concurring. While I concur in the result reached, I do not agree with the majority as to the substantive law applicable to licensees. The majority opinion fosters a misconception that the only duty owed to a licensee, as to a discovered trespasser, is a duty to refrain from injuring the licensee by willful or wanton conduct. That same misconception is implicit in the majority opinion in Coleman v. United Fence Company, 282 Ark. 344, 668 S.W.2d 536 (1984). The majority opinion quotes language from Cato v. St. Louis Southwestern Ry. Co., 190 Ark. 231, 79 S.W.2d 62 (1935):
Whether he be called a trespasser or licensee, the same rule of law applies, and that is that the only duty owing him was not to willfully or wantonly injure him and to exercise ordinary care under the circumstances to avoid injury to him after discovering his peril. [Emphasis added].
That declaration of the law omits an important distinction between the duty owed to licensees as opposed to trespassers. Licensees and trespassers alike are generally considered to take the premises as they find them, although the owner may not affirmatively create a risk of harm to either, once he is aware of their presence. As to licensees, an owner owes no corresponding duty, as in the case of invitees, to render the premises safe, nor any duty to warn them of dangers which should be obvious. But if the owner is aware of a danger on the premises which is latent, or one the licensee might not be expected to recognize, the owner is under a duty to warn him. Prosser and Keeton on Torts, 5th Ed., § 60; Restatement of Torts, Second, § 342. An Annotation in 26 A.L.R.3d 317 summarizes this rule:
[B]ut that where there is a known dangerous condition on the premises and the occupier can reasonably anticipate that his licensee will not discover or realize the danger, the occupier may be held liable for bodily harm caused to the licensee by the condition if he invites or permits the licensee to enter or remain upon the premises without exercising reasonable care either to give warning of the condition and the risk involved, or to make the condition reasonably safe, and the licensee does not know or have reason to know of the condition or risk involved.
An Annotation appearing at 55 A.L.R.2d 52, § 2, recognizes an ambiguity in the law:
While in a number of cases general language may be found which seems to restrict a licensor’s duty to a licensee to that of refraining from wilful or wanton misconduct, or, at most, active negligence, the cases which have explicitly considered the question have frequently recognized that a licensor-landowner may be under an obligation of exercising reasonable care to warn licensees of hidden dangers known to the licensor.
The citations which follow include cases from twenty-five American jurisdictions. Cases to the contrary are almost nonexistent. This is said to be the law “in most jurisdictions.” Harper, James & Gray, The Law of Torts, 2d Ed., § 27.9.
Here there was evidence the appellee was aware of a defect in these stools, and therefore some basis exists for a dispute of fact as to a duty to warn. Were it not for the fact that this child was under the immediate supervision of his mother, who was also aware of the problem, it would be difficult to affirm a directed verdict.
Purtle, J., joins.