Orr v. First National Stores, Inc.

280 A.2d 785, 50 A.L.R. 3d 1202, 1971 Me. LEXIS 238

• Court: Supreme Judicial Court of Maine
• Decided: August 17, 1971
• Status: Published

Opinions

WERNICK, Justice.

On appeal. Defendant claims erroneous a judgment resulting from a jury verdict for plaintiffs as modified by a remittitur ordered by the presiding Justice and accepted by plaintiffs to reduce the damages recovered by the plaintiff-minor, Rosselyn E. Orr, from $2500.00 to $1500.00, and by her father, Ross M. Orr, from $500.00 to $250.00.

The appeal asserts that the presiding Justice was incorrect (1) in various rulings made by him during the course of the trial, (2) in portions of the charge to the jury over objections of defendant and (3) in his denial of a motion for judgment n. o. v. filed by the defendant in compliance with Rule 50(b) M.R.C.P.

We decide that the presiding Justice acted properly in denying defendant’s motion for judgment n. o. v. since the evidence raised issues of fact as to the liability of defendant for determination by a jury under appropriate instructions of law by the court. We sustain the appeal, however, because in his charge to the jury the presiding Justice gave instructions regarding the scope of defendant’s duty of due care in maintaining its premises which were prejudicially erroneous and to which defendant had made timely objection.¹

The Motion for Judgment N.O.V.

The presiding Justice’s ruling on defendant’s motion for judgment n. o. v. is to be tested by the application of the familiar principle that the evidence must be taken in the light most favorable to plaintiffs. On the evidence thus considered the following factual situation could have been found by the jury.

On March 18, 1968 the plaintiff-minor Rosselyn E. Orr, 8 years of age, together with a girlfriend of similar age, accompanied Rosselyn’s mother, Stella V. Orr, to the supermarket of defendant located at Main Street, Waterville, Maine, in which Mrs. Orr intended to do shopping. After all three had entered the store and had walked among various aisles in which merchandise was displayed, the two children requested of Mrs. Orr, and were given, some pennies with which to purchase bubble gum from among a group of gum dispensing machines located near the entrance-exit area of the store.

This area contained two metal framed doors, one for ingress swinging inward and the other for egress swinging outward onto the sidewalk and street area. As one would look from inside to the exterior of the store the entrance door would be to the right and the exit door to the left. Each door opened automatically whenever a person, or object, came upon a tread placed in front of it. Four gum dispensing machines were stacked immediately adjacent to the exit door, on the left if one were departing from the store.

The two doors were separated throughout their height by a metal-framed glass panel approximately one foot in width. Commencing approximately four to six inches from this panel and running at a right angle to it into the interior of the store, there was a stainless steel tubular railing serving as a divider of the respective sections for entrance and exit. It was shaped so that, perpendicularly with the line of the floor, it formed a rectangle (with rounded top edges) of metal (except for the line of the floor), the rectangle being slightly more than four feet in depth into the store and approximately three feet in height. Half-way between the two sides of the rectangle was a third middle support running from the top of the railing to the floor. All of the stainless steel railing was tubular in form, approximately three inches in diameter and sufficiently smooth to be slippery to the touch.

The trajectory of the ingress door brought the door on its inward course as close as six to ten inches to the metal railing divider. Underneath the railing there was only empty space except for the middle tubular support. Thus, a child could easily use each half of the tubular railing as a swing rod, to swing over and under and even to complete, with sufficient adroitness, a full circle swing. The gum dispensing machines were located within four feet of the divider railing.

After Mrs. Orr had given Rosselyn pennies to go to purchase bubble gum, the two girls left Mrs. Orr at a place near the middle portion of the store. They went to the front to the gum dispensing machines. Rosselyn was about to purchase gum when she observed that her friend had begun to swing on the railing. With her attention thus diverted from buying gum, Rosselyn herself went to the railing and commenced swinging. She had swung one time and “then the second time I was leaning over when Kenny Phair [an employee of defendant, who had been running the cash registers which were located about five to six feet farther inside the store from the railing] told me to get off, off the railing. I couldn’t get back up, so I just slipped and fell.” (R. p. -36) When she fell, Rosselyn struck her mouth on the floor and the impact caused two upper teeth to be fractured leaving a “V” shaped opening.

