Standard of Care Owed

Summary: “A man's home is his castle” goes the saying. However, today's castles are not surrounded by stone walls and moats. Does the unguarded condition of a homeowners premises leave the homeowner open to unforeseen consequences? Are there any legal safeguards? What is the homeowner's duty regarding the premises? Must the premises be scrupulously free from any hazard? Does the homeowner have an obligation to warn any and every one about potential dangers? Does the homeowner have a different duty of care owed to a friend or neighbor, who is often free to come on the property uninvited, as opposed to the mail carrier, or other person coming on the premises for some business purpose? Is there a duty owed to trespassers? And, what if the trespasser is a child? Following is a discussion of the legal theories of licensees, invitees, trespassers, and the duties owed to each.

Topics covered: Introduction Definitions Invitees and licensees Trespassers Children at play

Introduction

Standard homeowners policies provide liability coverage against the risk of loss from bodily injury or property damage that is accidentally caused by an insured anywhere in the world. No insurance policy, of course, insures against every possible risk of loss. Insurance coverage is subject certain exclusions of risks of loss the insurer is unwilling to take. For most insureds, the biggest exposure is the homeowners premises itself. A neighbor trips and falls on the insured's uneven sidewalk. During a game of hide-and-seek, a blindfolded child runs into a rusty hoe left standing against a shed. An unattended child jumps over the fence and drowns in the home owner's pool. Even with the best of intentions, it is often impossible to keep premises so safe that an accident could never occur.

Although homeowners are frequently subject to claims based on the recovery theory of negligence (duty owed, duty breached), the standard of negligence found may in some jurisdictions depend upon the status of the person making the claim: invitee, licensee, or trespasser.

Definitions

Black's Law Dictionary (Eighth Edition) defines an invitee as “A person who has an express or implied invitation to enter or use another's premises, such as a business visitor or a member of the public to whom the premises are held open. The occupier has a duty to inspect the premises and to warn the invitee of dangerous conditions. A public invitee is an invitee who is invited to enter and remain on property for a purpose for which the property is held open to the public.” On the other hand, a licensee is “one who has permission to enter or use another's premises, but only for one's own purpose and not for the occupier's benefit. The occupier has a duty to warn the licensee of any dangerous conditions known to the occupier, but unknown to the licensee. An example of a licensee is a social guest.” In both situations, the landowner has a duty to warn those coming on the premises of dangerous situations. In the past, however, many court cases focused chiefly on determining the status before deciding the standard of care owed since the standard varied according to whether the person was an invitee or a licensee. An invitee was owed the highest duty of care, while a licensee was not owed so much. Even though the distinction now often appears to have been blurred, if not abolished, a number of jurisdictions continue to determine the type of care owed based on the status of the visitor. (See Premises Liability.

As for a trespasser, Black's defines trespass, as “an unlawful act committed against the person or property of another; esp., wrongful entry on another's real property.” Under Wisconsin law, a trespasser is “a person who enters or remains upon land in the possession of another without a privilege to do so created by the possessor's consent or otherwise.” [Antoniewicz v. Reszczynski, 236 N.W.2d 1 (Wis. 1975) (adopting the Restatement (Second) of Torts § 329 definition of "trespasser")].No particular duty is owed to someone on one's property illegally in terms of warning of danger; however, the property owner should not wantonly injure the trespasser.

Invitees and Licensees

As noted earlier, the invitee. is a person usually entering the premises because of an invitation, often in connection with a business where there is a mutual benefit. Many jurisdictions hold that invitees are owed the higher standard of care because of the benefit their being on the premises confers to the landowner. A homeowner can be found liable for physical harm caused to his invitees by a condition on the land—like an open well—into which the invitee falls or a dead tree that falls on and injures the invitee. That liability applies, however, only if, he

• knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees,

• should expect that they will not discover or realize the danger, or

• will fail to protect themselves against it, and

• fails to exercise reasonable care to protect them against the danger.

In 1929, California tort law imposed a duty of due care only on business “invitees” and a lesser standard of care to “licensees,” including social guests. However, modern jurisdictions have limited the distinction of different classes of persons on the property. For example, the California Supreme Court expanded the duty of due care in Rowland v. Christian 70 Cal. Rptr. 97(1968) based on the widespread prevalence of liability insurance. The Rowland decision has been adopted in most jurisdictions. That greater duty of care was eliminated by Rowland.

