# Orr v. First National Stores, Inc. > Supreme Judicial Court of Maine · August 17, 1971 · 280 A.2d 785 URL: https://www.frixlaw.com/law-library/cases/9713821 ## Case - **Full name:** Rosselyn E. ORR and Ross M. Orr v. FIRST NATIONAL STORES, INC. - **Court:** Supreme Judicial Court of Maine - **Decided:** August 17, 1971 - **Citations:** 280 A.2d 785; 50 A.L.R. 3d 1202; 1971 Me. LEXIS 238 - **Precedential status:** Published - **Opinion:** Concurrence by Pomeroy - **Judges:** Webber, Dufresne, Web-Ber, Weatherbee, Pomeroy, Wernick, Marden, Weátherbee - **Cited by:** 24 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9713821 ## How later opinions describe it (automated extraction) - observing that “young children have propensities to intermeddle and to indulge impulses to play and climb” ## Opinion text POMEROY, Justice (concurring). I agree with all my colleagues on this Court that the jury verdict for the plaintiffs must be set aside for the reasons stated in the majority opinion. Unlike my colleagues who have dissented, I would not order judgment n. o. v. for the defendant. Because of certain statements found in the excellent dissenting opinion filed herein, I desire to state separately my reason for agreeing with the majority opinion. The child whose injury occasioned this law suit was, all agree, an invitee on*defendant’s premises. The defendant, owner of the premises, had a legally enforceable duty to exercise reasonable care to keep its premises reasonably safe for her use. Its standard of conduct is determined by weighing the magnitude of the risk of harm to its invitee against the utility of its conduct. Its conduct is negligent toward the plaintiff only if it involves a risk of causing damage *799 to her which is to be considered unreasonable when measured against the ease or difficulty with which the potential danger may be obviated. A reasonable store proprietor must be expected to anticipate and guard against the conduct of others in some situations. His duty to take precautions against the negligence of others arises wherever and whenever a reasonable man would recognize the existence of an unreasonable risk. It becomes most obvious when he has reason to know that he is dealing with persons whose characteristics make it especially likely that they will do unreasonable things. When children are invited on the premises less care and poorer judgment are necessarily to be expected of them than would be expected of an adult. The dissenting opinion suggests that the majority view in this case enlarges the duty of the storekeeper “to one of extraordinary care and for all practical purposes make[s] the storekeeper an insurer of customer safety.” If I had so viewed it, I would not have joined in the majority opinion. I am mindful we are concerned only with the question: Was the jury acting reasonably in finding as it did? We are not determining facts in the first instance. With the general principles of law above enumerated in mind, I will briefly review the factual basis for my conclusion that the jury had a right to conclude that toward this plaintiff the defendant acted negligently. The child whose conduct is the subject of this inquiry was 8 years and 10 months old. On the issue of contributory fault, it is well established by a series of decisions in this State, that a child of 3 years and 10 months of age is incapable, as a matter of law, of exercising care and that a child of 9 is to be held responsible for the degree of care and prudence proportionate to his age. “ ‘Between these two extremes lies a zone with shadowy and indefinite boundaries.’ The inference is that within that zone the question is one of fact for the jury.” Ross v. Russell, 142 Me. 101 , 48 A.2d 403 at 405 . A jury question on the issue of contributory fault was clearly presented and decided favorably to the plaintiff. The jury saw the child. We have not. We cannot say as a matter of law the child was even capable of contributory fault. The sole remaining question becomes: Was it unreasonable for this jury to conclude that this storeowner-defendant violated the legal duty it assumed by becoming a storekeeper to exercise reasonable care to keep its premises reasonably safe for this plaintiff? The jury could properly conclude there was such violation. To put it another way, we ought not declare, as a matter of law, it was unreasonable for the jury to so find. It was not unreasonable for the jury to find these facts: The storeowner-defendant installed a group of gum machines very near the entrance to its store. The gum machines were deliberately so arranged and displayed to attract children to that area. There were two guardrails at the entrance to the store designed to protect customers entering and leaving the store from being struck by opening doors. The defendant had knowledge that in the past, children had used these rails as a device upon which to swing. If it had taken such simple steps as placing a canvas cover over the opening in the rails or tying cords or ropes so as to cover partially the opening in the rails, swinging on the rails would not have been possible. Being forewarned, as the storeowner was, that it was the propensity of some children to swing on these rails, we cannot say it was *800 unreasonable for a jury to declare that there was a duty to guard against this propensity. The jury was warranted in concluding from the evidence that the plaintiff entered the store in company with her mother and another child; that they traveled through several aisles after entering the store; that the two children solicited money for the express purpose of going to the gum machines which were located near the rail and getting gum from them; that the child who was with the plaintiff did swing on the rails after having been attracted to the area of the rails by the gum machines which were put there for the express purpose of attracting children; that the plaintiff saw her companion swinging on the rail and wishing to imitate her companion, started to swing; that she had completed one swing and was at the top of the second swing when the defendant’s agent instructed both children to get off the rails. Plaintiff found herself unable to climb down and fell to the floor, causing injury to her person. On these facts, I am unable to say the jury verdict was unjustified as a matter of law. It is for this reason that I have joined in the majority opinion and not because I would be willing to declare or even intimate the owner of the store ought to become an insurer. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9713821. Public record. Not legal advice.