dissenting in part. I fully agree with that part of the majority opinion treating the attractive nuisance theory; I respectfully dissent from that part upholding the circuit court’s sustaining of the demurrer to allegations of negligence which are not dependent upon the attractive nuisance doctrine. It is my opinion that the complaint, given the broad, liberal treatment accorded on demurrer, states a cause of action. I can and do accept the premise of the majority that the child in this case was a licensee. I think that the complaint can properly be said to have alleged: the condition on the land was an artificial one; the owner knew that numerous children frequently swam, fished and played in the pond; he knew or should have known that the precipitous drop-off on one side of the pond was an unusually dangerous one for children, who, because o£ their youth could not be expected to discover the dangerous condition or realize the danger involved; he did nothing to make the condition safe, to warn appellant’s decedent, or any child, or to protect the children from harm.
Appellant asks us to adopt Restatement, Torts, Second, § 339. This section would treat the child as a trespasser. If he were a licensee, as he is taken by the majority to be, the landowner certainly owed him no less duty than it would owe a trespasser. See 62 Am. Jur. 2d 416, Premises Liability, § 145. I consider the following Restatement sections particularly pertinent:
§ 339. Artificial Conditions Highly Dangerous to Trespassing Children
A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if
(a) the place where the condition exists is one upon which the possessor knows or has reasons to know that children are likely to trespass, and
(b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and
(c) the children because of their youth do not .discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and
(d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and
(e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.
§ 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,
(a) the possessor knows or has reason to know of the condition and 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 conditions 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.
§ 343B. Child Licensees and Invitees
In any case where a possessor of land would be subject to liability to a child for physical harm caused by a condition on the land if the child were a trespasser, the possessor is subject to liability if the child is a licensee or an invitee.
Appellees, and apparently the trial court, relied only upon AMI Civil 1102, 1103 and 1106. I do not think that these instructions are intended to encompass the whole field of an owner’s liability to the exclusion of a case such as this where a child of tender years is involved, nor do I think that this court has ever given consideration to the theory advanced by appellant. Consequently, I do not think that the instructions relied upon are conclusive of the question here presented on demurrer.1
Our cases furnish little in the way of precedent where the licensee is a child of tender years. It seems to me that when an owner has knowledge that children of tender years are frequenting his premises, at least under circumstances from which permission or acquiescence may be inferred, he is under some duty to give a warning of dangerous conditions created by him which he might reasonably expect would be discovered and appreciated by an adult, or to take steps to minimize the danger or protect children from it. That which is not a “trap” to an adult may be one to a child of tender years. Extensive discussion of the theory I would follow in reversing the judgment overruling the demurrer is to be found at 62 Am. Jur. 2d 400, et seq., §§ 133, 134; Annot. 26 A.L.R. 3d 317, Duty of Possessor of Land to Warn Child Licensees of Danger.
I am authorized to state that Mr. Justice Jones joins in this dissent.
Instruction 1103 is not necessarily in conflict with the Restatement principles. It was not necessary that the pleader use the words “wanton conduct” in the complaint, i£ the facts alleged tended to state an utter 'indifference to or conscious disregard for the safety of others. See AMI Civil 1101; Harkrider v. Cox, 230 Ark. 155, 321 S.W. 2d 226. Acts which would not be considered a breach of duty toward an adult licensee may be considered wilful or wanton where a child is involved. 62 Am. Jur. 2d 401, Premises Liability § 133. Furthermore, if the owner had reason to believe that the licensee was in a position of danger, the owner had the duty to use ordinary care to avoid injury to the licensee.