159 F.2d 169 (1947)
UNITED STATES et al.
v.
CARROLL TOWING CO., Inc., et al.

Nos. 96, 97, Dockets 20371, 20372.
Circuit Court of Appeals, Second Circuit.

January 9, 1947.
170*170 Robert S. Erskine and Kirlin, Campbell, Hickox & Keating, all of New York City (John H. Hanrahan, of New York City, of counsel), for Grace Line, Inc.

Edmund F. Lamb and Purdy & Lamb, all of New York City, for Conners Marine Co., Inc.,

Christopher E. Heckman and Foley & Martin, all of New York City, for Carroll Towing Co., Inc.

Frederic Conger and Burlingham, Veeder, Clark & Hupper, all of New York City (Chauncey I. Clark, of New York City, of counsel), for Pennsylvania Railroad Company.

Before L. HAND, CHASE and FRANK, Circuit Judges.

L. HAND, Circuit Judge.

These appeals concern the sinking of the barge, “Anna C,” on January 4, 1944, off Pier 51, North River. The Conners Marine Co., Inc., was the owner of the barge, which the Pennsylvania Railroad Company had chartered; the Grace Line, Inc., was the charterer of the tug, “Carroll,” of which the Carroll Towing Co., Inc., was the owner. The decree in the limitation proceeding held the Carroll Company liable to the United States for the loss of the barge’s cargo of flour, and to the Pennsylvania Railroad Company, for expenses in salving the cargo and barge; and it held the Carroll Company also liable to the Conners Company for one half the damage to the barge; these liabilities being all subject to limitation. The decree in the libel suit held the Grace Line primarily liable for the other half of the damage to the barge, and for any part of the first half, not recovered against the Carroll Company because of limitation of liability; it also held the Pennsylvania Railroad secondarily liable for the same amount that the Grace Line was liable. The Carroll Company and the Pennsylvania Railroad Company have filed assignments of error.

The facts, as the judge found them, were as follows. On June 20, 1943, the Conners Company chartered the barge, “Anna C,” to the Pennsylvania Railroad Company at a stated hire per diem, by a charter of the kind usual in the Harbor, which included the services of a barge, apparently limited to the hours 8 A.M. to 4 P.M. On January 2, 1944, the barge, which had lifted the cargo of flour, was made fast off the end of Pier 58 on the Manhattan side of the North River, whence she was later shifted to Pier 52. At some time not disclosed, five other barges were moored outside her, extending into the river; her lines to the pier were not then strengthened. At the end of the next pier north (called the Public Pier), lay four barges; and a line had been made fast from the outermost of these to the fourth barge of the tier hanging to Pier 52. The purpose of this line is not entirely apparent, and in any event it obstructed entrance into the slip between the two tiers of barges. The Grace Line, which had chartered the tug, “Carroll,” sent her down to the locus in quo to “drill” out one of the barges which lay at the end of the Public Pier; and in order to do so it was necessary to throw off the line between the two tiers. On board the “Carroll” at the time were not only her master, but a “harbormaster” employed by the Grace Line. Before throwing off the line between the two tiers, the “Carroll” nosed up against the outer barge of the tier lying off Pier 52, ran a line from her own stem to the middle bit of that barge, and kept working her engines “slow ahead” against the ebb tide which was making at that time. The captain of the “Carroll” put a deckhand and the “harbormaster” on the barges, told them to throw off the line which barred the entrance to the slip; 171*171 but, before doing so, to make sure that the tier on Pier 52 was safely moored, as there was a strong northerly wind blowing down the river. The “harbormaster” and the deckhand went aboard the barges and readjusted all the fasts to their satisfaction, including those from the “Anna C,” to the pier.

After doing so, they threw off the line between the two tiers and again boarded the “Carroll,” which backed away from the outside barge, preparatory to “drilling” out the barge she was after in the tier off the Public Pier. She had only got about seventy-five feet away when the tier off Pier 52 broke adrift because the fasts from the “Anna C,” either rendered, or carried away. The tide and wind carried down the six barges, still holding together, until the “Anna C” fetched up against a tanker, lying on the north side of the pier below — Pier 51 — whose propeller broke a hole in her at or near her bottom. Shortly thereafter: i. e., at about 2:15 P.M., she careened, dumped her cargo of flour and sank. The tug, “Grace,” owned by the Grace Line, and the “Carroll,” came to the help of the flotilla after it broke loose; and, as both had syphon pumps on board, they could have kept the “Anna C” afloat, had they learned of her condition; but the bargee had left her on the evening before, and nobody was on board to observe that she was leaking. The Grace Line wishes to exonerate itself from all liability because the “harbormaster” was not authorized to pass on the sufficiency of the fasts of the “Anna C” which held the tier to Pier 52; the Carroll Company wishes to charge the Grace Line with the entire liability because the “harbormaster” was given an over-all authority. Both wish to charge the “Anna C” with a share of all her damages, or at least with so much as resulted from her sinking. The Pennsylvania Railroad Company also wishes to hold the barge liable. The Conners Company wishes the decrees to be affirmed.

The first question is whether the Grace Line should be held liable at all for any part of the damages. The answer depends first upon how far the “harbormaster’s” authority went, for concededly he was an employee of some sort. Although the judge made no other finding of fact than that he was an “employee,” in his second conclusion of law he held that the Grace Line was “responsible for his negligence.” Since the facts on which he based this liability do not appear, we cannot give that weight to the conclusion which we should to a finding of fact; but it so happens that on cross-examination the “harbormaster” showed that he was authorized to pass on the sufficiency of the fasts of the “Anna C.” He said that it was part of his job to tie up barges; that when he came “to tie up a barge” he had “to go in and look at the barges that are inside the barge” he was “handling”; that in such cases “most of the time” he went in “to see that the lines to the inside barges are strong enough to hold these barges”; and that “if they are not” he “put out sufficient other lines as are necessary.” That does not, however, determine the other question: i. e., whether, when the master of the “Carroll” told him and the deckhand to go aboard the tier and look at the fasts, preparatory to casting off the line between the tiers, the tug master meant the “harbormaster” to exercise a joint authority with the deckhand. As to this the judge in his tenth finding said: “The captain of the Carroll then put the deckhand of the tug and the harbor master aboard the boats at the end of Pier 52 to throw off the line between the two tiers of boats after first ascertaining if it would be safe to do so.” Whatever doubts the testimony of the “harbormaster” might raise, this finding settles it for us that the master of the “Carroll” deputed the deckhand and the “harbormaster,” jointly to pass upon the sufficiency of the “Anna C’s” fasts to the pier. The case is stronger against the Grace Line than Rice v. The Marion A. C. Meseck,[1] was against the tug there held liable, because the tug had only acted under the express orders of the “harbormaster.” Here, although the relations were reversed, that makes no difference in principle; and the “harbormaster” was not instructed what he should do about the fasts, but was allowed 172*172 to use his own judgment. The fact that the deckhand shared in this decision, did not exonerate him, and there is no reason why both should not be held equally liable, as the judge held them.

We cannot, however, excuse the Conners Company for the bargee’s failure to care for the barge, and we think that this prevents full recovery. First as to the facts. As we have said, the deckhand and the “harbormaster” jointly undertook to pass upon the “Anna C’s” fasts to the pier; and even though we assume that the bargee was responsible for his fasts after the other barges were added outside, there is not the slightest ground for saying that the deckhand and the “harbormaster” would have paid any attention to any protest which he might have made, had he been there. We do not therefore attribute it as in any degree a fault of the “Anna C” that the flotilla broke adrift. Hence she may recover in full against the Carroll Company and the Grace Line for any injury she suffered from the contact with the tanker’s propeller, which we shall speak of as the “collision damages.” On the other hand, if the bargee had been on board, and had done his duty to his employer, he would have gone below at once, examined the injury, and called for help from the “Carroll” and the Grace Line tug. Moreover, it is clear that these tugs could have kept the barge afloat, until they had safely beached her, and saved her cargo. This would have avoided what we shall call the “sinking damages.” Thus, if it was a failure in the Conner Company’s proper care of its own barge, for the bargee to be absent, the company can recover only one third of the “sinking” damages from the Carroll Company and one third from the Grace Line. For this reason the question arises whether a barge owner is slack in the care of his barge if the bargee is absent.

As to the consequences of a bargee’s absence from his barge there have been a number of decisions; and we cannot agree that it is never ground for liability even to other vessels who may be injured. As early as 1843, Judge Sprague in Clapp v. Young,[2] held a schooner liable which broke adrift from her moorings in a gale in Provincetown Harbor, and ran down another ship. The ground was that the owners of the offending ship had left no one on board, even though it was the custom in that harbor not to do so. Judge Tenney in Fenno v. The Mary E. Cuff,[3] treated it as one of several faults against another vessel which was run down, to leave the offending vessel unattended in a storm in Port Jefferson Harbor. Judge Thomas in The On-the-Level,[4] held liable for damage to a stake-boat, a barge moored to the stake-boat “south of Liberty Light, off the Jersey shore,” because she had been left without a bargee; indeed he declared that the bargee’s absence was “gross negligence.” In the Kathryn B. Guinan,[5] Ward, J., did indeed say that, when a barge was made fast to a pier in the harbor, as distinct from being in open waters, the bargee’s absence would not be the basis for the owner’s negligence. However, the facts in that case made no such holding necessary; the offending barge in fact had a bargee aboard though he was asleep. In the Beeko,[6] Judge Campbell exonerated a power boat which had no watchman on board, which boys had maliciously cast loose from her moorings at the Marine Basin in Brooklyn and which collided with another vessel. Obviously that decision has no bearing on the facts at bar. In United States Trucking Corporation v. City of New York,[7] the same judge refused to reduce the recovery of a coal hoister, injured at a foul berth, because the engineer was not on board; he had gone home for the night as was apparently his custom. We reversed the decree,[8] but for another reason. In The Sadie,[9] we affirmed Judge Coleman’s holding¹⁰ that it was actionable negligence to leave without a bargee on board a barge made fast outside another barge, in the face of storm warnings. The damage was done to the 173*173 inside barge. In The P. R. R. No. 216,[11] we charged with liability a lighter which broke loose from, or was cast off, by a tanker to which she was moored, on the ground that her bargee should not have left her over Sunday. He could not know when the tanker might have to cast her off. We carried this so far in The East Indian,[12] as to hold a lighter whose bargee went ashore for breakfast, during which the stevedores cast off some of the lighter’s lines. True, the bargee came back after she was free and was then ineffectual in taking control of her before she damaged another vessel; but we held his absence itself a fault, knowing as he must have, that the stevedores were apt to cast off the lighter. The Conway No. 23¹³ went on the theory that the absence of the bargee had no connection with the damage done to the vessel itself; it assumed liability, if the contrary had been proved. In The Trenton,[14] we refused to hold a moored vessel because another outside of her had overcharged her fasts. The bargee had gone away for the night when a storm arose; and our exoneration of the offending vessel did depend upon the theory that it was not negligent for the bargee to be away for the night; but no danger was apparently then to be apprehended. In Bouker Contracting Co. v. Williamsburgh Power Plant Corporation¹⁵, we charged a scow with half damages because her bargee left her without adequate precautions. In O’Donnell Transportation Co. v. M. & J. Tracy,[16] we refused to charge a barge whose bargee had been absent from 9 A.M. to 1:30 P.M., having “left the vessel to go ashore for a time on his own business.”

It appears from the foregoing review that there is no general rule to determine when the absence of a bargee or other attendant will make the owner of the barge liable for injuries to other vessels if she breaks away from her moorings. However, in any cases where he would be so liable for injuries to others, obviously he must reduce his damages proportionately, if the injury is to his own barge. It becomes apparent why there can be no such general rule, when we consider the grounds for such a liability. Since there are occasions when every vessel will break from her moorings, and since, if she does, she becomes a menace to those about her; the owner’s duty, as in other similar situations, to provide against resulting injuries is a function of three variables: (1) The probability that she will break away; (2) the gravity of the resulting injury, if she does; (3) the burden of adequate precautions. Possibly it serves to bring this notion into relief to state it in algebraic terms: if the probability be called P; the injury, L; and the burden, B; liability depends upon whether B is less than L multiplied by P: i. e., whether B > PL. Applied to the situation at bar, the likelihood that a barge will break from her fasts and the damage she will do, vary with the place and time; for example, if a storm threatens, the danger is greater; so it is, if she is in a crowded harbor where moored barges are constantly being shifted about. On the other hand, the barge must not be the bargee’s prison, even though he lives aboard; he must go ashore at times. We need not say whether, even in such crowded waters as New York Harbor a bargee must be aboard at night at all; it may be that the custom is otherwise, as Ward, J., supposed in “The Kathryn B. Guinan,” supra;[17] and that, if so, the situation is one where custom should control. We leave that question open; but we hold that it is not in all cases a sufficient answer to a bargee’s absence without excuse, during working hours, that he has properly made fast his barge to a pier, when he leaves her. In the case at bar the bargee left at five o’clock in the afternoon of January 3rd, and the flotilla broke away at about two o’clock in the afternoon of the following day, twenty-one hours afterwards. The bargee had been away all the time, and we hold that his fabricated story was affirmative evidence 174*174 that he had no excuse for his absence. At the locus in quo — especially during the short January days and in the full tide of war activity — barges were being constantly “drilled” in and out. Certainly it was not beyond reasonable expectation that, with the inevitable haste and bustle, the work might not be done with adequate care. In such circumstances we hold — and it is all that we do hold — that it was a fair requirement that the Conners Company should have a bargee aboard (unless he had some excuse for his absence), during the working hours of daylight.

