This is an action in tort brought by the plaintiff to recover for personal injuries sustained when he fell on an accumulation of ice on the defendants' premises. The plaintiff's declaration in six counts alleges negligence, gross negligence, and wilful, wanton or reckless conduct by the coowners of the premises. The case is here on the plaintiff's exceptions to the direction of
The pertinent facts, as stated in the opening, are as follows. The plaintiff, a police officer in the town of Concord, was acting in his official capacity at the time he was injured on the defendants' premises. On January 20, 1967, at approximately 5:30 P.M. the plaintiff was directed by a superior officer to serve a criminal summons for a parking violation on one of the defendants. After locating the defendants' home, the plaintiff entered upon their premises from the driveway, delivered the summons at the door, and then was injured when he fell on an accumulation of ice on his way out.
Since the plaintiff's opening statement to the jury was devoid of any facts which would have warranted a jury finding of gross negligence or wilful, wanton or reckless conduct, the trial judge properly allowed the defendants' motion for directed verdicts as to counts 2, 3, 5 and 6. Viewed in the light most favorable to the plaintiff, his opening states that there were defects in the drainage system that the defendants failed to repair. A failure to repair such defects which resulted in an accumulation of ice may constitute negligence but such conduct does not "[display] the criminal or quasi criminal quality involved in wilful, wanton or reckless conduct." Carroll v. Hemenway, 315 Mass. 45, 47.
Therefore, the only remaining question before us is whether the trial judge properly allowed the defendants' motion for directed verdicts as to the plaintiff's counts 1 and 4 alleging ordinary negligence. The judge's decision was based on our common law rule that classifies policemen and firemen as licensees who must establish wilful, wanton or reckless conduct, and not just ordinary negligence, on the defendant's part in order to recover for injuries sustained during their performance of official duty on the defendant's land. Brosnan v. Koufman, 294 Mass. 495, 501. Wynn v. Sullivan, 294 Mass. 562, 564. Aldworth v. F.W. Woolworth Co. 295 Mass. 344. The plaintiff asks us to abandon this artificial classification
Our common law places those who enter upon land in three fixed categories: trespassers, licensees, and invitees. These three categories "make out, as a general pattern, a rough sliding scale, by which, as the legal status of the visitor improves, the possessor of the land owes him more of an obligation of protection." Prosser, Torts (4th ed.) § 58, p. 357. These categories were developed in English common law at a time when the law attached supreme importance to a landowner's property interests. See Bohlen, Fifty Years of Torts, 50 Harv. L. Rev. 725. The feudal conception that the landowner was a sovereign within his own boundaries provided the justification for a line of decisions that predicated the existence and distinguished the degree of a landowner's liability for injuries occurring on his land on the type of relationship existing between the landowner and the injured party.
In Sweeny v. Old Colony & Newport R.R. 10 Allen 368, 372, this court outlined the common law's approach to the problem of balancing the interests of the occupier against the interests of a person entering upon the premises. "In order to maintain an action for an injury to person or property by reason of negligence or want of due care, there must be shown to exist some obligation or duty towards the plaintiff, which the defendant has left undischarged or unfulfilled. This is the basis on which the cause of action rests."
Chief Justice Bigelow stated the court's view as to why
In light of the supreme importance which our early common law attached to property interests, it is understandable that the occupier's interests were favored over the licensee's by the creation of a rule that the only duty
One serious problem raised by the common law's rigid division of the status of all persons entering upon land of another into these three classes of trespassers, licensees, and invitees is the difficulty courts encounter in distinguishing between these latter two categories in dealing with public employees or officials who enter private property by way of a legal privilege that is not conferred by or dependent upon the occupier's consent. The difficulty of placing such official visits by public employees and officials in one of the three categories established by the common law is reflected in this court's first decisions on the subject.
