HELEN EVANS PETERS, ADMINISTRATRIX OF THE ESTATE OF ROBERT LANSING PETERS, DECEASED,
v.
CITY OF TAMPA
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The Florida Supreme Court reversed a trial court's dismissal of a wrongful death action against the City of Tampa, holding that the plaintiff stated a viable claim under the attractive nuisance doctrine. The city's partial confinement of a natural stream in a concrete sewer increased water force that undermined stream banks, creating a dangerous condition that attracted children to play nearby, resulting in a ten-year-old's death.
The court held that the plaintiff's amended declaration states a valid cause of action under the attractive nuisance doctrine. The city's artificial confinement of the stream, which augmented the water's natural force and created dangerous undermined banks, combined with the area's natural attractiveness to children and the city's failure to warn or protect, establishes liability under this doctrine.
“the defendant City of Tampa, by an artificial construction of its own, confined a natural stream of water in a concrete sewer and thereby so augmented the natural force and violence of the water flowing therein against the sandy banks of the stream on the portions thereof which were not so confined, as to undermine said banks of said stream”
Establishes the factual basis for the city's creation of the dangerous condition through its artificial modification of the natural watercourse
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Join FLexlaw to unlock all legal intelligenceThe City of Tampa constructed a concrete sewer to partially confine a natural stream. This artificial construction augmented the water's force and vio…
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An amended declaration alleged that the defendant City of Tampa, by an artificial construction of its own, confined a natural stream of water in a concrete sewer and thereby so augmented the natural force and violence of the water flowing therein against the sandy banks of the stream on the portions thereof which were not so confined, as to undermine said banks of said stream; that adjacent to the banks of the stream was a large open space of ground used as' a playground for children; that to such natural playground, children had for a long time been accustomed to resort to play; that by reason of the augmented force of the water occasioned by the city’s act in placing in part of the stream its own artificial construction, the natural banks of the stream had become undermined and precipitous and subject to the always imminent danger of caving in; that such dangerous condition, the City *667of Tampa, through its agents, servants and employees knew, or by exercise of reasonable care and caution should have known, created a condition of extreme peril to children attracted to the vacant premises whereon they were habitually accustomed to play, allured thereto by the attractive nature of the sandy hanks of the stream in that vicinity; that notwithstanding the attractive nuisance so created and maintained by the city, the city negligently and carelessly permitted and allowed the point of danger to remain without erection of barriers or fencings, and posted no signs or warnings thereon, nor shored up the dangerous banks of s'aid stream, nor otherwise protected same, but permitted same to remain as a menace to children who were, by the nature of the banks and running water, enticed to the premises, as a result of which Robert Lansing Peters, a ten-year-old child, was negligently and carelessly killed by a “cave-in” of the banks of the stream while he was' playing on the premises adjacent thereto used as a playground for children. Plaintiff below sued as administratrix of the estate of the deceased minor and claimed $25,000.00 damages.
• A majority of the Court are of the opinion that the last amended declaration states' a cause of action under the “attractive nuisance” doctrine laid down in Stark v. Holtzclaw, 90 Fla. 207, 105 Sou. Rep. 330, 41 A. L. R. 1323, and that the court below erroneously sustained a demurrer thereto. See also: Hawley v. City of Atlantic, 92 Iowa 172, 60 N. W. Rep. 519.
Reversed for appropriate proceedings.
Whitfield, P. J., and Brown and Buford, J. J., concur.
Davis, C. J., and Ellis and Terrell, J. J., concur in the opinion and judgment.
(concurring).—My thought is that the second count only states a cause of action.
Brown, J.
(concurring).—My thought is that the second count only states a cause of action.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Atl. Peninsular Holding Co. v. August Oenbrink, 133 Fla. 325 (Fla. 1938)…he doctrine of “attractive nuisance” has been considered, approved and adopted by the Supreme Court of Florida. See: Stark v. Holtzclaw, 90 Fla. 207, 105 So. 330, 41 A. L. R. 1323.; May v. Simmons, 104 Fla. 707, 140 So. 780; Peters v. City of Tampa, 115 Fla. 666, 155 So. 854. See also Osborne v. Atchison Ry. Co., 86 Kan. 440, 121 Pac. 364; Oglesby v. Metropolitan & West Side Elec. Ry. Co., 219 Ill. App. 321. We hold that the declaration states a cause of action. We fail to find error in the order overrulin…
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Concrete Constr., Inc. v. Petterson, 216 So. 2d 221 (Fla. 1968)…ility has been fraught with difficulty from the earliest appearance in this Court. See the well considered opinion, concurring and dissenting opinions in Stark v. Holtzclaw, 90 Fla. 207, 105 So. 330, 41 A.L.R. 1323. See also Peters v. City of Tampa, 115 Fla. 666, 155 So. 854. The law is a science and to apply it we must fix and recognize the status of the parties involved in order to determine the degree of care of one to another. The child who enters upon another’s property in response to a special attrac…
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Crutchfield v. Charles W. and Bessie Adams, 152 So. 2d 808 (Fla. 1st DCA 1963)…p.3d, 1958). . Key West Electric Co. v. Roberts, 81 Fla. 743, 89 So. 122, 17 A.L.R. 807 (1921). . Stark v. Holtzelaw, 90 Fla. 207, 105 So. 330, 41 A.L.R. 1323 (1925). . May v. Simmons, 104 Fla. 707, 140 So. 780 (1932). . Peters v. City of Tampa, 115 Fla. 666, 155 So. 854 (1934). . Atlantic Peninsular Holding Co. v. Oenbrink, 133 Fla. 325, 182 So. 812 (1938). . Cockerham v. R. E. Vaughan, 82 So. 2d 890 (Fla.1955). . Allen v. William P. McDonald Corp., 42 So. 2d 706 (Fla.1949). . Ansin v. Thurston, 98…
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- Stark v. Holtzclaw, 90 Fla. 207 (Fla. 1925)