concurring and dissenting: I am in accord with the court’s holding the plaintiff’s evidence tended to establish only ordinary negligence on the part of the defendants and was insufficient to evince disregard of or indifference to consequences, justly characterized as recklessness. However, I must respectfully dissent from its judgment affirming the dismissal of the action.
Assuming, arguendo, the plaintiff, by reason of the express invitation to attend the family Christmas dinner at the defendants’ home, was nothing more than a mere licensee, the case should be reversed and remanded for a new trial.
This court has refined the rule with respect to the duty an owner of land owes to a licensee, at least to the extent that if the owner, while the licensee is upon the premises in the exercise of due care, is actively negligent in the management of his property, as a result of which the licensee is subjected to increased hazard and danger, tihe owner will be liable for injuries resulting from such active misconduct. (Montague v. Burgerhoff, 150 Kan. 217, 223, 224, 92 P. 2d 98.) Montague has not been cited or applied by this court since it was decided in 1939, until in Morris v. Atchison, T. & S. F. Rly. Co., 198 Kan. 147, 422 P. 2d 920. Hence, it follows that an owner now has the duty not only to refrain from willfully, intentionally or recklessly injuring a licensee, but in addition, to refrain from injuring him by active conduct which would constitute active negligence.
While the distinction between an injury resulting from passive negligence — negligence which causes dangers arising from the physical condition of the land itself, on the one hand, and an owner’s active negligence, on the other, may not always be clear cut, courts which have considered the question have generally held that “active negligence” is negligent conduct of active operations on the premises or in the management of the property, as a result of which the *90licensee is subjected to increased hazard and danger. (Perry v. St. Jean, _ R. I. _ , 218 A. 2d 484; Potter Title and Trust Co. v. Young, 367 Pa. 239, 80 A. 2d 76; Busch v. Gaglio, 207 Va. 343, 150 S. E. 2d 110; Mistretta v. Alessi, 45 N. J. Super. 176, 131 A. 2d 891; Choate v. Carter, 98 Ga. App. 375, 105 S. E. 2d 909; Hennessey v. Hennessey, 145 Conn. 211, 140 A. 2d 473; Howard v. Howard, 186 C. A. 2d 622, 9 Cal. Reptr. 311; Newman v. Fox West Coast Theatres, 86 C. A. 2d 428, 194 P. 2d 706, 708.) See, also, James, Tort Liability of Occupiers of Land: Duties owed to Licensees and Invitees, 63 Yale L. J. 605. Active negligence as applied in Montague is conduct which represents an increased hazard or' danger to the licensee or may be termed as an overt act of negligence. (Vol. 12, Kan. L. Rev. pp. 571, 572.)
The rulé of general liability of owners of land to licensees is set forth in Restatement, Second, Torts, Secs. 341 and 342;' The latter section reads:
Ҥ 342. Dangerous Conditions Known to Possessor
“A possessor of land is subject to liability for physical harm caused to licensees by a condition on the land if, but only if, 1 •
. “(a) the possessor knows or has reason to know of the condition ^nd, should realize that it involves an unreasonable risk of harm to such licensees, and should expect that they will not discover or realize the danger, and
“(b) he fails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition and the risk' involved, and
“(c) the licensees do not know or have reason to know of the condition and the risk involved.”
The court’s opinion classifies a social guest as a mere licensee. I do not agree. While perhaps he does not have the status of a business invitee, he certainly is more than a mere licensee. Although the host is not an insurer of the safety of the guest while upon his premises, some duty short of that owed to a business invitee is owed to the guest. In my judgment, the duty imposed under Restatement is that the host exercise reasonable care not to cause injury to his guest by any act or any activity carried on by him while the guest is on the premises. Moreover, coupled with that duty is the duty to warn the guest of any condition of the premises which is known to the host and which one of ordinary prudence and foresight in his position should reasonably consider dangerous, if he has reason to believe the guest will not know and will not discover the dangerous condition. (Scheibel v. Lipton, 150 O. S. 308, 102 N. E. 2d 453; 2 Harper and James, Laws of Torts, Sec. 27.11, p. 1476.)