In Parker v. Barnard, 135 Mass. 116, this court noted that public servants acting for the public welfare "[a]s individuals may thus enter upon the land of another, firemen may do so for the protection of property, officers of the law for similar purposes, and, under proper circumstances, for the arrest of offenders or the execution of criminal process. The right to do this may be in limitation of the more general right of property which the owner has, but it is for his protection and that of the public. Metallic Compression Casting Co. v. Fitchburg Railroad, 109 Mass. 277, 280. Hyde Park v. Gay, 120 Mass. 589, 593. Commonwealth v. Tobin, 108 Mass. 426. Commonwealth v. Reynolds, 120 Mass. 190. Barnard v. Bartlett, 10 Cush. 501." P. 117. Thus, when a police
However, the court declined to determine the police officer's exact status under the common law. The defendants had argued that the plaintiff police officer "was no more than ... [a licensee]; he was there at his own risk; and that none of the defendants were under any obligation towards him to keep this entrance or the building in a safe condition." Pp. 117-118. However, the court found it unnecessary to decide this point because of its holding that the plaintiff's injury "proceeded from the neglect of an obligation imposed upon the defendants by statute." P. 118. The court concluded that "even if they are but licensees" (p. 118), "they may demand, as against the owners or occupants, that they observe the statute in the construction and management of their building." P. 120.
In Learoyd v. Godfrey, 138 Mass. 315, we upheld a police officer's right to recover in tort for injuries resulting from a fall into an open hole in an outside passageway to an apartment. Although the plaintiff had been asked to come to the tenement house by one of the tenants, Justice Holmes rested the court's decision on the fact that the plaintiff had made a lawful entry by a passageway which "from the appearance of the premises ... [was] the intended mode of approach to the tenement in question." P. 323. Since the location of the place of injury was a route prepared as a means of access to the premises, any person who had a right to enter the premises used the passageway "by the defendant's invitation" because of its appearance as "the intended mode of approach." P. 323.
The Learoyd case established a public employee's or official's right to recover whenever he is injured by the negligence of the owner in failing to keep the route of access to his premises in a reasonably safe condition for those using it as it was intended to be used. This court's
In the Toomey case, supra, the court held that since a city trash collector was lawfully using the passageway at the implied invitation of the owner, he could recover for injuries caused by the occupier's failure to keep the back entrance to his premises in a reasonably safe condition. The court said, "There was evidence that the passageway had been constructed and was maintained for the purpose, among other things, of affording a back entrance to the house, and was, as the defendant knew, constantly used by the servants of the city of Boston for the purpose of removing the ashes and offal from the house, and that the plaintiff, as such servant, was rightfully using the passageway on the implied invitation of both the owner and occupant of the house for this purpose." P. 33.
In Gordon v. Cummings, supra, we held that a letter carrier, who was injured while attempting to deliver mail to tenants in the building, was an implied invitee. "While the building was intended for workshops ... it was still one where, to some extent at least, the tenants received letters, and there was a preparation and adaptation of the entry, or hallway, for the plaintiff's use which might well lead him to believe that he could safely enter in the performance of his duty." P. 515. Finally, in the Finnegan case, supra, Justice Holmes, speaking for the court, ruled that a water meter reader was an invitee because "it appears that the defendant, by taking water, voluntarily entered into a relation, the result of which, as it knew, was to require some one to enter its premises in order to read the water meter. It was bound to use reasonable care to prevent the place thus necessarily entered by the deceased from being a death trap." P. 312.