Pennsylvania law states that “the standard of care a possessor of land owes to one who enters upon the land depends upon whether the person entering is a trespasser, licensee, or invitee.” Carrender v. Fitterer, 469 A.2d 120 (Pa. 1983) (citing Davies v. McDowell Nat. Bank, 180 A.2d 21 (Pa. 1962)). King was a business invitee to the premises where the alleged accident occurred. A business invitee is a “person who is invited to enter or remain on land for a purpose directly or indirectly connected with the business dealings with the possessor of the land.” Charlie v. Erie Ins. Exch., 100 A.3d 244 (Pa.Super.2014) (quoting Restatement (Second) of Torts, § 332 (1965)). While on the premises for business if the invitee is injured as a result of negligence of the owner or the dangerous condition of the property liability will apply in Pennsylvania.

When a person on the premises of a property owner slips and falls because he was wearing flip-flop shoes he can only recover if the owner of the property knew that the condition of the property was dangerous to someone wearing flip-flops and the invitee was not aware of the hazard.

In premises liability cases, proof of a fall, without more, does not give rise to liability on the part of a proprietor because the true basis of a proprietor's liability for personal injury to an invitee is the proprietor's superior knowledge of a condition that may expose the invitee to an unreasonable risk of harm. Ingles Markets v. Carroll, 765 S.E.2d 45 (Ga. 2014). Therefore, if the owner has no more knowledge of the hazard than the person injured, the injured will be unable to prove liability.

On the other hand, if the property owner is aware that a customer has spilled liquid soap in an aisle used by other customers and does nothing to remove the spill or block it from access, the owner is liable to an injured person only if the store owner fails

• to remove from its floor within a reasonable time any hazardous condition that it created, or

• to warn invitees of which it knew or should have known. (Eure v. Kroger Ltd. P'ship I, No. 7:11–CV–00190, 2012 WL 896347 (W.D.Va. Mar. 15, 2012); see also Kane v. Stuckey's of Thornburg, No. CL97–53, 50 Va. Cir. 247 (Va.Cir.Ct. Sept. 13, 1999).)

The Supreme Court of Oklahoma also considered a homeowners negligence with regard to an invitee. The homeowners hired a roofer to repair and replace their roof, which had been leaking. One of the roofer's employees was standing on the roof removing shingles when it gave way and he fell partly through it. The employee sued for damages based on allegations of negligence. He claimed that the homeowner owed him a duty to warn of latent defects and failed to do so. The court said the plaintiff was correct “to the extent that all landowners have duties to members of the public who come upon their property, the nature of the duty varying upon whether the person injured is a trespasser, licensee, or invitee.” In this case, the plaintiff was an invitee, and the landowner owed a duty to keep the premises reasonably safe. But the homeowner could not know of the danger because the wooden decking that broke was hidden, and so had no duty to warn the plaintiff. The court stated it would not impose a duty to warn a business invitee where there was no evidence the homeowner knew or should have known of the danger. This case is McKinney v. Harrington, 855 P.2d 602 (Okla. 1993).

Unlike courts that follow Rowland, South Carolina law applies different standards of care depending on whether the visitor is considered an “invitee”—an invited (express or implied) business guest; a :licensee”—a person not invited, but whose presence is suffered; a “trespasser”—a person whose presence is neither invited nor suffered; or a child. Generally, the jury determines whether an individual is a licensee, invitee, or trespasser. A landowner is not required to maintain the premises in such condition that no accident could happen to a patron using them. See Denton v. Winn–Dixie Greenville, Inc., 439 S.E.2d 292 (S.C.1993). Under South Carolina law, the owner of property owes business visitors or invitees the duty of exercising reasonable and ordinary care for their safety and is liable for any injuries resulting from a breach of such duty. H.P. Larimore v. Carolina Power & Light, 531 S.E.2d 535 (S.C.Ct.App.2000). The landowner has a duty to warn an invitee only of latent or hidden dangers of which the landowner is on actual or constructive notice. H.P. Larimore, 531 S.E.2d at 538.