The decrees will be modified as follows. In the libel of the Conners Company against the Pennsylvania Railroad Company in which the Grace Line was impleaded, since the Grace Line is liable in solido, and the Carroll Company was not impleaded, the decree must be for full “collision damages” and half “sinking damages,” and the Pennsylvania Railroad Company will be secondarily liable. In the limitation proceeding of the Carroll Company (the privilege of limitation being conceded), the claim of the United States and of the Pennsylvania Railroad Company will be allowed in full. Since the claim of the Conners Company for “collision damages” will be collected in full in the libel against the Grace Line, the claim will be disallowed pro tanto. The claim of the Conners Company for “sinking damages” being allowed for one half in the libel, will be allowed for only one sixth in the limitation proceeding. The Grace Line has claimed for only so much as the Conners Company may recover in the libel. That means that its claim will be for one half the “collision damages” and for one sixth the “sinking damages.” If the fund be large enough, the result will be to throw one half the “collision damages” upon the Grace Line and one half on the Carroll Company; and one third of the “sinking damages” on the Conners Company, the Grace Line and the Carroll Company, each. If the fund is not large enough, the Grace Line will not be able altogether to recoup itself in the limitation proceeding for its proper contribution from the Carroll Company.

Decrees reversed and cause remanded for further proceedings in accordance with the foregoing.

[826 F.2d 1555] Arthur L. Klein, Arnstein, Gluck, Lehr, Barron & Milligan, Chicago, Ill., for plaintiff-appellant.

Byron D. Knight, Judge & Knight, Ltd., Park Ridge, Ill., for defendant-appellee.

Before BAUER, Chief Judge, and CUDAHY and POSNER, Circuit Judges.

POSNER, Circuit Judge.

The high crime rate in the United States has interacted with expanding notions of tort liability to make suits charging hotel owners with negligence in failing to protect their guests from criminal attacks increasingly common. See Annot., 28 A.L.R.4th 80 (1984). Dula McCarty, a guest at the Pheasant Run Lodge in St. Charles, Illinois, was assaulted by an intruder in her room, and brought suit against the owner of the resort. The suit charges negligence, and bases federal jurisdiction on diversity of citizenship. The parties agree that Illinois law governs the substantive issues. The jury brought in a verdict for the defendant, and Mrs. McCarty appeals on a variety of grounds.

In 1981 Mrs. McCarty, then 58 years old and a merchandise manager for Sears Roebuck, checked into Pheasant Run--a large resort hotel on 160 acres outside Chicago--to attend a Sears business meeting. In one wall of her second-floor room was a sliding glass door equipped with a lock and a safety chain. The door opens onto a walkway that has stairs leading to a lighted courtyard to which there is public access. The drapes were drawn and the door covered by them. Mrs. McCarty left the room for dinner and a meeting. When she returned, she undressed and got ready for bed. As she was coming out of the bathroom, she was attacked by a man with a stocking mask. He beat and threatened to rape her. She fought him off, and he fled. He has never been caught. Although Mrs. McCarty's physical injuries were not serious, she claims that the incident caused prolonged emotional distress which, among other things, led her to take early retirement from Sears.

Investigation of the incident by the police revealed that the sliding glass door had been closed but not locked, that it had been pried open from the outside, and that the security chain had been broken. The intruder must have entered Mrs. McCarty's room by opening the door to the extent permitted by the chain, breaking the chain, and sliding the door open the rest of the way. Then he concealed himself somewhere in the room until she returned and entered the bathroom.

Mrs. McCarty argues that the judge should have granted her motion for judgment notwithstanding the jury's verdict for the defendant. But she failed to move for a directed verdict on the issue of the defendant's negligence, and that is a prerequisite to judgment n.o.v. Fed.R.Civ.P. 50(b). It is true that she made a motion for a directed verdict on the issue of her contributory negligence, which was denied, and that the defendant made a motion for a directed verdict on the issue of its negligence, which was also denied, but these motions were not equivalent to the motion she failed to make. Even if she had been innocent of contributory negligence as [826 F.2d 1556] a matter of law, this would not have made the defendant guilty of negligence as a matter of law; in many accidents, neither injurer nor victim is at fault, and then there is no liability. Similarly, all that the denial of the defendant's motion for a directed verdict showed was that the defendant was not innocent of negligence as a matter of law; it could of course be guilty of negligence as a matter of law. Thus, neither motion for directed verdict presented the question whether the issue of the defendant's negligence should be withdrawn from the jury and resolved in the plaintiff's favor. She could not present that issue for the first time in her motion for judgment n.o.v.

The modern rationale for the rule that a motion for directed verdict is a prerequisite to judgment n.o.v. is that the opposing party should have a chance to rectify (or at least seek the court's leave to rectify) deficiencies in his evidence before it is too late, that is, before the case goes to the jury. McKinnon v. City of Berwyn, 750 F.2d 1383, 1388 (7th Cir.1984); see also Benson v. Allphin, 786 F.2d 268, 273-74 (7th Cir.1986). That rationale is applicable to this case. After both motions for directed verdict (the plaintiff's on contributory negligence, and the defendant's on negligence) were denied, the defendant had no reason to think it hadn't put in enough evidence to get to the jury on the issue of liability. If the plaintiff thought otherwise she had to move for a directed verdict on that issue.

As an alternative ground for denying the motion for judgment n.o.v., the district judge correctly pointed out that the case was not so one-sided in the plaintiff's favor that the grant of a directed verdict or judgment n.o.v. in her favor would be proper. Her theories of negligence are that the defendant should have made sure the door was locked when she was first shown to her room; should have warned her to keep the sliding glass door locked; should have equipped the door with a better lock; should have had more security guards (only two were on duty, and the hotel has more than 500 rooms), cf. Nordmann v. National Hotel Co., 425 F.2d 1103, 1107 (5th Cir.1970); should have made the walkway on which the door opened inaccessible from ground level; should have adopted better procedures for preventing unauthorized persons from getting hold of keys to guests' rooms; or should have done some combination of these things. The suggestion that the defendant should have had better procedures for keeping keys away from unauthorized persons is irrelevant, for it is extremely unlikely that the intruder entered the room through the front door. Compare Danile v. Oak Park Arms Hotel, Inc., 55 Ill.App.2d 2, 203 N.E.2d 706 (1964). The other theories were for the jury to accept or reject, and its rejection of them was not unreasonable. Cf. Courtney v. Remler, 566 F.Supp. 1225, 1233-34 (D.S.C.1983).

There are various ways in which courts formulate the negligence standard. The analytically (not necessarily the operationally) most precise is that it involves determining whether the burden of precaution is less than the magnitude of the accident, if it occurs, multiplied by the probability of occurrence. (The product of this multiplication, or "discounting," is what economists call an expected accident cost.) If the burden is less, the precaution should be taken. This is the famous "Hand Formula" announced in United States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir.1947) (L. Hand, J.), an admiralty case, and since applied in a variety of cases not limited to admiralty. See, e.g., United States Fidelity & Guaranty Co. v. Jadranska Slobodna Plovidba, 683 F.2d 1022, 1026 (7th Cir.1982); Maryland Cas. Co. v. City of Jackson, 493 So.2d 955, 960 n. 3 (Miss.1986) (dictum); People Express Airlines, Inc. v. Consolidated Rail Corp., 100 N.J. 246, 266-67, 495 A.2d 107, 117-18 (1985); Micallef v. Miehle Co., 39 N.Y.2d 376, 386, 384 N.Y.S.2d 115, 348 N.E.2d 571, 577-78 (1976); Phillips v. Croy, 173 Ind.App. 401, 404-05, 363 N.E.2d 1283, 1285 (1977); Benlehr v. Shell Oil Co., 62 Ohio App.2d 1, 9 and n. 5, 402 N.E.2d 1203, 1208 and n. 5 (1978); Golden v. McCurry, 392 So.2d 815, 819 (Ala.1980) (separate opinion); 3 Harper, James & Gray, The Law of Torts Sec. 16.9, at pp. 467- [826 F.2d 1557] 68 (2d ed. 1986); Prosser and Keeton on the Law of Torts Sec. 31, at p. 173 (5th ed. 1984); cf. East River S.S. Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 106 S.Ct. 2295, 2302, 90 L.Ed.2d 865 (1986); Prentis v. Yale Mfg. Co., 421 Mich. 670, 687, 365 N.W.2d 176, 184 (1984).

We are not authorized to change the common law of Illinois, however, and Illinois courts do not cite the Hand Formula but instead define negligence as failure to use reasonable care, a term left undefined. See, e.g., Hardware State Bank v. Cotner, 55 Ill.2d 240, 247-48, 302 N.E.2d 257, 262 (1973); Denniston v. Skelly Oil Co., 47 Ill.App.3d 1054, 1067, 6 Ill.Dec. 77, 87, 362 N.E.2d 712, 722 (1977). But as this is a distinction without a substantive difference, we have not hesitated to use the Hand Formula in cases governed by Illinois law. See EVRA Corp. v. Swiss Bank Corp., 673 F.2d 951, 958 (7th Cir.1982); Davis v. Consolidated Rail Corp., 788 F.2d 1260, 1263-64 (7th Cir.1986). The formula translates into economic terms the conventional legal test for negligence. This can be seen by considering the factors that the Illinois courts take into account in negligence cases: the same factors, and in the same relation, as in the Hand Formula. See Hendricks v. Peabody Coal Co., 115 Ill.App.2d 35, 45-46, 253 N.E.2d 56, 61 (1969); Bezark v. Kostner Manor, Inc., 29 Ill.App.2d 106, 111-12, 172 N.E.2d 424, 426-27 (1961). Unreasonable conduct is merely the failure to take precautions that would generate greater benefits in avoiding accidents than the precautions would cost.

Ordinarily, and here, the parties do not give the jury the information required to quantify the variables that the Hand Formula picks out as relevant. That is why the formula has greater analytic than operational significance. Conceptual as well as practical difficulties in monetizing personal injuries may continue to frustrate efforts to measure expected accident costs with the precision that is possible, in principle at least, in measuring the other side of the equation--the cost or burden of precaution. Cf. Conway v. O'Brien, 111 F.2d 611, 612 (2d Cir.1940) (L. Hand, J.), rev'd on other grounds, 312 U.S. 492, 61 S.Ct. 634, 85 L.Ed. 969 (1941). For many years to come juries may be forced to make rough judgments of reasonableness, intuiting rather than measuring the factors in the Hand Formula; and so long as their judgment is reasonable, the trial judge has no right to set it aside, let alone substitute his own judgment.

Having failed to make much effort to show that the mishap could have been prevented by precautions of reasonable cost and efficacy, Mrs. McCarty is in a weak position to complain about the jury verdict. No effort was made to inform the jury what it would have cost to equip every room in the Pheasant Run Lodge with a new lock, and whether the lock would have been jimmy-proof. The excluded exhibits (of which more later) were advertisements for locks, and Mrs. McCarty's lawyer expressed no interest in testing the claims made in them, or in calculating the expense of installing new locks in every room in the resort. And since the door to Mrs. McCarty's room was unlocked, what good would a better lock have done? No effort was made, either, to specify an optimal security force for a resort the size of Pheasant Run. No one considered the fire or other hazards that a second-floor walkway not accessible from ground level would create. A notice in every room telling guests to lock all doors would be cheap, but since most people know better than to leave the door to a hotel room unlocked when they leave the room--and the sliding glass door gave on a walkway, not a balcony--the jury might have thought that the incremental benefits from the notice would be slight. Mrs. McCarty testified that she didn't know there was a door behind the closed drapes, but the jury wasn't required to believe this. Most people on checking into a hotel room, especially at a resort, are curious about the view; and it was still light when Mrs. McCarty checked in at 6:00 p.m. on an October evening.

It is a bedrock principle of negligence law that due care is that care which is optimal given that the potential victim is himself reasonably careful; a careless person [826 F.2d 1558] cannot by his carelessness raise the standard of care of those he encounters. Davis v. Consolidated Rail Corp., supra, 788 F.2d at 1265. The jury may have thought it was the hotel's responsibility to provide a working lock but the guest's responsibility to use it. See Brewer v. Roosevelt Motor Lodge, 295 A.2d 647, 652 (Me.1972). We do not want to press too hard on this point. A possible explanation for the condition of the door as revealed by the police investigation is that Mrs. McCarty on leaving the room for the evening left the door unlocked but with the safety chain fastened, and she might have been reasonable in thinking this a sufficient precaution. But it would not follow that the hotel was negligent, unless it is negligence to have sliding doors accessible to the public, a suggestion the jury was not required to buy. We doubt whether a boilerplate notice about the dangers of unlocked doors would have altered the behavior of the average guest; in any event this too was an issue for the jury. Cf. Rosier v. Gainsville Inns Associates, Ltd., 347 So.2d 1100, 1102 (Fla.App.1977); Otwell v. Motel 6, Inc., 755 F.2d 665, 667 (8th Cir.1985) (per curiam).

