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P is a private social club that operates a swimming pool for the benefit of its members. P sued D, a nine-year-old boy, for damages caused by him. While playing in the water, D swam to the bottom of the pool, a depth of seven feet, raised a metal cover over a drain opening, and, thinking that there was no suction at the time, inserted a tennis ball into the pipe, and then replaced the cover. When he returned to get the ball, it was gone. The ball passed into a critical part of the pipe and caused a failure of proper drainage, forcing P to close the pool and make repairs. P sued for the cost of these repairs. P's suit was based on trespass, and P requested a directed verdict, maintaining that from the child's own admissions a trespass had been committed and that he should be held liable without regard to his age. The court denied P's motion for a directed verdict. P claimed that he could not have been a trespasser because P's lifeguards had, on occasion, seen boys playing with the drain cover and had failed to take adequate steps to prevent this. P reasoned that the failure to keep children away from the drain constituted an implied consent to the child's act, and if the child did not act beyond the scope of the club's invitation, then he could not be classified as a trespasser. In submissions to the jury, he court stated that the issue was whether or not D was a trespasser. The court instructed: 'In determining whether or not the defendant is a trespasser, you shall also keep in mind the rule that in cases of tort, * * * liability attaches regardless of age, where the nature of the act is such that children of like age would realize its injurious consequences.' P got the verdict, and D appealed.

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