(dissenting). Plaintiff alleges that defendants herein are guilty of gross negligence because they failed to prevent the plaintiff, a 15-year-old boy, from trespassing on defendants’ property, despite the fact that defendants had erected blockades, posted no-trespassing signs, and built fences to prevent plaintiff and those like him from trespassing on defendants’ property.
How my colleagues can find that a question of gross negligence exists with respect to one who has exercised more than what is legally termed "ordinary care” is beyond me.
They hold that an owner of land, who diligently endeavors to keep trespassers off his land, is liable to a trespasser who wilfully disregards no-trespassing signs, fences, and barricades, and who then, by wilful and positive acts, negligently injures himself. Such a rule of strict liability, while proper for one who engages in a dangerous activity, has no place in our system of jurisprudence for those who have performed no affirmative acts and whose only act of "negligence” is to be the unfortunate owner of land which others seek to come upon, regardless of the positive acts which the owner has taken to prevent such trespassing.
As to the specific fact situation here, it is readily apparent that the plaintiff was not an immature infant of tender years, but a fifteen-year-old boy *95who had been to this gravel pit. previously .(about ten times in 1964 and about ten .times in 1965). He: had been a swimmer since, fifth grade, and hád taken swimming and'diymg lessons. Furthermore, plaintiff had been taught how to dive in shallow water and had beeh\ warned previously by his father that gravel pits were dangerous. There was no testimony in the depositions that the defendants knew or should have known that the water was shallow under the diving board.
The pond with which we are concerned here was an old abandoned gravel pit which had not been used as a gravel pit for many years. This pond, located quite some distance from any public roads or access, had been used for many years by the public as a swimming area, despite efforts by the defendants to discourage such use. From time to time defendants erected road blockades and put up no-trespassing signs. A fence existed at one time but had been knocked down by persons unknown and was not rebuilt. Defendants had also attempted to block the paths leading from the road to the beach area, with piles of sand and with a chain stretched across the entrance to a pathway leading back to the pond.
On the date of his injury, plaintiff went to the pond for recreational swimming. He swam across the pond and reached shore a few feet from the point where the "diving board” projected out into the water. Plaintiff dove into the pond without first ascertaining or making any effort to ascertain the depth of the water and, in so doing, struck the bottom of the pond, causing his injuries.
My brothers conclude from these facts that there arises a question of gross negligence on the part of the defendants.
The exact circumstances of gross negligence *96have troubled more than one court; however, there is no question in my mind that there cannot be a question of gross negligence when a defendant has not engaged in a dangerous activity and has exercised that degree of care which a reasonable man would exercise in like or similar circumstances.
Dean Prosser states as follows regarding gross negligence:
"As it originally appeared, this was very great negligence, or the want of even scant care. It has been described as a failure to exercise even that care which a careless person would use. Several courts, however, dissatisfied with a term so nebulous, and struggling to assign some more or less definite point of reference to it, have construed gross negligence as requiring wilful misconduct, or recklessness, or such utter lack of all care as will be evidence of either—sometimes on the ground that this must necessarily have been the intent of the legislature. But it is still true that most courts consider that 'gross negligence’ falls short of a reckless disregard of consequences, and differs from ordinary negligence only in degree, and not in kind. There is, in short, no generally accepted meaning; but the probability is, when the phrase is used, that it signifies more than ordinary inadvertence or inattention, but less than conscious indifference to consequences; and that it is, in other words, merely an extreme departure from the ordinary standard of care. ” (Emphasis added.) Prosser on Torts (3rd Ed), § 34, p 187.
"Gross negligence”, as it is used in Michigan, was defined in the case of Gibbard v Cursan, 225 Mich 311, 319 (1923). The Supreme Court said:
"In the ordinary case of negligence, if the plaintiff has been guilty of negligence, contributing to the injury for which the action is brought, he cannot recover. It is to avoid this rule and to excuse contributory negligence of a plaintiff that the doctrine of gross negligence is usually invoked.
