(dissenting from Division III but concurring in the result).
I dissent from Division III, but concur in the result because I believe the trial court properly instructed the jury on plaintiff’s status and should be affirmed. The majority apparently feels this verdict can be saved only by abandoning all distinctions based on the status of one who enters upon the property of another and is injured by some negligent act or condition. I disagree, and I find it ironic the majority would ascribe such an unreasonable, inflexible, and unrealistic interpretation to plaintiff’s right to enter this public recreational area in the same opinion which decries the “rigidity” of the doctrine under which a plaintiff may recover for injuries suffered while on another’s property.
I think the trial court properly permitted the jury to determine if plaintiff was an invitee under the facts shown here.
According to the record, the city maintained and operated an area used primarily as a baseball field. It was for public use and was open and unfenced on all sides. The majority finds as a matter of law this minor plaintiff could not qualify as an invitee unless he entered it intending to use the field to play baseball. It is inconceivable this was the limit of the invitation extended by the city to the public. Would plaintiff have been a trespasser if he had gone there to fly a kite? Or to play football? Or, as the jury could well find was the case, just to play ?
The majority has found in Division I plaintiff was not negligent as a matter of law in going on the field for an illegal purpose — to discharge firecrackers in violation of a statute. Accepting this as correct — and I believe it is — I find plaintiff’s conduct and his entry upon the public field entirely within the possible scope of the purpose for which the area was open to the public. I say “possible” because the jury could have found otherwise; but the circumstances clearly raised a jury question on the issue.
Since the case was pled, tried, submitted and decided on this issue, one would suppose our review would be determined accordingly ; but not so.
The majority first holds as a matter of law plaintiff could not be an invitee under the facts shown here. It then nevertheless affirms the trial court on a theory of its own — one which was not relied on by either party in the trial court and one which, until now, has not been in the case. The majority professes to adopt rule 339, Restatement, Second, Torts, relating to trespassing children. I question that it does; but even more I question that it could under this record. The conditions under which that rule comes into play are entirely absent, both as to pleading and proof. It was not the theory upon which the matter was tried by either party. The instructions to the jury are entirely silent on the circumstances which must be shown to bring a trespassing child within its protection. Cf. Jones v. Billings (Maine 1972) 289 A.2d 39, 41-43.
I believe litigants are entitled to have a case decided on the issues made up in the trial court. Not only does the majority opinion fail to do this, it also resorts to pure speculation concerning what the outcome would have been if the matter had been tried on a different theory — the “trespassing child” doctrine of rule 339, supra.
The majority’s conclusion as a matter of law that the jury would have reached the same result under a rule 339 instruction on trespassers as it did under an invitee instruction usurps the function of the jury in finding the existence of the facts necessary to make that rule applicable. The record is devoid — completely—of evidence to justify any such conclusion.
*139If defendant is to lose its lawsuit, it should be on a theory it has had an opportunity to meet and resist. It has not been afforded that right on the grounds relied on by the maj ority.
I have already indicated I believe the instruction allowing the jury to decide if plaintiff was an invitee was correct and the jury’s determination in his favor fully supported by the record. Since this is the result the majority reaches, even though it does so by what I deem to be an erroneous route, I can and do concur in the result.
MASON and RAWLINGS, JJ., join in this dissent from Division III, but concur in the result.