Although I concur in the opinion and judgment, a few additional observations are appropriate.
The first assignment of error is, in my opinion, not well taken only because the trial court made no express finding as to whether plaintiff Lori Sargent, a child of tender years, was in plain view. The trial court found only that the child was "apparently in plain view," thus making no express factual determination of the issue.
As to the second assignment of error, the trial court's findings are unclear as to the standard of care it applied since it stated: "If the standard of care in this case is the norm, that is to say of ordinary care only, the Court cannot find on these facts negligence on the part of the driver."
Although the standard of care may be called ordinary care, it is not "the norm" in this case. The degree of care required varies with the age of the person to whom the care is owed.
The degree of care required to discharge a duty owed to a child of tender years not only is greater than that required to discharge the duty owed to an adult under the same circumstances, but also is necessarily greater than that required to discharge the duty owed to an older child under the same circumstances. A child of tender years is, as a matter of law, incapable of exercising care for his own safety.Holbrook v. Hamilton Distributing, Inc. (1967), 11 Ohio St.2d 185, and DeLuca v. Bowden (1975), 42 Ohio St.2d 392. As stated in Di Gildo v. Caponi (1969), *Page 165 18 Ohio St.2d 125, the defendant owed to the minor child of tender years that "degree of care proportional to" her inability to foresee and avoid perils such as she here encountered.
Whether the label "ordinary care" is used, defendant was required to use a higher degree of care in discharging his duty to the minor child of tender years than he would be required to use if an adult or an older child was involved. It does not appear that the trial court applied the proper standard of care. Giving its findings the most favorable construction possible, it would appear that it applied the standard of care owed to an older child, rather than that owed to a child of tender years.
Accordingly, I concur in the opinion and judgment.