*97"When will gross negligence of a defendant excuse contributory negligence of a plaintiff? In a case where the defendant, who knows, or ought, by the exercise of ordinary care, to know, of the precedent negligence of the plaintiff, by his subsequent negligence does plaintiff an injury. Strictly, this is the basis of recovery in all cases of gross negligence. 20 RCL p 145. Such gross negligence is also sometimes called discovered negligence, subsequent negligence, wanton or. wilful or reckless negligence, discovered peril, last clear chance doctrine, and the humanitarian rule. Other misconduct, different in kind, is also generally and incorrectly known as gross negligence, as we shall see later. Richter v Harper, 95 Mich 221 [1893]; Kelley v Keller, 211 Mich 404 [1920]; Fike v Pere Marquette R Co, 174 Mich 167 [1913]; Knickerbocker v Detroit Railway Co, 167 Mich 596 [1911]; Buxton v Ainsworth, 138 Mich 532 (5 Ann Cas 146) [1904].” (Emphasis in original.)
This excerpt was quoted, with approval in LaCroix v Grand Trunk Western R Co, 379 Mich 417, 423 (1967).
Thus, it is apparent that gross negligence is not applicable to the case at hand, for the negligence of the defendant (if any at all) was prior to the accident involved, in that he failed to make the premises safe.
If the plaintiff is to prevail it must be on the grounds that the conduct of the defendant was "wilful and wanton”. In Gibbard, supra, the Supreme Court also defined the terms "wilful” and "wanton”. The Court said:
"If one wilfully injures another, or if his conduct in doing the injury is- so wanton or reckless that it amounts to the same thing, he is guilty of more than negligence. The act is characterized by wilfulness, rather than by inadvertence, it transcends negligence— is different in kind.” Gibbard, supra, 320.
The Court then went on [p 321] to quote the case *98of Atchison R Co v Baker, 79 Kan 183; 98 P 804; 21 LRA NS 427 (1908):
"One who is properly charged with recklessness or wantonness is not simply more careless than one who is only guilty of negligence. His conduct must be such as to put him in the class with the wilful doer of wrong. The only respect in which his attitude is less blameworthy than that of the intentional wrongdoer is that, instead of affirmatively wishing to injure another, he is merely willing to do so. The difference is that between him who casts a missile intending that it shall strike another and him who casts it where he has reason to believe it will strike another, being indifferent whether it does so or not.”
In LaCroix v Grand Trunk Western R Co, supra, 427, the Supreme Court said,
"We conclude that Gibbard’s definitions of gross negligence and wanton and wilful misconduct are the applicable common law in Michigan today.”
Thus, the act required to predicate liability upon wilful and wanton misconduct is that the actor has intentionally done an act of an unreasonable character in disregard of a risk known to him, or so obvious, that he must be taken to have been aware of it, and so great that injury was highly probable. It is usually accompanied by a conscious disregard of known consequences. See also Prosser on Torts (3d Ed), § 34, p 188, 2 Restatement Torts, 2d, § 500, p 587.
Not only does defendants’ conduct not come within the scope of gross negligence, but, as the defendants were not carrying on a dangerous activity, it is doubtful from the facts set forth in the parties’ depositions whether defendants are guilty of even ordinary negligence.
Pools and ponds on priváte property, maintained *99for legitimate reasons, have consistently been found to be "common things”. These objects are not, by themselves, dangerous, but are made so only because of their use by trespassing children. Peninsular Trust Co v City of Grand Rapids, 131 Mich 571 (1902); Graves v Dachille, 328 Mich 69 (1950).
In Graves, supra, pp 74-75, the Court quoted with approval cases from Mississippi and Kentucky:
" 'Scattered over the length and breadth of the land are innumerable ponds and lakes, artificial and natural; and occasionally a boy or man loses his life while wading, or bathing, in such body of water. If, as a matter of law, the owners of fishponds, millponds, gin ponds, and other artificial bodies, wherein it is possible that boys may be drowned, can be held guilty of actionable negligence unless they inclose or guard same, few will be able to maintain these utilities, and to our minds an intolerable condition will be created.’ Thompson v Illinois Central R Co, 105 Miss 636, 651; 63 So 185; 47 LRA NS 1101 [1913].
" 'Throughout the annotations it is pointed out, without exception, that pools and ponds maintained for legitimate purposes do not create such attractive nuisances as will entail liability upon the maintainer thereof if an infant is drowned or injured by entering therein, since, the maintained condition was not ipso facto dangerous, but only because of thé use of it made by the trespassing infant.’ Puckett v City of Louisville, 273 Ky 349, 355; 116 SW2d 627 [1938].
