Orr v. First National Stores, Inc.

WEBBER, Justice

(dissenting).

Although I agree with my Brothers that the jury verdict for plaintiffs must be set aside for the reasons stated in the opinion of the Court, I would go further and order judgment n. o. v. for the defendant.

The facts are well and fully stated in the opinion and it is only necessary here to restate certain facts for emphasis — facts which in my view are most significant and controlling within the framework of applicable principles of law. The minor plaintiff was eight years and ten months old. She was a responsive and intelligent witness and must be deemed to have acquired some of the experience common to her age group and some appreciation of her own skill and capacity in situations requiring strength and coordination. She was attracted to the guard rail not by its proximity to the gum vending machine but by her desire to imitate her companion who first “started swinging on the bar.” Although there are references to “swinging” on the bar, the inference from the testimony is inescapable that the child Rosselyn had climbed on top of the bar and was lying across it just before she slipped forward and fell to the floor. Rosselyn described her fall in these terms:

“And the second time I was leaning over when Kenny Phair told me to get off, off the railing. I couldn’t get back up, so I just slipped and fell.” (Emphasis mine)

There is no claim or suggestion that the guard rail was not safely and properly designed and constructed for the purpose for which it was installed, that is, to direct customer traffic to the proper doors and prevent injury to a customer from the automatic opening of a door. Although there was evidence that children had engaged in “swinging” on the bar in the past and been ordered to desist by the management, there was no direct evidence that children had on past occasions climbed on top of the bar and certainly no suggestion that any child had ever suffered a fall. Finally, it must be noted that as soon as Rosselyn was observed “on the railing,” defendant’s employee “told her to get off.”

The rule is well established that the proprietor of a business establishment owes to his patrons the duty of exercising reasonable care to keep the premises reasonably safe. It is important to note that he is not required to keep the premises reasonably safe but only to exercise ordinary and reasonable care to that end. In short, he is not required to exercise extraordinary care nor is he an insurer of the safety of his patrons while on the premises. The opinion *801 of the Court restates and reaffirms this rule and intimates no intention to change or enlarge it. My concern is that in applying the rule to the facts of this case and permitting the imposition of liability upon the defendant, we do in effect enlarge the duty to one of extraordinary care and for all practical purposes make the storekeeper an insurer of customer safety.

The distinction between reasonable care and extraordinary care has been decisive in a number of cases. In Walker v. Weymouth (1958) 154 Me. 138, 145 , 145 A.2d 90 we concluded that reasonable care would not disclose the presence beneath the grass of a loose rock which injured an adult plaintiff. Query then as to whether in the case of a child plaintiff the doctrine of the instant case would go so far as to impose upon an invitor, having in mind the known propensities of children to run and jump in a “hayfield,” the duty to exercise that extraordinary care which alone would compel him to find and remove every loose rock? In Hawkins v. Maine & New Hampshire Theaters Company (1933) 132 Me. 1 , 164 A. 628 we held that defendant was not negligent in giving away balloons to its young theater patrons and the care required to restrain the “ordinary inclinations of children” did not require that defendant “provide an attendant for every child.” See also Lander v. Sears, Roebuck & Co. (1945) 141 Me. 422 , 44 A.2d 882 ; Charpentier v. Great Atlantic & Pacific Tea Co. (1931) 130 Me. 423, 427 , 157 A. 237, 238 , wherein the Court said, “Not only can the defendant company not be held as an insurer, but it cannot be held responsible for failure to use extraordinary care, and, in the case before us we feel that to sustain the verdict would be equivalent to placing such a burden upon it." (Emphasis mine).

The case of Thacker v. J. C. Penney Co. (1958) 5 Cir., 254 F.2d 672 is readily distinguishable on its facts. Here the injured plaintiff was but two years and two months old. At this age no understanding or appreciation of risk or danger was possible, a factor which defendant was bound to recognize. The railing, 3(4 feet high, ran along the edge of a balcony on the mezzanine or second floor. Thus the danger was that one falling from the rail would drop from nine to twelve feet to the first floor with the near certainty of death or very serious injury as a result. It is apparent that the Court was impressed both by the extreme youth of the plaintiff and the extent of the danger. The Court said, “In this case the railing was dangerous only to children too young to realize its danger.” Moreover, the Court characterized as “the most important of these other circumstances” the fact that an employee had on three occasions removed the child from the railing to which he had escaped from his mother. The Court thought that on these facts “a jury might find that (the employee) knew that (the child) was in a perilous situation, and find also that her failure to return the two-year old child to his mother or to place him in the hands of a responsible employee was conduct that just does not measure up to the standard of due care imposed on a store owner and his employees.” (Emphasis mine). As I note the reasoning and the emphases placed by the Thacker Court, I am by no means persuaded that if the rail had been a mere divider on the main floor with a risk of fall of no more than 3(4 feet and the child had been nearly nine years old, that Court would have reached the same result. In a concurring opinion, Hutcheson, Chief Judge, made some observations which in my view would apply with even more compelling force to the case before us. He said, “I think the law did not and does not require a storekeeper to wall all balconies in to keep some possible child from climbing on a railing any more than to wall off his escalators, his stairways, his chairs and his tables, and if it were not for the (employee’s) testimony (as to knowledge of child’s peril), I would say no case for a jury was made out. I do not think the law goes anywhere near as far as I think the majority opinion does in giving directions to store-keepers that they must make their stores safe for two year old children when the supposed lack *802 of safety consists not in defective construction or negligent maintenance but in a construction which is neither out of the ordinary nor in any way defective. I think we had just as well say that, because a small child if allowed to get away from his mother will get hurt by a fall down an escalator or out of a window or off a table or chair, a store owner can’t have any of those things without a guard standing by.” (Emphasis mine).