Prior to March 8, 1968, employees of the defendant store, including the manager, had observed children swinging on the railing “quite frequently” or “fairly often.” The manager had himself cautioned children about swinging, and the manager was aware of dangers to children not only because they might swing and fall from the railing but also because of the proximity of the entrance door to the railing as it opened inward to admit patrons.

On the foregoing facts the jury was justified in concluding that the plaintiff-minor, Rosselyn E. Orr, was a “business invitee” of the defendant at all times and places relevant in the case. This proposition is supported by either of two legal approaches. First, the overwhelming majority rule in this country, of which we approve, is that a young child who accompanies her mother into a store in which the mother is intending to shop (and regardless of whether the mother could have readily made other arrangements to avoid having her young child with her while she is shopping) is, like the mother, a business invitee of the store. Altman v. Barron’s Inc., 343 Mass. 43, 175 N.E.2d 506 (1961); Milliken v. Weybosset Pure Food Market, 71 R.I. 312, 44 A.2d 723 (1945).² Second, the fact that Rosselyn herself was about to make a purchase in the store of bubble gum, merchandise designedly offered for her special interest and benefit, makes her, independently of her mother, a business invitee of defendant. Shaw v. Piel, 139 Me. 57, 27 A.2d 137 (1942) and cases cited therein predicating business invitee status upon the mutual economic benefit theory.³

As a business invitee upon defendant’s premises Rosselyn was owed by the defendant the duty that defendant would exercise reasonable care to provide her with premises and installations which were reasonably safe for her use. Walker v. Weymouth, 154 Me. 138, 145 A.2d 90 (1958); Jamieson et al. v. Lewiston, Gorham Raceways, Inc., Me., 261 A.2d 860 (1970).

This general principle subdivides into two aspects which are fundamentally distinct and which require independent theoretical analysis, although, under particular circumstances, there might be an overlap in application. For convenience of discussion we shall undertake the subsidiary inquiries in an inverted order.

We consider, first, whether the evidence, taken in the light most favorable to plaintiffs, would warrant a rational jury in concluding that the ordinarily careful storekeeper — (that hypothetical creature postulated by the law as the standard of judgment), — in the light of all the circumstances known by him, would believe that the conditions and installations in the store of defendant exposed a child business invitee, of the approximate age of eight years, to risks of harm greater than are reasonably to be tolerated.

In evaluating this question, we commence with the proposition that the ordinarily careful owner or occupier of land will anticipate that young children have propensities to intermeddle and to indulge impulses to play and climb. See Collentine v. City of New York, 279 N.Y. 119, 17 N.E.2d 792, 795 (1938). The law holds further, that even if young children are intellectually aware of potential dangers, they are reasonably to be expected, emotionally and behaviorally, to ignore, or to assume, known or obvious risks of harm. In Searles v. Ross, 134 Me. 77, 181 A. 820 (1936) this Court, commenting on the thoughtlessness and heedlessness natural to boyhood, said that children as old as thirteen years of age are likely to act dangerously to themselves even though, upon reflection, they know better.

Worthy of consideration, too, is the analogous situation in which this Court has held that tendencies to play even by an adult, in the form of “horseplay” on business premises, may, when known or reasonably to be anticipated, become attributable to the business operation as creating risks of harm for which the owner, or operator, is legally responsible. Petersen’s Case, 138 Me. 289, 25 A.2d 240 (1942).

In addition, the law attributes to the ordinarily prudent owner or occupier of business premises awareness that various installations which are innocuous to children (when used as intended) attract children to utilize them in unintended, but nevertheless reasonably foreseeable, ways and that, as thus misused, the facilities can subject the children to unreasonable risks of harm which are likewise reasonably recognizable. Kataoka v. May Department Stores Co., 60 Cal.App.2d 177, 185, 140 P.2d 467, 474 (1943); requoted in Crane v. Smith, 23 Cal.2d 288, 144 P.2d 356, 361 (1943); Thacker v. J. C. Penney Company (5 CCA) 254 F.2d 672, cert. den. (1958) 358 U.S. 820, 79 S.Ct. 31, 3 L.Ed.2d 61.

When the presiding Justice adverted to the “attractiveness” that various facilities might, or do, have for children, as a factor bearing upon the issue of defendant’s alleged causal negligence, counsel for the defendant, at the trial of the case, protested that such approach by the court was a resort to the doctrine of “attractive nuisance” which has been consistently rejected in Maine. Counsel persists in the same claim before this Court.⁴

The contention, however, reveals a fundamental misconception. Defense counsel seems to have had a reflex reaction by which the mere mention of the word “attractive” automatically brought to his mind the connotation of “nuisance”. As a result, the argument of counsel for defendant projects a double fallacy.