"Numerous holdings in this jurisdiction are in accord with the law just above quoted and are controlling of decision in the instant case. See Hargreaves v Deacon, 25 Mich 1 [1872]; Kaumeier v City Electric Railway Co, 116 Mich 306 (40 LRA 385, 72 Am St Rep 525) [1898]; Peninsular Trust Co v City of Grand Rapids, 131 Mich 571 [1902]; Stark v Muskegon Traction & Lighting Co, 141 Mich 575 (1 LRA NS 822) [1905]; Habina v Twin City General Electric Co, 150 Mich 41 (13 LRA NS *1001126) [1907]; Preston v Austin, 206 Mich 194 [1919]; LeDuc v Detroit Edison Co, 254 Mich 86 [1931].”
While the plaintiff in the instant case did not drown, the holding that a landowner is not required to drain ponds on his land is equally applicable here. Further, the fact that prior drownings had occurred in this particular pond has no bearing on whether the defendants had notice that the diving board was potentially dangerous. It might be added further that, here, it was not the diving board which was the dangerous condition, but rather the act of diving into the shallow water.
Plaintiff alleges that the shallow water was defendants’ responsibility and that defendants had a duty to warn plaintiff that the water was shallow. This contention is patently absurd- Defendants are no more "responsible” for the condition of the shallow water than they are responsible for the amount of rain that falls or the heat of summer, which evaporated some of the water. Furthermore, just as there is no duty to warn plaintiff that he might drown if he swims in a pond (or, for that matter, a lake or a swimming pool), there is similarly no duty to warn plaintiff that he might injure himself if-he dives in shallow water. The average fifteen-yeár-old boy who has had swimming lessons and diving lessons is, or ought to be, fully apprised of these dangers.
In O’Keefe v South End Rowing Club, 64 Cal 2d 729; 51 Cal Rptr 534; 414 P2d 830; 16 ALR3d 1 (1966), a case almost identical to the case at bar, the California Supreme Court stated the following [pp 741-746]:
"New section 339 [2 Restatement of Torts, 2d, § 339, p 197] declares: 'A possessor of land is subject to liability for physical harm to children trespassing thereon *101caused 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 to protect the children.’ (Emphasis added.)
“As comment b to section 339 emphasizes, this doctrine imposes on the possessor only a 'limited obligation to the child, falling short of a duty to prevent all foreseeable harm to him, but requiring reasonable care as to those conditions against which he may be expected to be unable to protect himself,’ (Accord, Garcia v Soogian [1959], supra, 52 Cal 2d 107, 112; 338 P2d 433). Whether or not such an obligation or duty should be imposed, moreover 'depends upon a number of variable factors. The question of liability must be decided in the light of all the circumstances and not by arbitrarily placing cases in rigid categories on the basis of the type of condition involved without giving due consideration to the effect of all the factors in a particular situation.’ (Id. at p 110 of 52 Cal 2d; 338 P2d at p 435.) With these rules in mind we turn to the record before us.
"Plaintiff’s evidence is generally meager, and on certain points borders on a failure of proof. It is barely adequate to support an inference that defendant had reason to know, through past observations, that children were likely to trespass on its premises and pier for the purpose of swimming and diving. But assuming that inference could legally be drawn, it would nevertheless relate only to high school youths in their middle teens such as plaintiff and his companions, for there is not a shred of evidence that infants or other young children *102were ever known to trespass on defendant’s property and dive off its pier.
