dissenting.
Since I cannot agree that the trial court correctly granted summary judgment in this case, I must respectfully dissent.
*324The major case upon which the majority relies is Savannah, F. & W. R. Co. v. Beavers, 113 Ga. 398 (39 SE 82) (1901). Beavers is oft cited as the case which limited — almost to the point of creating permanent atrophy — the doctrine of attractive nuisance as adopted in Georgia in the case of Ferguson v. Columbus & Rome, R., 75 Ga. 637 (1885); s.c., 77 Ga. 102 (1886). Ferguson held that “[w]here a railroad company leaves a dangerous machine, such as a turn-table, unfastened in a city, on a lot which is not securely inclosed, and where people and children are wont to visit it and pass through it, this is negligence on the part of such company; and where an infant of ten or twelve years of age resorted to the turn-table, and in riding upon it was dangerously and seriously injured, the railroad company is liable for damages for such injuries to the infant.” Ferguson, 77 Ga. 102 supra.
I submit that the attractive nuisance doctrine or the “turn-table” doctrine as introduced into Georgia by Ferguson remains extant. I do not share the majority’s apparent belief that Beavers effected a total paralysis of the common sense and justice-serving principle of Ferguson. As this court stated in Carter v. LaMance, 40 Ga. App. 695 (151 SE 406) 15 (1929), “... the statement [in Beavers] that it ‘will not be extended’ [does not] mean that it will not be applied.” Further, in Carter, this court recognizes that “[t]he judgment in the Beavers case was reversed, not because the principle of the turn-table cases as laid down in the Ferguson case was not sound, but because ‘the case of Ferguson v. Railroad Co., supra, is not authority which is applicable to the facts of the [Beavers] case under consideration.’ . . . The facts of the case now under consideration clearly bring it ‘strictly and fully within the principle’ of the turn-table cases as laid down in the Ferguson case, supra.” Carter, supra, 699. As was true in Carter, the facts sub judice fit squarely, logically and appropriately under the umbrella of the admittedly narrow but nevertheless viable doctrine of attractive nuisance.
I think it clear that the majority believes that the rationale of Beavers supports the granting of summary judgment to defendants because of this court’s determination that attractive nuisance has no application to ponds, streams, and other water hazards. See Montega Corp. v. Grooms, 128 Ga. App. 333, 337 (4) (196 SE2d 459) (1973). However, I consider it essential in the resolution of this case that we recognize that we are not dealing simply with ponds, streams, or other water hazards. In this case there was not only a man-constructed swimming pool which was unguarded and easily accessible but also — and more importantly — there was on ground level an even more accessible slide which emptied into the pool. The plaintiffs’ complaint in this case alleged that “[t]he water slide was of the same *325design and nature as that of a playground area used by children and therefore] by its own design likely to attract children.” That complaint further averred that “defendants refused to fence the pool area when they had actual knowledge of the frequent presence of children in the area and after being warned that there was a likelihood of injury to said children ...” Although these assertions were denied in the defensive pleadings, the affidavits filed by both appellees did not refute these specific allegations so as to pierce the pleadings sufficiently to authorize the granting of summary judgment. Even if we were bound to apply blindly to this swimming pool case the questionable pronouncement of the previous “body of water” cases, I cannot see how we can characterize the. slide and the swimming pool together as being other than an “attractive nuisance.”!
I am fully cognizant of the necessity of adhering to established precedent. I am also aware of the danger of stretching exceptions beyond the natural elasticity allowed. However, I do not view my analysis of this case as being other than the proper application of the Georgia doctrine of attractive nuisance. I sincerely believe that this is one of the few static condition/trespasser cases wherein there exist genuine issues of material fact for resolution by a jury. I would reverse the judgment of the trial court.
I am authorized to state that Presiding Judge McMurray, Judge Banke and Judge Pope join in this dissent.