We think that the Learoyd, Toomey and Gordon cases provide ample authority for holding in the instant case
"Like so many cases in which a barbaric formula has been retained, its content has been so modified by interpretation as to remove much of its inhumanity." Bohlen, Fifty Years of Torts, 50 Harv. L. Rev. 725, 740. Thus, many courts have avoided the harsh implications of the licensee rule by holding that certain types of public employees who are required to enter on a person's property in the performance of their duties are invitees. See Swift & Co. v. Schuster, 192 F.2d 615 (10th Cir.) (meat inspector); Fred Howland, Inc. v. Morris, 143 Fla. 189 (building inspector); Anderson & Nelson Distilleries Co. v. Hair, 103 Ky. 196 (United States revenue officer); Jennings v. Industrial Paper Stock Co. 248 S.W.2d 43 (Ct. App. Mo.) (public health inspector); Morgan v. Renehan-Akers Co. Inc. 126 Vt. 494 (inspector of weights and measures); Cameron v. Abatiell, 127 Vt. 111; 65 C.J.S., Negligence, § 63; 38 Am. Jur., Negligence, § 123, n. 14, § 126. Cf. Restatement 2d: Torts, § 345.
The problem with this judicial approach is that it perpetuates the illogical legal fiction that a public employee
The difficulty with both the "sui generis"
The United States Supreme Court, in an admiralty case dealing with a shipowner's duty to those aboard his vessel, discussed the diminished viability of the common law's approach to possessor's liability. In supporting its decision not to import the licensee-invitee distinction into admiralty law, the court noted that "[t]he distinctions which the common law draws between licensee and invitee were inherited from a culture deeply rooted to the land, a culture which traced many of its standards to a heritage of feudalism. In an effort to do justice in an industrialized urban society, with its complex economic and individual relationships, modern common-law courts have found it necessary to formulate increasingly subtle verbal refinements, to create subclassifications among traditional common-law categories, and to delineate fine gradations in the standards of care which the landowner owes to each.... [T]he classifications and subclassifications bred by the common law have produced confusion and conflict. As new distinctions have been spawned, older ones have become obscured." Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 630-631.
A review of our own decisions in this area supports the
Not surprisingly, this court's application of the Pandiscio test has produced a series of confusing and often inconsistent results in cases with similar fact patterns. Thus, in O'Brien v. Myers, 354 Mass. 131, we held that the plaintiff was merely a social guest when she went to her sister's house to help dispose of their deceased aunt's effects, but in Rollins v. Marengo, 354 Mass. 765, decided about two months later, we held that the plaintiff, who was visiting "for the purpose of being the godmother of the defendants' two-week old baby and to take the baby from the [defendants'] home to the church to be baptized." was an invitee. Compare Colbert v. Ricker, 314 Mass. 138, with Huska v. Clement, 361 Mass. 522, 523-524. Moreover, since the dominant purpose of the entrant's visit may change during the visit, courts are also confronted with the difficult problem of determining when the change in status takes place. See Pereira v. Gloucester Community Pier Assn. Inc. 318 Mass. 391 (one who comes upon premises as a business visitor becomes a licensee if he continues to remain in the premises after
Admittedly, such "[c]omplexity can be borne and confusion remedied where the underlying principles governing liability are based upon proper considerations," but the licensee-invitee distinction and the specious guidelines it generates obscure rather than illuminate the relevant factors which should govern determination of the question of duty. See Rowland v. Christian, 69 Cal.2d 108, 117. The owner's conduct in maintaining his premises does not depend on whether his visitor is a social or business acquaintance. Moreover, the visitor's safety does not become less worthy of protection by the law because he is a social guest and not a business invitee.
It no longer makes any sense to predicate the landowner's duty solely on the status of the injured party as either a licensee or invitee. Perhaps, in a rural society with sparse land settlements and large estates, it would have been unduly burdensome to obligate the owner to inspect and maintain distant holdings for a class of entrants who were using the property "for the their own convenience" (the Sweeny case, 10 Allen 368, supra) but the special immunity which the license rule affords landowners cannot be justified in an urban industrial society. See Smith v. Arbaugh's Restaurant, Inc. 469 F.2d 97, 101 (D.C. Cir.); Harper and James, Torts, § 27.2, p. 1432, n. 13. We can no longer follow this ancient and largely discredited common law distinction which favors
Therefore, we no longer follow the common law distinction between licensees and invitees and, instead, create a common duty of reasonable care which the occupier owes to all lawful visitors.