First, counsel has been induced to overlook that the evidence justified the jury conclusion that plaintiff-child was a business invitee to whom defendant, under well established Maine law, owed a duty to exercise reasonable care to provide premises reasonably safe for her use.

Irrelevant, therefore, is the dictum by this Court in Cogswell v. Warren Brothers Road Co., Me., 229 A.2d 215, (1967), to which counsel for defendant has directed our attention, purporting to explain the underlying rationale of the “attractive nuisance” doctrine to be that “allurement" to the premises functions to transform a child, otherwise a trespasser or bare licensee, into an invitee under limited circumstances and for restricted purposes.⁵ Even if “allurement” to the premises be considered the factor upon which the so-called (but poorly named) “attractive nuisance” doctrine operates, in the present case the “attractiveness” of the installation to children is material, not to show attraction onto the premises to establish an initial “invitee” status but rather— a genuine business invitee status having been established — , to measure the compliance of the defendant with the resulting legal obligation to exercise due care to provide reasonably safe premises and facilities in the light of the corollary principle that special precautions must be taken to conform to the standard of care when child business invitees, and their unique and known or reasonably foreseeable propensities, are involved.

The second element of incorrectness in defense counsel’s position is that after having erroneously accused the presiding Justice of invoking the “attractive nuisance” doctrine and maintaining that it should be thrown from the case because Maine law has rejected it, defense counsel himself by a “reverse english” maneuver seeks to bounce it back into consideration. He maintains that the railing, if used as intended, is without “inherent danger” to children and thus cannot be as to them, a “nuisance”; hence, defendant must be held free of legal liability. In this manner defense counsel has undertaken to import from the “attractive nuisance” doctrine the “nuisance” component. He is attempting to utilize a limited extension which some solicitous courts, excluding Maine, have developed as a gesture to benefit child “trespassers” or licensees (whom the common law rigidly regarded with disfavor as a species of “wrongdoer”), and improperly to transform it into the absolute controlling principle by which the recovery of a child business invitee, a person in no respect a wrongdoer but who has a privileged status upon the premises (and as to whom, therefore, “attractive nuisance” principles are really irrelevant), will be defeated.

While the common law had manifested a feudalistic concern to shield the “lord of the manor”, it had, nevertheless, traditionally allowed a business invitee to recover damages for injuries sustained when the owner or occupier of land would fail to exercise reasonable care to provide reasonably safe premises to a business invitee. The principle applies to child invitees as well as adults. To incorporate into the investigation of the reasonable safeness of the premises and the reasonableness of the conduct of the defendant the principles that (1) in cases involving child business invitees instrumentalities upon premises can create unreasonable risks of harm to them only if the instrumentalities are “inherently dangerous” to children (and thus a “nuisance” as to them) and (2) that the misuse by children of installations, otherwise reasonably safe, despite that the misuse is actually known or reasonably foreseeable by the owner or occupier of the premises, can never become a basis to impose liability upon defendant — would be to commit egregious error in two respects. First, it would be really to take ultimate refuge in a major aspect of the “attractive nuisance” doctrine and to fly in the face of Maine’s rejection of the doctrine. Second, it would be to transform one constituent of the “attractive nuisance” doctrine into the absolutely governing criterion constituting a total measure of reasonable care, reasonable safety and reasonable foreseeability. •

The correct approach, to be employed in circumstances when the injured child is a business invitee upon the premises and the immediate question is whether the child business invitee has been afforded a reasonably safe place for use, is to discard concepts such as “nuisance”, traps, instru-mentalities which are “inherently dangerous” to children (even if properly used) and to concentrate upon the fundamental principle of the reasonableness, or the unreasonableness, of the risks of harm engendered by the premises, facilities, instrumen-talities, or combinations thereof, in the light of the totality of the circumstances, as the ordinarily prudent storekeeper would apprehend the circumstances and foresee the dangers of harm generated by them, — including the reasonably recognizable dangers resulting from the reasonably foreseeable misuse of the premises by children in the light of their known, or reasonably recognizable, propensities.