The majority opinion cites Hammontree v. Edison Bros. Stores (1954) Mo.App., 270 S.W.2d 117 . In that case the plaintiff, aged one and a half years, injured his finger in a crack between a glass door and a glass panel. The liability imposed on defendant store owner appears, to rest almost exclusively upon the age of the child “[who] could not be expected to know that the door was movable and the panel or jamb immovable,” a fact which would have been readily apparent to a somewhat older child. I am by no means satisfied that the Court would have reached the same result in the case of a child old enough to comprehend what he saw and “appreciate the risk involved when he placed his hand against the door or panel.”

In Kataoka v. May Dept. Stores Co. (1943) 60 Cal.App.2d 177 , 140 P.2d 467 , 471 the plaintiff, a four year old boy, put his hand between the comb plate and the moving steps of an escalator. Applying the principle that ordinary care includes special caution where very young children are invitees, the Court stressed both the age of the child and special danger inherent in moving machinery. The Court said, “Children of such an age ordinarily could not appreciate the danger of putting their fingers in or around moving machinery, but would be attracted by it, especially if it were bright, and would be likely to investigate with their fingers anything to which they were attracted.” There is a strong intimation that defendant should have posted a guard where operating machinery, readily accessible to very young children, was involved. Clearly, the Kataoka facts are far removed from those of the instant case.

In Crane v. Smith (1944) 23 Cal.2d 288 , 144 P.2d 356 the defendant maintained a brightly painted coffee mill in the aisle in a location accessible to the public and to the three year old plaintiff who put her finger in the grinder and was injured. Here again the primary factors permitting recovery were the extreme youth of the child and the accessibility and dangerous quality of the machinery. The Court noted that “the customary position of unguarded coffee mills is behind the counter and not upon an aisle.” Moreover, the Court carefully distinguished Connelly v. Carrig (1926) 244 N.Y. 81 , 154 N.E. 829 in which a contrary result was reached, noting that the plaintiff there was ten years old and there was no indication that he was too young to appreciate the risk involved in sticking his finger into the coffee mill. The California Court, balancing the utility of defendant's conduct against the magnitude of the risk involved, concluded that no particular interest of the defendant was advanced by maintaining the mill in the aisle whereas the risk to meddling children was great indeed. The very factors which obviously weighed heavily in the mind of the Crane Court serve to produce a very different result when applied to the factual situation in the instant case.

In my view what we are here concerned with is the intentional misuse by a child invitee of otherwise safe premises and we must exercise care lest we distort the rule of ordinary care into one of absolute insurance. In Pepperling v. Emporium Mercantile Co. (1937) 199 Minn. 328 , 271 N.W. 584, 585 , the seven year old plaintiff was injured when the cover of a displayed cedar chest as a result of his own action fell on his finger. The Court recognized that “ordinary care should take into consideration the normal propensities of children,” but could “see no reasonable ground for the defendant to anticipate that the display of these cedar chests, either open or closed upon the floor of its store, would or might *803 result in injury to anybody. * * * To hold that a jury might consider this negligent would be to go beyond the requirement of ordinary care and to establish a rule requiring a very high degree of care upon the part of such storekeeper.” Dealing with the failure of an employee to intervene to prevent injury, the Court said, “It would have been obviously beyond her power to reach the boys at the single instant that she saw the lid raised higher than they (plaintiff and another boy) had previously been raising the lids on the other chests.”

The Pennsylvania Court balanced risk against burden in Jacob v. Pittsburgh (1938) 330 Pa. 587 , 198 A. 639, 640 . A heavy door was slammed shut injuring the hand of the nine year old plaintiff. A claim of negligence rested on the failure to supply a stopping device or post an attendant. The Court said, “A stopping device would, of course, obviate the danger, but the risk of harm is so small as to make it unreasonable to require that all doors be thus equipped. To require an attendant to guard the door would be even more burdensome, and, balanced with the risk involved, entirely unreasonable. It would set too high a standard of duty for a municipality, and make of it almost an insurer of safety.”

