The defendant had a duty not to injure the plaintiff by affirmative or active negligence. Blystone v. Kiesel, 247 Or. 528, 431 P.2d 262 (1967) (mother-in-law visiting on Mother's Day); Fleck v. Nickerson, 239 Or. 641, 399 P.2d 353 (1965) (mother visiting on son's birthday); Baer v. Van Huffell, 225 Or. 30, 356 P.2d 1069 (1960); Burch v. Peterson, 207 Or. 232, 295 P.2d 868 (1956) (friend to play bridge); McHenry v. Howells, 201 Or. 697, 272 P.2d 210 (1954) (mother visiting daughter). "The allegations of negligence in the above quoted specifications #2 and #4 of the plaintiff's second amended complaint, `failing to maintain proper control', and `failing to provide proper supervision,' are allegations of passive negligence as opposed to affirmative negligence.
`Active negligence' does not equate with commission; `passive negligence' does not equate with omission. See Elliott v. Rogers Construction, 257 Or. 421, 479 P.2d 753 (1971) (highway contractor not liable to licensee injured because of condition of an unopened highway); Blystone v. Kiesel, 247 Or. 528, 532, 431 P.2d 262 (1967) (homeowner liable to licensee when homeowner was running down the hallway and collided with the licensee); Burch v. Peterson, 207 Or. 232, 234, 295 P.2d 868 (1956) (homeowner not liable to social guest who was injured when a step gave way). It would be better if we cease to refer to `active' or `passive' negligence, and state the rule in terms of conditions upon or within the premises as contrasted with activities carried on upon the premises.
In addition, the occupier must warn of any pitfall or trap known to the occupier which might cause injury to the licensee notwithstanding the use of reasonable care by the licensee. Blystone v. Kiesel, 247 Or. 528, 431 P.2d 262 (1967). "2. As to activities on the land, the occupier has the duty to exercise reasonable care for the protection of a licensee.
o.2d 844 (Fla.Dist.Ct.App. 1964) (leaving grease rack in place frequented by public); Cunag v. McCarthy, 42 Ill. App.2d 36, 191 N.E.2d 404 (1963) (applying Michigan law) (entrustment of tractor); Bowers v. Ottenad, 240 Kan. 208, 729 P.2d 1103 (1986) (igniting mixed "specialty" drink); Foster v. La Plante, 244 A.2d 803 (Me. 1968) (not securing parking brake on automobile); Schulke v. Krawczak, 62 Mich. App. 675, 233 N.W.2d 694 (1975) (operating backhoe); Hoffman v. Planters Gin Co., 358 So.2d 1008 (Miss. 1978) (operating cottonseed auger); Stevens v. Missouri Pac. R.R., 355 S.W.2d 122 (Mo. 1962) (applying Arkansas law) (disposing of dynamite caps into trash fire); Le Compte v. Wardell, 134 Mont. 490, 333 P.2d 1028 (1958) (placing objects across shaft of construction hoist); Oklahoma Biltmore, Inc. v. Williams, 182 Okla. 574, 79 P.2d 202 (1938) (operating ice crushing machine); Ragnone v. Portland School Dist., 291 Or. 617, 633 P.2d 1287 (1981) (supervising children playing rough game); Blystone v. Kiesel, 247 Or. 528, 431 P.2d 262 (1967) (running through house); Perry v. St. Jean, 100 R.I. 622, 218 A.2d 484 (1966) (saddling horse); Martinez v. Martinez, 553 S.W.2d 211 (Tex.Civ.App. 1977) (shooting off fireworks at backyard party); Boggus Motor Co. v. Standridge, 138 S.W.2d 643 (Tex.Civ.App. 1940) (raising truck on lift rack before plaintiff could dismount); Bradshaw v. Minter, 206 Va. 450, 143 S.E.2d 827 (1965) (inducing plaintiff to ride unbroken saddle horse thought by plaintiff fit to ride); Potts v. Amis, 62 Wn.2d 777, 384 P.2d 825 (1963) (demonstrating proper swing of golf club); Le Poidevin v. Wilson, 111 Wis.2d 116, 330 N.W.2d 555 (1983) (startling plaintiff into diving into shallow water); Szafranski v. Radetsky, 31 Wis.2d 119, 141 N.W.2d 902 (1966) (storing in home large quantities of gunpowder). Alabama courts have likewise recognized this principle.
