Herndon v. Paschal

• Citation: 410 P.2d 549
• Decision Date: 25 January 1966
• Docket Number: No. 41083,41083
• Court: Supreme Court of Oklahoma
• Parties: Teresa Gay HERNDON, a Minor, 8 years of age, by and through her Father and Next Friend, R. G. Herndon, Plaintiff in Error, v. Dr. William R. PASCHAL and Mrs. William R. Paschal, Defendants In Error.

Page 549

410 P.2d 549

1966 OK 8

Teresa Gay HERNDON, a Minor, 8 years of age, by and through

her Father and Next Friend, R. G. Herndon, Plaintiff in Error, v. Dr. William R. PASCHAL and Mrs. William R. Paschal,

Defendants In Error.

No. 41083.

Supreme Court of Oklahoma.

Jan. 25, 1966.

Syllabus by the Court

1. Where the allegations of an amended petition fail to state facts sufficient to constitute a cause of action in favor of the plaintiff and against the defendants, it is not error to sustain a demurrer to said amended petition.

2. An invitee assumes all normal or ordinary risks attendant upon the use of the premises and the owner or occupant is under no legal duty to reconstruct or alter the premises so as to obviate known and obvious dangers, nor is he liable for injury to an invitee resulting from danger which was obvious or should have been observed in the exercise of ordinary care.

3. Every owner of property is required to use ordinary care for the safety of invitees upon his property and what constitutes ordinary care depends upon the facts and circumstances of each particular case; and where children are invited upon the premises of the owner ordinary care will require the owner to take into consideration the ages, maturity, and capacity of the children, and their capacity to appreciate the dangers to be encountered.

4. The owner of property is not an insurer of the safety of infant invitees on the premises and is only liable for injuries sustained by such invitee, while on the premises, if he fails to exercise reasonable care and caution under the circumstances of the case.

Appeal from the District Court of Oklahoma County; W. R. Wallace, Jr., Judge.

Action by plaintiff (Plaintiff in Error) to recover damages for personal injuries against the defendants (Defendants in Error). The trial court sustained the demurrer of the defendants to the second amended petition of the plaintiff and plaintiff appeals. Affirmed.

Rinehart & Morrison, Oklahoma (City, for plaintiff in error.

William H. Wilson, Rhodes, Crowe, Hieronymus, Holloway & Wilson, Oklahoma City, for defendants in error.

HALLEY, Chief Justice.

Plaintiff prosecutes this appeal from the action of the trial court sustaining a demurrer to her second amended petition. Parties will be referred to as they appeared in the trial court.

Plaintiff alleges in her second amended petition that she is a minor eight years of age and brings this action by her father and next friend, R. G. Herndon.

Plaintiff alleges that on the 23rd of April, 1962, the defendants owned and resided at 4657 Willard Drive, Oklahoma City, Oklahoma; that the back yard of the premises was fenced and contained trees; that a neighbor kept a large dog adjacent to the fence.

That plaintiff with other small children was invited to be a guest on the premises owned by the defendants; that the plaintiff, along with ten other minor children, was directed by one of the defendants to go into the back yard without any adult supervision, adjacent to the pen of the large dog maintained by the adjacent property owner, at a time when said defendant knew of the presence of said dog; that he dog became excited by the presence of such a large number of playing children, began barking and running against the fence, causing this plaintiff to become frightened and run. The plaintiff struck her head on a lowhanging branch of a tree, injuring her eye and causing her almost total loss of vision in her left eye.

That the injury to plaintiff was proximately caused by the negligence of the defendants in the following particulars:

'a. Inviting and directing young children to play in a yard containing trees with low-hanging branches adjacent to a large dog likely to become excited by small children playing in the adjacent yard, at a time when defendant, Mrs. Paschal, knew of the presence of said dog and knew or should have known that it would become excited by such a group of children playing without supervision.

'b. Permitting and directing small children, including this plaintiff, to play in the defendants' yard under the circumstances above set out without any supervision or control.'

Plaintiff alleges that her injuries are permanent, for which she seeks damages in the amount of $75,000.00.

The law is well settled that where a petition is challenged by demurrer if the petition fails to state facts sufficient to constitute a cause of action against the defendant, the demurrer should be sustained. Hull v. Newman Memorial Hospital, Inc., Okl., 379 P.2d 701; Harrison v. Commander Mills, Inc., Okl., 298 P.2d 749.

On the other hand, the law is equally well-settled that if the petition states any fact or facts which, with the reasonable and natural inferences to be drawn, would entitle the plaintiff to any relief the demurrer should be overruled. New v. Stout, 98 Okl. 177, 224 P. 519.

Counsel for the plaintiff cite three cases, each holding that the owner of property in guarding against injuries to children invited on the premises, must exercise more vigilance and caution than would be necessary in the case of adults. He must give consideration to the well recognized rule that small children because of their childish instincts and impulses, do not ordinarily exercise the same degree of caution for their own safety as adults. Beatrice Foods Co. v. Jennings, 206 Okl. 688, 246 P.2: 347; Shaffer Oil & Refining Co. v. Thomas, 120 Okl. 253, 252 P. 41; New v. Stout, 98 Okl. 177, 224 P. 519.

The soundness of the above rule is not disputed but the rule is also well settled that the owner of property is not an insurer of the safety of infants invited on the premises and is liable for injuries sustained by them while on the premises only if he fails to exercise reasonable care under the circumstances of the case. J. C. Penney Co. v. Clark, Okl., 366 P.2: 637; 65 C.J.S. Negligence § 52, pp. 548-549; 38 Am.Jur. 'Negligence' § 118, p. 781, § 147, p. 813; Crane v. Smith, 23 Cal.2d 288, 144 P.2d 356; Swan v. Riverside Bathing Beach Co., 132 Kan. 61, 294 P. 902; Oldham v. Hoover, La.App., 140 So.2d 417.

In the case of J. C. Penney Company v. Clark, supra, the Oklahoma Court quoting with approval from 38 Am.Jur. 'Negligence' § 147, p. 813, said

'An owner of land is not required to provide against remote or improbable injuries to children who come upon the premises, but only against such injuries as reasonably can be anticipated to occur from the object or instrumentality involved.'

Continuing further with the citation from Am.Jur., p. 813, the text writer states the rule as follows:

'While the care to be taken by the owner or occupant must be commensurate with the danger to, and with the immaturity and inexperience of, the child to be protected, any requirement in this respect...