It is undoubtedly correct that a storeowner is without duty to insure safety to a business invitee. He is, nevertheless, under legal obligation to use ordinary care to ensure that the premises and facilities are reasonably safe for all invitees, young children as well as adults. While the standard of judgment is the same, (reasonable care and reasonable safety), to meet the standard the storekeeper must observe different precautions and degrees of care in relation to child invitees. The general principles governing have been concisely and incisively delineated in the leading cases of Kataoka v. May Department Stores Co., supra, and Crane v. Smith, supra.

“The known characteristics of children, including their childish propensities to intermeddle, must be taken into consideration in determining whether ordinary care for the safety of a child has been exercised under particular circumstances. * * * One who invites children upon his premises must take ‘whatever precautions ordinary care would dictate to protect the invited children from any instrumentality he maintains upon his premises which is likely to attract them and subject them to dangers which a reasonably prudent person would anticipate.’ ” (144 P.2d at p. 361 of Crane v. Smith quoting in part from 140 P.2d at p. 472 of Kataoka v. May Department Stores), (emphasis supplied.)

These same principles have been thoroughly analyzed and applied in an important case which involved an installation innocuous to children if used as intended but which became unreasonably dangerous when put to misuse by children in a manner reasonably to be anticipated. Thacker v. J. C. Penney Company (5 CCA) 254 F.2d 672, cert. den. (1958) 358 U.S. 820, 79 S.Ct. 31, 3 L.Ed.2d 61.

In this case in the rear of the store there was a balcony about nine feet above the first floor. The balcony was protected by

“an attractively finished railing of oak and tempered masonite, varnished and waxed, three-feet-six-inches high. The railing consists of a base eighteen inches high surmounted by four horizontal bars, suitably spaced, six inches from bar to bar, like the rungs of a ladder, as if designed as a sort of Jungle Jim for young children to climb. On the top rail overlooking the store a small boy would gaze with wonder at the scene below him and feel like stout Cortez [Balboa] silent upon a peak in Darien. This was the setting, as the appellants presented the case.

“The appellee takes a dim view of this presentation of the case. The only danger here was the danger of a very young child falling from an ordinary balcony railing commonly found in Penney stores. * * * the railing was strong and safe and especially constructed to prevent people and merchandise from falling off. The object of using rails instead of a solid wall of the same height was to allow the merchandise to be seen from the ground floor.” (p. 674)

Testimony in the case revealed that it was known among the employees of the store that children were “attracted” to the balcony railing to play on it and climb on it to look over it.

In deciding that the court below had erroneously entered a judgment for defendant notwithstanding the verdict of the jury in favor of the injured child, the Court of Appeals, Fifth Circuit, speaking through Judge Wisdom, said:

“Age and the ability of a child to realize danger, the peculiar attraction certain installations have for children, childish impulses, the knowledge that young children frequently in the past had been attracted to an installation are all circumstances to be taken into account in determining whether a storeowner has complied with his duty of care to an invitee who is a child.” (p. 678)

In its further analysis the court concluded that:

“If * * * the construction of the railing was such that a reasonable person might expect young children on the balcony to be attracted to climbing the railing, (p. 678)

a jury would be justified in concluding that the premises involved unreasonable risks of harm to child invitees as to which defendant was

“under the duty to use due care to discover this danger and to protect its invitees against the peril.” (p. 678)

Also: Hammontree v. Edison Bros. Stores, Inc., Mo.App., 270 S.W.2d 117 (1954).⁶

In the present case the evidence warrants jury conclusion of the existence of a conglomerate of instrumentalities and facilities upon defendant’s store premises constituting an installation as follows:

(1) A stacked arrangement of four gum machines some of which, at least, dispensed bubble gum, merchandise of special interest to children, such that in precisely that area children would be reasonably expected, because invited as prospective purchasers, to be present frequently not only singly but also in groups ;

(2) the area being in the immediate vicinity (within four feet) of the tubular railing divider such that children, singly or in groups, would be likely to have the railing brought specifically to their attention;

(3) the railing divider being so constructed, especially because of the empty space underneath, that children tending to notice it would be attracted to swing upon, over and under it, either from a particular child’s own impulses or from the thought of imitating what another child might be seen to have done;

(4) the defendant’s knowledge of this peculiar attractiveness of the railing to children and their propensity to use it as a swing bar mechanism insofar as defendant, by its authorized agents, had noticed children using it in precisely this fashion, “quite frequently” or “fairly often”;

