dissenting:
I respectfully dissent.
My review of the record convinces me that the defense verdict in this case was in large measure the product of jury confusion over the tort concept of duty. The evidence strongly suggests that the injured child was not burned as a result of climbing up onto the carousel, as represented by the child’s father at trial. To the contrary, it appears from a combination of the father’s statement to the admitting physician, as reflected in the hospital records, and the application of logical inferences derived from the circumstances of the accident that the child was placed on the hot surface of the carousel by his father. The stage was thus set for the jury to transfer its focus from the breach of duty by McDonalds to a breach of duty by the father. Jury perspective was obscured by an instruction that invited an erroneous analysis of duty to the prejudice of the injured child.
The setting of the incident must be understood to appreciate why the father’s conduct did not insulate McDonalds from its duty to its Vk year old invitee, Timothy. The playground equipment was prominently displayed at the site of the fast food operation on Maryland Parkway to entice young children and their parents into the facility. The playground was colorfully adorned and presented as an inducement to partake of McDonalds’ victuals in an environment conducive to contented children. It is thus clear that McDonalds had an elevated duty of care to its minor invitees who were most vulnerable to the enticements of the playground. Crosswhite v. Shelby Operating Corp., 30 S.E.2d 673 (Va. 1944); Grace v. Kumalaa, 386 P.2d 872 (Hawaii 1963); Styer v. City of Reading, 61 A.2d 382 (Pa. 1948); Augusta Amusements v. Powell, 92 S.E.2d 720 (Ga.App. 1956); Bronson v. Kansas City, 323 S.W.2d 526 (Mo.App. 1959); Schwartz v. Helms Bakery Limited, 430 P.2d 68 (Cal. 1967).
Assuming the jury concluded that a less than candid father placed Timothy on the carousel, it is necessary to consider the legal significance of such conduct by the father as it relates to *541McDonalds’ duty to the injured child-invitee. Given the fact that the carousel, unshaded from the sun and bereft of warning, stood beckoning its amusements to tender-aged children, it was arguable foreseeable that a parent might thoughtlessly conclude that McDonalds would not create, maintain or invite the use of a dangerous object of recreational enticement for children. Its alluring and unrestricted presence spoke silently but convincingly of its fitness for use. In any event, McDonalds’ duty of extraordinary care to its minor invitees was undiminished by a lack of parental care unless such dereliction was unforeseeable. Landeros v. Flood, 551 P.2d 389 (Cal. 1976). Failure to adequately safeguard invited children from foreseeable acts of parental or third-party negligence in the use of McDonalds’ commercial recreational facilities should, as a matter of law, subject McDonalds to liability for injuries to such invitees. Id. at 395.
The foregoing predicate leads me to the offending instruction. The jury was instructed on a landowner’s duty to invitees in Nevada by Instruction 9-C.1 That instruction included the following provision:
On the other hand, if the dangerous and unsafe condition is obvious, ordinary care does not require warning from an owner or occupant of land.
The inclusion of the quoted provision was inappropriate and prejudicial in this case for several reasons. First, I seriously question the provision as a correct statement of the law where the unsafe condition is created and maintained by the landowner as an enticement for use by invitees for the landowner’s commercial purposes. Berrum v. Powalisz, 73 Nev. 291, 317 P.2d 1090 (1957). Indeed, at trial McDonalds sought to avoid the consequences of its own inattention by the unbecoming argument that the carousel’s superheated condition should have been obvious to the 3V2 year old. seriously burned infant.2 Second, as noted *542previously, I do not believe McDonalds’ duty was limited to that of ordinary care when applied to the young children it particularly sought to entice and influence by its recreational facilities. Third, the instruction may have convinced the jury that if the condition were obvious, or should have been obvious to Timothy’s father, no liability would attach to McDonalds for the child’s injuries. Fourth, I consider it violative of sound public policy to permit a commercial enterprise to attract patrons through means of a dangerous instrumentality of its own making and then disclaim liability for injury on grounds that the hazard was open and obvious. Fifth, the instruction may have invited the jury to speculate regarding an aspect of blame attributable to 3 V2 year old Timothy for not recognizing and attempting to avoid the danger. In respect of the latter point, I am persuaded that the trial court also erred in refusing to instruct the jury that because of his age, Timothy was incapable of contributory negligence as a matter of law.
As previously observed, McDonalds argued that its own liability to Timothy should have been eliminated by the child’s failure to recognize and avoid the hot surface of the carousel. This was improper. As a matter of law, Timothy was incapable of appreciating the hazard presented by the “Whirl.” Clark v. Circus-Circus, Inc., 525 F.2d 1328 (9thCir. 1975). As stated in Comment (b) to § 283A of the Second Restatement:
A child of tender years is not required to conform to the standards of behavior which it is reasonable to expect of an adult. His conduct is to be judged by the standard of behavior to be expected of a child of like age, intelligence, and experience. A child may be so young as to be manifestly and utterly incapable of exercising any of those qualities of attention, perception, knowledge, experience, intelligence, and judgment which are necessary to enable him to perceive a risk and to realize its unreasonable character . . . The prevailing view is that in tort cases no [age] limits can be fixed. Undoubtedly there is a minimum age, probably somewhere in the vicinity of four years, below which negligence can never be found. (Emphasis added.)
I hardly view as “Procrustean” a realistic acknowledgment in the law that a child under the age of four years is incapable of negligence. A jury should not be permitted to speculate on an issue that reason and experience place outside the realm of speculation.
Instruction 9-C misstated the law and created a strong potential for jury confusion on the issue of McDonalds’ duty of care to little Timothy. My brethren in the majority have recognized that “an erroneous instruction as to the duty or standard of care owing *543by one party to the other is substantial error requiring another trial.” Otterbeck v. Lamb, 85 Nev. 456, 463, 456 P.2d 855, 860 (1969). I agree, and since the standard of care specified in the last paragraph of Instruction 9-C is clearly not the law under the circumstances of this case, a new trial is mandated. I therefore respectfully dissent from the opinion and decision of the majority.
The instruction, in its entirety, reads as follows:
An owner or occupant of land must exercise ordinary care and prudence to render the premises reasonably safe for the visit of a person invited on his premises for business purposes. An owner or occupant of land who knows, or in the exercise of reasonable care should know, of their dangerous and unsafe condition, and who invites others to enter upon the property, owes to such invitees a duty to warn them of the danger, where the peril is hidden, latent, or concealed, or the invitees are without knowledge thereof.
On the other hand, if the dangerous and unsafe condition is obvious, ordinary care does not require warning from an owner or occupant of land.
This argument was obviously designed to cover the unlikely prospect of the jury believing that the child climbed onto the carousel without his father’s assistance.