Plаintiffs-appellants, Paula M. Williams and her son Travis J. Hernandez, appeal from the judgment of the Paulding County Court of Common Pleas entered in favor of defendant-appellee, Robert Cook, following a jury trial. Cook has filed a cross-appeal.
This action arose out of a fatal accident that occurred at the Cook farm on August 16, 1995. Travis’s father, Juan Hernandez, was employed there аnd lived in the basement of the Cooks’ farmhouse. Travis, who was eight years old, would occasionally visit with his father at the farm. Cook’s two grandchildren, Tyler and Adam, would also visit the farm. When Travis was on the farm with Tyler and Adam, the children would play together.
On August 16, 1995, Travis and the Cooks’ two grandchildren were playing together at the Cook farm. The children wanted to go inside the house because it was hot. Travis’s father allowed them tо do so. While the children were playing in the house, Travis accidentally shot Tyler with a rifle taken by Travis from the bathroom closet. Travis told the clinical counselor that Tyler was chasing him with a chain when he ran into the bathroom closet.
1
Travis stated
In their complaint against Robert and Jeanette Cook and Cook’s Dairy Farm, 2 Travis and his mother raised three claims. In particular, they alleged that Cook was negligent in failing to secure the firearm, in failing to supervise the children while they were social guests, and in entrusting the firearm to Travis.
Cook moved for summary judgment. The trial court overruled Cook’s motion, finding that there were genuine issues of material fact as to the relationship of the parties and whether the manner in which the firearm in question was stored violated a duty of care owed to Travis.
This matter proceeded to a jury trial. Following the presentation of the testimony and evidence in this case, the jury returned a verdict in favor of Cook, and the trial court rendered judgment accordingly. This appeal and cross-appeal followed. We will address Cook’s sole cross-assignment of error first; in this assignment of error, Cook appeals the denial of his motion for summary judgment. It states as follows:
“The trial court erred by failing to grant appellee/cross-appellant’s motion for summary judgment as a matter of law because no genuine issue of material fact existed.”
In his cross-аssignment of error, Cook argues that he did not owe any duty toward Travis or, at most, he owed Travis the duty to a licensee to refrain from wanton or willful conduct. Additionally, Cook argues that there is nothing in the record to suggest that he breached that duty.
Civ.R. 56(C) provides that before summary judgment may be granted, it must' be determined that (1) no genuine issue as to any material fact remains to be litigated, (2) the moving party is entitled to judgment аs a matter of law, and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing the evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the party against whom the motion for summary judgment is made.
To establish actionable negligence, a plaintiff must show a duty, a breach of that duty, and an injury proximately resulting therefrom.
Mussivand v. David
(1989),
“A host who invites a social guest to his premises owes 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 the 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 dangerous condition.”
Conversely, a licensee is “a person who enters the premises of another by permission or acquiescence, for his own pleasure or benefit, and not by invitation.”
Provencher v. Ohio Dept. of Transp.
(1990),
However, when discovering a trespasser or licensee in a position of peril, a landowner is required to exercise ordinary care to avoid injuring him.
Id.
at 318,
Cook kept the .22-caliber lever-action rifle that Travis fired in the corner of the bathroom closet behind the built-in drawers. There were clothes hanging in the closet in front of where the rifle was propped up. The two louvered closet doors could not be locked. When Travis visited his father, he had access to the bathroom in the Cook home. Cook testified on deposition that he was unaware until after the accident that the children would have played in the closet or that they would even have seen the rifle.
According tо Cook, the bullets or cartridges were ordinarily kept in a separate place from the rifle that Travis fired. Several weeks before the accidental shooting, Travis’s father had used that rifle to kill a sick cow for Cook. When Travis’s father returned the rifle, Cook assumed it was empty and he then put it away in the bathroom closet. Cook admitted on deposition that he could not remember checking whether the rifle was loaded before replacing it. Cook also admitted that it would have taken only a few seconds of time for him to do so.
After construing these facts most favorably to appellants, we find that the determination of Travis’s status on the property the day of the accident was a genuine issue of material fact for the jury. Reasonable minds could find that an implied invitation from Coоk to Travis existed in these circumstances. Even so, reasonable minds could yet find that Travis exceeded the scope of his invitation and became either a licensee or trespasser. In addition, a genuine issue of material fact existed as to whether Cook breached the corresponding duty of care owed to Travis. Accordingly, summary judgment was inappropriate based upon the facts presented. Cook’s sole cross-assignment of error is therefore overruled.
We will now address appellants’ assignments of error. They state as follows:
“The trial court erred as a matter of law by failing to determine Travis’s status on Cook’s property on August 16,1995.
“The trial court erred in instructing the jury that it could find Travis was a trespasser on Cook’s property on August 16,1995.
“The trial court should have instructed the jury that Cоok owed Travis a heightened duty of care since Travis was entitled to care proportionate to his inability to foresee and avoid perils he would encounter and since Cook created an inherently dangerous condition on the property that was readily accessible to Travis.
Wе first determine appellants’ fourth assignment of error, that the trial court erred in excluding the testimony of appellants’ expert in gun safety, Herbert C. Chambers III. The trial court did not permit this expert to testify with respect to whether Cook breached the standard of care in failing to properly store and secure the rifle involved in the accident.
Evid.R. 702 governs the admission of expert testimony and providеs:
“A witness may testify as an expert if all of the following apply:
“(A) The witness’ testimony either relates to matters beyond the knowledge or experience possessed by lay persons or dispels a misconception common among lay persons;
“(B) The witness is qualified as an expert by specialized knowledge, skill, experience, training, or education regarding the subject matter of the testimony;
“(C) The witness’ testimony is based on reliable scientific, technical, or other specialized information.”
