dissenting: The court holds that the little five-year-old deceased girl was a licensee throughout the church at the time she fell from the roof of the five-story building, and then applies the common-law rule that the only duty an occupier of land owes to a licensee is to refrain from willful and wanton misconduct.
The basis of liability in this case was not some claimed defect or obstacle in or on the church premises, but was the overt act of the defendants, and particularly the elevator company, in leaving the door on the fifth floor leading to the church roof unlocked so as to afford the little girl access to the roof of the church from which she fell.
Under the rule announced in Montague v. Burgerhoff, 150 Kan. 217, 92 P. 2d 98, affirmed in Morris v. Atchison, T. & S. F. Rly. Co., 198 Kan. 147, 422 P. 2d 920, the plaintiff was entitled to present his case to a jury. The negligence which was conceded by both defendants, was not passive negligence—negligence which causes dangers arising from the physical condition of the premises—but was active negligence in the management of the church property— leaving the door unlocked—which resulted in the little girl being subjected to increased hazards and danger. Active negligence as applied in Montague is conduct which represents an increased hazard or danger to the licensee, or may be deemed an overt act of negligence. See James, Tort Liability of Occupiers of Land: Duties owed to Licensees and Invitees, 63 Yale L. J. 605.
The courts opinion refers to the Restatement, Second, Torts, and states the rules therein set forth are confirmed in our decisions. I *129agree. The broad duty owed licensees under § 341 (1965) is that a possessor of land is subject to liability to his licensees for physical harm caused to them by his failure to carry on his activities with reasonable care for their safety if, but only if, (a) he should expect that they will not discover or realize the danger, and (b) they do not know or have reason to know of the possessor’s activities and of the risk involved.
As indicated, both defendants concede they were negligent, and it is eminently clear that a little five-year-old girl would not discover or realize the dangers involved by going through an unlocked door to the roof of a five-story building. In my opinion, the burden is upon the occupier of land, no less than on anyone else, to conduct himself as a reasonable man under the circumstances, on his own land as well as in other places. (Montague v. Burgerhoff, supra.) Except in those cases where reasonable men could not differ, the question of whether the defendants conformed to that standard is one for a jury. See authorities cited in my dissenting opinion in Ralls v. Caliendo, 198 Kan. 84, 89, 422 P. 2d 862.
Before concluding, I feel compelled to say it is right and proper for an occupier of land to be liable to a trespasser only for wanton or willful injury. However, it is contrary to reason and justice to apply the same rule to a licensee without due consideration of the facts and circumstances of the case. Under some circumstances there may be a duty of ordinary care to avoid injury to a licensee where, as here, the little girl was impliedly granted permission to use the premises, and the question of ordinary care is one of fact for a jury. While our decisions apply the common-law distinction between an invitee and a licensee in determining the duties of care owed them by occupiers of land, the reason for such distinction no longer exists. Kansas has carefully preserved flexibility in the common law (K. S. A. 77-109), and the conditions and wants of the people of this state require the abolition of such a distinction and impose upon occupiers of land with respect to invitees and licensees, a single duty of reasonable care under all the facts and circumstances in a particular case. In Kermarec v. Compagnie Generale, 358 U. S. 625, 3 L. Ed. 2d 550, 79 S. Ct. 406, the Supreme Court of the United States said:
“. . . In an effort to do justice in an industrialized urban society, with its complex economic and individual relationships, modern common-law courts have found it necessary to formulate increasingly subtle verbal refinements, to create subclassifications among traditional common-law categories, and to de*130linéate fine gradations in the standards of care which the landowner owes to each. Yet even within a single jurisdiction, the classifications and subclassifications bred by the common law have produced confusion and conflict. . . . Through this semantic morass the common law has moved, unevenly and with hesitation, towards ‘imposing on owners and occupiers a single duty of reasonable care in all the circumstances.’ ” (pp. 630, 631.)
The Restatement of the Law of Torts, Second, § 341, is in accord with the reasonable care standard stated above. The common-law classifications are themselves judicial creations capable of being set aside by judicial action where their purpose is no longer served.
In my judgment, the district court erred in entering summary judgment in favor of the defendants. I would reverse the judgment with directions to proceed with the trial of the case to a jury under appropriate instructions.