This section contains the nature of the case and procedural background.

The father (D1) of J. Wells, Jr. (D2) left a golf club in his backyard. D2 was eleven years old. D2 and Lubitz (P), a nine-year-old, were playing in D2's backyard when D2 picked up D1's club and swung it at a stone lying on the ground. The club hit P on the jaw. D2 failed to warn P of his intention to swing the club which resulted in P's injuries. P sued D2 for his negligence in hitting her and sued D1 for his negligence in leaving the club where it was picked up. A demurrer to the complaint was upheld for D1, and P appealed.

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