Appellant argues that infancy cannot vary a social host’s duty to his guests, and that the facts in this case show no violation of a landoccupier’s duty to his infant social guest, as a mаtter of law. We do not agree and, therefore, affirm.
The amount of care required of a person to establish whether he has discharged his duty to another is variously referred to as the “amount of caution,” the “degree of care” or thе “standard of conduct” which an ordinarily careful and prudent person would exercise or observe under the same or similar circumstances. See Thompson v. Ohio Fuel Gas Co.,
Regardless of the precise label, the amount of care required to discharge a duty owed to a child of tender years is necessarily greater than that required to discharge a duty owed to an adult under the same circumstances. This is the approach long followed by this court and we see no reason to abаndon it. “Children of tender years, and youthful persons generally, are entitled to a degree of care proportioned to their inability to foresee and avoid the perils thаt they may encounter .... The same discernment and foresight in discovering defects and dangers cannot be reasonably expected of them, that older and experienced persons habitually employ; and therefore, the greater precaution should be taken, where children are exposed to them.” 39 Ohio Jurisprudence 2d 512, Negligence, Seсtion 21. See, also, DeGroodt v. Skrbina,
A majority of other jurisdictions also require a greater amount of care where young children may be exposed to dangers than where adults may be exposed to the same dangers. 2 Restatement of the Law, Torts, 2d, 210, Section
The duty of a landoecupier to his social guest is stated in Scheibel v. Lipton,
“A host who invites a social guest to his premises owеs the guest the duty (1) to exercise ordinary care not to cause injury to his guest by any act of the host or by any activities carried on by the host while the guest is on the premises, and (2) to warn thе guest of any condition of the premises which is known to the host and which one of ordinary prudence and foresight in the position of the host should reasonably consider dangerous, if the host has reason to believe that the guest does not know and will not discover such condition.”
The first duty requires the host to exercise ordinary care. But what is ordinary care to avoid injury to an adult may not be ordinary care tо avoid injury to an infant. Likewise, the duty to warn necessarily will vary with the individual guest because the host must consider the age and infirmity of his social guest in determining his ability to know and discover dangerous conditions.
Appellant urges that the parking of the automobile on an inclined driveway created a static condition and was therefore not an “act or activity.” We note that another court has held that the parking of an automobile in an insecure manner on an incline is an act of affirmative negligence and, therefore, a violation of a duty tо a licensee. Carney v. Buyea,
Moreover, under Scheibel, supra (
In Shannon v. Butler Homes, Inc.,
We recognize the conflict which these cases present. On the one hand, hospitality is to be appreciated and fostered ; on the other, children are to be protected. It is оne concern that an adult may wander off the usual path he would follow while a guest in a friend’s home or upon his premises, and quite another that a child may do so. In the latter cаse, greater caution in warning of danger is ordinarily to be expected, and thus is required.
Appellant contends further that the following instruction to the jury was erroneous: “The test is whether in thе light of all of the attending circumstances, all of them, a reasonably prudent person would have anticipated that injury was likely to result to someone from the performance of the аct in question.” (Emphasis supplied.) Appellant urges that the court should have instructed that the defendant had a duty only to foresee injury to social guests from an act or activity or а dangerous condition of the premises.
If an event causing injury appears to have been closely related to the danger created by the original conduct, it is regarded as within the scope of the risk, even though, strictly speaking, the particular injury would not have been expected by a reasonable man in the actor’s place. 2 Restatеment of the Law, Torts, 2d, 7, Elements of a Cause of Action for Negligence, Section 281, Comment g. The trial court’s charge here was a correct statement of the law of foreseeability as announced in Neff Lumber Co. v. First National Bank,
Appellant’s argument confuses foreseeability as determinative of causation with foreseeability limiting duty. This has been a common mistake ever since the case of
Finally, we are urged in this case to eliminate distinctions based upon the status of a visitor upon the premises and to adopt a rulе of ordinary care under all the circumstances as the measure of the duty of a landowner or land-occupier.
Judgment affirmed.
Notes
A lengthy analysis of this most discussed and debated of tort cases is contained in Prosser, Torts (3 Ed.), 292.
The writer believes that a man’s life or limb does not become less worthy of protection or compensation because he has come upon the land for social rather than for business purposes. The amount of care required of a landoccupier should depend on ordinary care under all the circumstances, the specific purpose of his invitation or permission being one of the facts to be considered. As Judge Allen said in Drew v. Gross,
“. . . As conditions change and modes of life alter, the duty to observe ordinary care in the use of one’s own property, while not altering in its essentials, will alter in its details.”
Immunities of landowners have been eliminated in the jurisdiction of their origin by legislative act, Occupier’s Liability Act, 1957, 5 and 6 Eliz. 2, 302, Ch. 31, and limited judicially in several jurisdictions in this country. See Rowland v. Christian,