Now it is true that in Illinois an innkeeper, which in contemplation of law this defendant is, is required to use a high (not merely the ordinary) standard of care to protect its guests from assaults on the innkeeper's premises. Mrzlak v. Ettinger, 25 Ill.App.3d 706, 712-13, 323 N.E.2d 796, 800 (1975); Danile v. Oak Park Arms Hotel, Inc., supra, 55 Ill.App.2d at 8-9, 203 N.E.2d at 709. This is not the general rule, see, e.g., Kveragas v. Scottish Inns, Inc., 733 F.2d 409, 413 (6th Cir.1984); Peters v. Holiday Inns, Inc., 89 Wis.2d 115, 123-24, 278 N.W.2d 208, 212 (1979); Phillips Petroleum Co. v. Dorn, 292 So.2d 429, 431-32 (Fla.App.1974), though it has some ambiguous support in Louisiana, see Kraaz v. La Quinta Motor Inns, Inc., 410 So.2d 1048 (La.1982)--ambiguous because while the court said that "a guest is entitled to a high degree of care and protection," it promptly added that "the innkeeper has a duty to take reasonable precautions against criminals" (id. at 1053, emphasis added). Conceivably, as suggested in Dorn, it is no longer the rule in Illinois either, though Yamada v. Hilton Hotel Corp., 60 Ill.App.3d 101, 112, 17 Ill.Dec. 228, 237, 376 N.E.2d 227, 236 (1977), decided after Dorn, suggests it is. The rule may simply be an inadvertent extrapolation from the principle (see Restatement (Second) of Torts, Sec. 314A and comment e (1965); Kveragas v. Scottish Inns, Inc., supra, 733 F.2d at 412) that an innkeeper, like a common carrier but unlike a mere bystander, has a duty to prevent (or rescue from) dangers created by third parties. See Fortney v. Hotel Rancroft, Inc., 5 Ill.App.2d 327, 331, 125 N.E.2d 544, 546 (1955), seeming to equate these distinct propositions.

The rule, if it is a rule, may be defensible however; and whether it is or is not defensible is relevant to whether it is a genuine rule or a mere inadvertence. Ordinarily the innkeeper knows much more about the hazards of his trade than the guest, and can take reasonable (=cost-justified) steps to reduce them, while ordinarily the guest can do little to protect himself against them. See Banks v. Hyatt Corp., 722 F.2d 214, 226-27 (5th Cir.1984). Pheasant Run, Inc. knows more about the danger of break-ins to guest rooms at its lodge than the guests do, and more about the alternative methods for preventing such break-ins, as well. Maybe this asymmetry in the parties' position should make the defendant's standard of care higher than it would be in, say, an ordinary collision case. See Danile v. Oak Park Arms Hotel, Inc., supra, 55 Ill.App.2d at 6-8, 203 N.E.2d at 708-09. But it does not make the defendant's liability strict. In this case there was evidence of negligence but not so much as to establish liability as a matter of law or (the plaintiff's alternative argument) to require a new trial. And the rule, based as it seems to be on an asymmetry in the parties' abilities to prevent mishaps, has a certain hollowness in a case such as this, where the victim may have failed to take an elementary precaution--locking the sliding door before leaving the room.

[826 F.2d 1559] The next issue that Mrs. McCarty seeks to raise is whether the judge should have instructed the jury to decide whether she had been contributorily negligent. She argues that there was no evidence of her contributory negligence. Pheasant Run is not in the middle of a large city and it might not occur to a guest that a safety chain on a sliding door to the outside was an inadequate protection against nocturnal marauders. On the other hand Mrs. McCarty was an experienced business traveler, so maybe she should have known better; and most people don't consider a safety chain an adequate substitute for a lock. But even if there was no evidence of contributory negligence, there was no prejudicial error in giving an instruction on it. The jury was clearly and correctly instructed that contributory negligence in Illinois is not a complete defense; it just cuts down the amount of damages that the plaintiff would otherwise be entitled to. This is the principle of comparative negligence, and at the time of the trial of this case it existed in Illinois in its pure form, meaning that the plaintiff is entitled to some damages even if he was more negligent than the defendant. See Alvis v. Ribar, 85 Ill.2d 1, 25-28, 52 Ill.Dec. 23, 421 N.E.2d 886, 897-98 (1981). (The rule has since been modified. See Ill.Rev.Stat. ch. 110, paragraphs 2-1107.1, 2-1116; Davis v. United States, 824 F.2d 549, 551 (7th Cir.1987).) Since the jury returned a verdict for the defendant, rather than a verdict for the plaintiff with truncated damages, it probably thought that the defendant had not been negligent at all or that its negligence had not caused the mishap; in either case the plaintiff's contributory negligence or lack thereof would be moot. It is unlikely that the mere giving of the instruction somehow signaled to the jury the judge's belief that the verdict should be for the defendant.

The remaining questions concern the judge's exclusion of evidence that the plaintiff sought to put before the jury. The exclusion of evidence about proper key-control procedures was proper for a reason we have already indicated: such evidence was not relevant to any plausible theory of the defendant's negligence. Also proper or at least defensible was the judge's decision to exclude evidence of previous criminal activity at Pheasant Run that did not involve breaking into a room through the sliding glass door. The judge admitted evidence of the nine previous break-ins that did. The principal evidence in the previous-crimes category that he excluded was of two alleged sexual assaults and eleven alleged thefts from rooms. This evidence was of limited relevance, at best. One of the so-called assaults involved a complaint from a man who said that he saw a man and woman having intercourse in a hallway and that he sprained his ankle pursuing the man; it is entirely unclear whether the intercourse was coerced or what the relationship of the complainant to the couple was. The circumstances of the other alleged assault are equally shadowy. Neither involved an intrusion into a room. The eleven reports of theft appear to include cases where a guest lost or mislaid an item as well as cases of genuine theft, but in any event are remote from the issues in this case; among other things, none involved forcing the sliding glass door.

A trial judge has broad discretion in administering Rule 403 of the Federal Rules of Evidence, which authorizes him to exclude relevant evidence if its probative significance is substantially outweighed by its prejudicial, confusing, or cumulative effect. Where as here the judge explains the reasoning process behind his exclusions, they will rarely be overturned. See United States v. Beasley, 809 F.2d 1273, 1278-79 (7th Cir.1987). Pheasant Run is a large place, and it is not to be supposed that it would be free of criminal activity no matter how careful (within the bounds of reason) the management was. There is no indication that its experience with criminal activity was abnormal or indicative of a need to take additional precautions. Maybe the jury should have been allowed to figure this out for itself, but a jury's ability to digest statistical evidence is limited, especially when no comparison was attempted by the plaintiff's counsel between the frequency of criminal activity at Pheasant [826 F.2d 1560] Run and at comparable resort hotels, cf. Anderson v. Malloy, 700 F.2d 1208, 1211-12 (8th Cir.1983), and no effort was made to show that precautions which would have averted crimes not involving the forcing of the sliding glass doors would also have averted the attack on Mrs. McCarty.

She also complains about the exclusion from evidence of advertisements for locks for sliding glass doors. These locks are designed to foil intruders, as the advertisements make clear, and Mrs. McCarty argues with some show of reason that the advertised locks appear to be more effective than the locks on the sliding glass doors at Pheasant Run. The problem is the absence of a causal relationship between the failure to have fancy locks and the attack on Mrs. McCarty. There is no evidence that Mrs. McCarty's assailant jimmied the lock. The door was unlocked. The world's fanciest lock--a lock to foil a Houdini--would thus have done her no good, and the failure to install a precaution that would not have avoided this accident (the accident that is the basis of the suit) is not actionable. Kveragas v. Scottish Inns, Inc., supra, 733 F.2d at 415. Her complaint about the exclusion of evidence of inadequate maintenance by the defendant of its sliding glass doors fails for the same reason; there is no indication that her failure to lock the door was due to improper maintenance. Finally, it is merely speculation that if the door had been equipped with a lock that locked automatically when the door was slid closed, the door would not have been left open with merely the safety chain fastened.

AFFIRMED.

269 Kan. 420
7 P.3d 1163

SARAH WOOD, LINDA WOOD, and WARREN WOOD, Appellants/Cross-appellees,
v.
DERRY GROH and CHOON GROH, Appellees/Cross-appellants.

No. 81,826.

Supreme Court of Kansas.

Opinion filed June 9, 2000.

[269 Kan. 421] David R. Cooper, of Fisher, Patterson, Sayler & Smith, L.L.P., of Topeka, argued the cause, and David P. Madden, of the same firm, of Overland Park, and Don C. Krueger, of Krueger & Huth Law Office, of Emporia, were with him on the briefs for appellants/cross-appellees.

Paul Hasty, Jr., of Wallace, Saunders, Austin, Brown & Enochs, Chtd., of Overland Park, argued the cause, and Jeffrey W. Deane, of the same firm, was with him on the briefs for appellees/cross-appellants.

The opinion of the court was delivered by

DAVIS, J.:

The primary question in this appeal involves the civil standard of care required of those persons having ownership or control of a firearm. The defendant parents kept a .22 caliber handgun in their home. Their minor son obtained the gun and later accidently shot the plaintiffs' minor daughter. In the plaintiffs' personal injury action against the parents, the jury was instructed that the standard of care required of the parents was that of reasonable [269 Kan. 422] care. However, the standard of care required in this state is the highest degree of care. We reverse and remand for further proceedings.

On the afternoon of May 27, 1995, Ed Groh, age 15, used a screwdriver to open his father's locked gun cabinet and removed a .22 caliber handgun. The gun was not loaded; however, the loaded ammunition clip, as well as additional ammunition, was stored in the cabinet along with the gun. Ed took the gun and ammunition to a friend's house where he and some friends drank beer and practiced "target shooting with some cans." Later that night, Ed went to a party at the Archdekins' house. There were no adults present at the party. Ed carried the gun with him and showed it to others at the party. Sarah Wood, age 15, arrived at the party around midnight. Both Sarah and Ed consumed alcoholic beverages at the party.

At about 1:30 or 2 a.m., Ed left the party to drink more beer at another friend's house. He returned to the party and at approximately 2:30 a.m., as Sarah and Ed proceeded up the stairs at the Archdekins' house, the gun accidentally discharged, striking Sarah in the left buttock.

Sarah and her parents, Linda and Warren Wood, filed suit against Ed's parents, Derry and Choon Groh, alleging negligent parental supervision and negligent safeguarding of a gun. The Archdekins were also named defendants in the suit but were dismissed on summary judgment and are not involved in this appeal.

Trial testimony established that Deny Groh had taken his son target shooting with the gun five or six times. Derry specifically forbade Ed from using the gun without strict parental supervision. Ed knew that he was not to take any of the weapons from the cabinet without Derry's permission. Derry was the only person with a key to the gun cabinet and he kept the key on his personal key ring at all times.

Linda Wood testified, however, that Ed told her that Derry knew he had the gun and that Derry knew that he occasionally took the gun from the cabinet and shot it. Testimony also revealed that Ed had been arrested prior to the shooting for taking someone's car without permission and "joyriding." Under the terms of his probation [269 Kan. 423] from that incident, Ed was not to possess a firearm without the permission of his probation officer. Derry took Ed target shooting with the gun shortly after the joyriding incident. Ed had a curfew of 11 to 11:30 p.m. on weekends, which he violated by being at the party well past midnight on the night of the shooting. Neither of the Grohs knew where Ed was the night of the shooting.

A jury returned a verdict in favor of the Woods, finding the Grohs 10% at fault, Sarah 20% at fault, and Ed, who was not a party to the lawsuit, 70% at fault. The jury awarded $100,000 in damages to Sarah and $9,162.50 to her parents, Linda and Warren Wood. Judgment was, therefore, entered in favor of Sarah in the amount of $10,000 and in favor of Linda and Warren in the amount of $916.25.

The Woods raise two issues on appeal: (1) whether the district court erred in refusing to instruct the jury that the Grohs owed the highest degree of care in safeguarding a handgun; and (2) whether the district court erred by refusing to find the Grohs jointly and severally liable for the combined fault of themselves and their son. The Grohs raise three issues on cross-appeal: (1) whether the district court erred by refusing to impose sanctions for the Woods' post-trial filings; (2) whether the district court properly instructed the jury on the issue of negligent parental supervision of their son; and (3) whether the district court erred by instructing the jury that the Grohs could be found negligent for failing to prevent their son from breaking into a locked gun cabinet.

(1) Whether the district court erred in refusing to instruct the jury that the Grohs owed the highest degree of care in safeguarding a handgun.

