Opinion
42904.
ARGUED JUNE 8, 1967.
DECIDED SEPTEMBER 5, 1967.
Action for damages. Fulton Superior Court. Before Judge Shaw.
Webb, Parker Ferguson, John Tye Ferguson, for appellants.
Ray Gary, Duncan Gary, for appellee.
A landowner has no duty to anticipate that children even though rightfully on his premises, may remove a leaky boat from a place of safety on the shore and, while playing in it in deep water and because of their inability to swim may be drowned, where there is no express invitation and no actual knowledge on the part of the owner that the children will remove such boat and appropriate it to their own uses.
ARGUED JUNE 8, 1967 — DECIDED SEPTEMBER 5, 1967.
The petition alleges in substance that the defendants own premises on which there are several lakes, swimming and fishing facilities and a stable for boarding horses which are operated for hire and to which the public is invited; that a friend of the decedent was boarding a horse in the defendants' stables and the two boys entered the property for the purpose of going to see it; that the route to this location passed between two lakes, on the shore of one of which a leaky boat had been drawn up but not secured; that the boys decided to paddle the boat out into the lake, and that when it reached a point about 60 feet from the shore it filled with water and sank. The plaintiff's 12 year old son, Larry, was unable to swim and was drowned. Negligence is charged against the defendants in maintaining an attractive nuisance, failing to fasten the boat, leaving it accessible to children, leaving it on the shore unfit for boating purposes, maintaining a boat with a hole in it which was an inherently dangerous instrumentality and hidden peril, failing to maintain the premises in a safe condition, and failing to warn the child of the danger. The defendants appeal from a judgment overruling general and special demurrers to the petition as amended.
1. The attractive nuisance or turnable doctrine comprehends only instrumentalities inherently dangerous, as well as attractive to the finder, such as weapons, explosives, turnables, or objects of that type which are not commonplace. The doctrine will not be extended to cases which on their facts do not come fully within this definition. Southern Bell Tel. c. Co. v. Brackin, 215 Ga. 225 (3) ( 109 S.E.2d 782); Starland Dairies, Inc. v. Evans, 105 Ga. App. 813 (1b) ( 125 S.E.2d 682) and cit. Further: "The attractive nuisance doctrine does not apply to ponds or other water hazards." Fickling v. City Council of Augusta, 110 Ga. App. 330 ( 138 S.E.2d 437). A boat drawn up on the shore of a lake, which is of itself perfectly harmless and in a stable and static condition, does not fall within this category, and the petition sets out no cause of action based on attractive nuisance.
2. Although the petition alleges that plaintiff's decedent was an invitee of the defendants, the facts pleaded show that he entered the premises to accompany a friend whose horse was being boarded there, and he would under these facts be a licensee. Murray Biscuit Co. v. Hutto, 115 Ga. App. 870 ( 156 S.E.2d 132). "Mere permission to enter the premises creates the relation of licensee; invitation, express or implied, is necessary to create the more responsible relation and the consequent higher duty upon the owner or proprietor." Mandeville Mills v. Dale, 2 Ga. App. 607, 611 ( 58 S.E. 1060).
3. Assuming without deciding, however, that the petition alleges an implied invitation extended to the plaintiff's son as a member of the general public to come upon the premises in connection with any of the activities carried on there, including swimming, hiring boats and fishing in the lakes, or riding horseback, it is equally obvious that the invitation did not include the area or activity in which he was engaged at the time in question. It is not alleged that the boat which was drawn up on the shore was in any proximity to those rented out for fishing, or that the children had any intention of renting a boat for this or any other purpose. The boat in the static condition in which they found it was not dangerous. It had been removed from the water. It had no connection with the purpose of their visit. While the duty on the part of such an owner is to exercise reasonable care to keep the premises safe for children coming thereon, and "While this duty to exercise ordinary care for the safety of an invitee is greater when the latter is a child of tender years, yet such owner is not an insurer of the safety of the child, and accordingly is not liable for injuries resulting solely from the conduct of the child in misusing otherwise safe premises, which misuse by the child was unknown to the owner." Augusta Amusements, Inc. v. Powell, 93 Ga. App. 752 ( 92 S.E.2d 720). The same rationale was followed in Henderson v. Baird, 100 Ga. App. 627 (2) ( 112 S.E.2d 221) where it was held that an owner breached no duty to a child invitee in leaving gasoline on the premises. There is no allegation of actual knowledge on the part of any of the defendants that the children were on the premises, and certainly none that they had appropriated the beached boat and taken it into the lake, or that any invitation to come on the premises included such activity. In placing the boat in the water and attempting to paddle it across the lake, they were not invitees of the defendants, but licensees or trespassers, and the owners owed no duty, absent any knowledge that the children were doing so, to prevent them from removing themselves and the boat from a place of safety to one of danger. George v. Continental Wrecking Corp., 101 Ga. App. 538 ( 114 S.E.2d 383). "The duty to keep the premises safe for invitees extends to all portions of the premises which it is necessary for the invitee to use in the course of the business for which the invitation was extended, and at which his presence should therefore be anticipated, or to which he is allowed to go." Coffer v. Bradshaw, 46 Ga. App. 143 (7) ( 167 S.E. 119). And see Cooper v. Anderson, 96 Ga. App. 800, 806 ( 101 S.E.2d 770), aff. 214 Ga. 164 ( 104 S.E.2d 90). This boat was no part of the premises to be used by the children under the invitation extended to them, nor was it in any sense a peril until removed from the place where it was situated and used by the children for purposes of their own. No facts are shown giving rise to any express or implied invitation by the defendants to use the boat; such use was accordingly unauthorized if not illegal, and the facts do not give rise to any obligation on the part of defendants to anticipate or prevent it.
The trial court erred in overruling the general demurrers to the petition.
Judgment reversed. Jordan, P. J., and Quillian, J., concur.