The abolition of the licensee-invitee distinction and the creation of a "reasonable care in all the circumstances" standard will not leave the jury without standards to guide their determination of reasonable conduct. The principles which are now to be applied are those which have always governed personal negligence. See the Arbaugh's Restaurant case, supra, at 105. Our decision merely prevents the plaintiff's status as a licensee or invitee from being the sole determinative factor in assessing the occupier's liability. However, the foreseeability
Our holding in the instant case does not make landowners and occupiers insurers of their property nor does it impose unreasonable maintenance burdens. The "reasonable care in all the circumstances" standard will allow the jury to determine what burdens of care are unreasonable in light of the relative
We believe that the reasonable care standard will give the jury the flexibility they need to assess the burden of liability on the facts of each case and in accordance with community standards as to what constitutes acceptable behavior on the occupier's part. Cases which adhere to a contrary rule are no longer followed.
The exceptions are sustained as to counts 1 and 4, and are overruled as to counts 2, 3, 5 and 6.
QUIRICO, J. (concurring in part and dissenting in part, with whom Reardon, J., joins).
The plaintiff seeks recovery from each of two defendants (presumably husband and wife) for personal injuries sustained by him as a result of the defendants' alleged negligence, gross negligence, and wilful, reckless or wanton conduct. The sole question before this court is whether the trial judge properly directed verdicts for the defendants on all counts after counsel for the plaintiff stated the following facts in his opening statement. The defendants owned a two year old house which was equipped with gutters to catch water from the roof. There were leaders to carry water out of the gutters, but there were no drainpipes to carry the water from the leaders down to the ground for underground disposal. The gutters were broken in some places. The water from the roof fell from those breaks and from the leaders to the ground where it froze. The plaintiff, a police officer acting in his official capacity, went to the house and there served a summons for a motor vehicle parking violation on one of the defendants. On his way from the house to the street the officer was caused to fall and sustain injuries by reason of ice thus accumulated on the defendants' property.
I concur with that part of the opinion of the court holding that the opening statement "was devoid of any facts
In directing verdicts for the defendants on the two counts alleging ordinary negligence the judge acted on the basis of the law as heretofore stated and applied by this court in Creeden v. Boston & Maine R.R. 193 Mass. 280, 283, Brennan v. Keene, 237 Mass. 556, 561, Brosnan v. Koufman, 294 Mass. 495, 501, Wynn v. Sullivan, 294 Mass. 562, 564-565, Aldworth v. F.W. Woolworth Co. 295 Mass. 344, 347-349, and Carroll v. Hemenway, 315 Mass. 45, 46. All of these cases state or apply the rule that the status of a police officer or fireman who goes upon the property of another in the performance of his official duties is that of a licensee and that, therefore, he is not entitled to recover for injuries caused to him by the negligence of the owner or occupant of that property. Compare Parker v. Barnard, 135 Mass. 116.
The plaintiff asks in his brief that this court (a) change the rule described above and now "define the status of the plaintiff in his cause to be that of a business invitee," and (b) hold "that the allowance of the defendants' motion [for directed verdicts] was error and the case should be remanded for trial."
The court grants the plaintiff's ultimate request for a new trial. In reaching that conclusion the court discusses at some length the opinions in Learoyd v. Godfrey, 138 Mass. 315, Toomey v. Sanborn, 146 Mass. 28, and Gordon v. Cummings, 152 Mass. 513. It then states that these three cases "provide ample authority for holding in the instant case that the plaintiff was an implied invitee to whom the defendants owed a duty of reasonable care to keep the route of access to their premises in reasonably safe condition.... At the very least, these three cases have established the occupier's and landowner's obligation to keep the access routes to his house in reasonably safe condition for those who are required to use them in the performance of their official duties.... Thus, we
I would (a) eliminate the word "could" from the last sentence quoted above from the court's opinion, (b) expressly overrule the Creeden, Brennan, Brosnan, Wynn, Aldworth and Carroll cases, all supra, in their holdings that a police officer or fireman is a licensee when on private property in the performance of his official duties, and (c) treat that as the end of the holding in this case. On this basis I would concur with the court's order sustaining the plaintiff's exceptions to the direction of verdicts for the defendants on counts 1 and 4 based on negligence, and overruling his exceptions as to all other counts.