Standard of Review

The trial court is required to properly instruct the jury on a party's theory of the case. Errors regarding jury instructions will not demand reversal unless they result in prejudice to the appealing party. Instructions in any particular action are to be considered together and read as a whole, and where they fairly instruct the jury on the law governing the case, error in an isolated instruction may be disregarded as harmless. If the instructions are substantially [269 Kan. 424] correct and the jury could not reasonably have been misled by them, the instructions will be approved on appeal. Hawkinson v. Bennett, 265 Kan. 564, 577-78, 962 P.2d 445 (1998). Where, however, the appellate court reaches a firm conviction that if the trial error had not occurred, there is a real possibility that the jury would have returned a different verdict, the appellate court must reverse and remand. Jackson v. City of Kansas City, 263 Kan. 143, 148, 947 P.2d 31 (1997).

Discussion and Analysis

The Woods objected to jury Instruction No. 14, which stated:

"The plaintiffs, Sarah Wood, Warren Wood and Linda Wood, claim that they sustained damages due to the negligence of Ed Groh.

"The plaintiffs also claim that they sustained damages due to the fault of Derry Groh and Choon Groh as follows:

(a) Derry Groh and Choon Groh failed to exercise reasonable care to prevent their son, Ed Groh, from gaining access to the gun;

(b) Derry Groh and Choon Groh failed to exercise reasonable care to ascertain the whereabouts of their minor child, Ed Groh; and

(c) Derry Groh and Choon Groh failed to properly exercise reasonable care in the parental supervision over their minor child, Ed Groh." (Emphasis added.)

In place of Instruction 14, the Woods proposed the following instruction:

"The duty of one owning a handgun is that of the highest degree of care in safekeeping the handgun because a handgun is considered an inherently dangerous instrument. [Citations omitted.]" (Emphasis added.)

The proposed instruction was denied based upon the district court's conclusion that a handgun is "not a dangerous instrumentality when it's in an unloaded state."

Recently, in Long v. Turk, 265 Kan. 855, 962 P.2d 1093 (1998), this court addressed the standard of care required when dealing with a dangerous instrumentality. In Long, the defendant's minor son, Matthew, was driving his car when he encountered the plaintiff's minor son, Tony, driving a van. Matthew and Tony shouted at each other while the vehicles drove side-by-side for a few blocks. Matthew eventually reached under the floor mat and pulled out his father's .357 Magnum handgun and fired one shot out the passenger [269 Kan. 425] side window. The hollow point slug went through the window of Tony's van, killing him.

Matthew's father owned several guns which were kept in a locked safe, although Matthew knew where the keys were kept. A.357 Magnum and the hollow point bullets for the gun were kept in a gun cabinet. Testimony conflicted as to whether Matthew had permission to take the gun out of the locked cabinet. After depositions were taken of Matthew and his father, Matthew's father moved for summary judgment, asking the court to dismiss the case. The district court granted the motion for summary judgment.

On appeal, this court reversed the summary judgment, concluding that genuine issues of material fact existed. We concluded that the .357 Magnum handgun was a dangerous instrumentality requiring the highest degree of care. 265 Kan. at 860. We examined the history in this state regarding the standard of care required in dealing with a dangerous instrumentality. Quoting from an earlier opinion of Wroth v. McKinney, 190 Kan. 127, 373 P.2d 216 (1962), we stated:

"'Kansas has long followed the rule that the highest degree of care is required of all responsible persons having ownership or control of dangerous explosives such as dynamite and firearms.... [T]he degree of care has to be commensurate with the dangerous character of the instrumentality and a duty to exercise the highest degree of care never ceases.'" 265 Kan. at 861.

Long referred to and quoted from Comment b of the Restatement (Second) of Torts § 298 (1964):

"'Care required. The care required is always reasonable care. This standard never varies, but the care which it is reasonable to require of the actor varies with the danger involved in his act, and is proportionate to it. The greater the danger, the greater the care which must be exercised.'

"'... Thus, those who deal with firearms ... are required to exercise the closest attention and the most careful precautions, not only in preparing for their use but in using them.'" 265 Kan. at 861-62.

This court determined in Long that firearms are inherently dangerous instrumentalities and commensurate with the dangerous character of such instrumentalities, the reasonable care required was the highest degree of care. Long had not been decided at the time this case was submitted to the jury. Nevertheless, consistent [269 Kan. 426] with Long and the cases cited therein, we conclude that the district court erred by not instructing the jury that the highest standard of care is required when dealing with a dangerous instrumentality.

The instructional error in this case goes to the heart of the controversy. The factual issue to be decided by the jury was whether the Grohs were negligent in storing the gun. There is a substantial difference between the two standards proposed: ordinary care or the highest degree of care. Other jurisdictions considering instructional errors concerning the standard of care to be applied by the jury in its evaluation of the defendant's conduct have concluded that such an error requires reversal. See Ruth v. Rhodes, 66 Ariz. 129, 137, 185 P.2d 304 (1947) (noting generally that failure to instruct on the proper standard of care to which a defendant should be held is usually reversible error, for it is improper that a jury should be allowed to hold against a party when it was given the wrong standard by which to measure the party's conduct); Bailey v. Rose Care Center, 307 Ark. 14, 19, 817 S.W.2d 412 (1991) (holding that reversal was required where the court instructed the jury on the wrong standard of care); Wilson v. City & County of S. F., 174 Cal. App.2d 273, 277, 344 P.2d 828 (1959) (reversal required where jury instructions misled jury into applying ordinary care standard instead of heightened standard of care to carrier); Blackwell's Adm'r v. Union Light, Heat & Power Co., 265 S.W.2d 462, 464-65 (Ky. App. 1953) (holding that instruction which erroneously defined the "highest degree of care" so as to mislead jury into believing that the defendant was held to standard of ordinary care was error requiring reversal); Lindstrom v. Yellow Taxi Co., 298 Minn. 224, 230, 214 N.W.2d 672 (1974) (affirming the trial court's decision to grant a new trial where the trial court had erroneously instructed the jury in a way that led the jury to believe that the defendant was held to an ordinary care standard rather than the "highest degree of care" standard); Urban v. Minneapolis Street Ry. Co., 256 Minn. 1, 6, 96 N.W.2d 698 (1959) (holding that the instructions were confusing as the jury was likely to evaluate the defendant's actions under an ordinary care standard rather than the "highest degree of care" standard); Woods v. Chinn, 224 S.W.2d 583, 587 (Mo. App. 1949) (giving of instruction which [269 Kan. 427] placed ordinary care standard on party rather than "highest degree of care" was erroneous, thereby requiring reversal); Jones v. Port Authority, 136 Pa. Commv. 445, 448-49, 583 A.2d 512 (1990) (noting that carriers owe a heightened duty of care to their fare paying passengers and holding that the trial court erred in instructing the jury in such a way as to mislead it into applying an ordinary care standard); Magbuhat v. Kovarik, 382 N.W.2d 43, 46 (S.D. 1986) (noting that it is prejudicial to instruct the jury on the wrong standard of care); and Coyle v. Metro Seattle, 32 Wash. App. 741, 747, 649 P.2d 652 (1982) (holding that instructions were confusing to jury and that jury could have been misled into thinking that the defendant only had a duty of ordinary care when jury should have evaluated defendant under a "highest degree of care" standard).

We have concluded that the parents in this case owed the highest duty to protect the public from the misuse of the gun, a dangerous instrumentality, stored in their home. The fact that the gun was not loaded is insignificant, for the ammunition was kept in the same locked cabinet as the gun. Once access to the gun was obtained, access to the ammunition immediately followed. Storage of the ammunition in the same location as the gun in this case resulted in the gun being easily loaded and made it a dangerous instrumentality.

The parents took significant steps to prevent their son from obtaining possession of the gun. The gun cabinet was locked at all times. Derry Groh was the only person with a key to the cabinet. The key was on his key ring and in his possession at all times. Their son was told and was aware that he was not to use the guns without parental supervision. Their son had attended and passed a hunter safety class. Their son, however, only had to use a screwdriver to gain access to the cabinet and was able to obtain possession of both the gun and the ammunition by doing so.

We conclude, under the facts of this case, that the instructional error did result in prejudice to the plaintiffs. There is a real possibility that the jury would have returned a different verdict had the correct standard been given to the jury in measuring the conduct of the parents. We, therefore, reverse and remand for further proceedings.

[269 Kan. 428] (2) Whether the district court erred by refusing to find the Grohs jointly and severally liable for the combined fault of themselves and their son.

The Woods argue that the district court erred by refusing to find the Grohs jointly and severally liable for the acts of their son.

Standard of Review

The interpretation of K.S.A. 60-258a is a question of law and, thus, this court's scope of review is unlimited. See Hamilton v. State Farm Fire & Cas. Co., 263 Kan. 875, 879, 953 P.2d 1027 (1998) (noting that our review is unlimited where the issue is interpretation of a statute).

Discussion and Analysis

The Woods objected to submission of this case on a theory of comparative fault pursuant to K.S.A. 60-258a. They argue that the Grohs should be jointly and severally liable for the 70% fault found on the part of their minor son, Ed. They rely on several cases dealing with the duty to control one who intentionally injures another. See Kansas State Bank & Tr. Co. v. Specialized Transportation Services, Inc., 249 Kan. 348, 374-76, 819 P.2d 587 (1991) (imposing joint liability upon those whose duty is to prevent third parties from inflicting injury); Gould v. Taco Bell, 239 Kan. 564, 571, 722 P.2d 511 (1986) (intentional acts of a third party cannot be compared with the negligent acts of a defendant whose duty it was to protect the plaintiff from the intentional acts committed by the third party); M. Bruenger & Co. v. Dodge City Truck Stop, Inc., 234 Kan. 682, 686-87, 675 P.2d 864 (1984) (holding the district court should not have permitted the fault of the negligent bailee to be compared with that of the intentional act of the thief).

The above-cited cases provide no support for the plaintiffs' argument. The shooting in this case was accidental. The record confirms this and provides no evidence otherwise. Where joint tortfeasors are liable on a theory of negligence, their fault must be compared pursuant to K.S.A. 60-258a. The concept of joint and several liability between joint tortfeasors does not apply in comparative negligence actions. Brown v. Keitt, 224 Kan. 195, Syl. ¶ 5, 580 P.2d 867 (1978).

[269 Kan. 429] Cross-petition: (1) Whether the district court erred by refusing to impose sanctions for the Woods' post-trial filings.

Following the trial, the Woods filed a motion to amend to conform to the evidence, a motion to substitute parties, and an objection to the entry of judgment. The thrust of the Woods' motions was to attempt to make the Grohs responsible for the fault of Ed, as the jury had apportioned his fault at 70% and apportioned only 10% fault on the Grohs. A hearing was held and the district court denied the motion to amend and motion to substitute parties. The district court overruled the objection to the entry of judgment. The district court found that the motions "were unnecessary enough to what I consider, without mincing words, garbage. I think they were not appropriate...." The court further noted that it was "convinced that some of the documents filed in this case are an attempt to backdoor judgment against a party [Ed] who has been denied his due process rights." The court also noted that the motions filed by the Woods "rise to the level of legal garbage." Although the court found that the three post-trial filings violated K.S.A. 1999 Supp. 60-211(b), the court chose to verbally admonish the Woods' counsel instead of awarding attorney fees as the Grohs had requested.

Standard of Review

The imposition of sanctions pursuant to K.S.A. 1999 Supp. 60-211 is discretionary with the trial court, and its ruling on sanctions will not be disturbed on appeal absent an abuse of discretion. Summers v. Montgomery Elevator Co., 243 Kan. 393, 399, 757 P.2d 1255 (1988); Cornett v. Roth, 233 Kan. 936, 945, 666 P.2d 1182 (1983). Judicial discretion is abused only where no reasonable person would take the view adopted by the trial court. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. Stayton v. Stayton, 211 Kan. 560, 562, 506 P.2d 1172 (1973).

The Grohs argue that because the court made a finding that K.S.A. 60-211(b) was violated, the statute requires that the court "shall" award sanctions. Because this is a question involving the [269 Kan. 430] interpretation of 60-211, the standard of review is unlimited, as the interpretation of a statute is a question of law. Smith v. Printup, 262 Kan. 587, 603-04, 938 P.2d 1261 (1997).

Discussion and Analysis

The Grohs argue that because the district court found that the Woods' post-trial filings were "unnecessary" and "not appropriate," the court was required to award sanctions in the form of attorney fees.

K.S.A. 1999 Supp. 60-211 provides in pertinent part:

"(c) ... If a pleading, motion or other paper provided for by this article is signed in violation of this section, the court, upon motion or upon its own initiative upon notice and after opportunity to be heard, shall impose upon the person who signed it or a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion or other paper, including reasonable attorney fees." (Emphasis added).

The plain wording of K.S.A. 1999 Supp. 60-211(c) requires that a district court "shall impose" a sanction when a violation of K.S.A. 1999 Supp. 60-211(b) is found, as in this case. The statute, however, does not specifically require a sanction of attorney fees, as it gives the district court the discretion to apply "an appropriate sanction." Further, the statute indicates that the sanction "may include" attorney fees. The statute does not require a district court to award monetary sanctions for a violation of 60-211(b). The word "sanction" does not require courts to award "fees" as the Grohs argue.

