Di Gildo v. Caponi

247 N.E.2d 732, 18 Ohio St. 2d 125, 47 Ohio Op. 2d 282, 1969 Ohio LEXIS 385
CourtOhio Supreme Court
DecidedMay 21, 1969
DocketNo. 68-83
StatusPublished
Cited by155 cases

This text of 247 N.E.2d 732 (Di Gildo v. Caponi) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Di Gildo v. Caponi, 247 N.E.2d 732, 18 Ohio St. 2d 125, 47 Ohio Op. 2d 282, 1969 Ohio LEXIS 385 (Ohio 1969).

Opinion

Schneider, J.

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 matter of law. We do not agree and, therefore, affirm.

[127]*127Liability for negligence is predicated upon injury caused by the failure to discharge a duty owed to the injured party. Feldman v. Howard, 10 Ohio St. 2d 189; Grossnickle v. Germantown, 3 Ohio St. 2d 96, 103; Schell v. DuBois, 94 Ohio St. 93; 39 Ohio Jurisprudence 2d 482, Negligence, Section 2.

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 the “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., 9 Ohio St. 2d 116; Eisenhuth v. Moneyhon, 161 Ohio St. 367; Soltz v. Colony Recreation Center, 151 Ohio St. 503; Johnson v. Wagner Provision Co., 141 Ohio St. 584; Davison v. Flowers, 123 Ohio St. 89; Prosser, Torts (3 Ed.), 146, Section 30; 2 Restatement of the Law, Torts, 2d, 4, Section 281.

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 abandon 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 that 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, Section 21. See, also, DeGroodt v. Skrbina, 111 Ohio St. 108; Ziehm v. Vale, 98 Ohio St. 306; Maumee Valley Rys. & Light Co. v. Hanaway, 7 Ohio App. 99.

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 [128]*128342, Comment b; Brzostowski v. Coca-Cola Bottling Co., 16 App. Div. 2d 196, 226 N. Y. Supp. 2d 464; Hetzel v. Buffalo Cemetery Assn., 16 App. Div. 2d 581, 229 N. Y. Supp. 2d 960.

The duty of a landoecupier to his social guest is stated in Scheibel v. Lipton, 156 Ohio St. 308. That duty presupposes that the amount of care will vary depending upon the circumstances, one of which is the infancy of the guest. Paragraph three of the syllabus in Scheibel describes a two-fold legal duty owing from social hosts to their guests, as follows:

“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 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 to 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 to a licensee. Carney v. Buyea, 271 App. Div. 338, 65 N. Y. Supp. 2d 902. However, we see no reason to rationalize a decision on semantic subtleties. In Scheibel, supra (156 Ohio St. 308), we rejected the rigid classification of social guests along with licensees, and asserted that the duty owed to [129]*129a social guest is higher than the duty owed to a licensee. Id. at 328-329. Thus, in this case we abjure distinctions between static and active conditions which have been considered relevant in cases involving licensees. Hannan v. Ehrlich, 102 Ohio St. 176, 187. The manner of securing a parked vehicle may amount to a negligent act or activity with respect to a social guest, especially a child of tender years. See DeGroodt v. Skrbina, supra (111 Ohio St. 108); Tierney v. New York Dugan Bros., Inc., 288 N. Y. 16, 41 N. E. 2d 161; 8 American Jurisprudence 2d 392, Automobiles and Highway Traffic, Section 834.

Moreover, under Scheibel, supra (156 Ohio St. 308), the defendant’s failure to warn the children to stay away from the parked car could properly have been the basis for the jury’s finding. The fact of plaintiff’s infancy and inability to appreciate the danger of an automobile parked on an incline is a circumstance in deciding whether one of ordinary foresight would consider the parked car a dangerous condition, giving rise to a duty to warn the plaintiff. Under the circumstances, it cannot be said, as a matter of law, either that such condition was not dangerous or that the defendant had no duty to warn the plaintiff of the condition.

In Shannon v. Butler Homes, Inc., 102 Ariz. 312, 428 P. 2d 990, the court held that where an infant social guest collided with a sliding glass door the jury could properly find that, in view of the plaintiff’s tender years and the illusion of space created by an invisible door, a hidden peril existed giving rise to a duty to warn the infant of its existence. Recently, in Gross v. Bloom (Ky.), 411 S. W. 2d 326, where an infant guest stepped into a linen closet in the bathroom of the host’s home and fell through a clothes chute into the basement, the court held that evidence that children had been playing for about an hour and had made enough noise to notify the host that they were playing games and were hiding in places, including closets, created a jury question as to the host’s negligence. In the instant case, evidence that appellant had knowledge that his children played with the electric window mechanism presented [130]*130a question for the jury as to whether he should have foreseen the entry of children into his car.

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 one 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.

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Bluebook (online)
247 N.E.2d 732, 18 Ohio St. 2d 125, 47 Ohio Op. 2d 282, 1969 Ohio LEXIS 385, Counsel Stack Legal Research, https://law.counselstack.com/opinion/di-gildo-v-caponi-ohio-1969.