"This limitation dictated by the facts is crucial, for clause (b) of section 339 of the Restatement speaks of dangers to 'such’ children, referring back to clause (a) and the children who the possessor 'knows or has reason to know’ are likely to trespass. Under clause (b), therefore,, the precise question presented here is whether defendant should be charged with the expectation that high school youths in their middle teens would fail to realize the risk involved in diving off its pier. As Dean Prosser succinctly puts the matter, 'It is not enough that the presence of the child may be expected. There must also be unreasonable danger to him if he comes. If the condition is not one from which any such danger is reasonably to be anticipated, there is no negligence in failure to protect him against it, and no liability.’ (Italics added.) (Prosser, Trespassing Children [1959], 47 Cal L Rev 427, 452.) Certainly there is always some degree of danger that because of thoughtlessness or bravado a youth of plaintiff’s age may dive off a pier without ñrst ascertaining the depth of the water below, but that danger does not appear to have been an unreasonable one on the facts before us. This is not a case where, for example, a pier over apparently uniformly deep water is rendered unsafe for diving by a shallow, submerged object known only to the landowner. Here defendant’s pier extended over a sloping beach, and there was nothing from which users of the pier could justifiably conclude that the surrounding bottom of the bay did not likewise vary in depth. We cannot conceive of high school youths in their middle teens failing to realize that at least out to a certain point on such a pier the water below remains too shallow for safe diving. On the facts here shown, plaintiff failed to satisfy the condition of clause (b) of section 339. (See Garcia v Soogian [1959], supra, 52 Cal 2d 107, 112-113; 338 P2d 433; Herrera v Southern Pacific Ry Co [1961], 188 Cal App 2d 441, 448-449; 10 Cal Rptr 575.) (Emphasis added.)
"The evidence demonstrates, moreover, that plaintiff had actual knowledge and appreciation of the danger. The condition of clause (c) of section 339 is fulfilled only *103when the injured child did not in fact 'realize the risk involved.’ 'The ability to appreciate danger varies, of course, with the age of the child and there can be no recovery if the child is of sufficient age and mental capacity to look out for himself under the circumstances presented. [Citations.]’ (Garcia v Soogian [1959], supra, 52 Cal 2d 107, 112; 338 P2d 433.) As Dean Prosser explains, 'The one basic reason for a rule which distinguishes trespassing children from trespassing adults is the inability of the child to protect himself against the peril which he encounters. If that reason does not exist, it has been generally agreed that the whole policy of the special rule fails with it. The courts have been very firm in their insistence that if the child is in fact fully aware of the condition, understands and appreciates the danger which it carries, and is quite able to avoid it, he stands in no better position than any adult with similar knowledge and understanding. ’ (Prosser, Trespassing Children [1959], 47 Cal L Rev 427, 461.) (Emphasis added.)
"The most obvious fact is plaintiff’s age. Although we have laid down no definite age limit beyond which the rule of section 339 cannot apply, the age of the child remains an important element in the total picture of each case. 'What might constitute an attractive nuisance to a 7-year-old child would be immaterial as applied to a 14-year-old high school student.’ (Giddings v Superior Oil Co [1951], 106 Cal App 2d 607, 612; 235 P2d 843.) Beyond the age of 14, cases allowing recovery have involved such concealed or unusual dangers as high-voltage electricity or dynamite caps. (See, eg., Prosser, Trespassing Children [1959], 47 Cal L Rev 427, 439-442.) 'As the age of the child increases, conditions become fewer for which there can be recovery under this rule, until at some indeterminate point, probably beyond the age of sixteen, there are no longer any such conditions.’ (Rest 2d Torts, § 339, com c, p 199.) As noted at the outset, plaintiff was just three months short of 16 years of age at the time of the accident. He was in the second half of his sophomore year in high school, and was receiving passing grades in all his courses. His mother agreed that he was 'healthy’ and 'normal and active in every way.’ Manifestly, we are *104not dealing here with a plaintiff such as the 18-year-old deaf mute with the mental capacity of a child of 6, involved in Harris v Indiana General Service Co. (1934), 206 Ind 351; 189 NE 410.
"Nor was plaintiff a novice in the arts of swimming and diving. He had been swimming for some three or four years prior to the accident, and had received swimming and diving lessons in high school. His diving experience at school was off the side of a pool, and it would be unreasonable to assume his instructor did not warn him of the dangers of hitting bottom. On this important question, moreover, we need not indulge in speculation: plaintiff agreed on the witness stand that he 'knew’ that 'if you dove into shallow water that that was the wrong thing to do’; he admitted he had 'always’ known this fact, i.e., from 'early life.’
"Finally, plaintiff’s knowledge of the actual diving conditions at defendant’s pier was extensive. He admitted having dived off that same pier some 10 or 15 times over a period, of three or four months, doubtless under varying conditions of weather and tide. On the day of the accident he dived off the pier three or four times, but not always off the same side; he did not recall which side he dived off first. On the witness stand he answered in the affirmative the question, 'you dove off both sides of the pier before you took the dive that ended up in your accident. Is that right?’ Even more importantly, plaintiff also answered in the affirmative the question, 'you knew how deep the water was then at the place where you dove at the time of your accident, is that right?’ Plaintiff agreed that he 'knew’ that the depth of the water was 'somewhere between five and six feet,’ and testified that at the time of the accident he was about 5 feet 6 inches tall.