Kansas courts often look to the case law on the federal rules as guidance for interpretation of our own rules, as the Kansas rules of civil procedure were patterned after the federal rules. See Stock v. Nordhus, 216 Kan. 779, 782, 533 P.2d 1324 (1975) (noting that the Kansas courts have traditionally followed the interpretation of federal procedural rules and that the federal case law is highly persuasive). Although Fed. R. Civ. Proc. 11 is not identical to K.S.A. 1999 Supp. 60-211, the intent behind the rules is the same. The purpose of both rules is to deter "repetition of improper conduct." Waltz v. County of Lycoming, 974 F.2d 387, 390 (3d Cir. [269 Kan. 431] 1992). An award of attorney fees "should not automatically be the sanction of choice." 974 F.2d at 390.

Courts should take the following factors into consideration when determining whether to sanction a party and what kind of sanction to impose:

(1) whether the improper conduct was willful or negligent;

(2) whether it was part of a pattern of activity or an isolated event;

(3) whether it infected the entire pleading or only one particular count or defense;

(4) whether the person has engaged in similar conduct in other litigation;

(5) whether it was intended to injure;

(6) what effect it had on the litigation process in time or expense;

(7) whether the responsible person is trained in the law;

(8) what amount, given the financial resources of the responsible person, is needed to deter that person from repetition in the same case; and

(9) what amount is needed to deter similar activity by other litigants.

Fed. R. Civ. Proc. 11, Advisory Committee notes 1993.

We hold that the plain meaning of K.S.A. 1999 Supp. 60-211(c), coupled with the legislative intent of the statute, allows courts to impose nonmonetary sanctions in the form of admonitions, as well as monetary sanctions. Courts are not required to award attorney fees when a violation of K.S.A. 1999 Supp. 60-211(b) is found. The district court has the discretion to determine what type of sanctions are appropriate in a given case. The district court did not abuse its discretion in admonishing the Woods for the filing of the three post-trial motions.

(2) Whether the district court properly instructed the jury on the issue of negligent parental supervision.

The Grohs, in their cross-appeal, argue that there was insufficient evidence to justify a jury instruction on the issue of negligent parental supervision. Although the Grohs frame this issue as one [269 Kan. 432] of an incorrect jury instruction, the argument actually concerns a sufficiency of evidence question.

Standard of Review

"[W]hen a verdict is challenged for insufficiency of evidence or as being contrary to the evidence, [the appellate court] does not weigh the evidence or pass on the credibility of the witnesses. `If the evidence, with all reasonable inferences to be drawn therefrom, when considered in the light most favorable to the prevailing party, supports the verdict, it will not be disturbed on appeal.'" Brown v. United Methodist Homes for the Aged, 249 Kan. 124, 127, 815 P.2d 72 (1991).

Analysis and Discussion

The Restatement (Second) of Torts § 316 (1964) sets forth the tort of negligent parental supervision and states:

"A parent is under a duty to exercise reasonable care so to control his minor child as to prevent it from intentionally harming others or from conducting itself as to create an unreasonable risk of bodily harm to them, if the parent

(a) knows or has reason to know that he has the ability to control his child, and

(b) knows or should know of the necessity and opportunity for exercising such control."

The jury was given Instruction No. 14A, which states:

"A parent is under a duty to exercise reasonable care to control their minor child as to prevent said child from intentionally harming others or from so conducting themselves as to create an unreasonable risk of bodily harm to others, if the parents know or have reason to know that they have the ability to control their child and know or should know of the necessity and opportunity for exercising such control."

Contrary to the Grohs' argument, Instruction No. 14A is a correct statement of the tort of negligent parental supervision. The instruction given is consistent with the Restatement (Second)of Torts and with the Court of Appeals' decision in Mitchell v. Wiltfong, 4 Kan. App.2d 231, 604 P.2d 79 (1979), and properly framed the question raised by the evidence.

(3) Whether the district court erred by instructing the jury that the Grohs could be found negligent for failing to prevent Ed from breaking into a locked gun cabinet to obtain the .22 caliber handgun.

[269 Kan. 433] The Grohs make an additional argument concerning Instruction No. 14A. They argue that there was insufficient evidence adduced at trial to support Instruction No. 14A. The only real issue concerns the second element of the tort concerning the question of whether the Grohs "knew or should have known of the necessity and opportunity for exercising such control."

Although the evidence at trial revealed that Ed had only one previous run-in with the law, the Grohs knew that Ed had a curfew and that it was a violation of his probation to possess a gun without the permission of his probation officer. Linda Wood testified that at the hospital after the incident, she asked Ed if Derry Groh knew he had the gun, and that Ed told her, "[H]e knows I take it sometimes and shoot it." The evidence, with all reasonable inferences to be drawn therefrom, when considered in the light most favorable to the prevailing party, was sufficient to support the giving of Instruction 14A. See Brown v. United Methodist Homes for the Aged, 249 Kan. at 127.

The Grohs argue that the "case should never have been submitted to the jury and a judgment should have been entered in favor of Defendants and against Plaintiffs on all counts." The Grohs further suggest that this court "remand the case to the Trial Court with instructions to enter judgment in favor of Defendants and against Plaintiffs on all counts as the case was improperly submitted to the jury when, in fact, it was a question of law to be resolved in Defendant's favor by the Trial Court." The Grohs claim that there was insufficient evidence adduced at trial to show that the Grohs breached a duty of ordinary care in the safeguarding of the gun and, therefore, the case should have been dismissed.

A review of the record reveals that the Grohs did not raise this issue in the district court. An objection was made to Instruction No. 14 in which the Grohs argued that the evidence did not show they breached any duty of care in the safekeeping of the gun, but no motion was made to dismiss the case. Their trial objection related solely to the language used in the instruction. They did not move for dismissal, nor did they seek summary judgment on this issue. Issues not raised before the trial court cannot be raised for the first time on appeal.Ripley v. Tolbert, 260 Kan. 491, 513, 921 [269 Kan. 434] P.2d 1210 (1996). A new legal theory may not be asserted for the first time on appeal or raised in a reply brief. Jarboe v. Board of Sedgwick County Comm'rs, 262 Kan. 615, 622, 938 P.2d 1293 (1997).

The Grohs further argue that the issue of negligence in the safekeeping of the gun was improperly before the jury because they cannot be negligent in keeping a gun locked in a cabinet where the only way to access the cabinet was by breaking into it with a screwdriver. In other words, the Grohs argue that they cannot be negligent for locking a gun in a gun cabinet. The Grohs correctly note that owners of firearms are not strictly liable for their misuse.

However, although the gun was kept in a locked cabinet, the gun was taken from the cabinet when Ed used a screwdriver to easily break into the cabinet. Even though the ammunition was stored in a separate compartment within the cabinet, it was still accessible by breaking into the cabinet with a screwdriver. It was a simple process for their minor child to break into the cabinet and load the ammunition clip into the gun once the cabinet was open. The question to be resolved is whether the parents used the highest degree of care is storing the gun their son used in accidentally injuring the plaintiff. There are sufficient disputed facts in this case to require that the matter be resolved by the jury on appropriate instruction.

Reversed and remanded.

ABBOTT, J., dissenting:

As I read the record, Linda Wood asked whether Deny Groh knew Ed Groh had the gun and Ed replied, "[H]e knows I take it sometimes and shoot it." The testimony was consistent throughout that Ed only shot the gun when Derry was along and supervising. I find nothing in the briefs which indicate that Deny ever allowed Ed to have the gun unsupervised. Ed's comment that he occasionally took the gun from the cabinet and shot it can only be interpreted as having the gun when he was with his father.

Here, the gun was under lock and key, and Deny kept control of the key. The majority, in my opinion, makes it almost absolute [269 Kan. 435] liability to own a gun. What more can a gun owner do than lock up an unloaded gun and keep control of the key.

I would hold the Grohs were not negligent as a matter of law.

MCFARLAND, C.J., joins in the foregoing dissenting opinion.

[360 A.2d 389] [70 N.J. 444] Rocco L. D'Ambrosio, Morristown, for defendant-appellant (O'Donnell, Leary & D'Ambrosio, Morristown, attorneys).

Herbert E. Weiland, Morristown, for plaintiff-respondent (Hoyt, Weiland & Hoyt, Morristown, attorneys).

The opinion of the Court was delivered by

SULLIVAN, J.

This case involves a claim for personal injuries and arises out of a skiing accident which occurred at a ski resort in Vermont. Suit was brought in New Jersey because defendant, who was involved in the accident, is a resident of New Jersey.^[1] The jury returned a verdict for defendant based on its specific finding that defendant was not negligent. On appeal, the Appellate Division, in an opinion reported at 134 N.J.Super. 99, 338 A.2d 820 (1975), reversed and remanded for a new trial holding that the trial judge committed plain error in his charge to the jury as to the [70 N.J. 445] standard of care required of defendant in the circumstances. We reverse and reinstate the judgment for defendant.

The factual situation involved is detailed in the Appellate Division opinion and may summarized as follows:

On February 21, 1972, plaintiff, an experienced skier, was serving as a first aid advisor on the ski patrol at the Mad River Glen ski resort in Vermont. The facility includes a beginners slope which near its end makes an abrupt left turn. The accident occurred some 60 feet beyond the end of the slope in a flat area where plaintiff and a friend happened to be standing taking pictures. Plaintiff had been working in the first aid room which is adjacent to the area where plaintiff and her friend were standing.

Defendant, then 17 years of age, was a beginning skier who had limited crosscountry skiing experience but had never attempted a downhill run. Nor had he ever been to Mad River Glen before. Upon arrival, defendant was sent to the beginners' slope. However, instead of riding the mechanical T-bar lift to the top, defendant confined his first run to the lower portion of the slope. He walked a quarter of the way up the hill and started to ski down, successfully completing the comparatively short run of 30 feet or so until he came to the abrupt left turn. In attempting to negotiate the turn, defendant lost control over his momentum and direction. He saw the two girls ahead of him but because of the short distance remaining, his efforts to regain control and his lack of experience, he did not call out until he was almost upon the girls. Plaintiff attempted to get out of the way but was unable to do so and was struck and knocked down by defendant.

Prior to trial, the court ruled that the law of the case would be the law of Vermont. Counsel have agreed that Vermont law was to this accident is the same as New Jersey's.

The trial court charged the jury that the standard of care applicable in the case was [360 A.2d 390] not the same degree of care required of an adult, but rather that degree of care which a reasonably prudent person of that age (defendant was [70 N.J. 446] 17 years of age) would have exercised under the same or similar circumstances. Following a side bar conference, the court supplemented its charge with the following:

'All right. Perhaps I didn't charge as clearly as I thought that I had charged with reference to the duty of a 17 year old. I know that I used the term 17-year-old beginner, and that may lead to some confusion. Let me try to straighten it out. The law imposes on a 17 year old that standard of care that a 17 year old with the experience and background that this 17 year old had. It does not impose any higher or any lower degree of care than can reasonably be expected of a 17 year old with respect to the experience and background that Mr. Allen had in this case.'

There was no exception taken to the charge. As heretofore noted, the jury in answer to an interrogatory submitted to it found the defendant not negligent.

Plaintiff appealed solely on the ground that the jury verdict was against the weight of the evidence. The Appellate Division, however, Sua sponte, raised the issue of plain error in the court's charge on the applicable standard of care. Following briefing of the issue and oral argument thereon, the Appellate Division reversed and remanded for a new trial finding plain error in the charge. In essence, the Appellate Division held that skiing was an adult activity and that where a child engages in an activity which is normally undertaken by adults, such as skiing, he should be held to the standard of adult skill, knowledge and competence, without allowance for his immaturity. The Appellate Division added that had an adult standard of care been imposed, as it should have been, the jury might well have found defendant negligent.

The Appellate Division determination that defendant, in the circumstances presented, should be held to the standard of care required of an adult was premised on its conclusion that skiing is an activity which may be dangerous to others and is normally undertaken only by adults, and for which adult qualifications are required. See Restatement, [70 N.J. 447] Torts 2d, § 283A, Comment c at 16 (1965). We find nothing in the record to support this conclusion. We think it judicially noticeable that skiing as a recreational sport, save for limited hazardous skiing activities, is engaged in by persons of all ages. Defendant's attempt to negotiate the lower end of the beginners' slope certainly cannot be characterized as a skiing activity that as a matter of law was hazardous to others and required that he be held to an adult standard of conduct. Williams v. Gilbert, 239 Ark. 935, 395 S.W.2d 333 (1965); Conway v. Tamborini, 68 Ill.App.2d 190, 215 N.E.2d 303 (App.Ct.1966); Bixenman v. Hall, 251 Ind. 527, 242 N.E.2d 837 (1968); Ranson v. Melegi, 18 Mich.App. 476, 171 N.W.2d 482 (Ct.App.1969); 2 Harper and James, The Law of Torts, § 16.8 at 927 (1956); but see Neumann v. Shlansky, 58 Misc.2d 128, 294 N.Y.S.2d 628 (Cty.Ct.1968), aff'd o.b. 63 Misc.2d 587, 312 N.Y.S.2d 951 (Sup.Ct.App.Term 970), aff'd 36 A.D.2d 540, 318 N.Y.S.2d 925 (Sup.Ct.App.Div. Second Dept.)