To recover damages for injuries caused by a dangerous or defective condition on a landowner's premises, a plaintiff must show that

• the injury was caused by a specific act of the defendant which created the dangerous condition, or

• the defendant had actual or constructive knowledge of the dangerous condition and failed to remedy it. Wintersteen v. Food Lion, Inc., 542 S.E.2d 728, (S.C.2001) (citing Anderson v. Racetrac Petroleum, Inc., 371 S.E.2d 530 (S.C.1988)); Pennington v. Zayre Corp., 165 S.E.2d 695 (S.C.1969); Hunter v. Dixie Home Stores, 101 S.E.2d 262 (S.C.1957).

Where the plaintiff tripped over an elevated concrete pad, which was not obscured by darkness or alleged to have been covered by foliage or any other material concealing it from view, evidence in the record failed to support the conclusion that plaintiff would have fallen just by stepping into the alleged pothole. A plaintiff cannot recover unless he can present sufficient evidence to create an issue of fact as to whether the elevated concrete pad and pothole, either individually or collectively, were dangerous or defective conditions. The defendant was not liable.

An Indiana case involved a child coming on a neighbor's premises for a garage sale. A dog belonging to the homeowner's friend bit the child, and her parents sued. The parents claimed the homeowner should have removed the dog. The court said that Indiana case law had determined three types of invitees: a public invitee (as to a public park), a business visitor, and a social invitee. The highest duty of care was owed to any of these types of invitees. The court said, “When owner or occupant, by enticement, allurement, or inducement, whether express or implied, causes another to come upon his lands, he then assumes obligation of providing for safety and protection of the person so coming.” On the other hand, the licensee “takes premises as he finds them and accepts whatever perils he incurs in use of such license.” The court decided as a matter of law the child was an invitee, and so the question of what constituted “reasonable care” was remanded to a jury (Schrum v. Moskaluk, 655 N.E.2d 561 [Ind. App. 1996]).

A California case, Salinas v. Martin, 166 Cal.App.4th 404 (2008), also followed the theory that the highest standard of care was owed to an invitee, in this instance, a construction worker. Martin, the homeowner, hired some landscapers and allowed one to keep his pit bull dogs loose on his premises. At the same time, the homeowner hired some construction workers for a remodeling project. One of these workers was bitten by a dog. The trial court found the property owner should have actual knowledge of the dog's vicious nature in order for a lawsuit for negligence to succeed, but on appeal, that court said that the homeowner owed a duty of care to the worker. The construction boss had mentioned to the homeowner that the presence of the dogs might be a problem since they looked dangerous, and the homeowner agreed. The appeals court said that the homeowner could have requested that the dogs be locked in the landscapers' van when they were not around to control them, and further, the homeowner surely had to have known of the dangerous propensities of the pit bull breed. So, the court found for the plaintiff.

A child who was enticed by an attractive nuisance (e.g., a swimming pool, a “bouncy house.”, or similar enticements) to trespass could recover for ensuing injuries, while a trespassing child already on the premises could not recover. In Colorado, a child who is enticed to trespass on the land by an attractive nuisance is accorded the preferential treatment reserved in the law for invitees. [SW ex rel. Wacker v. Towers Boat Club, Inc., 318 P.3d 38 (2012)]

The child trespasser standard is the minimum standard of care, and child licensees and invitees have greater protection than a trespasser. [Foss v. Kincade, 766 N.W.2d 317 (2009)]

It is common for many homeowners to have various uniformed persons come on their premises, be they meter readers, mail carriers, or others. The status of these invitees can vary by jurisdiction; however, there are some general holdings. A firefighter or police officer is held to be a “professional rescuer” or “public safety officer” and therefore generally barred from bringing action against property owners while confronting normal, foreseeable risks. For example, in Meunier v. Pizzo et al., 696 So. 2d 610 (Ct. App. La. 1997), the court held that a police officer, injured while inspecting an uninhabited home for trespassers, was barred from bringing a claim for damages. The officer struggled with a trespasser and fell on a beer can left on the stairs, but the court found that the risk was not outside the risks assumed by the officer as a professional rescuer. The property owner had not been grossly negligent in asking for police help and was not at fault.