This court allowed plaintiff's petition for review in this case because of the importance of the question whether not only the Court of Appeals, but the prior decisions by this court, were correct in holding that although a landowner owes a duty of reasonable care to a business guest or invitee who comes upon his property and is injured because of its defective condition, a landowner is not liable for injury to a social guest (licensee) who comes upon his property in the absence of "active or affirmative" negligence, as distinguished from "passive negligence." See Blystone v. Kiesel, 247 Or. 528, 431 P.2d 262 (1967). Some other courts have abandoned that distinction.
As to the duty owed to a licensee by an owner or occupant of land, it is generally stated that no duty exists toward a mere, bare, or gratuitous licensee, or licensee by permission, except to refrain from willfully or wantonly injuring him, or, as otherwise stated, to refrain from injuring the licensee through such gross negligence as is equivalent to willfulness or wantonness. 65 CJS Negligence § 63 (32). The owner or occupant of land also owes a duty to a licensee not to injure the licensee through active or affirmative negligence, and to warn of any pitfall or trap known to occupant which might cause injury to the licensee notwithstanding the use of reasonable care or skill. Blystone v. Kiesel, 247 Or. 528, 431 P.2d 262 (1967). However, the facts of this case do not concern pitfalls or active negligence.
" Classical examples of active negligence resulting in injury to a licensee may be found in Potts v. Amis, 62 Wn.2d 777, 384 P.2d 825 (1963) where the occupier-defendant, in the swinging of a golf club, struck the plaintiff-social guest-licensee; in Perry v. St. Jean, 218 A.2d 484 (R.I. 1966) where social guest-licensee rider was injured by occupier's negligent saddling of the horse being ridden; in Blystone v. Kiesel, 431 P.2d 262 (Or. 1967) where the occupier-defendant in rushing to answer a fire alarm, knocked down the plaintiff-social guest-licensee; and in Tatum v. Rester, 242 Ark. 271, 412 S.W.2d 293 (1967) where defendant-occupier backed car to injure a visiting child. What could be termed an equally clear case of active negligence is found in Cochran v. Abercrombie, 118 So.2d 636, 79 A.L.R.2d 986 (D.C. of Appeal, Fla. 1960, rehearing denied), where the licensee, who had taken a position near the occupier's car, at occupier's request, was struck by the car when it "lurched forward" as a result of an act by the occupier.
And importantly, “activities on the land” include social functions like the Halloween party at issue in this case. Blystone v. Kiesel, 247 Or. 528, 531–32, 431 P.2d 262 (1967) (holding that there is an obligation to exercise reasonable care for the protection of a licensee during a social gathering). Accordingly, the chapter had a duty to plaintiff to exercise reasonable care in the conduct of its activities—specifically in this case, the Halloween party.
The defendant had a duty not to injure the plaintiff by affirmative or active negligence. Blystone v. Kiesel, 247 Or. 528, 431 P.2d 262 (1967) (mother-in-law visiting on Mother's Day); Fleck v. Nickerson, 239 Or. 641, 399 P.2d 353 (1965) (mother visiting on son's birthday); Baer v. Van Huffell, 225 Or. 30, 356 P.2d 1069 (1960); Burch v. Peterson, 207 Or. 232, 295 P.2d 868 (1956) (friend to play bridge); McHenry v. Howells, 201 Or. 697, 272 P.2d 210 (1954) (mother visiting daughter). The allegations of negligence in the above quoted specifications #2 and #4 of the plaintiff's second amended complaint, "failing to maintain proper control", and "failing to provide proper supervision," are allegations of passive negligence as opposed to affirmative negligence.