We recognize that certain activities engaged in by minors are so potentially hazardous as to require that the minor be held to an adult standard of care. Driving a motor vehicle, operating a motor boat and hunting would ordinarily be so classified. However, as to the activities mentioned New Jersey law requires that the minor must be licensed and must first demonstrate the requisite degree of adult competence. See annotation, 'Age of minor operator of automobile or other motor-powered vehicle or craft as affecting his primary or contributory negligence,' 97 A.L.R.2d 872 (1964).

[360 A.2d 391] We find that the applicable standard of care, correctly charged by the trial court, was that generally applicable to minors. Cf. Bush v. N.J. & N.Y. Transit Co., Inc., 30 N.J. 345, 353, 153 A.2d 28 (1959). See Parker v. Gunther, 122 Vt. 68, 164 A.2d 152 (1960); Johnson's Adm'rs v. Rutland R.R. Co., 93 Vt. 132, 106 A. 682 (1919). The required standard is that of a reasonable person of like age, intelligence^[2] [70 N.J. 448] and experience under like circumstances. 42 Am.Jur.2d, Infants, § 142 at 136 (1969); Restatement, Torts 2d, § 283A at 14 (1965).^[3] Among those circumstances, of course, would be the nature of the activity in which the minor was engaged.

Most of the cases which apply this standard have been concerned with the minor's contributory negligence and not primary negligence. It has been suggested that a different standard might well apply where the minor's conduct causes injury to others. See Schulman, 'The Standard of Care Required of Children,' 37 Yale L.J. 618, 619 (1928). While this Court has not previously had occasion to consider this question, the Appellate Division has held that the principles enunciated by this Court regarding the contributory negligence of a child would also apply to a case where the primary negligence of a child is involved. Zuckerbrod v. Burch, 88 N.J.Super. 1, 7--8, 210 A.2d 425 (App.Div.), certif. den. 45 N.J. 593, 214 A.2d 30 (1965). We think that a rational basis exists for applying the same standard whether the issue involves a question of contributory negligence of a child, or primary negligence. Moreover, to hold otherwise would further complicate an already difficult area of tort law. The practicalities of the situation weigh heavily in favor of a single standard. See annotation, 97 A.L.R.2d 872, Supra.

[70 N.J. 449] The Appellate Division, while it decided the case on the ground heretofore discussed, also criticized the trial court's application of the standard applicable to children to a 17-year-old person, pointing out that by N.J.S.A. 9:17B--1 Et seq. (eff. January 1, 1973) every person in this State 18 or more years of age is deemed to be an adult. The Appellate Division could see little sense in holding an 18-year-old person to one standard of care and applying a lesser standard to one 17 years of age.

However, this problem will exist no matter where the line is drawn, whether it be at 10, 14 or 18 years. Since it has to be drawn somewhere, it is not unreasonable to fix it at the age of legal maturity--now 18 in this State--holding those under that age and capable of negligence to the standard of care required of a reasonable person of like age, intelligence and experience under like circumstances. Prosser, Torts, § 32 at 154--157 (4 Ed. 1971). This case, though, must be decided on the basis of the law prior to the effective date of the cited statute. Although there is no decided case in New Jersey fixing the age at which the standard of care governing children no longer controls, 18 years would appear to be the age at which a person should be held to adult responsibility in tort matters. Such is already the case with criminal responsibility--18 being the age at which a person's criminal or anti-social behavior ceases to be regarded as juvenile delinquency and is treated as a criminal or quasi-criminal act, subject to the processes and sanctions normally applicable to adults. See N.J.S.A. 2A:4--43 (superceding N.J.S.A. 4--14). The trial court, therefore, charged the jury correctly as to the standard of care applicable to the 17-year-old defendant herein.

[360 A.2d 392] Finally, we consider plaintiff's contention that the jury verdict was against the weight of the evidence in that the uncontradicted evidence leads to the inescapable conclusion that the defendant was negligent. The Appellate Division, [70 N.J. 450] since it disposed of the appeal on other grounds, did not rule on this contention. We have reviewed the proofs and concluded that a jury question as to defendant's negligence was presented and that the verdict returned was not against the weight of the evidence.

The judgment of the Appellate Division is reversed and the judgment of the trial court in favor of defendant is hereby reinstated.

For reversal and reinstatement:

Chief Justice HUGHES, Justices SULLIVAN and PASHMAN and Judges CONFORD, KOLOVSKY and CARTON--6.

For affirmance: Justice SCHREIBER--1.

SCHREIBER, J. (dissenting).

The standard of care now made generally applicable to minors does not square with reality, nor does its purported application justify the charge given.

I

The factual context of this case is set forth both in the Appellate Division and majority opinions. Conspicuous by their absence, however, are the trial court's numerous charges on the defendant's standard of care. In chronological order and intermittently, the trial court instructed the jury:

1. 'The law says that as far as one under 18 is concerned--18 or younger--we don't exact from him or her the same degree of care that we exact from an adult. We expect that we call an infant, which is anyone under 18--we exact that degree of care which a reasonably prudent person of that age would have exercised under the same or similar circumstances. So, as I said to you, Steven Allen on this date was 17 years old, and the law exacts from him the standard of care that a 17 year old would exercise under the circumstances.'

2. (Allen claimed he) 'exercised that degree of care which a reasonably prudent person would or should have exercised.'

3. (Defendant claims he) 'exercised reasonable care as a 17-year-old beginner skier.'

4. 'Like any 17 year old or like any beginner skier or both--any beginning 17-year-old skier.'

5. (The applicable standard is) 'that degree of care that might reasonably be expected of a 17-year-old beginner skier.'

[70 N.J. 451] 6. 'Perhaps I didn't charge as clearly as I thought that I had charged with reference to the duty of a 17 year old. I know that I used the term 17-year-old beginner, and that may lead to some confusion. Let me try to straighten it out. The law imposes on a 17 year old that standard of care that a 17 year old with the experience and background that this 17 year old had. It does not impose any higher or any lower degree of care than can reasonably be expected of a 17 year old with respect to the experience and background that Mr. Allen had in this case.' (Emphasis supplied).

The majority accepts and approves the last, number 6, which was the trial court's supplemental charge. That simply stated that Allen had to exercise the same care as someone of the same age, experience and background. This charge does not equate [360 A.2d 393] with the standard adopted today by the majority, namely that Allen must act in accordance with the conduct of a Resonable person of the same age, Intelligence and experience under the same circumstances.

The significance of the omission of intelligence in the charge becomes apparent when one recognizes the importance of that factor in fixing the required standard of care. Intelligence in this context relates to mental and judgmental capacity but not the exercise of that capacity. The distinction between exercise of mental or judgmental capacity and the capacity itself points to the objective-subjective elements in the test. Restatement, Torts 2d, § 238A, Comment b at 15 (1965). The defendant's conduct is to be measured against the conduct of the average or usual 17-year-old having the same judgmental capacity.

The crucial element in determining the standard of care to be established for infants centers about the judgmental capacity factor to comprehend, understand and perceive risk and danger. Age, experience, education, social background and intellectual capability have their respective places in the formation of judgmental capability. Whether the infant should or should not have acted or reacted in a certain manner depends on whether the theoretical average infant having the same capacity would have acted or reacted in the same fashion.

[70 N.J. 452] Case law has stressed the judgmental capacity factor. In Hellstern v. Smelowitz, 17 N.J.Super. 366, 378, 86 A.2d 265, 271 (App.Div.1952), Judge Jayne pointed out that consideration must be given to the child's 'capacity to understand and avoid dangers to which it is exposed in the actual circumstances and situation under investigation.' When this Court last considered the infant standard of care problem, Bush v. N.J. & N.Y., Transit Co., Inc., 30 N.J. 345, 153 A.2d 28 (1959), its analysis focused upon the 'problem of the capacity of children of tender years to act negligently.' Id. at 352, 153 A.2d at 32.

The Restatement, Torts 2d, § 283A advocates that a child's acts or omissions be compared to that of a reasonable person of the same age, experience, and intelligence.^[1] The majority has apparently adopted this rule. Although the Restatement does not on its face view age, experience, and intelligence as simply some elements to determine judgmental capacity, in its discussion under Comment b, it recognizes that the fact finder must analyze those factors to determine judgmental capacity. The Restatement asks whether that hypothetical person with the same judgmental capacity would have acted or reacted in the same manner. The trial court's supplemental charge omitted any reference to the defendant's intellectual capacity and failed to clearly instruct the jury to measure the defendant's judgment against that of the average 17-year-old with the same intellectual capacity. The jury could not possibly have understood the subjective-objective test which the Court is adopting this day. So even assuming the correctness of the principle adopted by the majority, in view of the several conflicting instructions given to the jury, a new trial is warranted.

[70 N.J. 453] II

Presumably the majority is adhering to the principles enunciated in Bush v. N.J. & N.Y. Transit Co., Inc., supra. We held there that a child under age seven was rebuttably presumed to be incapable of negligence and the issue was not to be submitted to the jury in the absence of evidence 'from which the jury could infer that the child was capable of understanding and avoiding the danger of injury involved in the circumstances of the case.' 30 N.J. at 358, 153 A.2d at 35. The party asserting [360 A.2d 394] the infant's negligence or contributory negligence bore the burden of proof.

Under the norm adopted this day where the negligence or contributory negligence of an infant between ages 7 and 18 is in issue, his activity or inactivity is to be measured by a reasonable person of the same age, intelligence and experience under similar circumstances unless the activities 'are so potentially hazardous as to require that the minor be held to an adult standard of care.' Ante At 390. There are several inherent difficulties in and inequitable consequences of this rule.

What criteria are to be employed by the jury to ascertain whether an activity is 'potentially hazardous'? If a 'potentially hazardous' activity is one which results in serious or permanent injury, then almost any activity might fall within that category. The injured person who has lost the sight of an eye resulting from a carelessly thrown dart, or stone, or firecracker, the death caused by a bicycle, or an individual seriously maimed due to an errant skier--all are indisputable proof of 'potentially hazardous' activity. The majority prescribes no guideline except to imply that whenever licensing is required, the 'potentially hazardous' test is met.^[2] But the State does not impose a licensing [70 N.J. 454] requirement on all 'potentially hazardous' activities and whether one has a license or not is often not relevant in measuring conduct of a reasonably prudent person. Whether the driver of an automobile is licensed, for example, is not relevant in adjudicating if the automobile was being driven in a reasonable prudent manner. In Charbonneau v. MacRury, 84 N.H. 501, 153 A. 457, 464 (1931), the New Hampshire Supreme Court pointed out that by licensing drivers the State 'has not undertaken to deal with the rule of care at all. It neither expressly or impliedly authorizes the trier of facts to disregard the legally ascertainable defects of the actor when material to the issue of his reasonable conduct, whether he be an adult or a minor. The authorized license is not a certificate of the physical perfection of the adult or of the mental maturity of the eligible minor.'

To the injured party, his loss is the same irrespective of the wrongdoer's date of birth and it is inequitable and unjust that a minor should not be expected to exercise the same degree of care as the mythical reasonable and prudent person, at least when engaged in adult activities.^[3] The majority's proposition unnecessarily sanctions the imposition of the burden of young people's hazards on innocent victims. Whenever an infant participates in activities in which adults normally engage, the infant should be held to the adult standard of care. Other courts have not hesitated to do so. Minors participating in these activities are mature enough to possess the 'discretion and physical capacity consistent with . . . the presumption of adult responsibility . . ..' Nelson v. Arrowhead Freight Lines, 99 Utah 129, 104 P.2d 225, 228 (1940). See also, Dellwo v. Pearson, 259 Minn. 452, 107 N.W.2d 859 (1961) (motor boat operation); Neumann v. Shlansky, 58 Misc.2d 128, 294 [70 N.J. 455] N.Y.S.2d 628 (Cty.Ct.1968), Aff'd o.b. 63 Misc.2d 587, 312 N.Y.S.2d 951 (App.T.1970), Aff'd mem., 36 A.D.2d 540, 318 N.Y.S.2d 925 (1971) (golfing); Harrelson v. Whitehead, 236 Ark. 325, 365 S.W.2d 868 (1963) (motorcycle); Jackson v. McCuiston, 247 Ark. 862, 448 S.W.2d 33 (1969) (tractor-propelled stalk cutter); Adams v. Lopez, 75 N.M. 503, 407 P.2d 50 (1965) (motor scooter); Betzold v. Erickson, 35 Ill.App.2d 203, 182 N.E.2d 342 (App.Ct.1962) (truck). [360 A.2d 395] Some jurisdictions recognize that children after a certain age are presumably capable of adult discretion. Lassiter v. Poss, 85 Ga.App. 785, 70 S.E.2d 411, 414 (Ct.App.1952) (14); Nelson v. Arrowhead Freight Lines, supra (14); City of Austin v. Hoffman, 379 S.W.2d 103, 107 (Tex.Civ.App.1964) (14).

