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LANIER v. NORTH CAROLINA STATE HIGHWAY COM'N

No. 762IC384.

229 S.E.2d 321 (1976)

31 N.C. App. 304

Harry LANIER, Administrator of the Estate of Theodocia Lanier, v. NORTH CAROLINA STATE HIGHWAY COMMISSION.

Court of Appeals of North Carolina.

November 3, 1976.

Attorney(s) appearing for the Case

Atty. Gen., Rufus L. Edmisten by Asst. Atty. Gen. Ralf F. Haskell, Raleigh, for the State.

Milton E. Moore, Moore & Moore, Williamston, for claimant-appellant.

MORRIS, Judge.

In his sole assignment of error, claimant contends that the Commission erred in its failure to find, as a matter of law, that the pit in question was an attractive nuisance. In reviewing an order of the Industrial Commission, we are guided by the principle that the order will stand if its findings of fact are supported by competent evidence and if its conclusions of law are supported by the findings of fact. Tanner v. Dept. of Correction, 19 N.C. App. 689, 200 S.E.2d 350 (1973).

At the time of the drowning, deceased was at the excavation site without invitation or license from the Commission. As such, she was a trespasser, to whom the Commission owed only the duty not to injure her willfully or wantonly. Dean v. Construction Co., 251 N.C. 581, 111 S.E.2d 827 (1960); McLamb v. Jones, 23 N.C. App. 670, 209 S.E.2d 854 (1974). The attractive nuisance doctrine, however, represents an exception to the general rule regarding the liability of landowners for injuries sustained on the premises by trespassers. This Court has stated:

"Generally, the attractive nuisance doctrine is applicable when, and only when, the following elements are present: (1) The instrumentality or condition must be dangerous in itself, that is, it must be an agency which is likely to, or probably will, result in injury to those attracted by, and coming into contact with, it. (2) It must be attractive and alluring, or enticing, to young children. (3) The children must have been incapable, by reason of their youth, of comprehending the danger involved. (4) The instrumentality or condition must have been left unguarded and exposed at a place where children of tender years are accustomed to resort, or where it is reasonably to be expected that they will resort for play or amusement, or for the gratification of youthful curiosity. (5) It must have been reasonably practicable and feasible either to prevent access to the instrumentality or condition, or else to render it innocuous, without obstructing any reasonable purpose or use for which it was intended." McCombs v. City of Asheboro, 6 N.C. App. 234, 242-43, 170 S.E.2d 169, 175 (1969), citing 65 C.J.S., Negligence § 63(76) p. 815.

North Carolina has consistently ruled that ponds, pools, lakes, streams, reservoirs, and other bodies of water do not per se constitute attractive nuisances. Matheny v. Mills Corp., 249 N.C. 575, 107 S.E.2d 143 (1959); Stribbling v. Lamm, 239 N.C. 529, 80 S.E.2d 270 (1954); Fitch v. Selwyn Village, 234 N.C. 632, 68 S.E.2d 255 (1951). Claimant recognizes the general rule but argues that the presence of the sharp drops and deep holes in the pit bring this case within an exception to the rule. We cannot agree. Every body of water is potentially subject to sharp drops and deep holes such as existed in this case. This possible danger was, or should have been, known to claimant's intestate.

There is an additional reason that the attractive nuisance doctrine is not applicable in this case. In Dean v. Construction Co., supra, 251 N.C. at 588, 111 S.E.2d at 832, Bobbitt, Judge, stated:

"[T]he attractive nuisance doctrine is designed to protect `small children' or `children of tender age'. 38 Am.Jur., Negligence § 157. It applies to children who, `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.' Restatement of the Law of Torts, § 339(c). `It does not extend to those conditions the existence of which is obvious even to children and the risk of which is fully realized by them.' Restatement of the Law of Torts, § 339, Comment, p. 922." (Emphasis supplied.)

And in Briscoe v. Lighting & Power Co., 148 N.C. 396, 414, 62 S.E. 600 (1908), it was said that ". . . in the numerous cases which we have examined we do not find any in which a boy of thirteen years, `with the usual intelligence of boys of that age,' has been permitted to rely upon the attractive allurements of machinery to children." Here, the testimony indicated that claimants' intestate was 13 or 14 years old and that she possessed at least average intelligence. Accordingly, the doctrine of attractive nuisance is inappropriate in this case.

Having reviewed the entire record we hold that the Industrial Commission's findings of fact were supported by competent evidence and that its conclusions are supported by its findings and by sound legal principles. Therefore, the order of the Full Commission is

Affirmed.

HEDRICK and ARNOLD, JJ., concur.

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