*91As I understand the applicable law, the essential elements which measure the duty the defendants owed to the plaintiff as a social guest, under the facts and circumstances in the instant case, are that (1) the plaintiff had been invited by the defendants to attend the family Christmas dinner and they knew of her presence in their home, (2) thereafter they failed to exercise reasonable care (a) to refrain from actively subjecting her to danger, or (b) to warn her of the dangerous condition — in the portion of their home to which she had been invited to enter — which they themselves knew of and which they could not reasonably assume that she knew of or by reasonable use of her faculties would observe, and (3) such failure to exercise reasonable care, in either or both respects, constituted a proximate cause of her fall. (Restatement, Second, Torts, Ch. 13, Sec. 341; Prosser, Torts, 3d Ed., Ch. 11, Sec. 60, p. 388; 2 Harper and James, Laws of Torts, Sec. 27.11, p. 1476; James, Tort Liability of Occupiers of Land: Duties owed to Licensees and Invitees, 63 Yale L. J., pp. 605, 611, 612.) See, also Mistretta v. Alessi, supra; Kermarec v. Compagnie Generate, 358 U. S. 625, 3 L. Ed. 2d 550, 79 S. Ct. 406; Mitchell v. Legarsky, 95 N. H. 214, 60 A. 2d 136; Choate v. Carter, supra; Murdock v. Petersen, 74 Nev. 363, 332 P. 2d 649; Martin v. Henson, 95 Ga. App. 715, 99 S. E. 2d 251; Hennessey v. Hennessey, supra; Howard v. Howard, supra, and Potts v. Amis, 62 Wash. 2d 777, 384 P. 2d 825.
Considering the plaintiff’s evidence fairly and impartially, in the light most favorable to her and giving her all the reasonable inferences for which that evidence supplies a foundation, when measured t>y the foregoing authorities, it is clear the plaintiff was not injured from any defect, obstacle or pitfall existing in the physical condition of the land itself; the kitchen floor and the vinyl linoleum were in good repair. Likewise, it is clear that as a result of the defendants’ active conduct — dropping the ice cubes and kicking them under the refrigerator where they were permitted to melt forming a “puddle of water” on the floor in the immediate vicinity of steps leading down into the family room — they created a condition upon the premises which they themselves regarded as dangerous, resulting in the plaintiff being subjected to increased hazard and danger. In my judgment, their conduct constituted active negligence and the authorities heretofore cited so hold.
No claim is made the plaintiff’s invitation did not permit her to visit the family room, and there is nothing to indicate they should *92expect she would discover the water or realize the danger of its presence. The evidence is to the contrary; she was weak and frail, and her vision was limited. In short, under the circumstances which attend, the defendants created a dangerous condition on the premises subjecting the plaintiff to increased hazard and danger, which, coupled with their failure to warn, in and of itself became active negligence.
In view of the foregoing, the district court erred in dismissing the action and in not submitting the question to the jury under proper instructions.
Before concluding, I feel compelled to say the view of hospitality taken by the court that the only duty owed to a social guest is to refrain from willfully, intentionally or recklessly injuring him finds no place at the social firesides of this state. In the classification of the status of persons coming upon the premises of the owner, a social guest should not be left destitute of legal protection, or hanging on the cliff of such frozen inhospitality. Why, in common sense, should a. person who is warmly and cordially invited to his host’s home for his pleasure (otherwise the invitation would not be extended) be afforded no more protection under the law than that of a trespasser. More and more, courts and authoritative text writers are coming to the convincing conclusion that, based upon an increasing regard for human safety and the prevalent purchase of insurance by homeowners to protect themselves from liability with respect to the management, use and the condition of their property, a social guest should be given more protection than a mere licensee.
The fact that an owner may be liable under a theory of active negligence to a social guest, if properly applied, is a breakthrough from the traditional view of the landowner’s duty. Although insurance is not mentioned in the trial of a case, it should undoubtedly have some effect upon the duty of the landowner. As insurance purchased to protect the homeowner from liability from those coming upon his premises, becomes more and more prevalent, it should affect the standard of care. In my judgment, it would seem to follow that the more homeowners who buy insurance to protect themselves, a corresponding higher duty of host responsibility should follow. ('Vol. 12 Kan. L. Rev. pp. 571-574.)