Inherent in these approaches, either on the basis of activities or on age well below legal adulthood, is recognition of the realism and justness in applying the adult objective standard. In some measure this is probably due to the expansion of experiences and activity of minors, as well as the protection afforded all members of the family by comprehensive liability insurance policies.^[4] Functionally, skiing is as much a sport for people over 18, as under 18.^[5] It is no different than golf or cycling. And the hazards to the public whether operating a motor vehicle, power boat, motor scooter, bicycle, tractor or hitting a golf ball, or skiing are self-evident. Third persons may be exposed to serious injury because of the dangers which occur when the activity is not being performed in a reasonably prudent manner by a reasonably [70 N.J. 456] prudent person and no sound reason exists for not holding the child defendant to the standard of the reasonably prudent adult. See 2 Harper & James, Law of Torts, § 16.8 at 927 (1956).

III

The 18-year-old line drawn today is contrary to policies enunciated by the legislature in regulating some aspects of the conduct of minors in relation to others. A 16-year-old juvenile may be tried as an adult for a homicide, treason, offense against the person in an aggressive, violent and willful manner, or for sale and distribution of narcotics. N.J.S.A. 2A:4--48. At age 16 1/2, a person may obtain a special learner's permit to drive a car so that a driver's license may be obtained at age 17. N.J.S.A. 39:3--13.1 and N.J.S.A. 39:3--13.4. At age 13 one may be licensed to operate a boat with an outboard motor. N.J.S.A. 12:7--34.7. Under this Court's rules a 17-year-old infant may file a verified petition. R. 4:26--2(b). The 18-year-old line is not consonant with the common law rule that at age 14 an infant is presumed to have the capacity to be guilty of criminal intent. Blackstone's Commentaries, Bk. IV, Sec. 23. The Restatement, Torts 2d, § 283A, Comment a refers to the fact that its rule 'has seldom been applied to anyone over the age of sixteen' and 'is commonly applied to children of tender years.'

The 18-year demarcation line ignores the earlier mental development of young people. A few comments from experts in the field of child behavior demonstrate the point.

* * * (T)he middle-years (6 to 12 plus) child's growing mastery of symbols and his ever-broadening fund of general knowledge permit him to think in ways that come to approximate those of adults. Indeed, in some areas, the child may know a great deal more than his less educated parents and so be able to think more rationally than they * * *. (L. Stone and J. Church, Childhood and Adolescence at 412--413 (2d ed. 1968)).

* * * Rodman (in 'Children Under the law,' 43 Harv.Ed.Rev. 487, 489 (1973)) notes that the law's placement of the dividing [70 N.J. 457] line between legal minority and adult status at the age of eighteen [360 A.2d 396] or twenty-one years is 'artificial and simplistic' because it obscures the dramatic differences among children of different ages and the striking similarities between older children and adults. That observation seems so sound and obvious that it raises the question of how such differences--and also the resemblance between older children and adults--have come to be obscured?

(Skolnick, 'The Limits of Childhood: Conceptions of Child Development and Social Context,' in Children and the Law (Symposium), 39 Law & Contemp.Prob. 38, 43 (1975)).

Selection of the 16th year is a more reasonable age at which to draw the line for the individual to be held to an adult standard of care irrespective of the activity.

IV

I would adopt a rule that an infant 16 years or over would be held to an adult standard of care and that an infant between ages 7 and 16 would be rebuttably presumed to have the duty to act, while engaged in an adult activity, that is, one in which adults normally or usually engage, as a reasonably prudent person, but that, upon a showing that adult judgmental capacity for that type of activity is not warranted, the subjective-objective criteria of the Restatement and adopted by the majority be applied.^[6] Application of this rule recognizes the difference between negligence and contributory negligence since the required judgment capacity in foreseeing and avoiding the hazards created by others may be substantially greater than that to be comprehended by [70 N.J. 458] one's own acts.^[7] See Zuckerbrod v. Burch, 88 N.J.Super. 1, 8, 210 A.2d 425 (App.Div.1965); Note, Supra fn. 4, 1962 Duke L.J. at 142--143; 2 Harper & James, supra, Law of Torts, § 16.8 at 40 (Supp.1968); Roberts v. Ring, 143 Minn. 151, 173 N.W. 437 (1919). If the infant between ages 7 and 16 is found not to have been occupied in an adult activity, the Restatement rule adopted by the majority would be applicable. As to those 16 or over I would apply the adult standard.

I would affirm the judgment of the Appellate Division.

[1] We are advised at oral argument that plaintiff has also filed suit in Vermont against the owner of the ski resort.

[2] Although the charge to the jury in this case omitted the word intelligence, we do not believe the defendant was thereby prejudiced in the light of the charge as a whole and the facts of the case. There was no objection to the charge based on this omission, nor did the Appellate Division notice it. See 134 N.J.Super., Supra, at 104, 338 A.2d 820.

[3] The Restatement Comment states that the rule in § 283A has seldom been applied to anyone over the age of 16 but that no definite line can be drawn.

__________

[1] The Restatement reads as follows:

§ 283A. Children.

If the actor is a child, the standard of conduct to which he must conform to avoid being negligent is that of a reasonable person of like age, intelligence, and experience under like circumstances.

[2] No license is required for a motorized bike, but a ten-speed bike can be pedaled at 25 miles per hour on a flat road. The U.S. Consumer Product Safety Commission reports that there are 500 to 1000 fatalities and about 500,000 permanently crippled each year from bicycle mishaps.

[3] Dean Shulman acknowledged that 'in some situations a minor is fully as competent as a person over twenty-one and should be held to the same standard of conduct.' Shulman, 'The Standard of Care Required of Children,' 37 Yale L.J. 618 (1928).

[4] Payments for child responsibilities are made by adults or insurance companies under policies paid for by adults. James, 'Accident Liability Reconsidered: The Impact of Liability Insurance,' 57 Yale L.J. 549, 554--556 (1948). In Note, 'Torts: Application of Adult Standard of Care to Minor Motor Vehicle Operators,' 1962 Duke L.J. 138, 141 it is stated that 'Minors are seldom sued in the absence of insurance, because they usually lack sufficient financial resources to make suit worthwhile.'

[5] Sullivan, The Complete Book of Family Skiing (1966).

[6] Professor Bohlen suggests that where harm has been intended the infant should be held 'to exactly the same extent as for his failure to conform to those standards of conduct which are obligatory upon normal persons.' 'Liability in Torts of Infants and Insane Persons,' 23 Mich.L.Rev. 9, 32 (1924). See Note, 'A Proposal for a Modified Standard of Care for the Infant Engaged in an Adult Activity,' 42 Ind.L.J. 405 (1967).

[7] Shulman, Supra fn. 3 commented:

The standard of conduct to which an infant is to be held when his own liability is in question may properly be quite different from that to which he is to be held when he seeks to recover from an admittedly egligent defendant. It is apparent that different considerations may be involved in these several types of cases. There is a strog policy in favor of protecting children from losses attributable to their immaturity. It would be quite plausible, therefore, for a court to be more lenient toward children whose injuries are attributable, not only to their immaturity, but also to conceded tortious conduct on the part of the defendant, than toward children who are the sole responsible causes of injury to others. (37 Yale L.J. at 619).

Page 696

Page 697

        [241 Pa.Super. 213] Terry W. Knox, West Chester, for Donald Terwilliger.

        Donald J. Farage, Philadelphia, for Thomas W. Fredericks.

        John R. Warner, Norristown, for appellee Tube City Iron and Metal Co.

        G. Clinton Fogwell, Jr., West Chester, Charles Jay Bogdanoff, J. Lieberman, Philadelphia, for appellees Melvin R. Whiteacre, J. M. Rudisill and Son, Inc.

        PER CURIAM:

        This appeal is brought by the plaintiff and the one defendant found liable in an action arising from a motor vehicle accident involving two trucks and a Pennsylvania Turnpike Commission vehicle. We disagree with the appellants' various allegations of trial errors and affirm the lower court.

        The appellant-plaintiff, Thomas Fredericks, was a passenger in a Pennsylvania Turnpike Commission vehicle driven by appellant-defendant Donald Terwilliger on the morning of January 24, 1968. Just prior to the accident, Terwilliger pulled onto the berm of the four lane turnpike preparatory to making a U-turn through an opening in the divider fence. As the vehicle proceeded to cross the two eastbound lanes, it was struck by a truck driven by appellee-defendant Charles Castora and owned by Tube City Iron and Metal Company which had been following at a distance of about 600 to 800 feet. Another truck, driven by appellee-defendant Whiteacre in the scope of his employment with J. M. Rudisill and Son, Inc., in an attempt to pass the wreckage, jack-knifed. It is disputed whether or not the second truck struck any of the other vehicles. Fredericks was seriously injured. Thomas Fredericks brought suit against the two truck drivers, Castora and Whiteacre and their two respective employers, Tube City Iron and Metal Company and J. M. Rudisill and Son, Inc. Subsequently, Donald Terwilliger [241 Pa.Super. 214] and the Pennsylvania Turnpike Commission were joined as additional defendants. Following a jury trial a verdict was rendered in favor of the plaintiff Fredericks against the additional defendant Donald Terwilliger, and in favor of Charles Castora, Tube City Iron and Metal Company, Melvin Whiteacre and J. M. Rudisill and Son, Inc.

        Appellants' first argument is that the defendants Castora and Whiteacre should be held to a higher standard of care than is usually applied to the operator of a motor vehicle in evaluating both their negligence and the defense of sudden emergency as charged by the trial judge. In support of this position, reference is made to the evidence that both defendants were professionals who drove trucks for a living and had done so for over 20 years. Appellants cite no cases to buttress this novel contention but instead review various sections and comments from the Restatement (Second) of Torts (1965). ¹ Whereas the sections cited might be appropriately considered in a situation where the defendant had received specialized training, or was required to demonstrate a high standard of

Page 698

²

        In the present case the trial court in its charge defined negligence as the want of due care under the circumstances and the failure to act as a reasonable, prudent person under the circumstances. A requirement that experienced truck drivers be subject to a higher standard of care does not impress us as being a useful concept to infuse into the law of vehicle negligence. An understanding of the ordinary standard of due care applicable to the average motorist under the multitude of changing circumstances likely to confront today's driver is already difficult to grasp and apply justly. To begin to vary the standard according to the driver's experience would render the application of any reasonably uniform standard impossible. Other jurisdictions have confronted the problem of varying degrees of care and sought to control the ceaseless variation of the concept of negligence by establishing a single standard: 'Care does not increase or diminish by calling it names. We think the abstract concept of reasonable care is in itself quite difficult enough to grapple with and apply in our law without our courts gratuitously conferring honorary degrees [241 Pa.Super. 216] upon it. There is only One degree of care in the law, and that is the standard of care which may reasonably be required or expected under all the circumstances of a given situation. . . .' Spence v. Three Rivers Building & Masonry Supply, 353 Mich. 120, 130, 90 N.W.2d 873, 878 (1958). Cf. Hoover v. Pennsylvania R.R. Co., 405 Pa. 642, 177 A.2d 98, Cert. denied, 369 U.S. 873, 82 S.Ct. 1142, 8 L.Ed.2d 276 (1962); Schiele v. Motor Freight Express, Inc., 348 Pa. 525, 36 A.2d 467 (1944). We decline this opportunity to develop a higher standard of care for experienced truck drivers and find that the trial court did not err in its instruction on the degree of care in the present case.

        Appellants' second allegation of error concerns the charge to the jury on proximate cause. Although the trial judge commented on the concept of proximate cause throughout the charge, the essence of his definition was comprised in one paragraph: 'The proximate cause of an event is that which, in a natural and continuous sequence, unbroken by any new independent caused, produces the damage complained of, and without which the loss or damage would not have occurred. Now, it need not be the sole or immediate cause but it must be a substantial factor in bringing about the harm. The injury must be the natural and probable consequence of Defendant's conduct, such a consequence as

Page 699

        In support of their conclusion that the statement is incorrect, the appellants cite the Restatement (Second) of Torts § 435(1) (1965): 'If the actor's conduct is a substantial factor in bringing about harm to another, the fact that the actor neither foresaw nor should have foreseen the Extent of the harm or the Manner in which it [241 Pa.Super. 217] occurred does not prevent him from being liable.' ³ (Emphasis added). This section is to be read in conjunction with § 431 which defines legal cause in terms of negligent conduct which is a substantial factor in bringing about harm where no rule of law operates to relieve the actor from liability because of the manner in which the conduct resulted in the harm. Thus the fact that the conduct in question might not be reasonably foreseen to result in the particular harm or cause harm in the particular manner that in fact occurred, does not preclude liability. Wisniewski v. The Great Atlantic & Pacific Tea Co., 226 Pa.Super. 574, 323 A.2d 744 (1974). See also, Majors v. Brodhead Hotel, 416 Pa. 265, 205 A.2d 873 (1965).

