concurring in result.
This case deals with the important issue of whether we will recognize the traditional categories of premises liability claims. I *248■write separately because I believe it was error for the trial court, upon defendant’s request, to refuse to give the premises liability instruction of MAI 22.07.
I believe that the risk of injury here was created by a condition of the property — a lighted oil lamp — rather than active intervention by the possessor of the land. Defendant-appellant Raghu was not working in the basement with an open flame in the vicinity of his mother-in-law when her garment caught fire. This is not a case of Raghu’s duty to exercise care while handling or lighting the oil lamp in her presence. Rather, this is a case of his duty that morning when he left the basement to guard against the future danger presented by allowing the oil lamp to remain lit after he left the area. The real nature of the claim is that Raghu knew or should have known (1) that others beside himself would likely use the basement prayer area, and (2) that the open flame was a dangerous condition.
[A]ctive negligence as defined in landowner cases in Missouri is negligence occurring in connection with activities conducted on the premises.... Passive negligence on the other hand ... is negligence which arises from permitting defects upon the property or from dangers arising from conditions on the property.
Arbogast v. Terminal R.R. Ass’n of St. Louis, 452 S.W.2d 81, 84 (Mo.1970). The risk was caused by a condition — a lighted lamp — not by something the parties were doing together or something Raghu was doing in his mother-in-law’s presence. The nature of the claim would have been different if Raghu and his mother-in-law had been engaged in prayers together and Raghu’s actions or positioning of the lamp had caused the garment to catch fire. See generally The Law of Torts, Section 27.6 (2d ed.1986); Harper et al.
In many cases it is very clear that the claim is one of passive negligence and therefore a claim of premises liability, not a claim of active negligence. See, e.g., Wolfson v. Chelist, 278 S.W.2d 39, 47-48 (Mo.App.1955) (also noting contrast to cases of active negligence, for example, in a case in which a visitor to a construction site was struck by the contractor’s motor vehicle).
Sometimes the cases can involve a very close call. In Cupp v. Montgomery, 408 S.W.2d 353 (Mo.App.1966), for instance, the court dealt with the issue of whether the defendant’s fault in that case could be characterized as active negligence. In that case, the defendant and the plaintiff were working together on a project involving defendant’s back yard at the time of the injury. Id at 354. Late in the afternoon, the defendant negligently deposited slippery mud on the back porch when the defendant entered the house briefly and then came back out. He did not want to take the time to clean the mud off the porch because he was busy. Id at 355. About an hour later, while the parties were still working together, the plaintiff fell due to the slippery mud and the darkness, when he tried to ascend the porch. Id. at 354. The court, in dealing with this issue, noted that the muddy condition of the yard and the mud on the porch resulted from the activities the men were conducting on the premises. Id. at 357. The dangerous condition was not something plaintiff encountered separately from the defendant’s presence. Id. Although one would usually think of a case of mud on the porch as involving passive negligence, the court concluded that the jury could find active negligence, apparently because the two men were still working together on the project at the time of both the negligence and the injury. See id.
*249This case is distinguishable from Cupp because here the defendant had left the area, and the plaintiff encountered the danger by herself. The defendant was not engaged in an activity either jointly with his mother-in-law or in her presence. The risk of injury was separated from any activity the defendant was engaged in at that time — and was caused by a condition — an open flame. As the Court in Arbogast stated:
The injury to [plaintiff] here resulted from a condition existing on the property and not from any activity conducted on the property by the landowner or its employees and hence there is no evidence here to constitute active negligence as plaintiff contends.
452 S.W.2d at 84.
Why does it matter? Because historically owners and possessors of land have the right to utilize their property as they see fit, subject only to the duty that is imposed by law according to the nature of the relationship between the possessor of the land and the visitor to the land. See Carter v. Kinney, 896 S.W.2d 926, 929-30. In Carter, the plaintiff-appellants urged the Supreme Court to throw out the archaic distinctions between licensees and invitees and to simply hold all possessor s of land to a standard of reasonable care under the circumstances. Id. at 929. The Court said:
The contours of the legal relationship that results from the possessor’s invitation reflect a careful and patient effort by courts over time to balance the interests of persons injured by conditions of land against the interests of possessors of land to enjoy and employ their land for the purposes they wish. Moreover, and despite the exceptions courts have developed to the general rules, the maintenance of the distinction between licensee and invitee creates fairly predictable rules within which entrants and possessors can determine appropriate conduct and juries can assess liability. To abandon the careful work of generations for an amorphous “reasonable care under the circumstances” standard seems — to put it kindly — improvident.
Id. at 930.
For the foregoing reasons, I conclude that, regardless of how the case was pleaded by the plaintiff, the owner of the property had a right to have his case decided and to have the jury instructed according to the law of premises liability.
Having said that, I find it difficult to say that the error in instructing the jury was prejudicial in this case. See, e.g., Syn, Inc. v. Beebe, 200 S.W.3d 122, 134 (Mo.App. W.D.2006) (imposing standard of care higher than the law requires is prejudicial). MAI 22.07 would have required the jury to find that the defendant left the lamp burning and to find that defendant should have known that persons such as plaintiff would not discover the condition or realize the risk of harm; while the instruction given required merely that the jury find that he left the lamp burning and was thereby negligent. It seems arguable that in the precise facts of this case the facts are such that the presumption of prejudice is rebutted. There was no dispute that the defendant left the lamp burning. There was no dispute about the fact that defendant considered the lamp to present a danger. The only dispute was about whether he thought it was dangerous only to property or also to persons (which seems not so meaningful of a distinction when one considers the dangers to persons presented by a burning house). Unless I misunderstand, the essence of any claim of negligence here (and the essence of the arguments by the attorneys) was the assertion that the defendant should have known that his mother-in-law *250would not recognize the condition (that the lamp was already lit) or realize the risk of harm, which is exactly what the defendant’s requested instruction (MAI 22.07) would have required the jury to find. The appellant relies on the presumption of prejudice but fails to explain how there was any prejudice in this case. The presumption of prejudice is not a blind presumption. See Syn, Inc., 200 S.W.3d at 134. I do not see the prejudice here, so I concur in result. However, I do not agree with failing to uphold in this case the traditional rules of premises liability. It will make a difference in some cases. Carter, 896 S.W.2d at 930.
I agree with affirmance. However, for the reasons mentioned above, I believe it was error to reject the request of defendant to instruct the jury in accordance with MAI 22.07.