After filing its decision in Lunney v. Post, Fla.App. 1971, 248 So.2d 504, the District Court of Appeal, Fourth District, entered an order certifying the following question as one of great public interest:
We have jurisdiction to review by certiorari the decision of the District Court. Art. V, § 4(2), Fla. Const., F.S.A., Rule 4.5(c)(6), F.A.R., 32 F.S.A.
The plaintiff-respondent in this case, Mrs. Bernice Lunney, was injured while on a Palm Beach Garden Club tour of Mrs. Marjorie Merriweather Post's home. She tripped on a piece of transparent vinyl which had been placed over a valuable oriental rug, and she fractured her hip. Mrs. Lunney and her husband sued Mrs. Post for damages. The jury found for Mrs. Post. The Fourth District Court of Appeal, however, in a 2-1 decision reversed and remanded for new trial. That court said, "The trial judge instructed the jury that plaintiff was a licensee and the jury found for defendant on that basis. We believe that instruction to be in error and therefore reverse." The District Court concluded Mrs. Lunney was an invitee rather than a licensee.
We agree with the District Court's conclusion.
Visitors upon the private property of others fall within one of three classifications: they are either trespassers, licensees, or invitees.
To determine the duty of care Mrs. Post owed Mrs. Lunney, therefore, it is necessary to ascertain Mrs. Lunney's classification. Florida courts have traditionally defined members of each category in the following manner: a trespasser is one "who enters the premises of another without license, invitation, or other right, and intrudes for some definite purpose of his own, or at his convenience, or merely as an idler with no apparent purpose, other than perhaps to satisfy his curiosity"
Florida's invitee test is known as the "mutual benefit test" or the "economic benefit test."
Under this just quoted language, Mrs. Lunney was called a licensee by the trial judge. He reasoned that while Mrs. Lunney was on Mrs. Post's property with the owner's consent, she was there merely for her own pleasure; that Mrs. Post did not benefit from the visit; that although Mrs. Lunney paid five dollars for the privilege of taking the tour of homes, Mrs. Post received no compensation, and that Mrs. Post was not even reimbursed for the extra expense she incurred in preparing her home for the visit.
The Fourth District Court of Appeal rejected the above referred to mutual or economic benefit test in this case, however, calling it "too narrow." The Court said:
The District Court applied the "invitation test" found in the Second Restatement of Torts, § 332:
Under this rule, it is clear Mrs. Lunney was an invitee; she was invited to enter Mrs. Post's estate which had been opened to those members of the public who were on the Palm Beach Garden Club tour of homes.
We agree with the Fourth District Court of Appeal that the Second Restatement of Torts invitation test, which includes the public invitee as well as the business invitee, is preferable to the exclusive use of the mutual benefit test as enunciated and applied in McNulty v. Hurley,
Results under a strict application of the mutual benefit test can be unjust. For example, it would prohibit recovery for damages due to ordinary negligence to a "window-shopping" visitor to a store, while permitting recovery to a person who made a purchase, however small. To avoid these and similar results, "the economic benefit theory has been strained to the breaking point... . [C]ourts have determined to be invitees a friend or child accompanying a customer into his store, Hecht Co. v. Jacobsen, 1950, 86 U.S.App.D.C. 81, 180 F.2d 13; or a person who goes with another to a railroad station to see him off, Atchison, T. & S.F. Ry. Co. v. Cogswell, 1909, 23 Okla. 181, 99 P. 923, 20 L.R.A.,N.S., 837. Or the person who goes to a bank to change a five-dollar bill, American Nat. Bank v. Wolfe, 1938, 22 Tenn. App. 642, 125 S.W.2d 193."
Since we have determined Mrs. Lunney was an invitee, we now must examine the jury charge to determine whether the jury was properly instructed as to the degree of care Mrs. Post owed Mrs. Lunney. As we stated earlier in this opinion, a property owner owes the greatest duty of care to invitees.
Mrs. Post contends although the trial judge called Mrs. Lunney a "licensee," the instruction was in fact the proper one for invitees since the judge did not mention wilful and wanton negligence. Florida Standard Jury Instruction 3.5 sets forth the proper charges as follows:
The charge given by the trial judge in this case was the proper one to use where the jury is to determine the liability of a land owner or possessor toward a licensee. It was insufficient where, as in this case, the claimant was an invitee. A new trial is necessary.
Part (1) of the certified question is answered in the affirmative. We recede from the McNulty economic or mutual benefit test mentioned in Part (2). The decision of the District Court of Appeal, Fourth District, is approved and the writ is discharged.
It is so ordered.
CARLTON, ADKINS, BOYD and DEKLE, JJ., concur.
ROBERTS, C.J., dissents with Opinion.
ROBERTS, Chief Justice (dissenting):
I respectfully dissent.
Plaintiff, respondent herein, tripped on a piece of vinyl placed over a valuable oriental rug to protect the same in the home of defendant, petitioner herein. Plaintiff was a member of a garden club which had been allowed by defendant to tour her home as part of a tour of famous estates in Palm Beach. The jury found that defendant should not be held liable for the damages to plaintiff. The trial judge entered its order to this effect. I agree with this result. The District Court of Appeal reversed, which in my opinion was error.
I would quash the decision of the District Court of Appeal and reinstate the jury verdict.