IN THE SUPREME COURT OF MISSISSIPPI

NO. 2000-CA-01539-SCT

LORA ANDERSON, INDIVIDUALLY AND AS NATURAL PARENT OF ALISHA

ANDERSON, DECEASED, A MINOR, ON BEHALF OF ALL WRONGFUL DEATH

BENEFICIARIES

v.

CLAIBORNE COUNTY RECREATION CLUB, INCORPORATED; CLAIBORNE COUNTY

RECREATIONAL ASSOCIATION; HELEN SLAY; MALCOLM MONTGOMERY; DANNY

LURK; JO ANN LURK; TONY DODGEN; CATHI DODGEN; JUDY HYNUM; RONNIE

HYNUM; MRS. CHARLES BARLAND; RONNIE BROWN; NANCY HYNUM; JIM HYNUM;

STEVE PURVIS; ALLEN BROWN; KATHY BROWN; ALLEN BURRELL; ISABELLA

PERSON; RAYMOND WILLIS; RUTH WILLIS; CHARLES DONALD; SHELBY DONALD;

J.W. PERSON; ALEX BATTON; JERRY MORGAN; KAY MORGAN; JORDAN COLEY;

CAROLYN COLEY; DOUGLAS NASIF; REBECCA NASIF; LISA MCFATTER; MELVIN

H. MCFATTER; MARY SEE; WINBORNE M. DRAKE; RUTH A. DRAKE; BOBBIE

JORDAN; MERRIE MILES WOOTEN; ANITA DAVIDSON; ROBERT DAVIDSON; FRED

STUART; LINDA STUART; RON BULLOCK; WILLIE CASE; JOE FOSTER; AND

VIVIAN RANER

DATE OF JUDGMENT: 8/8/2000

TRIAL JUDGE: HON. LAMAR PICKARD

COURT FROM WHICH APPEALED: CLAIBORNE COUNTY CIRCUIT COURT

ATTORNEYS FOR APPELLANT: JAMES RANDAL WALLACE

ROBERT C. BOYD

ATTORNEYS FOR APPELLEES: J. TUCKER MITCHELL

LUKE DOVE

ROBERT COLEMAN

JOANNA E. BUSBY

WADE G. MANOR

HUGH GILLON

ROGER C. RIDDICK

R. E. PARKER

LEE DAVIS THAMES
JOHN ALFRED WAITS

ROBERT S. ADDISON

SAM STARNES THOMAS

WILLIAM DOUGLAS MANN

ARTHUR F. JERNIGAN

SAMUEL ERNEST LINTON ANDERSON

NATURE OF THE CASE: CIVIL - WRONGFUL DEATH

DISPOSITION: AFFIRMED-04/04/2002

MOTION FOR REHEARING FILED:

MANDATE ISSUED: 4/25/2002

BEFORE McRAE, P.J., EASLEY AND GRAVES, JJ.

McRAE, PRESIDING JUSTICE, FOR THE COURT:

¶1. On July 10, 1996, Alisha Anderson drowned in a swimming pool after she crawled through a hole in a

fence to reach the pool. Her mother, Lora Anderson, brought this wrongful death suit against the owners of

the pool, and the trial court granted summary judgment for the defendants. On appeal, Anderson asserts

that the trial court erred in granting summary judgment in favor of the defendants as to (1) the recovery by

Lora Anderson for the death of her daughter and (2) the status of the defendants as a corporation or as an

unincorporated association. We find no error in the circuit court's holding as to the duty owed to the

decedent and affirm.

FACTS

¶2. Six-year-old Alisha Anderson climbed through a hole in a chain-link fence surrounding a swimming pool

owned by the Claiborne County Recreation Association/Claiborne County Recreation Club, Inc. ("CCRC")

, entered the pool, and accidentally drowned. At the time of the incident, the pool was closed, and the gate

was locked. All parties agree that Anderson was trespassing when she died. It has also been stipulated that

there had been a hole in the fence for at least a year prior to the accident.

DISCUSSION

¶3. Anderson asserts that the issue is whether the trial court erred in granting summary judgment in favor of

CCRC as to recovery by Anderson for the death of her daughter and the status of CCRC as a corporation

or an unincorporated association. The trial court decided the motion for summary judgment based on

Anderson's ability to collect damages for the drowning death of her daughter. It did not address the issue of

whether CCRC is a corporation or an unincorporated association. Therefore, we will not discuss that latter

issue.

¶4. There is no dispute that Anderson's daughter was a trespasser at the time of her death. The parties

agree that the duty of care which this Court applies to a trespasser is to refrain from willful and wanton

conduct. Adams v. Fred's Dollar Store, 497 So. 2d 1097, 1100 (Miss. 1986); Goodwin v. Jackson,
484 So. 2d 1041, 1045 (Miss. 1986); Ausmer v. Sliman, 336 So. 2d 730, 731 (Miss. 1976). The

conflict arises over the definition of such conduct. Can wanton conduct be demonstrated by a failure to act,

as the plaintiff alleges, or must it be shown by an intentional act?

