In 1954, when the plaintiff was eight years old, he climbed up to an electric power substation controlled and operated by the defendant's
The facts are briefly these: the switching station on which the accident occurred was a wooden platform with fenced-in sides containing electrical equipment. This platform was suspended between two wooden poles at a
The town land, which was open, was commonly used by the townspeople for hunting and recreation, and was frequented by children. On the day of the accident, the plaintiff and his friend Randolph C. Jenkins, also eight years old, were playing there, as they did several times each week. Coming to the vicinity of the switching station, and thinking that the wooden enclosure "would be a good lookout tower,"
Under the traditional common law analysis, Philip became a trespasser when he climbed the electric company's pole to the platform, and therefore the company had no duty toward him except to refrain from wanton and wilful misconduct, which is not alleged here. Urban v. Central Mass. Elec. Co., 301 Mass. 519, 523 (1938). This "Draconian"
In Mounsey, supra, this court indicated clearly that the days of the common law approach to the problem of a land occupier's duty in tort were numbered. "The problem of allocating the costs and risks of human injury is far too complex to be decided solely by the status of the entrant, especially where the status question often prevents the jury from ever determining the fundamental question whether the defendant has acted reasonably in light of all the circumstances in the particular case." Id. at 707. In that case we held that henceforth there would be no distinction in the duty owed to invitees and licensees, and that all lawful visitors would be owed a duty of reasonable care. Since then, we have extended the same duty to other previously unprotected classes in Pridgen v. Boston Hous. Auth., supra (helplessly trapped trespassers), Lindsey v. Massios, 372 Mass. 79, 83 (1977) (visitors of a tenant), King v. G & M Realty Corp., 373 Mass. 658, 662 (1977) (tenants), and Poirier v. Plymouth, 374 Mass. 206, 228 (1978) (employees of an independent contractor).
Even under the traditional common law analysis, the duty to foreseeable child trespassers exception has had a long history in other jurisdictions. See Railroad Co. v. Stout, 84 U.S. (17 Wall.) 657 (1873). This doctrine developed originally through the legal fiction of an "attractive nuisance" which lured children onto the land to their peril, and by 1934 it had been recognized in § 339 of the Restatement of Torts, minus the fiction of "attraction."
Considering the long history of the child trespasser exception, the dwindling number of States which do not recognize the exception, and the intent expressed in a line of our decisions, commencing with Mounsey, to depart from archaic common law rules governing liability of owners and occupiers of property, we think it reasonable to state that if the Legislature had not first enacted G.L.c. 231, § 85Q, in 1977, we would probably have applied the rule of § 339 of the Restatement (Second) of Torts, which is practically identical to that statute, in this case. Since Mounsey, we have been moving in the direction of developing by judicial decision a rule which would impose on landowners a duty to exercise "reasonable care in all the circumstances." Where the trespasser is a child, who is unable to appreciate danger as intelligently as an adult; where that child's presence is foreseeable; and where the burden of undertaking precautions is not great compared to the magnitude of the risk involved; surely it is appropriate to call for the exercise of "reasonable care" toward that child notwithstanding his status as a trespasser. The notion that landowners have no duty toward children in such a situation should now be recognized to be an outmoded relic of an era when the law, as a matter of course, considered the rights of property owners superior to the safety of trespassing children.
Our adoption, as a matter of common law, of the "duty to child trespassers" rule reinstates the judgment of the jury for this plaintiff. The fact that the Legislature acted consistently with the trend of the law as expressed by this court before this case reached us for decision does not
The defendant points to cases like Vaughan v. Commonwealth, 377 Mass. 914 (1979) (governmental immunity), Swartz v. General Motors Corp., 375 Mass. 628, 631 (1978) (strict liability in tort), Kolofsky v. Heath, 370 Mass. 855, 856 (1976) (liability to guest passengers), and Ricker v. Northeastern Univ., 361 Mass. 169, 171 (1972) (charitable immunity), as instances where, because the Legislature had prospectively altered a traditional rule of law by statute, this court declined to accomplish a similar result retroactively as a matter of common law, even though it might otherwise have done so if there had been no change by statute. The defendant's suggestion is that we should follow the same course here. However, there is an important distinction between the cited cases and the present one. The other statutes concerned matters about which this court had either been silent, or had actively solicited legislative intervention in preference to judicial decision making, thereby evidencing a policy of deference to the Legislature. By contrast, the modernization of the area of tort law involved in the present case is a process which this court began well before the Legislature passed § 85Q. Being a product of the common law, tort immunities are appropriately a subject for both legislative and judicial lawmaking. Cf. Whitney v. Worcester, 373 Mass. 208, 210 (1977) (governmental immunity ultimately a subject for legislative, not judicial action). The plaintiff's citation of Boston Hous. Auth. v. Hemingway, 363 Mass. 184, 195 (1973), as a decision holding that in certain cases legislative action should be complemented by judicial action, rather than precluding it, seems to us an apt analogy.
The plaintiff would have us go even further and seize on this case as the opportunity to abolish all distinctions between different classes of potential tort plaintiffs in so far as they are based on their status as invitees, licensees, or trespassers. This we decline to do. The most compelling
The defendant argues that in any event there was insufficient evidence of the defendant's negligence to support the jury's verdict. We do not agree. The plaintiff's expert testified that this electric power substation did not meet reasonable safety standards for the industry. The jury could certainly find, considering the fact that children
HENNESSEY, C.J. (concurring).
I concur in the court's result and reasoning, except that I do not join in what I construe in the opinion as modest encouragement that the court may in the future move toward abolishing all distinctions among tort plaintiffs who are invitees, licensees, or trespassers. I do not say that there may never be special circumstances in which an adult trespasser should be permitted recovery in an action for negligence against the landowner. If we must allude to the future, however, I should prefer a prediction that, in general, liability of the landowner for negligence is not to be extended to the adult trespasser. I think we show our sense of fitness in validating the claim of the child injured in the circumstances shown here; not so, if we treat adult trespassers similarly, or predict that we might.
KAPLAN, J. (concurring).
Concurring, I must, in contrast to the Chief Justice, express disappointment at the intimation in the next-to-last paragraph of the court's opinion that the liability of an occupier for negligence might still be made to turn in this jurisdiction on the mere circumstance, without more, that the plaintiff had the common law status of a so called trespasser at the time of the occurrence in suit. I stated my views on the
The Chief Justice's concurrence, speaking of the iniquity of "abolishing all distinctions among tort plaintiffs who are invitees, licensees, or trespassers," may conjure up in some minds the spectre of an armed robber recovering damages for injuries suffered by him in tripping over a rug while engaged in his criminal adventure. It can be predicted flatly that would not occur if the court should adopt quite frankly the position I espouse. The robber would be denied recovery, but not for the reason that the common law called him a "trespasser"; rather it would be for good and sufficient functional reasons that appeal to common sense. To make that common law catchword, or any other such as "invitee" or "licensee," in itself determinative, is a gateway to errors, as the history of the problem shows.
"A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if
"(a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and
"(b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and
"(c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and
"(d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and
"(e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children."