But in DeLaire v. Kaskel, 842 A.2d 1052 (2004) the court said the public safety officer's rule did not apply to an animal control officer who was called to the defendant's premises to remove a stray cat. The officer pulled into the defendant's driveway, and in alighting from his van, stepped on a patch of snow and fell, injuring himself. He brought action against the homeowners. In remanding the case to the superior court to determine the homeowner's negligence, the court said that the public safety officer's rule should not apply to an animal control officer who was much lower paid than either a police officer or firefighter and was entitled to workers compensation but not full salary and medical expenses as were police and firefighters injured in the line of duty. Therefore, the fundamental concept of fairness dictated that the animal control officer should be allowed to claim for his injury. But in a strongly worded dissent, one justice said that: “public policy considerations, therefore, should encourage citizens to seek assistance from animal control officers in dealing with potentially dangerous animals. But this decision, regrettably, represents an unfortunate setback to that worthy goal.” The justice went on to offer this advice to the public: “When calling for help. . .if what looks like a police officer arrives, bar him or her from the premises until you can ascertain whether he or she is able to collect IOD [injured on duty] benefits, went to the police-training academy, and can take advantage of the Law Enforcement Officer's Bill of Rights.”

Letter carriers are usually held to be invitees, and therefore owed higher standards of care than licensees. But in Jimenez v. Maisch, 748 A.2d 121 (N. J. Sup. App. 2000), this standard did not apply when Jimenez fell on the unshoveled driveway of the Maisch residence. The court said that the duty of care owed was fact-specific, and in this case the letter carrier was delivering mail during a declared snow emergency following a blizzard. The court said that in another situation—where the homeowner allowed a buildup of ice and snow over time—the homeowners might be at fault. But here it was not reasonable to expect them to clear some thirty inches of snow immediately following the storm's end.

A water meter reader, whom one might assume to be an invitee, was actually found to be a licensee in Cresswell v. End, 831 A.2d 673 (Sup. Ct. Penn. 2003). Here, the meter reader fell into the homeowner's window well while attempting to read the meter. The court reasoned that because the homeowner was a customer of the company for which the meter reader worked, the homeowner was obligated to give the company (and its meter reader) permission to come on the premises; the reader was not specifically invited. Further, the company, not the homeowner, had installed the water meter in the location next to the window well. The company had never notified the homeowner that the window well constituted a hazardous condition on the premises, which customary business practice dictated. The meter reader was aware of the window well, having read the meter for some time. Thus, the homeowner breached no duty owed to the meter reader.

Texas law allots the duty owed depending upon the status of the person entering the property of another similarly to other jurisdictions. As with other jurisdictions, these persons are classified as invitees (owed the highest standard of care), licensees (the landowner cannot injure willfully, wantonly, or through gross negligence), and trespassers (the same duty as to a licensee). An agent of the U.S. Border Patrol came onto some property—a permanently closed metal processing plant—abutting the Rio Grande. He and another agent were in search of illegal aliens entering the country from Mexico. The agent, Lechuga, fell while trying to cross a canal leading between two evaporation ponds, and was injured. He claimed that he was an invitee because a Border Patrol presence on the property conferred a benefit on the owner of the closed plant. Further, the plant owners knew the Border Patrol operated on the premises. Therefore, he was owed a higher standard of care. Not so, said the court. The plant owners merely conferred permission to be on the premises, not an invitation. The agent was therefore a licensee.

Texas law contains an exception to the standard of care owed a licensee, stating that “when a possessor has knowledge of a dangerous condition on the land, and the licensee does not, the possessor has a duty either to warn the licensee or to make the condition reasonably safe.” But in this instance, the agent had been on the property prior to his injury. Further, stated the court, there was no evidence presented that the canal (about a foot wide and several inches deep) was unduly dangerous. The agent could not recover for his injury from the property owner. This case is Lechuga v. Southern Pacific Transportation Company, 949 F.2d 790 (5th Cir. 1992).

The Idaho Supreme Court tackled the duty owed a licensee in Chapman v. Chapman, 215 P.3d 476 (2009). A social guest suffered injuries from a slip and fall accident while using the bathroom during a party at the homeowners' residence. She brought a premises liability action against the homeowners for their failure to warn her of the bathroom's dangerous condition. But since the evidence presented was the homeowners' knowledge as to the bathroom's layout, the guest's consumption of alcohol, and a statement by the homeowner that someone else had fallen in the bathroom some twenty years earlier, the court found for the defendants. The court said that the owner owed a duty to warn a licensee only of dangerous existing conditions known to the owner, and unknown to and not reasonably discoverable by the licensee.

Trespassers

What duty is owed a trespasser? A trespasser, remember, is someone entering unlawfully upon the land of another. Although it might appear that no duty of care is owed to a trespasser, most jurisdictions hold that the landowner must refrain from wantonly or willfully injuring the person after discovering his presence.