¶5. CCRC depends on the body of Mississippi law that involves the drowning deaths of children who were

trespassing. Following the holdings in each of these cases, the conduct of CCRC in not repairing the hole in

the fence does not rise to the level of willful and/or wanton conduct. Goodwin, 484 So. 2d at 1045;

Ausmer, 336 So. 2d at 731. In fact, CCRC is not even required to have a fence around the swimming

pool. Id.; Gordon v. C.H.C. Corp., 236 So. 2d 733, 734-36 (Miss. 1970). In Gordon, a ten-year-old

boy drowned in a motel swimming pool that had no lifeguard or fence. Id. at 733. We held that nothing was

hidden or in any way concealed about the danger and that the defendant exhibited no willful or wanton

conduct. The trial court's peremptory instruction for the defendant was affirmed. Id.; 236 So. 2d at 736.

Ausmer involved the drowning of a six-year-old boy in the pool of an apartment complex. In Goodwin, a

little girl, age three years ten months, drowned when she wandered through the unlocked and open gate of

an otherwise fenced in pool area. Goodwin, 484 So.2d at 1042. The plaintiffs there relied on Restatement

of Torts (Second) § 339 (1965), which states as follows:

A possessor of land is subject to liability for physical harm to children trespassing thereon caused by

an artificial condition upon the land if

(a) the place where the condition exists is one upon which the possessor knows or has reason to

know that children are likely to trespass, and

(b) the condition is one of which the possessor knows or has reason to know and which he realizes or

should realize will involve an unreasonable risk of death or serious bodily harm to such children, and

(c) the children because of their youth do not discover the condition or realize the risk involved in

intermeddling with it or in coming within the area made dangerous by it, and

(d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are

slight as compared with the risk to children involved, and

(e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise protect the

children.

¶6. We concluded in Goodwin that the duty towards the trespasser was the same as in the instant case.

484 So.2d at 1045. Despite the plaintiffs' argument based on the Restatement, we held that the negligence

of the defendant in leaving the gate to the pool open did not rise to the level of willful or wanton behavior.

This is similar to the case sub judice, and as such CCRC is not liable under the Restatement.

¶7. Anderson alleges that inaction on the part of CCRC caused the six- year-old to crawl through the nine

or ten inch hole in the fence and drown. She alleges gross negligence and relies not on the theory of

attractive nuisance, but on this Court's findings in three cases which she says hold that wantonness consists

of the cognizant disregard of a known, serious danger or a failure to exercise any care in the face of an

identifiable danger. Skelton ex rel. Roden v. Twin County Rural Elec. Ass'n., 611 So. 2d 931, 937

(Miss. 1992); Beta Beta Chapter v. May, 611 So. 2d 889, 895 (Miss. 1992); Dry v. Ford, 238 Miss.

98, 117 So. 2d 456, 458 (1960). Anderson gave us a skewed version of the facts in Skelton. In reality,

the injured child was found to have been a licensee, not a trespasser, which heightened the defendants' duty
in that they should warn of any hidden danger as well as refrain from willful and wanton conduct. The boy

knew the metal pipe on which he hurt himself was dangerous; and therefore, the hidden-danger analysis did

not apply. Skeleton in no way demonstrates that failure to act constitutes willful and/or wanton conduct,

nor does it rise to the level of gross negligence. The other cases Anderson cites as being dispositive of this

issue only define wanton misconduct, there is no factual basis for comparing them to the case at hand.

¶8. In her reply brief, Anderson argues that by putting up a fence around the pool, CCRC perceived the

fact that the unattended pool was a known, serious danger. It is also alleged that CCRC should have been

aware that an unsupervised child could fit within the fence hole and not foresee the possibility of harming

himself. Anderson points out Yazoo & M.V.R. Co. v. Smith, 111 Miss. 471, 71 So. 752, 756 (1916),

and says that pursuant to that case, CCRC should have been brought under a greater standard of care and

caution with regard to child trespassers. However, a closer reading of Smith shows that "[o]nly when the

engineer sees the trespasser is a child is he brought under a rule of greater care and caution." 71 So. at 756.

Following this rationale, CCRC, or an agent thereof, would have had to see Alisha as she crawled through

the hole in the fence before it would owe a greater duty than merely refraining from willful or wanton

behavior. This did not happen. No one saw the little girl crawl through the hole in the fence and enter the

swimming pool. Accordingly, CCRC did not breach its duty to Alicia Anderson; it did not act in a willful or

wanton manner.

CONCLUSION

¶9. Based on the law and the facts, CCRC had a duty not to willfully or wantonly injure Alicia Anderson.

We find CCRC to have no liability under applicable state law. We see no issue of material fact and affirm

the trial court's summary judgment.

¶10. AFFIRMED.

PITTMAN, C.J., SMITH, P.J., WALLER, DIAZ, CARLSON AND GRAVES, JJ.,

CONCUR. COBB AND EASLEY, JJ., DISSENT WITHOUT SEPARATE WRITTEN

OPINION.