note the exception to the general rule provided the other requirements of § 339 are met by proof at trial.

¶11Considering, as we do for purposes of this appeal that facts *498can be elicited to prove up the requirements of § 339 and the exception heretofore noted, there remains the problem and fact that Lear was not the possessor of the land.

¶12As a general rule, a vendor of land is not subject to liability for physical harm caused by any dangerous condition to his vendee or others while upon the land after the vendee has taken possession, whether natural or artificial, which existed at the time that the vendee took possession. Restatement of Torts 2d § 352; Annot., Liability of vendor or grantor of real estate for personal injury to purchaser on third person due to defective condition of premises, 8 ALR2d 218 (1949), where it is pointed out that under the prevailing rule a vendor is not hable for injuries to the purchaser or third party lawfully there resulting from the existing defective condition of the premises conveyed. All obligations generally cease at the time of sale and transfer of possession. Porter v. Miller, 24 Ill.App.2d 424, 164 N.E.2d 601 (1960); Conway v. Epstein, 49 Ill.App.2d 290, 200 N.E.2d 16 (1964); cf. Wiles v. Assoc. of Commerce of Decatur, 332 Ill.App. 375, 75 N.E.2d 526 (1947); and Copfer v. Golden, 135 Cal.App.2d 623, 288 P.2d 90 (1955).

¶13“But, where the vendor knows of a dangerous condition upon the land and knows or should realize that the vendee has no knowledge of the condition and probably would not discover it or its potentiality for harm, the vendor owes the affirmative duty to disclose the condition and to warn the vendee of its danger, and if he fails to do so, he becomes subject to liability to the vendee and others upon the land with the consent of the vendee for any physical harm caused by the condition after the vendee has taken possession of the land.” Gasteiger v. Gillenwater, 57 Tenn.App. 206, 417 S.W.2d 568, 571 (1966); Restatement of the Law of Torts 2d § 353.1

¶14*499Other than the factual questions raised by § 353 to be determined at trial, respondent both in its brief and oral argument stress that no case has been found, and we have found none, wherein the vendor has been held liable over to a trespassing child or his parents. However, the attractive nuisance itself is the “invitation” which shields the children from being actual trespassers and they are in law incapable of trespassing. Perry v. Tonopah Mining Co., 13 F.2d 865, 867 (D. Nev. 1915)..

¶15Therefore, accepting the facts in the light most favorable to appellants, they have established a cause of action against William P. Lear. As to Reno/Stead Development Company, similarly, a cause of action has been stated in view of the above should the facts be as stated by appellants. The matter must go to trial to litigate whether Lear passed on to his buyer the information of the excavation that caused the death of the two boys. We view NRS 455.0102 as implying a continuing responsibility upon persons who may have lost the right of possession, authority or power to barricade the holes or inform the buyer that they exist. Jones v. Billings, 289 A.2d 39' (Me. 1972). Furthermore, NRS 455.010, being couched in disjunctives, places the responsibility to safeguard not only upon those in possession, but upon anyone in ,or out of possession if he has created a hole.

¶16We dissent.