(5) an ordinarily careful storekeeper’s reasonable anticipation, because he knew that the tubular railing divider was approximately three inches in diameter and had a slippery surface, that the small hands of young children seeking to grasp such a slippery tube, for the purposes of swinging, would encounter difficulties and be likely to have an inadequate grip on the bar, such that there was a reasonable likelihood that they would fall; or, alternatively, that since the storekeeper knew that the railing divider was within less than one foot of the trajectory of the ingress door as it would swing inward, a child using the railing upon which to swing might well be struck by the door as it opened or be startled into falling from the railing by the likelihood of contact with the door or patrons who might be entering through the door, or other persons who might be coming to the vicinity.

Under all these circumstances it was open to reasoning minds on a jury to form differing conclusions as to whether, in the light of reasonable foreseeability and expectancies, the defendant was maintaining its premises, in the vicinity of and including the railing divider, in a manner which generated unreasonable risks of harm to child invitees of the age of plaintiff, Rosselyn Orr. It should be emphasized that it is unessential that the precise manner in which injuries might have occurred, or were sustained, be foreseeable, or foreseen. It is sufficient that there is a reasonable generalized gamut of greater than ordinary dangers of injury and that the sustaining of injury was within this range. Hatch v. Globe Laundry Co., 132 Me. 379, 171 A. 387 (1934); Hersum v. Kennebec Water District, 151 Me. 256, 117 A.2d 334, 53 A.L.R.2d 1072 (1955). It was, therefore, a jury question whether the defendant had provided reasonably safe premises, and a reasonably safe installation upon the premises, for the use of the child invitee, the plaintiff, Rosselyn Orr.

We turn now to the second aspect of the duty of care owing by defendant to a business invitee upon its premises, — namely, whether, if the defendant had failed to provide reasonably safe premises or installations, defendant had acted as an ordinarily prudent and reasonably careful storekeeper in allowing the situation which yielded the unreasonable risks of harm to child invitees (as above described) to remain as it was or whether, in the exercise of ordinary prudence, there was some change of design or arrangement of facilities or some other effective preventive, or warning, technique which defendant should have undertaken.

The prior discussion has indicated that the unreasonableness of risks imposed on child invitees in the present instance lay in the reasonable expectancy that the railing would be used by children for swinging and that the railing was so constructed and situated that it could reasonably be expected to subject those swinging upon it to undue risks of harm.

Defendant can argue with cogency that as an ordinary careful storekeeper it should be free of any duty to undertake to make changes in the railing itself which would tend to make it a safer swing bar, since such undertaking could place defendant in the paradoxical situation of being potentially negligent by encouraging children to make an improper use of an instrumentality designed, and intended, for store rather than playground purposes.

The correctness of such contention fails, however, to overcome the salient point that the obligation of defendant, were defendant acting with ordinary care, could have been directed reasonably toward reasonable efforts to minimize or eliminate the known attractiveness to, and the consequent foreseeable dangers of the use by, children of the railing as a swing.

Defendant seeks to avoid the impact of this obligation by taking refuge in the principle that the plaintiff had been accompanied to the store by her mother and that the mother should have controlled the child in accordance with the duty of a parent. To the extent that this argument of defendant purports to relieve the storekeeper of his obligation to diminish, or prevent, the likelihood of childish misuse of instrumentalities which serve a legitimate function in the store and which are innocuous to child invitees unless misused by them, the argument of defendant misses the essence of the problem. The contention is wide of the mark because, as we have previously mentioned regarding another aspect of the position of defendant, it seeks to carry over considerations of public policy which have underlain this Court’s refusal to accept the “attractive nuisance” doctrine, in relation to child trespassers or licensees, into another area — the concern for safety of a child business invitee — and in which the public policy factors have been, traditionally, fundamentally different.

When this Court said in Cogswell v. Warren Brothers Road Co., Me., 229 A.2d 215 (1967), reiterating language from Lewis v. Mains, 150 Me. 75, 104 A.2d 432 (1954).