        Section 435(1) was clearly designed, and has been used by the courts, to prevent defendants from escaping liability simply by showing that although their conduct is both negligent and a substantial factor producing the harm, an accident of the particular kind, occurring in the specific manner as the one in question, could not have been expected to result from the conduct involved. This becomes a difficult question in cases where the injuries are of an unusual nature or extent or the actor's conduct produces harm in some bizarre and unexpected way, but it is not an issue in the present case. In this case the injuries were the normal and customary result of a collision between motor vehicles on a high speed turnpike, [241 Pa.Super. 218] both in their extent and the manner of their occurrence, and in that respect clearly foreseeable. For that reason it is difficult to perceive any harm in the charge. No party has offered as a defense inability to anticipate injury resulting from the present facts.

        The problem with the challenged statement in the charge is that it is actually a proper instruction on foreseeability as that concept relates the actors' duty with respect to the plaintiff. As such, it is not incorrect, it is simply out of place. ⁴ The courts of this Commonwealth have traditionally defined negligence in terms of foreseeability, an approach which is consistent with the Restatement (Second) of Torts § 281 (1965). "Negligence is defined as the absence of care under the circumstances: Beck v. Stanley Company of America, 355 Pa. 608, 50 A.2d 306; Palsgraf v. Long Island R. Co., 248 N.Y. 339, 162 N.E. 99. The test of negligence is whether the wrongdoer could have anticipated

Page 700

⁵

        That the trial judge should have slipped the statement regarding foreseeability, objected to by the appellants, into the end of his instruction on proximate cause is not surprising. Language which is substantially similar, except that it even more explicitly ties the concept of proximate cause with that of foreseeability, appears in Backer v. Borough of Schuylkill Haven, 200 Pa.Super. 305, 310--11, 189 A.2d 764, 767, Allocatur refused, 200 Pa.Super. Xxx (1963). 'In determining what is proximate cause, the true rule is that the injury must be the natural and probable consequence of the wrongful act, such a consequence as under the surrounding circumstances of the case might have been foreseen by the wrongdoer as likely to flow from his act.' It is apparent from the foregoing that the law of negligence in Pennsylvania is in the process of evolving as the courts slowly recognize and adopt section after section of the Restatement of Torts. Much of the time, the former common law and an applicable Restatement section are found existing concurrently with no indication which language is preferred. See, e.g., Wisniewski v. The Great Atlantic & Pacific Tea Co., supra. Trying to coordinate the Restatement sections currently approved with the common law as it has been enunciated in the past decisions has become a highly complex and intellectually taxing task. To determine whether the trial judge's statement introducing[241 Pa.Super. 220] the concept of foreseeability at the conclusion of the definition of proximate cause hopelessly misled the jury, or instilled in them any of the confusion present in the law of negligence, can only be determined by studying the entire charge. 'As in all cases questioning the accuracy of a charge to the jury, we must not take the challenged words or passage out of the context of the whole charge, but must look to the charge in its entirety, against the background of the evidence in the particular case, to determine whether or not error was committed and whether that error was prejudicial to the complaining party. Wilson v. Penna. Railroad Co., 421 Pa. 419, 422, 219 A.2d 666 (1966); James v. Ferguson, 401 Pa. 92, 97, 162 A.2d 690 (1960).' Whitner v. Lojeski, 437 Pa. 448, 454, 263 A.2d 889, 892 (1970).

        Reviewing the charge in the case at bar, we find that the court first adequately defined proximate cause stating that it must be a substantial factor bringing about the harm. Subsequently the judge repeated the causation requirement in conjunction with the term 'substantial factor' at least five times in his charge, including a brief

Page 701

        The appellants' final contention relates to an allegedly prejudicial response by defendant Castora to a question asked by defense counsel in which the defendant mentioned the recent death of one of his children. Plaintiff's counsel immediately objected and the court immediately sustained the objection, admonishing the jury to disregard the testimony. ⁶ Appellants now complain that the instruction to disregard was unclear and that the testimony unfairly put the defendant in a sympathetic posture before the jury. Upon reading the instruction as it was recorded, we note that it is not a model of clarity, however we are also cognizant of the fact that spoken words often have an impact not shared by the cold transcription. Because the plaintiff's counsel failed to demand a clarification of the instruction, it is our [241 Pa.Super. 222] opinion that he was probably satisfied with it at the time. However, whether he was content or not, now is not the time to raise this objection. Having neglected to ask for a clarifying instruction at the time and having failed to include the matter in his points for charge we conclude not only that appellants have waived their objection but also that the jury most likely understood the instruction as it was intended. Gallagher v. Four Winds Motel-Hotel, 233 Pa.Super. 1, 335 A.2d 394 (1975).

        Judgment affirmed.

---------------

1 Appellants have cited the following sections of the Restatement (Second) of Torts (1965): § 283, comment D (dealing with the standard of the reasonable man); § 289(b), comment M (concerning foreseeability required of a person of superior attributes); § 296, comment C (concerning the effect of a person's special training or aptitude on the sudden emergency doctrine); § 299, comment F (concerning necessity to exercise special competence).

2 See 1 M. Meyer, Law of Vehicle Negligence in Pennsylvania § 1,18 (1970).

3 This subsection was quoted in Shipley v. Pittsburgh, 321 Pa. 494, 184 A. 671 (1936) as authority for its finding that the possibility that the particular accident as it occurred might have seemed improbable to the defendant, did not preclude liability. Subsection (2) of § 435 defines the situation where hindsight, as opposed to the foresight which has been considered an indispensible element of negligence, see, e.g., Zilka v. Sanctis Construction, Inc., 409 Pa. 396, 186 A.2d 897, Cert. denied, 374 U.S. 850, 83 S.Ct. 1915, 10 L.Ed.2d 1070 (1962), can be used to preclude liability: 'The actor's conduct may be held not to be a legal cause of harm to another where after the event and looking back from the harm to the actor's negligent conduct, it appears to the court highly extraordinary that it should have brought about the harm.'

4 '(W)hile foreseeability is not an element to be considered in determining whether negligent conduct was the proximate cause of an accident, it is an element to be considered in determining the existence of negligent conduct (citations omitted).' Zilka v. Sanctis Construction, Inc., 409 Pa. 396, 400, 186 A.2d 897, 898, Cert. denied, 374 U.S. 850 (1962). Accord, Majors v. Brodhead Hotel, 416 Pa. 265, 205 A.2d 873 (1965).

5 Restatement (Second) of Torts § 281, comment C (1965) discusses the limitation of liability to those persons who could be reasonably foreseen to be injured by the conduct: 'In order for the actor to be negligent with respect to the other, his conduct must create a recognizable risk of harm to the other individually, or to a class of persons--as, for example, all persons within a given area of danger--of which the other is a member. If the actor's conduct creates such a recognizable risk of harm only to a particular class of persons, the fact that it in fact causes harm to a person of a different class, to whom the actor could not reasonably have anticipated injury, does not make the actor liable to the persons so injured.' See also, B. Laub, Pennsylvania Trial Guide § 619.1 (1959, Supp.1975); 1 M. Meyer, Law of Vehicle Negligence in Pennsylvania § 1.30 (1970, Supp.1974).

6 '(Plaintiff's counsel): This is the sort of thing, if your Honor please--

'The Court: Yes, members of the jury, the background is one

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Page 701

        [178 Ga.App. 462] David E. Ralston, Blue Ridge, for appellant.

        Gary B. Blasingame, Athens, for appellee.

        [178 Ga.App. 459] BENHAM, Judge.

        Appellant Johnson filed a wrongful death suit against appellee following the death of appellant's husband, a patient at the hospital. This appeal is from a judgment entered in favor of appellee hospital after the jury returned a defendant's verdict.

        1. On appeal, appellant questions the trial court's denial of her motion for new trial, which was grounded on the assertion that the evidence was insufficient to authorize a verdict for the hospital. See OCGA § 5-5-21. "After the verdict of a jury has been returned the evidence is construed most favorably to the prevailing party as every presumption and inference is in favor of the verdict. [Cits.]" Hill Aircraft etc. Corp. v. Tyler, 161 Ga.App. 267(1), 291 S.E.2d 6 (1982). A review of the trial transcript with this standard in mind reveals that appellant's decedent, Columbus Johnson, was admitted to appellee hospital on January 2, 1979, complaining of stomach pains and weakness. Various tests were run, with results within normal range. The decedent was given fluids intravenously to treat dehydration. At 11:00 p.m. on January 4, appellant's decedent left his room and, pushing the stand upon which his intravenous fluids were suspended and swinging a water pitcher, ran down the hospital corridor toward the hospital exit, yelling, "Help me." Two sheriff deputies who were at [178 Ga.App. 460] the hospital on another matter stopped Mr. Johnson's flight and returned him to his room, despite his resistance. The supervising nurse called Mr. Johnson's physician, who ordered an injection of sodium amytal to sedate the patient. A nurse attempted to give the medication to the patient through the intravenous apparatus, but due to the patient's thrashing about, most of the sodium amytal was injected subcutaneously rather than intravenously. At 11:30 p.m., the patient was standing in the doorway of his room, "very agitated." Near midnight he was seen walking in his room, calmer and speaking coherently. An orderly was stationed in the corridor to insure that the patient remained in his room. Another nurse looked in on Mr. Johnson at 12:00 a.m. and saw him lying on his bed, fully clothed. At 2:40 a.m., the orderly reported that Mr. Johnson's room was empty and that the window was open and the screen cut. He was found approximately 8 1/2 hours later in the yard of a nearby residence and returned to the hospital, where he was pronounced dead on arrival. His treating physician diagnosed the cause of death as overexposure to cold, but no autopsy was conducted.

        At trial, appellant attempted to show that the hospital, acting through its personnel, had breached its duty of care by failing to fully inform the treating physician of the patient's condition and by failing to treat the patient as the physician had directed. Appellant also alleged that the hospital had breached its duty by failing to monitor and

Page 702

        2. Appellant next contends that the trial court gave the jury an inappropriate charge on the standard of care required of appellee. The questioned instruction was taken from Smith v. Hosp. Auth. of Terrell County, 161 Ga.App. 657(1), 288 S.E.2d 715 (1982); and Emory Univ. v. Porter, 103 Ga.App. 752(1), 120 S.E.2d 668 (1961), and informed the jury that the standard of care applicable to appellee hospital was that standard of care exercised in similar hospitals in similar communities. Citing Wade v. Archbold Memorial Hosp., 252 Ga. 118, 311 S.E.2d 836 (1984), appellant contends it was error to apply the "locality rule" to this case.

        [178 Ga.App. 461] The "locality rule" is appropriate in a case in which the adequacy of a hospital's facilities or services is questioned. See Wade, supra; Smith, supra; Emory Univ. v. Porter, supra. Inroads on the "local" standard of care rule have been made in cases in which a plaintiff asserts negligence in the medical care and treatment provided by a hospital's professional personnel. See Wade, supra; Murphy v. Little, 112 Ga.App. 517(2), 145 S.E.2d 760 (1965). In the case at bar, appellant alleged in her complaint that the nursing care her late husband received was substandard and that appellee's facilities were deficient since it had failed to protect her decedent adequately. The protection of patients is not a medical function of a hospital; rather, it is a service provided by a hospital to its patients, and the ability of a small rural hospital to provide such a service is limited by its location and resources. See Wade, supra. In light of the pleadings, a charge on the locality rule was called for, and the trial court committed no error in so instructing the jury.

        3. Lastly, appellant claims error was committed when the trial court granted appellee's motion in limine, prohibiting appellant from cross-examining one of appellee's expert witnesses as to whether he had ever been a defendant in or the subject of a medical malpractice action. Appellant maintains that evidence of an expert witness' prior involvement in medical malpractice claims is relevant and material to show bias and prejudice.

        When the trial court granted appellee's motion, appellant made no proffer of evidence to enter into the record the testimony the trial court's ruling had curtailed. Compare Smith v. Greene, 144 Ga.App. 739(2), 242 S.E.2d 312 (1978). While the lack of such a showing does not preclude review of the trial court's decision since the "offer of proof" rule does not apply to the cross-examination of a witness (Cambron v. Canal Ins. Co., 246 Ga. 147(10), 269 S.E.2d 426 (1980)), we are unwilling to state unequivocally that an expert witness' involvement as a defendant in unrelated malpractice cases is relevant to the case in which the expert is testifying. The weakness of such a rule is very evident in the present case: the issue with which the witness was concerned involved whether the nursing care the decedent received was substandard and resulted in his death. It is not likely that any case in which the expert (a physician who had taught several nursing classes) had been alleged negligent would have hinged on whether the physician had given the plaintiff/patient the proper nursing care. We cannot say that the trial court's decision to prohibit the line of questioning at issue was an abuse of the discretion it may exercise concerning the

Page 703

        Judgment affirmed.

        BANKE, C.J., concurs.

        McMURRAY, P.J., concurs in the judgment only.