As a general rule, the possessor of real estate owes no duty to trespassers to keep the property in a reasonably safe condition for their use. Hopkins v. Fox & Lazo Realtors, 132 N.J. 426(1993); Morin v. Bell Court Condominium Ass'n, Inc., 612 A.2d 1197 (1992); Ahrens v. Rogowski, No. A-3023-13T3, 2015 WL 720288 (N.J. Super. Ct. App. Div. Feb. 20, 2015).

When property is open to the public for recreation—like a park, a ski slope, or a playground—the Texas recreational use statute further limits the governmental unit's duty by classifying recreational users as trespassers and limiting liability for premises defects to claims involving gross negligence, malicious intent, or bad faith. In Suarez v. City of Texas, 2015 WL 3802865 (Tex. 2015), the court concluded that there was no evidence from which a reasonable factfinder could conclude that Texas City possessed actual, subjective awareness that the combined effect of the size of a dike, along with the deposition of fine-grained sediment, altered the natural conditions in the water at the beach. There was likewise no evidence that Texas City knew about or appreciated the gravity of any danger created by the combined effect of manmade and natural conditions in the water at the beach. Because the evidence failed to raise a genuine and material fact issue concerning gross negligence, Texas City retained immunity from suit and the trial court lacked jurisdiction over Suarez's claims.

In Taylor v. Duke, 713 N.E.2d 877 (Ind. App. 1999), Taylor was injured when he went to sleep underneath a tractor trailer, and the driver drove off. The driver typically delivered a trailer full of merchandise to a store during the night, left the full trailer, and drove away with an empty trailer. Taylor was on his way to a bridge underneath which he normally slept. A sudden rainstorm came, and he took shelter under the empty trailer. Taylor argued that he should be treated as an invitee and thus was owed a high standard of care, but questioning revealed that when he came onto the property he saw no one around, and in fact did not know whether or not the store was open.

Therefore, as a trespasser, the only duty owed was to avoid wantonly or willfully injuring him. (The retail storeowner had been dismissed from the suit.) The court stated that the same principal of duty owed by the premises owner to a trespasser extended in this instance to the truck driver.

Frequently, trespassers are children. They often come onto property in response to some perceived enticement—an attractive nuisance, such as a swimming pool. An extension of legal thinking in these instances is that the homeowner cannot simply refrain from wantonly or willfully injuring the trespasser; the trespasser is entitled to a warning of a serious artificial danger. (Adults as well as children are often held to be entitled to such a warning.) In McColley by McColley v. Edison Corp. Ctr., 697 A.2d 149 (N.J. App. Div. 1997), a fourteen-year-old motorbike rider was injured when he struck a wire cable strung about two feet high between two concrete pillars. The defendants in the initial suit were granted summary judgment since the court held that the boy was a trespasser to whom no duty was owed. But on appeal, the court noted that for two years prior to the accident children had ridden motorbikes on the property. No warning had ever been posted to riders to keep off the property, nor was there a warning about the wire cable. The court also noted that although there was no definitive age at which the duty owed a child trespasser changed to the duty owed an adult trespasser, still, there were questions about a fourteen-year-old's being able to recognize the risk. The case was remanded to the jury for further proceedings.

In Georgia, it is well established that an owner or occupier of property owes no duty to trespassers or licensees, even when they are small children, other than to refrain from willfully or wantonly injuring them. OCGA § 51–3–2; Trulove v. Jones, 610 S.E.2d 649 (Ga. App. 2005); Oliver v. City of Atlanta, 250 S.E.2d 519 (Ga.App. 1978); Montega Corp. v. Grooms, 196 S.E.2d 459; Rawlins v. Pickren, 164 S.E. 223 (Ga.App. 1932). [Brazier v. Phoenix Group Management, 633 S.E.2d 354 (Ga.App. 2006).

As noted earlier, children as trespassers are often excepted from the general rule to refrain from wantonly or willfully injuring them. They are entitled to a heightened standard of care, since given their youth they do not realize the risk involved. The Restatement (Second) of Torts states that the "possessor of land is liable for harm to trespassing children caused by an artificial condition if: (1) place where condition exists is one where possessor knows or has reason to know children are likely to trespass, (2) condition is one of which possessor knows or should know, and which he realizes or should realize will involve unreasonable risk, (3) children because of their youth do not discover condition or realize risk involved, (4) utility to possessor of maintaining condition and burden of eliminating danger are slight as compared with risk, and (5) possessor fails to exercise reasonable care to eliminate danger or otherwise protect children."

