Nature of the Case
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Facts
Yolanda and her two children, P (2) and Tony (5), were visiting Yolanda's parents, Cosme and Ramona Torrez, on a farm the Torrezes operated for D. A number of children lived on the farm. The Torrezes had three small children and another daughter of Yolanda living with them, and D's lessor had two, including a thirteen-year-old son, David. Following P's arrival that day, the children, with permission of the adults decided to resume their morning activity of roasting marshmallows. They could not start the fire. David went over to a gasoline storage tank and drained a small quantity of gasoline out of its hose into a tin can. David warned the other children to stand back. He poured the gasoline on the damp wood. The gasoline in the can was ignited by a spark from the wood and David dropped the can into a nearby bucket of water. P was splashed with the burning gasoline and suffered extensive burns as a result. David had drawn from the gasoline tank by means of a hose which, when not in use, was hung on the tank in a receptacle constructed so that it could be padlocked. A padlock was not used. The pump was in a locked building but a small quantity of gasoline remained in the bottom loop of the hose. David used that to start the fire. David was just doing what D had previously done when a small quantity of gasoline was needed. The children had been instructed to stay away from the tank. The nozzle of the hose was kept in the receptacle which was located at the top of the tank approximately 5 feet above the ground level. There is no claim nor any evidence to infer that D was negligent in maintaining the gasoline in the storage tank. The trial court directed a verdict for D and P appealed. P claims that D was negligent in allowing the one cup of gasoline to remain in the loop of the hose. P claims that the hose should have been drained or the nozzle should have been locked in its receptacle.
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