"On these facts we find persuasive precedent in Garcia v Soogian (1959), supra, 52 Cal 2d 107; 338 P2d 433. There, a girl 12 years and 8 months old was injured about 8 o’clock one evening when she unsuccessfully attempted to jump over a stack of prefabricated building panels. In holding that she failed to make out a case for recovery under the rule of section 339 of the first Restatement of Torts, we reasoned 'the panels containing windows were heavy and were firmly *105stacked a considerable distance from the street in such a manner that the glass could be reached only at the top of the piles, 24 to 30 inches from the ground. The chance was slight that a child of plaintiff’s age would fail to see the glass or appreciate what risk was presented, and there is no evidence that plaintiif was of less than average intelligence for her age. It may be, as plaintiff in effect testified, that, because it was getting dark, she did not see the glass before jumping, but defendants could not reasonably be required to foresee that there was any substantial likelihood that a normal child of more than 12 would not appreciate the danger of jumping over a large pile of building materials when darkness prevented sufficient perception of the nature of the obstacle.’
’’Here, as in Garcia, ’the chance was slight that a child of plaintiff’s age’ would fail to ’appreciate what risk was presented.’ Indeed, plaintiff actually knew he was diving in generally shallow water and knew what risks he was incurring by so doing. Those risks were not eliminated merely because plaintiff was fortunate enough to have made several previous dives without striking bottom. Moreover, although the accident took place shortly after midday, the water appears to have been opaque and the bottom not discernible beyond the edge of the beach. Thus plaintiff was in effect aware that he did not know precisely where the bottom was. As in Garcia, the fact that visibility was inadequate should have rendered even more obvious to a youth of plaintiffs age the dangers of diving without 'sufficient perception’ of what lay ahead. (Emphasis added.)
"Here again as in Garcia, ’In the light of the undisputed facts now before us, there is no sound basis for concluding that the condition which caused plaintiff’s injury should have been recognized as constituting an unreasonably great risk of serious bodily harm which plaintiff was unable to discover or appreciate because of [his] immaturity. ’ It follows that no special duty toward plaintiff arose by virtue of defendant’s ownership of the property. In the absence of such a duty, the case should not be submitted to a jury. In Garcia we reversed a judgment for the plaintiff on the ground that the evidence was insufficient as a matter of law to warrant *106recovery under the rule governing trespassing children; we held, in effect, that no reasonable trier of fact could have found for the plaintiff on the facts shown. When, as here, the evidence at the close of the plaintiff’s case is so palpably insufficient that the trial court determines that no verdict for plaintiff could be sustained, it is the duty of the court to forestall the cost and delay of further proceedings by granting defendant’s motion for nonsuit.” (Emphasis added.)
The reasoning of O’Keefe is equally applicable here.
On the basis of plaintiff’s pleadings and the depositions of the parties, there is no sound basis for concluding that the condition which caused plaintiff’s injury should have been recognized as constituting an unreasonably great risk of serious bodily harm which plaintiff was unable to discover or appreciate because of his immaturity. There was no special duty owed plaintiff because of either the defendants’ ownership or leasehold interest in the property. Nor was there any question of fact regarding gross negligence. In Oxenger v Ward, 256 Mich 499, 502-503 (1932), the Court stated:
"In Denman v Johnston, 85 Mich 387, 396 [1891], the term 'gross negligence’ was held to mean 'an intentional failure to perform a manifest duty in reckless disregard of the consequences as affecting the life or property of another. It also implies a thoughtless disregard of consequences, without the exertion of any effort to avoid them.’ ”
Defendants in the instant case did not act with reckless disregard of the consequences or without any effort to avoid them.
In the absence of a special duty owed plaintiff and of any factual question as to gross negligence, *107the trial court was correct in dismissing Count I and granting defendants’ motion for summary judgment on Count II. Heider v Michigan Sugar Co, 375 Mich 490 (1965).
I vote to affirm.