dissenting.
I respectfully dissent. I believe that the landlord’s liability in this case is a matter for the jury to determine, and its finding should be undisturbed if supported by credible evidence.
Aragona’s primary contention, with which the majority agrees, is that there was no evidence that it failed to exercise reasonable care to maintain the area between the apartment buildings and the canal in a reasonably safe manner. I do not agree.
*304A landlord is not an insurer of his tenant’s safety. See, e.g., Langhorne Road Apartments, Inc. v. Bisson, 207 Va. 474, 150 S.E.2d 540 (1966). However, as we said in Taylor v. Virginia Construction Corp., 209 Va. 76, 79, 161 S.E.2d 732, 734 (1968), “it is the duly of the landlord, with respect to reserved common areas, to use ordinary care to keep such places in a reasonably safe condition. For failure to perform that duty, the landlord is liable for injuries to tenants and others lawfully using such places for their intended purposes. Wagman v. Boccheciampe, 206 Va. 412, 415, 416, 143 S.E.2d 907, 909 (1965); Revell v. Deegan, 192 Va. 428, 433, 65 S.E.2d 543, 546 (1951).”
There was evidence from which the jury could have found, as it did, that Aragona negligently failed to maintain the area behind the apartments in a reasonably safe condition. Aragona owned the land within the coniines of that portion of the drainage easement crossing its property, including approximately one-half the canal. Subject to the easement rights of the City of Virginia Beach, it was free to use the land for its own purposes. Aragona mowed the grass behind the apartments both outside and inside the drainage easement to the edge of the canal embankment. Elsewhere in the apartment complex a recreation area had been extended by Aragona over the canal itself.
The canal and its steep bank constituted a danger which was open and obvious to anyone old enough to appreciate such a hazard. Indeed, Aragona admits that it received many comments from tenants on the dangerous proximity of the canal. The jury could have found that Aragona should have anticipated that small children would be living in some of its numerous apartments situated along the canal and using the area adjacent to the canal and that in the exercise of ordinary care Aragona should have erected some type of barrier, such as a fence, a wall, or a hedge reasonably designed to prevent the kind of accident which resulted in Cynthia’s death. See Berlin v. Wall, 122 Va. 425, 435, 95 S.E. 394, 397 (1918). Washabaugh, Adm’r v. Northern Virginia Construction Co., 187 Va. 767, 48 S.E.2d 276 (1948), which Aragona relies on, is inapposite. We were there concerned with a landowner’s duty toward children who were trespassers rather than tenants.
As a general rule, a tenant injured as a result of an openly and obviously dangerous condition existing at the inception of the tenancy is barred from recovery. See Berlin v. Wall, supra at 437-38, 95 S.E. at 398, However, we have previously observed, in another context, *305that “[w]hat would be an obvious danger to an adult would not be such to an infant under three years of age.” Tugman v. Riverside and Dan River Cotton Mills, 144 Va. 473, 477, 132 S.E. 179, 180 (1926). Asa matter of law a child less than seven years of age is conclusively presumed to be incapable of contributory negligence. Morris v. Peyton, 148 Va. 812, 821, 139 S.E. 500, 502-03 (1927). Nor can any alleged negligence of the parent or other person having custody or control of an infant be imputed to the infant. Tugman, supra at 479-81, 132 S.E. at 181.
Admittedly not all jurisdictions have reached the same conclusion in dealing with this issue. But Williamson v. Wilmington Housing Authority, 208 A.2d 304 (Del. 1965), is particularly interesting for its facts are similar to those of the present case. A four year old child living with his family in low income rental facilities was permitted to recover damages against the landlord for injuries incurred when he slipped down a steep embankment abutting the play area and fell in front of a train. The Delaware Supreme Court expressly distinguished Jones v. United States, 241 F.2d 26 (4th Cir. 1957), which is relied upon by the majority, on grounds that unlike Jones, there was evidence that the dangerous condition (a path down the embankment) began on the landlord’s property. Whether the landlord permitted a dangerous condition to exist on the premises, the court ruled, must be determined by a jury from the facts and circumstances. See also Rahn v. Beurskens, 66 Ill. App. 2d 423, 428, 213 N.E.2d 301, 304 (1966). In the present case the facts are even more compelling since Aragona owned in fee simple one-half of the unguarded canal.
Regardless of how the issue of landlord’s liability has been resolved in the past, it is necessary to reexamine the law in light of present circumstances. The multi-unit apartment complex such as Aragona’s has become a common type of rental property. The duty of a landlord to his tenants’ children for unreasonably hazardous conditions should reflect the degree of foreseeability of danger to the children, who because of their tender age and immaturity cannot discover or appreciate the risk, and the cost or burden of preventing such accidents in comparison with the risk to the children. See Rahn v. Beurskens, supra at 427-28, 213 N.E.2d at 304. Here the hazard to children of falling in the canal was foreseeable and could have been eliminated or greatly reduced at relatively slight expense to the landlord. The majority, however, would make the tenants in such a complex insurers of the safety of their infant children as to any open *306and obvious dangers existing at the inception of their leases, regardless of the landlord’s negligence. In effect, the bar of assumption of risk is thereby imposed upon children who are incapable of knowing or appreciating the risk.
Aragona further maintains that there was insufficient evidence that its negligence was a proximate cause of Cynthia’s death. No evidence was introduced to show how Cynthia got into the canal. However, although the canal was accessible from both banks and from a highway bridge not far from where she was found, given the short time she was missing and the absence of any evidence of water flow in the canal, the jury could have reasonably inferred that she fell down the unprotected canal bank behind the apartments. See Collins v. Smith, Adm’x, 198 Va. 778, 96 S.E.2d 818 (1957); Wilmington Housing Authority v. Williamson, 228 A.2d 782, 785 (Del. 1967). Unlike Wagman v. Boccheciampe, 206 Va. 412, 416, 143 S.E.2d 907, 909 (1965), where the evidence clearly showed that the plaintiff child was injured while playing on a railing on a common stairway, a use for which it was not intended, no evidence was introduced to indicate that Cynthia’s use of the area behind her apartment was improper.
In my view the evidence was sufficient to present jury issues as to negligence and proximate cause. Finding no error I would affirm the judgment of the trial court.
Carrico, J., joins in dissent.