My concurrence is limited to the part of the opinion and to its conclusions described above. However, the opinion does not stop there. It continues with a lengthy discussion of difficulties which have resulted from rules described as having been developed "in a rural society with sparse land settlements and large estates," but which "cannot be justified in an urban industrial society," and which allegedly make the right of a person injured on the land of another dependent on an "archaic and rigid classification system" which attempts to label all such persons by "arbitrary categories" of either invitees, licensees or trespassers. The opinion refers to the judicial distinction between invitees and licensees as an "ancient and largely discredited common law distinction which favors the free use of property without due regard to the personal safety of those individuals who have heretofore been classified as licensees."
After completing its discussion of the present rule and of difficulties involved in its application, the court declares a broad rule, new to the jurisprudence of this Commonwealth, in the following language: "Therefore, we no longer follow the common law distinction between licensees and invitees and, instead, create a common
I am unable to agree with the use of the present case as the vehicle for the promulgation of such a broad new rule of law which purports to have application beyond what I believe to be the scope and necessities of the present case. In this respect my position is similar to that which I expressed in my separate concurring and dissenting opinion in Boston Housing Authy. v. Hemingway, ante, 184, at 206 and 219-220. In this connection it may be appropriate to call to mind the following frequently repeated statement made by Chief Justice Marshall in 1821 in Cohens v. Virginia, 6 Wheat. 264, 399-400, with reference to his own earlier opinion in Marbury v. Madison, 1 Cranch 137: "It is a maxim not to be disregarded, that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision. The reason of this maxim is obvious. The question actually before the Court is investigated with care, and considered in its full extent. Other principles which may serve to illustrate it, are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated." O'Donoghue v. United States, 289 U.S. 516, 550. Humphrey's Exr. v. United States, 295 U.S. 602, 627. Swan v. Superior Court, 222 Mass. 542, 545.
Consistent with what I have said above to be my view of the limitation of the decision of this case, I continue, under the clear label of dictum, with a discussion of the rules of law under consideration.
1. Without subscribing to the court's characterizations of the present system of classifying all persons who enter the property of others as either invitees, licensees or trespassers, I agree that some phases of the present law on this subject deserve the court's attention and reconsideration.
In decisions too numerous to cite, this court has held consistently that an invitor is not liable for negligence causing injuries to his "social invitee," "social guest," "social visitor," "gratuitous invitee," "gratuitous social guest," or his "invitee" who did not confer a benefit on him. The result in those cases was the same as that reached in cases involving licensees as distinguished from invitees. It was unfortunate, but perhaps inevitable, that this court would at some point appear to equate these types of nonbusiness invitees with licensees. This appears to have happened in Pandiscio v. Bowen, 342 Mass. 435, 438, which held that, where a daughter was injured while helping her mother put up some curtains at the mother's home and at the mother's invitation, "the daughter's position, in respect of her mother, was that of a licensee or social guest." That was probably not intended to be a holding that the daughter was not an "invitee" but rather that as a "social guest" the daughter could no more recover from her mother than could a "licensee."
The Pandiscio decision is not the first in which a court has appeared to treat a social guest as a licensee. The problem existed at least as early as 1892, as indicated by the following language in our decision in Hart v. Cole, 156 Mass. 475, 477-478: "[W]hether an implied invitation to come as a guest for friendly intercourse can create a liability greater than that to an ordinary licensee, it is
The time may well be at hand when, in a case raising the issue, we should discard many, if not all, of the distinctions which our decisions have made between business invitees and other invitees and hold that an invitor owes to his invitee, whether business or social and whether invited expressly or impliedly, the duty to exercise reasonable care to maintain the premises covered by the invitation in a reasonably safe condition in all the circumstances.
