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FICKLING v. CITY COUNCIL OF AUGUSTA et al.
40885.
Action for damages. Richmond Superior Court. Before Judge Killebrew.
HALL, Judge.
The owner or occupier of land does not have a duty to protect persons--even small children--not invited on the land from hazards that may exist from the presence of a pond of water, since the maintenance of a pond by the owner or occupier is not an unreasonable risk of harm to persons not invited on the land.
The plaintiff assigns error on the judgment of the trial court sustaining general demurrers to her petition seeking recovery for the death of her 9-year-old child allegedly caused by the defendants' negligence. The petition alleged that the defendant municipal corporation was the owner of land upon which the child drowned in a pond, and the individual defendants, pursuant to a contract with the city giving them the right to pump sand and gravel from the reservoir on the land, had dredged out the 15-acre pond thereon; the land was located in a densely populated residential area of the city, and there were roadways along all boundaries of the land giving unrestricted access into it; for over 20 years children of tender years had been in the habit of playing in the area among the sand dunes, frog ponds and springs, and this fact was known to the defendants; and there was no fence around the pond, no signs or warnings of the danger, and no guards or watchmen to keep children of tender years from going about the pond. In separate counts the plaintiff alleged that the drowning occurred (1) when the deceased child jumped into the water in an attempt to rescue another 9-year-old child who was playing in the shallow water and stepped into a hole in the bottom of the pond and called for aid; (2) when the deceased fell from a log jutting out into the water from the bank; and (3) when the deceased was playing in shallow water in the edge of the pond and stepped into a hole.
The law imposes on owners and occupiers of land the duty not to expose persons to unreasonable risks of harm created by conditions on the land. Prosser on Torts, 2d Ed., 119, 30; 2 Harper & James, The Law of Torts 1453, 27.5; Restatement, Torts 925, 339, Comment on Clause (d). Many decisions upon facts similar to those stated in this petition have held that owners and occupiers of land have no duty to take affirmative action to protect persons whom they do not invite on the land from the hazards of a pond. The reasoning of these decisions, some of which are cited infra, is that the maintenance of a pond does not expose persons not invited on the land to an unreasonable risk of harm; hence the owner or occupier does not have a duty to protect persons--even small children--not invited on the land, from hazards that may exist from the presence of a pond of water.
The attractive nuisance doctrine does not apply to ponds or other water hazards. McCall v. McCallie, 48 Ga. App. 99 (171 SE 843); Savannah F. & W. R. Co. v. Beavers, 113 Ga. 398 (39 SE 82, 54 LRA 313); St. Clair v. City of Macon, 43 Ga. App. 598 (159 SE 758); Crawford v. Pollard, 55 Ga. App. 702 (191 SE 162). This is true regardless of the location of the pond or water hazard with a traveled way or its general accessibility. McCall v. McCallie, 48 Ga. App. 99, supra; Crawford v. Pollard, 55 Ga. App. 702, supra. The artificial character of the water hazard has no bearing on liability or nonliability. McCall v. McCallie, 48 Ga. App. 99, supra. A deep hole or ledge under water imposes no liability upon the landowner for the drowning of a child either under the attractive nuisance doctrine or on the theory of actual negligence. McCall v. McCallie, 48 Ga. App. 99, supra. Neither does the fact that the water in which the child drowned was muddy. Savannah, F. & W. R. Co. v. Beavers, 113 Ga. 398, supra. Even the fact that children are accustomed to play at the place of danger with knowledge of the owner gives rise to no implied invitation. St. Clair v. City of Macon, 43 Ga. App. 598, supra; McCall v. McCallie, 48 Ga. App. 99, supra; Crawford v. Pollard, 55 Ga. App. 702, supra.
The facts of this petition do not show a duty of care owed by the defendants to the plaintiff's decedent and therefore do not state a cause of action for negligence. The trial court did not err in sustaining the defendants' general demurrers.
Cumming, Nixon, Eve, Waller & Capers, Samuel C. Waller, Fulcher, Fulcher, Hagler & Harper, Gould B. Hagler, contra.
Lanier, Powell, Cooper & Cooper, Jack L. Cooper, Oscar H. Allen, for plaintiff in error.
DECIDED SEPTEMBER 23, 1964.
Friday May 22 21:37 EDT


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