Paugh v. City of Seattle

Paugh v. Ci ry of Seaw'd
The pla.intifi is tD'" father of t'NO boys who dieu at ages SIX and
eight whee they cro,men i.e , a po nd on city-oVo-ned Paugh
sued the cnv for the deat hs ofllis sons. The ell:y successfully mO<'ed
for summary Judgment and t his app"al followed.
' :1'-io = plei' basoa on m," ;=orr. OC.\= p"ugb " 00;' ofSe"rrfe. 5'"
L d IJl! (W,d,. : 9"9)·
The panciis about ICC feet wide at its widest point. It is shallow at
the edges. and slopes gentlv to si. -;: feet at its deepest point. Its bet-
com is muddy ar.U the water is :nurlq: It l" caced i:J. llillmproved
aDot:. t JOO yards from the hOUSing development whne
the ,laint:' ''r- lives, and ,s accessible bv a dirt road. The sheriff de-
scrit ed i[ as an ordinary ponu, j'ust the many ochers in the :rrea.
The pond is popular wit h nearby residence fer fishing ar.d swimming
and. the plaintiff himselfhad taken his sons rhere four cr :live t imes
to fish. He had tol d them to go only with him and to stay out of the
water. The,-e are no witnesses to the drowning"
The city had not taken any measures against There
are no war mng signs around the pond, and the evidenc e is that a
fence ail around w" ule be prohibitive in cost and probably not P')S-
sible wi thout leveling the n ees and the uneve n ground. The cit y is
now cont emplating draining the pond and est imates t he cost at
$25,0 0 0 .
The general mle is that a l=uo"'TIer Owes no duey to rre:lpasscrs
except t o ne ewill fully cause their injury: ,'vfJ.iJ <: SiIllrh Lumber Co.,
2<17 P. 2d 677 (Wash. 1955). Thete is an exception, for chil d
trespassers, the attract ive nuisance doctrine, which has been adopted
in chis st at e. [d_This doctrine reflects public concern for thewelfare
and , aiety of children. T he requiremenrs fOr too doctrine to apply
uc
(I) The condi tio n mru;t be dangerous in itself, that is, It must be
likely to, 0, probably will. ,esuit in injury t o those attracted by it ;
(2) The condition must be arrract rve and enticing to young chil-
dren;
(;) The children, because of their youth, muse be incapable of un-
derstanding me danger involved;
(4,l The condition rou, t have been left unguarded at a place where
children go, ()f where they c()uld reasonably be expected to gQ; and
(5) I t must have been reasonably feasible ei ther to preve::lt access
or co render the condi tion innocuous wit hout dest roying it s utility:
Shock v. Ringling, l e5 P.2d 33S (Wash . 1940).
ill chis case, we agree with the COurt below t hat the pond is uut an
attractive nuisance becaliSe it is not dacgeroos in itself T hus SUIll-
mary judgment tor t he defendant is appropriate. Admitredlj; p<mds,
bodies are artractrse eo children. ..."'ho ro fish
.\iorem"'er. Then ponds u e wee': ncar peopie's homes,
. d<= ccuid be to 'risir then
!"".'•. drowmnz is alwFs a co=cnlv known dan-
0<' md 5"" and aids eapabk of underscanding It . In
ill the evidence is chat the number of drownings it year is
' light compu ee t o the recreat ional use made of similar bodies of
The evidence is :hat this , ad event wa.s the fin t drowning in
fihis por-a.
' ;' This scare has miles oi Utorciine and numerous natural creeks,
ponds, and rrsers . These bodie:s seandmg or flowing.
are oa.nral ro.1llstares mel cccncnes that are not dC'SeJU. Cornpsred
to the he3:ryuse of bodies of ..tater, the number of drOW'DlJ3gS
is >0 SII' .all that we must conclude duetheyare not dangerous. More-
over, it would be m und1.:e burden to requi. '"e owners to fence them
or drainthem in order to liability for the occasional drown-
ing that occurs, and this du rywculd shi ti: the responsibdiry of chil d
= to r..'l.e landowners from the parents. In addi t ion, me environ-
ment, especially wildlife. would 5u:rer anC people would OCt be able
to enjoy the recreanonal facilities. Ir is a policyof this stare t o en-
courage owners of recatior.allmd ro allow the public t o use the
bod Towards this cod 6.e sca.re·, Recreationil LandAct limits the
la.nd liability' to the public allowed to use the land for
aconal purposes.
If, howevcr, there were conditi ons thac caused particular risk, like
a concealed danger, our decision :rug-Itt be different. The trial court
here correctly decided that the pond is DOt an artractrve nuisance,
A(fir.nl'd