“The legal duty of restraining children from going into unsafe places is imposed by law upon their parents, and those who stand in loco parentis, and is not imposed upon strangers. * * * The parental duty of restraint implies the parental power of correction, or of the use of preventive force.” (pp. 219, 220),

this Court was referring only to the expression of a public policy that

“the public should not be required substantially to assume unlimited responsibility for * * * safety”

of

“uncontrolled and undisciplined children [who] trespass with impunity * * (p. 219) (emphasis supplied)

This discussion was entirely without bearing upon the situation in the case at bar in which (1) the child is a business invitee upon the premises of the defendant; such that (2) the defendant owes a duty to exercise reasonable care to provide reasonably safe premises and installations for the use of the child; and such that (3) in the evaluation of (a) the reasonableness of the safety of the premises and its installations as well as (b) the scope of the reasonable care owing, the totality of circumstances affecting the range of prudent foreseeability must be considered.

The public policy controlling when a child has been invited by a storekeeper upon its premises is succinctly and forcefully stated by Judge Wisdom in Thacker v. J. C. Penney Company, supra.

“Society is interested in preserving children from harm, certainly from exposure to a danger they are too young to realize, when that danger is in a store to which they are invited and when the danger may be eliminated with relatively little inconvenience to the storeowner. We think that, whether or not parents have a high and inescapable moral duty to take care of their children, it is against public policy for a storeowner to open his store to children and escape his duty to provide [reasonably] safe premises.

“In balancing the competing interests of a landowner and a visitor injured as a result of a condition of the premises, the quasi-sovereignty of an owner or occupier of land must yield to the superior interests of society in protecting the life and limb of future citizens; at least to the extent of having the jury decide, in a case such as this, whether the occupier’s conduct measures up to the standard of due care to provide [reasonably] safe premises for children who are business visitors or invitees.” (254 F.2d at p. 685) (emphasis supplied)

The same point is emphasized in Crane v. Smith, supra, when the court says:

“Any want of due care upon the part of a parent, * * * does not excuse the negligence of the proprietor in failing to take proper precautions for the safety of children whom he has expressly or impliedly invited upon the premises, * * (144 P.2d at p. 364) (emphasis supplied)

The ultimate rationale is that:

“The gist of negligence is the foreseeability of harm, using the objective standard of a reasonable man. A storeowner or other occupier of land may assume that a mother when accompanied by a young child will protect the child from an open and obvious danger. But that is simply one of the circumstances to be weighed with all of the other circumstances in deciding whether a particular defendant on the facts of the particular case is negligent.” Thacker v. J. C. Penney, supra, (254 F.2d at p. 680) (emphasis supplied)

Reliance upon the adequate control and supervision of the parent is, therefore, only one circumstance amongst the totality of relevant circumstances bearing upon the storekeeper’s duty to exercise reasonable care in relation to child invitees. It is without absolutely controlling effect to supplant, or eliminate, this duty.

Significant among the totality of circumstances bearing upon the dictates of reasonable care to diminish, or remove, the known use by child invitees of the tubular railing divider as a swing bar, and the consequent unreasonable risks of harm to children engendered by such use, would be the relative ease, inconvenience and inexpensiveness with which the spaces under the railing could have been filled in or covered — thereby to deter or diminish the tendency of children to be attracted to the railing for purposes of swinging. At least, it was open for reasonable minds among the jury to differ as to whether the defendant storekeeper’s conduct in electing to do nothing about the premises and declining to take effective steps to minimize, or overcome, the railing’s attractiveness to, and use by, children as a swinging bar, as shown by actual experience, was a lack of ordinary prudence under all of the circumstances to provide premises, facilities, and installations free of unreasonable risks of harm to such of its business invitees as are young children.

The presiding Justice was, therefore, correct in rejecting the contention of defendant that, as a matter of law, defendant must be held free of causational negligence in relation to plaintiffs. This issue was properly one for determination by the jury under appropriate instructions of law from the court.

Likewise correct were the court’s rulings that the comparative causational negligence, if any, of the plaintiff, Rosselyn Orr, and of her mother, — imputable to Rosselyn under Maine law even though Rosselyn might have been old enough to exercise some degree of care for her own safety, Day v. Cunningham, 125 Me. 328, 133 A. 855, 47 A.L.R. 1229 (1926),— were questions appropriate for jury decision.

The conduct of Rosselyn, as a child of eight years of age, was to be judged in accordance with the standard of what might be expected of ordinarily careful children of like age, capacity, and experience, as they would tend, naturally and expectably, to act under similar circumstances. Chickering v. Lincoln County Power Co., 118 Me. 414, 108 A. 460 (1919); Brown v. Rhoades, 126 Me. 186, 137 A. 58, 53 A.L.R. 834 (1927); Ross v. Russell, 142 Me. 101, 48 A.2d 403 (1946).

