Di Gildo v. Caponi

• Decision Date: 21 May 1969
• Docket Number: No. 68-83,68-83
• Parties: , 47 O.O.2d 282 DI GILDO, an Infant, Appellee, et al., v. CAPONI, Appellant.
• Court: Ohio Supreme Court

Page 125

18 Ohio St.2d 125

247 N.E.2d 732, 47 O.O.2d 282

DI GILDO, an Infant, Appellee, et al., v. CAPONI, Appellant.

No. 68-83.

Supreme Court of Ohio.

May 21, 1969.

Syllabus by the Court

1. The amount of care required to discharge a duty owing to a child of tender years exposed to danger is necessarily greater than that required to discharge a duty to an adult exposed to the same danger.

2. The duty owed by a landoccupier to his social guests presupposes that the amount of care required to discharge that duty will vary depending upon the circumstances, one of which is the infancy of the guest or the guest's inability to discern danger or both.

3. The manner of securing a parked vehicle, coupled with the failure to warn of the condition of the vehicle, may amount to negligence with respect to an infant social guest of tender years. It is a question of fact for the triers whether the manner of parking and securing the vehicle and the omission to warn of its condition or caution the infant away from the vehicle amounts to negligence.

Appeal from the Court of Appeals for Summit County pursuant to the allowance of a motion to certify the record.

This is a negligence action brought by an infant social guest against his host for an injury suffered while playing on the premises of the host. The case originated in the Court of Common Pleas of Summit County, where judgment was entered for plaintiff upon a jury verdict of $5,000, after defendant's motion for a directed verdict was overruled. Defendant appealed on questions of law to the Court of Appeals, which affirmed the judgment. He is now the appellant here.

Defendant Mario Caponi lived with his wife and two small children on the second floor of a house. Entrance to his living quarters was through a side door that opened into a private driveway. This driveway was inclined upward from the street to the side door entrance. On the night preceding the injury, defendant parked his car in the driveway opposite the side door, leaving it on a relatively steep incline. He placed the automatic transmission lever in the 'park' position and removed the key. He claims to have applied the emergency brake. The doors of the automobile were not locked. Conflicting testimony was presented as to whether the defendant knew that his own young children liked to play with the electric window mechanism in the car.

The following morning plaintiff David Di Gildo, four years of age, his father and a younger sister went to the defendant's home for a social visit. The adults told their children to go out and play. No mention was made of the parked automobile. While playing outside the house, the four children entered the automobile. David pulled the transmission lever out of its 'park' position and the automobile began to back down the driveway toward the street. David got out of the vehicle, but in so doing he caught his right hand between the open automobile door and a concrete block wall along the side of the driveway. The little finger of his right hand was partially amputated and the back of his hand was severely lacerated.

McGowan, Sheck & Hewitt and William B. Hewitt, Akron, for appellee.

Olds, Olds, Lynett & Downing and James Olds, Akron, for appellant.

SCHNEIDER, Justice.

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.

Liability 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, 226 N.E.2d 564; Grossnickle v. Village of Germantown, 3 Ohio St.2d 96, 103, 209 N.E.2d 442; Schell v. DuBois, 94 Ohio St. 93, 113 N.E. 664, L.R.A. 1917A, 710; 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, 224 N.E.2d 131; Eisenhuth v. Moneyhon, 161 Ohio St. 367, 119 N.E.2d 440; Soltz v. Colony Recreation Center, 151 Ohio St. 503, 87 N.E.2d 167; Johnson v. Wagner Provision Co., 141 Ohio St. 584, 49 N.E.2d 925; Davison v. Flowers, 123 Ohio St. 89, 174 N.E. 137; 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, 144 N.E. 601, 38 A.L.R. 591; Ziehm v. Vale, 98 Ohio St. 306, 120 N.E. 702, 1 A.L.R. 1381; 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 342, Comment b; Brzostowski v. Coca-Cola Bottling Co., 16 A.D.2d 196, 226 N.Y.S.2d 464; Hetzel v. Buffalo Cemetery Assn., 16 A.D.2d 581, 229 N.Y.S.2d 960.

The duty of a landoccupier to his social guest is stated in Scheibel v. Lipton, 156 Ohio St. 308, 102 N.E.2d 453. 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 dangerous 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.S.2d 902. However, we see no reason to rationalize a decision on semantic subtleties. In Scheibel,supra, (156 Ohio St. 308, 102 N.E.2d 453), we rejected the rigid classification of social guests along with licensees, and asserted that the duty owed to a social guest is higher than the duty owed to a licensee. Id. at 328-329, 102 N.E.2d 453. 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, 131 N.E. 504. 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, 144 N.E. 601; Tierney v. New York Dugan Bros., Inc., 288 N.Y. 16, 41 N.E.2d 161, 140 A.L.R. 534; 8 American Jurisprudence 2d 392, Automobiles and Highway Traffic, Section 834.

Moreover, under Scheibel, supra, (156 Ohio St. 308, 102 N.E.2d 453), 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...