Note that Black's Law Dictionary (Eighth Edition) defines "innocent trespass" as "one committed either unintentionally or in good faith," which seems to encompass most children.

Although it might appear that children thus have immunity in any and all situations, this is not the case. An attractive nuisance on a landowner's premises does not relieve parents (or supervising adults) from their responsibilities. Corbin Mendez, age seven, was injured while jumping on a trampoline with some other children. His parents asserted that the trampoline owners knew that there was danger when more than one person was jumping and did not take reasonable steps to prevent this from happening. The flaw in the parents' reasoning became apparent in that the trampoline owners were away from home and did not give permission for anyone to jump; the boy's grandmother, who lived nearby, told the children they could play on the trampoline. The grandmother, who Corbin was visiting at the time, was presumed capable of understanding the dangers of trespassing and using the trampoline when she gave permission. The attractive nuisance doctrine therefore did not prevail, and the homeowners were relieved of responsibility (Morningstar v. Maynard, 798 N.E.2d 920 [Ind. App. 2003]). The attractive nuisance doctrine creates an exception to the no-duty-to-trespassers rule. The doctrine forthrightly recognizes the status of child as trespasser but imposes duty upon landowner under carefully limited circumstances. [Zukatis v. Perry, 682 A.2d 964 (Vt. 1996)]

The attractive nuisance doctrine, because it applies to trespassing children, not licensees or invitees, also relieved the homeowners of responsibility in Bartlett v. Maffett, 545 S.E.2d 329 (Ga. App. 2001). A juvenile visitor, a licensee, came with his father to the Maffetts' property. The boy and the Maffetts' grandson began to play. Their play took them into a shed that contained a chain hoist attached to an I-beam. One end of the I-beam had a cap, but the other did not. When the boys played on the hoist, the chain and pulley came off that end, and Bartlett sustained a broken leg. Because the boy was a licensee, not a trespasser, and because the Maffetts had no reason to think the boy would enter the shed, they could not anticipate he would play with the hoist. They were not liable for his injuries.

However, a child can appear to be a trespasser, but further scrutiny might indicate an invitee status. An Indiana case turned on whether one child could extend an invitation to a neighbor child to play without the invitation coming directly from the child's parents, the homeowners. The court in Kopczynski v. Barger, 887 N.E.2d 928 (Ind. 2008) found that it was a material issue of fact as to whether a six-year-old could extend an invitation to a neighbor child. So, when a twelve-year-old girl was injured on the homeowners' trampoline, if she was found to be a trespasser, there would be no negligence on the part of the homeowners. However, if she was in fact an invitee, then the homeowners could be held liable for her injuries since the trampoline was an attractive nuisance.

Sometimes a suit for premises liability can also encompass negligent supervision as a theory of recovery. In Johnson v. Pettigrew, 595 N.E.2d 747 (Ind. App. 1992), a child was injured when he decided to “mess around” with a fire set to burn debris, and poured gasoline on it. Jeff Johnson visited the Pettigrews  farm to see their son. The boys were helping with farm chores by burning debris. The Pettigrews' older son and a hired hand were doing chores in a shed, but were keeping an eye on the younger boys. But the boys intentionally went out of their sight, and started another fire. They filled a plastic jug with gas, and took turns stomping on it to propel the gas onto the fire. When gas splashed on Jeff's leg, he was seriously burned. The court found that, as an invitee, Jeff was owed the highest standard of care. But liability for a condition of the premises did not encompass the boys deliberately playing with the fire. However, because there were issues as to whether Jeff was adequately supervised, the case was remanded for trial on this cause of action.

In Nunn v. Page, 2004 WL 231470 (Ga. App.), parents brought premises liability and negligent supervision action against neighbors after their son was injured while jumping on a trampoline along with the neighbors' daughter. The court said that the dangers of the trampoline were readily apparent, even to the four-year-old boy, but there was a genuine issue of fact as to whether the children had been supervised. Therefore, the neighbors did not breach the duty of care owed to the four-year-old, but the case was remanded for further proceedings on the issue of negligent supervision.