As was aptly enunciated in Searles v. Ross, 134 Me. 77, 181 A. 820 (1936):

“The case of Kremposky v. Mt. Jessup Coal Co., Ltd., 266 Pa. 568, 109 A. 766, lays down the broad rule that a child nine years old will not be held guilty of contributory negligence as a matter of law. Though in this jurisdiction we have not in every instance adhered to this doctrine, we nevertheless realize that the application of the well-settled rule governing the responsibility of young children will result in holding in all but exceptional circumstances that the negligence of a child of such tender years is a question of fact to be settled by the jury.” (p. 83, 181 A. p. 823)

The case at bar is well within the usual situation rather than one presenting “exceptional circumstances.” The comparative causational negligence, of the child Rosselyn Orr, if it existed in any degree, and if so, to what extent it might be applied fairly and equitably to reduce the damages recoverable by her, were appropriate issues for the jury to resolve.

As to any alleged comparative causational negligence of the mother, Stella Orr, to the extent it would be imputed to the child-plaintiff, Rosselyn, the presiding Justice was correct in holding the issue to be proper for jury decision. The jury was entitled to believe the testimony of Mrs. Orr that she had been in the store with her daughter, and her daughter’s friend, for only six or seven minutes (R. p. 20), that she was half-way in the store when the children left her to go to purchase bubble gum and at that spot at least thirty to forty feet from the front of the store (R. p. 14), that the location of the gum dispensing machines was unknown to her (R. p. 16), and that, therefore, she was unaware of the proximity of the gum machines to the railing divider (R. p. IS), and finally that, as she had observed her child and the other girl while they were with her, the children had be§n well-behaved at all times without running around or hiding under displays (R. pp. 19, 20). Under these circumstances whether Mrs. Orr had acted toward her child, Rosselyn, with ordinary care was a matter exclusively for the judgment of the jury.

The presiding Justice properly denied the motion of defendant for judgment n. o. v.

The Alleged Prejudicial Errors in the Charge

The preceding discussion has delineated in detail that the law of Maine avoids imposing upon an owner, or occupier, of land an obligation to provide a business invitee with premises which are completely safe—i. e., which are free of any and all hazards or risks of harm. Rather, the duty is that the owner or occupier of land shall exercise reasonable care to provide premises which are reasonably safe. Walker v. Weymouth, supra, and Jamieson et al. v. Lewiston, Gorham Raceways, Inc., supra. Thus, some hazards, or risks of harm, may exist without violation of duty, provided that they are ordinarily tolerable under the totality of circumstances in which the business is usually conducted and life is lived in its varying contexts. If, therefore, a defendant owner, or occupier, of business premises offers conditions and installations which are free of unreasonable risks of danger to business invitees, including child invitees, even though some hazards are present, defendant is without legal liability.

In the present case the presiding Justice gave the jury instructions which, in at least three significant instances, purported to enunciate a principle different from the established law of Maine.

At the commencement of his analysis of the duty of care owed to a business invitee the presiding Justice charged:

“And he must maintain the store, and construct the store, and not have any hazards. Or if there is one he cannot eliminate, he must warn the person, the invitees, that there is such a hazard, if he has knowledge of it. That is the duty of the storekeeper.” (R. p. 74) (emphasis supplied)

In further amplification of the storekeeper’s duty the presiding Justice said:

“We * * * have another rule of law. That a person who operates premises, or owns premises that he not have any hazard that is attractive to children, * * *. Now if he has something that attracts the children, and it is hazardous, if it’s necessary, then he should have some warning or some protection to keep the children from it. That’s a duty that he owes.” (R. p. 75) (emphasis supplied)

Finally, in summarizing the issues of the duty of care owing to a business invitee, the presiding Justice told the jury:

“Was there a hazard which they had knowledge of? Was there a sufficient warning, if there was a hazard?” (R. p. 76) (emphasis supplied)

The effect of all of these instructions, which we deem to be unremedied even when the charge is considered in its entirety, was to instill firmly in the minds of the jury the basic thought that liability could result from the maintenance of any hazard whatever to children, regardless of whether the hazard or the risk of harm, was reasonably to be endured by patrons, including children, of a place of business. Thus instructed, the jury might well have imposed liability upon the defendant because the jury believed that some risks of danger to children were present even though, under proper instructions, the jury might have concluded that they were neither extraordinary nor greater than reasonable under all the circumstances.