The Ohio Supreme Court has held that “matters of common knowledge and experience, subjects which are within the ordinary, common and general knowledge and experience of mankind, need not be established by expert opinion testimony.”
Ramage v. Cent. Ohio Emergency Serv., Inc.
(1992), 64 Ohio' St.3d 97, 103,
We find that the jurors could reasonably examine on the basis of their common knowledge and experience whether Cook failed to properly store the rifle or whether he acted in a negligent manner in failing to secure the rifle. Thus, the trial court did not err in refusing to permit' appellants’ expert to testify. Appellants’ fourth assignment of error is overruled.
In their remaining assignments of error, appellants assert three errors made by the trial court in its instruсtions to the jury. First, appellants contend that the trial court erred by failing to instruct the jury as a matter of law that Travis was a social guest.
When sufficient evidence exists relating to an issue to permit reasonable minds to differ, a trial court has the duty to submit that issue to the jury.
Renfro v. Black
(1990),
“Where the evidence is such as to warrant, it is the duty of the trial court to submit to the jury with proper instructions the question whether the person
The evidence supports the trial court’s refusal to assign Travis the legal status of a social guest as a matter of law. Reasonable minds could find thаt Travis exceeded the scope of his invitation and lost his status as a social guest. Travis’s status was an issue of fact for the jury to determine.
The second claim of appellants is that the trial court erred by instructing the jury that it could find that Travis was a trespasser on the Cooks’ property. It is well established that a trial court should confine its instructions to the jury to the issues raised by the pleadings and the evidencе.
Becker v. Lake Cty. Mem. Hosp. W.
(1990),
In the present case, Travis clearly was not a trespasser at entry. Even so, Travis could yet be found to have become a trespassеr once on the Cook property by exceeding the scope of his invitation. The trial court instructed the jury that it must determine the legal relationship between the parties in order to decide the duty of care that Cook owed to Travis. The instruction as given is as follows:
“To decide the duty owed to Travis Hernandez, you must decide whether he was a social guest, a licensee, or a trespasser.
“A social guest is a person who enters and remains on the premises of the owner by express or implied invitation to enjoy hospitality as a guest of the owner.
“A licensee is a person who enters and remains on the premises of another for his own pleasure, convenience, or benefit, and with the permission or acquiescence, either express or implied, of the owner.
“A trespasser is a person who enters and remains on the premises of another without permission, either express or implied, and without consent or invitation for a purpose or convenience of his own, or for no apparent purpose.
“The status of an individual upon the premises of another may change while he remains on the premises. If a social guest goes beyond the limits of thе area of his invitation, he may become a licensee or a trespasser, depending upon whether he goes there with or without the consent of the defendant.”
Last, appellants contend that the trial court erred in fаiling to give two of their proposed jury instructions. Appellants cite the Restatement of the Law 2d, Torts (1965) 222, Section 343B, as support for their proposed instructions that impose a greater duty of care upon the landowner in the case of a child regardless of his status. The section cited is concerned chiefly with the special rule of possessor liability for harm based on the attractive-nuisаnce doctrine.
3
See Comment
a.
In the instant ease, however, the doctrine would not appear to apply to the facts presented. There is no evidence that Cook knew about the children playing in the closet or discovering the rifle until after the accident. In any event, Ohio does not recognize the doctrine. See
Elliott v. Nagy
(1986),
The second proрosed jury instructions involved a heightened duty of care where the landowner maintains a dangerous instrument on the property. Appellants’ proposed instructions stated as follows:
“In determining whether defendant used reasonable care in this case, you should consider that with respect to children, the owner of property has an increased duty of care in special circumstances, including the situation when the owner maintains a ‘dangerous instrumentality’ on the property.
[Elliott v. Nagy
(Dec. 21, 1984), Sandusky App. No. S-84-23,
Appellants cited
Elliott v. Nagy
(Dec. 21, 1984), Sandusky App. No. S-84-23, unreported,
Appellants have also cited
Schnabel v. Whipkey
(Nov. 19, 1990), Stark App. No. CA-8096, unreported,
“In determining in any given case whether a defendant exercised that care which an ordinarily and reasonably prudent man would have exercised under the same or similar circumstances, one of the most important of the circumstances is ‘the potential danger apparently involved.’ ” Id., quoting
Schwer v. New York, Chicago & St. Louis RR. Co.
(1954),
In the present case, the trial court instructed the jury as follows:
“Ordinary care is the care that a reasonably сautious, careful, or prudent person would use under the same or similar circumstances.
“The amount of care increases in proportion to the danger that reasonably should be foreseen. Ordinary care is a relative term dependent upon all of the surrounding circumstances including the presence of a dangerous instrumentality upon the premises, such as a firearm. The test, though, is still ordinаry care under the circumstances.
“The amount of care required to discharge a duty owing to a child exposed to danger is necessarily greater than that required to discharge a duty to an adult exposed to the same danger. Children are entitled to a degree of care in proportion to their inability to foresee and avoid the perils that they may enter.”
Based on the foregoing statement of the law, we do not agree with the appellants that the trial court’s instruction to the jury regarding the duty of care was erroneous and that it erred in failing to give appellants’ proposed instructions in this case.
Accordingly, appellants’ first, second, and third assignments of error are overruled.
In sum, we find that the trial court properly overruled Cook’s motion for summary judgment. The judgment of the trial сourt based on the jury verdict in favor of Cook is affirmed.
Judgment affirmed.
Notes
. None of the children testified at the trial.
. Appellants voluntarily dismissed all claims against Jeanette Cook and Cook’s Dairy Farm before the trial. They are not parties to this appeal and all references in the opinion are to Robert Cook, individually.
. The doctrine of attractive nuisance set forth in 2 Restatement of the Law 2d, Torts (1965) 197, Section 339, states as follows:
"A possessor оf 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 involvе 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."