Recent cases disclose no trend toward departure from the rule limiting the duty owed to children to ordinary care to keep the premises reasonably safe. 1

In Gleason v. Housing Authority (1946) 354 Pa. 381 , 47 A.2d 129 , 130 the Court denied liability for a fall from the top of an unsupervised sliding apparatus. The opinion is significant here primarily because of its reliance on language quoted from McHugh v. Reading Company (1943) 346 Pa. 266, 268 , 30 A.2d 122 , 123 wherein it was said, “No danger is more commonly realized or risk appreciated, even by children, than that of failing; consciousness of the force of gravity results almost from animal instinct. Certainly a normal child nearly seven years of age — indeed any child old enough to be allowed at large — knows that if it steps or slips from a tree, a fence, or other elevated structure, it will fall to the ground and be hurt. It may be that some children, while realizing the danger, will disregard it out of a spirit of bravado, or because, to use the language of the Restatement, of their ‘immature recklessness,’ but the possessor of land is not to be visited with responsibility for accidents due to this trait of children of the more venturesome type.”

In my view no liability can be imposed in the instant case without requiring that defendant exercise extraordinary care to keep the premises absolutely safe. Unless we are of the view that in this modern age a store owner has no right to install doors which automatically open and close for the convenience of the public, we must recognize that he has a further right and duty to install and maintain proper devices to make the operation of such doors safe and effective. This guard rail was such a device. It served to prevent customers, both children and adults, from incurring the hazard of being struck by a suddenly opening door. It also furnished a hand support for customers in an area often rendered wet and slippery in inclement weather. In short, it served a most useful and necessary function as a protective device. This utility to the owner must be balanced against the possible risk of injury resulting from the use of the device. That risk was negligible. Children too small to understand and appreciate the risk of a fall would not physically be able to climb on top of the rail. Children big enough and strong enough to mount the rail would ordinarily be dexterous enough to descend from it safely — as did Rosselyn’s *804 companion. As already noted, there was no evidence that any child had ever before fallen from the rail or been injured. The defendant was not required to foresee that one venturesome child physically able to climb on top of the rail would nevertheless lack the dexterity and coordination necessary to a safe descent. If the defendant had a duty to anticipate this unlikely event, what alternatives were available? It could remove the guard rail entirely — but in so doing It would greatly increase the very real danger of harm to all customers entering and leaving the store. The majority opinion suggests that it could alter the design of the guard rail by filling in or covering the spaces under the railing, thereby to deter or diminish the tendency of children to be attracted to the railing for purposes of swinging. But children climb to the top of fences and other structures for any number of reasons, or for no reason. I respectfully direct attention to the fact that this plaintiff was injured because she had climbed on top of the bar and fell from that position. A partition type of guard rail would, if anything, present less difficulty to a child bent on scrambling to the top than would a singular tubular rail which would offer no purchase for the child’s feet in the climbing process. I do • not think that we should permit a jury to speculate or conjecture as to whether one type of rail may be safer than another in the absence of any evidence that this guard rail was not safely and properly designed for its functional purpose.

Finally we turn to what seems to me the only alternative left if the defendant would meet the rigorous duty imposed by the majority opinion — the posting of a guard to prevent misuse of the guard rail. Here again the burden of'compliance upon the store owner must be weighed against the risk of injury to be prevented. In my view the economic consequences of posting guards greatly overbalances the remote possibility of injury from a stationary guard rail, and such a requirement thus becomes one of extraordinary care. Moreover, every store is filled with counters and other objects upon which venturesome, unsupervised children can climb and from which they can fall — and the requirement of guards can thus be multiplied and the economic burden enlarged. Courts generally, as noted above, have been reluctant to make the posting of guards and attendants a factor in the exercise of ordinary care except in the case of accessible operating machinery or other equally dangerous conditions. In effect this was the view we expressed in Hawkins v. Maine & New Hampshire Theaters Company, supra.

This defendant cannot be charged with any failure to give warning. As above stated, this plaintiff at her age required no warning as to the obvious risk of falling from the top of a rail. In any event, such a warning was given at the first moment she was observed on the rail. Neither can the claim be made that the giving of the warning was itself negligence in that it startled the plaintiff so that she fell. Such a theory was effectively disposed of by the holding in Knowles v. Wolman (1944) 141 Me. 120 , 39 A.2d 666 .

I conclude that since the evidence, viewed in the light most favorable to the plaintiffs, shows no violation as a matter of law of the defendant’s duty to exercise ordinary care to keep its premises reasonably safe for its business invitees, including the minor plaintiff, the motion for judgment for the defendant notwithstanding the verdict, seasonably made, should have been granted. I would now remand for entry of such judgment.

WEÁTHERBEE, J., joins in this dissenting opinion.

. Furness v. American Mutual Ins. Co. (La.App.1971) 242 So.2d 273—no liability to child meddling with candy vending machine; Pollick v. J. C. Penney Co. (1970) 24 Utah 2d 405 , 473 P.2d 394 -no liability to child climbing over stair bannister in store; Rommel v. Louisville Shopping Center, Inc. (Ky.1968) 436 S.W.2d 529—no liability to child pushed from top of unsupervised sliding apparatus.