This error of the presiding Justice in the instructions to the jury was duly objected to by the defendant, as follows:

“I would object to the Court’s charging in several instances, the Court referred to the duty of the occupier of land not to permit a hazard to exist, * * *. I think it should be an undue hazard, or an unreasonable hazard rather than just a plain hazard. * * * ” (R. p. 84)

The objection of the defendant was a correct statement of the law to the Court, and the omission of the presiding Justice to remedy the deficiency, once the defendant’s objection had specifically called the matter to his attention, rendered the error subject to review in this appeal.

In a case such as this in which, in the final analysis, there will inevitably be a delicate balancing of factors relating to the risks of danger to which defendant had exposed the child-plaintiff and in which potentially strong differences of opinion among jurors might be resolved precisely by shadings as to ordinary, or extraordinary, hazards, the failure of the presiding Justice to clarify for the jury the significant differences between any hazard and an unreasonable hazard could have misled the jury to the detriment of the defendant. There was thus prejudicial error in the charge.

The entry must be:

Appeal sustained. Remanded to the Superior Court for new trial.

MARDEN, J., did not sit.

1 . It is unnecessary, therefore, that we decide as to other errors assigned by defendant predicated on allegedly incorrect rulings of the presiding Justice during the earlier course of the trial.

2 . See collection of the cases in the Annotation in 44 A.L.R.2d 1319.

Also: Restatement of Torts, Second, Sec. 332, Comment g.

3 . In this connection, compare the change in the technical concept of “invitee” made between the first and second Restatement of Torts, § 332. In the second Restatement of Torts, § 332 was changed to broaden the definition of “invitee” to include not only a “business visitor” (defined in the traditional “economic benefit” terms) but also a “public invitee” defined as “a person who was invited to enter or remain on land as a member of the pub-lie for a purpose for which the land is held open to the public.” Thereby the second Restatement of Torts reveals an acceptance of a more modern approach now utilized by many courts that “the basis of liability is not any economic benefit to the occupier, but a representation to be implied when he encourages others to enter to further a purpose of his own that reasonable care has been exercised * * (Prosser on Torts, 3d Ed. 1964, p. 398).

Further, see the excellent analysis in O’Keefe v. South End Rowing Club, 64 Cal.2d 729, 51 Cal.Rptr. 534, 414 P.2d 830, 16 A.L.R.3d 1 (1968).

4 . At the trial defense counsel stated to the court: “I would object to the Court’s instructions that the occupier of the land has the duty * * * to take precautions against that which might attract children. It seems to me that this is in essence a charge of attractive nuisance, and predicating liability upon the mere existence of something which is likely known * * * to be * * * attractive to children.” (R. p. 84)

5 . The correctness of this single — aspect explanation is open to doubt in the light of the subsequent developments of the law during the past 50 years showing that many courts have used varying techniques and theories to afford relief to young children who have been trespassers upon land.

See, for example, the analysis in McGettigan v. National Bank of Washington, 115 U.S.App.D.C. 384, 320 F.2d 703 (1963) and its summary of the criticism of the “allurement” to the premises concept, as relied upon by Justice Holmes in United Zinc and Chemical Co. v. Britt, 258 U.S. 268, 42 S.Ct. 299, 66 L.Ed. 615, 36 A.L.R. 28 (1921).

See also: Prosser, Law of Torts, 3rd Ed. at p. 374.

6 . This case is noteworthy, additionally, because it elucidates, as we have ourselves attempted, supra, the fallacy of confusing the “attractive nuisance” doctrine with the entirely different principle that the attractiveness of even an ordinary instrumentality — (harmless when used as intended)- — -to be made a potentially dangerous plaything by children is validly a factor among the totality of circumstances bearing upon the issue of reasonable foreseeability as an incident of the evaluation of the appropriate discharge of the duty of reasonable care. As the Missouri court observes: “Counsel for plaintiff is careful to point out in his written argument that plaintiff was an invitee on defendant’s premises, not a trespasser, and therefore was not required to prove as an essential element of his case that he was attracted to the premises by the glass door and panels and that they were inherently dangerous. As heretofore stated the rule here applicable is that requiring ordinary care * * * for invitees * * *, as qualified by the further rule that where the invitees are children special caution is necessary.” (p. 127) (emphasis supplied)