As a general rule, a person who undertakes the control and supervision of a child, even without compensation, has the duty to use reasonable care to protect the child from injury. (Gritzner v. Michael R., 598 N.W.2d 282 (Wis. 1999)) It should be self-evident that an adult who voluntarily takes on the supervision, custody, or control, even on a temporary basis, of a visiting child stands in a special relationship to such child. (Hill ex rel. Hill v. Herbert Hoover Boys Club, 990 S.W.2d 19 (Mo.App.1999)) Similarly, Missouri case law establishes that acceptance of the custody and control of a minor child creates a relationship sufficient to support a duty of care. [Gummo v. Ward, 57 F.Supp.3d 871 (2014)]

Children at Play

For the most, courts tacitly acknowledge that many children's games involve risk—some, of course, more than others. It is unrealistic to expect that a child will never attempt a dangerous activity, just as it is unrealistic to believe that other children should warn the child away from the activity.

Two cases involved a game of kick the can. This is a game where the person who is “it” must retrieve a can that another child kicks. “It” brings the can back to home base, and counts, usually to a hundred, during which time the other participants scatter to hiding places. In Hoyt v. Rosenberg, 182 P.2d 234 (Cal. 1947), a twelve-year-old kicked the can into the face of a child, who lost the sight in an eye as a result. Was the twelve-year-old negligent? The jury returned a verdict in favor of the plaintiff, but the court ruled that the defendant minor could not be found negligent as a matter of law based on the appropriate standard for a child of his age. The court added the boy did not do “anything more or less than healthy boys of his age have done from time immemorial and will continue to do so long as a race retains its activity.”

In the second case, Marchetti v. Kalish, 559 N.E.2d 699 (Ohio 1990), a thirteen-year-old broke her leg when one of the participants ran into her and she fell. The girl sued, alleging the appellant had “negligently and/or willfully, wantonly and maliciously” caused the injury. The trial court found that the appellee had assumed the risk as a voluntary participant in the game. The court of appeals reversed, saying an issue of fact existed. But the Ohio Supreme Court reversed the appeals court, reinstating the trial court. The court said, “We hold that where individuals engage in recreational or sports activities, they assume the ordinary risks of the activity and cannot recover for any injury unless it can be shown that the other participant's actions were either 'reckless  or intentional' as defined in Sections 500 and 8A of the Restatement of Torts 2d.” Because the appellant's conduct was neither, the girl could not recover for her injury. (This case is also notable for its inclusion of the rules for kick the can in an appendix.)

One court's finding was that “children are not liable for injuries arising from their conduct while participating in children's games if the games are customarily played by children and are not inherently unreasonably dangerous.” Here, a ten-year-old was playing with several other children when a six-year-old was injured. The game involved one child lying on his back while another child would sit on that child's feet. The first child would then attempt to catapult the other off. Several adults, including parents of some of the participants, were nearby. The court said that the ten-year-old's behavior did not suggest a breach of any standard of care. The court added that no adult had told the children not to play this game. This case is First National Bank of Arizona v. Dupree, 665 P.2d 1018 (Ct. App. Ariz. 1983).

Children do strange things. Young boys, especially, will do things without thinking about the potential of injury to a third person. Playing stickball in the streets of New York seems innocent enough until a pitch or hit can injure a passer-by innocently walking on the sidewalk. A horseshoe can be thrown as part of a game only to strike and injure another child. The New York Appellate Court in Carrillo v. Kreckel, 352 N.Y.S.2d 730 (1974) discussed whether summary judgment was appropriate to determine whether a fourteen-year-old boy participating in a street game could be held liable as a matter of law for injuries sustained by a bystander. The standard of care to which persons are held must take into account variables such as the age of the person and the activity in which they were participating to determine who should bear the loss resulting from the injury and that this determination is essentially one of social policy, the basic tenet upon which questions of duty are based. Citing Prosser, Law of Torts, § 42 (4th Ed.1971). Applying these principles to the horseshoe throwing involved in one case, it was clear that fourteen-year-old boys will invent and continue to participate in frolics of this nature and will not perceive the dangers that may result.

Certainly, children must abstain from negligent acts and thereby exercise the degree of care to which children of their age, experience, intelligence, and ability are capable. However, unless the frolic chosen is so inherently dangerous that mere participation therein is negligence, the child should be held liable only for an act that was a deviation from the frolic to such an extent that it would put the child on notice that an unreasonable risk of injury was involved to either other participants or spectators. [First Nat. Bank of Arizona v. Dupree, 665 P.2d 1018 (Ariz. 1983).