2. The next question is whether the time is at hand to go further and declare, as the court purports to declare today, that under the law of this Commonwealth the rule governing the liability of owners or occupiers of real estate to their invitees who are injured thereon shall also apply to licensees who are injured thereon. I do not believe that it is.
In thus enlarging the liability to licensees, this court appears to have adopted and subscribed to much of the language contained in the opinion in Smith v. Arbaugh's Restaurant, Inc. 469 F.2d 97 (D.C. Cir.), where the facts were very much like those of the present case, and to have assumed that case to be a precedent for such an enlargement of liability. There the plaintiff was a health inspector. He was injured in a fall on stairs on the defendant's premises which he was then inspecting in his official capacity. There the court reviewed the common law rule on the liability of the owner or occupant of land toward invitees, licensees and trespassers injured
In deciding Smith v. Arbaugh's Restaurant, Inc., supra, the court assumed that the plaintiff was an invitee at the time and place of his injury. It said, at p. 99, fn. 3, that "[i]n Smith's case, although the precise question does not seem to have been decided in the District of Columbia, ... it is generally the rule that health inspectors are business invitees. See 2 F. Harper and F. James, The Law of Torts, § 27.12 at 1482 (1956)." It said further, at p. 100, that "[o]nly for the invitee must the landowner exercise ordinary care and prudence to render his premises reasonably safe for the visit," citing in support thereof the cases of Arthur v. Standard Engr. Co. 193 F.2d 903, 905 (D.C. Cir.), cert. den. 343 U.S. 964, and Schwartzman v. Lloyd, 82 F.2d 822 (D.C. Cir.). Since the court assumed that Smith was a business invitee, and the law of the District of Columbia already permitted a business invitee to recover for injuries caused by the negligence of the owners or occupants of premises, it is difficult to understand how anything which the court said about changing the law on the rights of licensees was either necessary to the decision or a part of its holding.
After stripping the opinion in Smith v. Arbaugh's Restaurant, Inc., supra, of its dictum, some of which is reminiscent of language in Javins v. First Natl. Realty Corp. 428 F.2d 1071 (D.C. Cir.), and exposing the limited holding in the case, the opinion is of questionable value as a claimed precedent to support the broad extension
3. The present case was argued by both sides before this court on the assumption that our law was as stated most recently on April 3, 1972, in Huska v. Clement, 361 Mass. 522, 523, that "[t]he plaintiff's right to recover for ordinary negligence is dependent upon his status as an invitee," and that if he was a licensee he could not recover. They did not ask us to change that rule. The plaintiff asked only that his client be held to be an invitee and not a licensee when he was injured. The court acknowledges that this case could be decided in favor of the plaintiff on that basis, but instead it establishes a new rule of liability to licensees. The briefs and oral arguments before this court did not concern themselves with such a rule. From that I think we may assume that the parties did not consider the case as involving the issue of extension of liability to licensees. If such a fundamental change in our law is otherwise desirable, it should more appropriately be accomplished in a case in which the issue is raised, in which the court has the benefit of briefs and arguments directed specifically thereto, and in which the court can better weigh and consider the far reaching implications and consequences of such a change.
KAPLAN, J. (concurring).
I go along with the court but I am taken somewhat aback by footnote 7 which seems unfaithful to the rest of the opinion. The court holds that the measure of responsibility of an occupier should no longer depend on whether the injured person is characterized as a "licensee' rather than an "invitee," or vice versa; the question is to turn on other, more vital factors. But footnote 7 seems to say that "trespassers" stand apart, that that characterization is to remain decisive or highly influential. This tends to perpetuate, although on a smaller scale, the kind of tradition-bound and mistaken analysis that I had supposed the court was aiming to correct. For it is sometimes just as hard to