In Keller v. Mols, 472 N.E.2d 161, the court chastised the appellant by stating: "Assuming that a game of floor hockey involves serious risk to participants, 14-year-old boy who had participated in wrestling, football, and basketball at school and suffered diverse injuries while participating in those sports should know of those risks and avoid them." Robert Keller was injured when, during a game of floor hockey (played with plastic whiffle ball bats or hockey sticks with plastic bottoms, and a plastic puck), Ralph Mols shot the puck in his direction and it struck him in the eye. Keller's parents alleged the Mols were negligent in permitting neighborhood children to play without protective equipment and that Ralph was negligent in shooting the puck in the direction of a person not wearing the equipment. The court pointed out that the boys had played the game frequently, in full view of the Kellers prior to the accident, and at no time did the Kellers warn them that the game should be played only while wearing protective equipment.

The Ohio Supreme Court looked to its earlier opinion in Marchetti while deciding a more recent case, Gentry. v. Craycraft, 802 N.E.2d 1116 (Ohio 2004). Here, a four-year-old was standing watching his brother, age nine, and another child, age eleven, hammer nails into a chair they were building. The eleven-year-old held the nail to tap it into place. When it appeared to be holding, he hit it harder. The nail flew out of the chair and hit the four-year-old in the eye. His parents sued, alleging the eleven-year-old intentionally, recklessly, or negligently hammered the nail so as to cause injury. The trial court granted summary judgment to the appellants based on Marchetti. On appeal, the court agreed that the boys were involved in a recreational activity, and the eleven-year-old did not act intentionally or recklessly, but nonetheless reasoned that the boy was too young to assume the risk involved in being a spectator. The supreme court, however, said that the children were engaged in "typical backyard play, which falls within the definition of a recreational activity." The court added that the opinion rendered in Marchetti had never been intended to be limited to spectators "old enough to appreciate the risks inherent with the sport or activity. In fact, we made it clear that the opposite was true when we stated that the reckless/intentional standard of liability applies regardless of whether the activity was engaged in by children or adults, or was unorganized, supervised, or unsupervised. We recognized that '[t]o hold otherwise would open the floodgates to a myriad of lawsuits involving the backyard games of children.'”

Two New York cases discuss injuries to children when activities are organized or under adult supervision. In Tobin v. Hewlett Branch Athletes, Inc., 2 A.D.2d 758 (N.Y.S.2d 1956), the court dismissed the complaint. The trial court found for the plaintiff, who was injured during a game consisting of a camp counselor throwing a ball at a group of children, who then tried to avoid being hit by it. On appeal, the court said there was no evidence that the counselor threw the ball with excessive speed or force, and the child had participated in the game many times before and was adept in playing it. The court added that if the complaint were not being dismissed, it would order a new trial on the grounds that the previous verdict was against the weight of the evidence.

Totan v. The Board of Education of the City of New York, 133 A.D.2d 366 (N.Y.S.2d 1987) involved a child injured while playing a game of Red Rover in the schoolyard. The jury determined that the child was 25 percent negligent, and the school board, 75 percent. But the court set aside this verdict (and the appellate court affirmed) based on inconsistent testimony from the child (it appeared the game had barely begun when the child was injured), and the school's policy of forbidding the game and providing schoolyard supervisors. The court added that “it has long been held that a board of education is not an insurer of the safety of its students and cannot reasonably be required to 'watch all movements of all pupils.'”

Children are not liable for injuries arising from their conduct while participating in children's games if the games are customarily played by children and are usually harmless and free from danger to participants and bystanders. For example, in Briese v. Maechtle, 130 N.W. 893 (Wis.1911), a ten-year-old boy was held not liable for injuries inflicted on another boy with whom he collided while playing tag. Also consider Hoyt v. Rosenberg, 80 Cal.App.2d 500, where a twelve-year-old boy was held not liable to a companion injured by him during game of kick the can. If it be assumed that children customarily make devices of the sort here involved, it cannot be said that this was the sort of activity that, in the words of the Supreme Court of Wisconsin, are “[u]sually harmless and free from danger to participants and bystanders.” In Markley v. Whitman, 54 N.W. 763 (Mich. 1893), the plaintiff, a nonparticipant in a game of rush, was permitted to recover against a fellow student who rushed him.