The plaintiff's amended complaint alleges that he was injured due to the negligence of the defendants "in the care, operation and maintenance" of land owned and controlled by them. The defendants filed a motion for summary judgment that was allowed on the basis of depositions of the plaintiff and of the defendant George L. Merrill. The uncontroverted material facts are that the plaintiff sustained bodily injury on the defendants' land, where the
The following facts are extracted from the record, which includes depositions of the plaintiff and of the defendant George L. Merrill. On June 22, 1974, the plaintiff, then twenty-three years old, went with four friends to a section of Westford known as Merrill's Quarry, an abandoned quarry excavation filled with water. The plaintiff had never visited the area before. He saw no barrier or warning signs on that day. He knew that neither he nor his friends owned the land. Other people were swimming in the quarry. The plaintiff jumped into the water from a height of about twenty feet, hitting a ledge of rock below the water surface. As a result of the impact, he sustained a fracture in the thoracic spine that has left him with a limited ability to walk and impaired sexual, pulmonary, and bladder functions.
The quarry site had belonged to the defendants' family for about 100 years and had been leased for use as a quarry until 1968. After quarrying ceased, the excavation filled with rain water and was nearly full at the time of the plaintiff's accident. There were repeated efforts to prevent trespassers from entering the quarry site. The defendant George Merrill and his brother blocked the dirt access road with a steel cable anchored to two oak trees and a granite pillar. When the cable and locks were taken down by trespassers, George Merrill or his brother repaired or replaced them. The defendants frequently had trespassers arrested during the summers from 1969 to 1974.
The traditional rule in this Commonwealth is that a trespasser is entitled to no greater duty of care from one with a right of control over land (typically the landowner) than that he refrain from wilful, wanton or reckless disregard for
In Mounsey, the plaintiff was a police officer acting in his official capacity at the time he was injured on the defendant's premises. He was on the premises to serve a criminal summons for a parking violation on one of the defendants. We noted, id. at 701-702, that a public employee who enters upon private property to perform official duties did not fit into any of the traditional categories of invitee, licensee or trespasser. We referred to the "confusing and often inconsistent results" in cases involving the distinction between invitees and social guests, who were considered mere licensees. Id. at 705-706.
The difficulty in distinguishing between invitees and licensees was one reason, but not the principal one, for our abandonment of those categories as determinants of premises liability. The dominant consideration was that such a distinction "no longer comport[s] with modern accepted values and common experience." Id. at 703.
General Laws c. 231, § 85Q, provides that a duty of reasonable care is owed to certain foreseeable child trespassers. This demonstrates the Legislature's recognition of a community
The lack of such a consensus makes abolition of the common law rule unworkable. In a negligence case involving lawful visitors, foreseeable child trespassers, and known helplessly trapped trespassers, the trial judge typically instructs the jury that they are to determine whether the defendant exercised that degree of care for the safety of the plaintiff that the ordinarily prudent landowner customarily exercises in the same or similar circumstances. The jury focuses on how the ordinarily prudent landowner would have discharged his responsibility to care for the plaintiff's safety and compares the defendant's conduct. No question arises as to whether such responsibility exists because there is community agreement both that it does exist and that the responsibility is recognized by ordinarily prudent landowners. The current rule assumes a socially accepted moral principle and is therefore workable.
If we were to abolish the trespasser rule, and the trial judge were to instruct the jury that they are to determine whether the defendant exercised that degree of care for the safety of the plaintiff trespasser that the ordinarily prudent landowner customarily exercises in the same or similar circumstances, the jury inquiry would not be limited to comparing the defendant's conduct to how the ordinarily prudent landowner would have discharged his recognized responsibility to care for the plaintiff. Because there is no community consensus, the jury would first consider whether the ordinarily prudent landowner recognizes any responsibility at all to care for the safety of an adult trespasser. The jury's resolution of the question would be likely to turn on such social policy concerns as the privileges that ought to attach to land ownership, or on the jury's view as to the proper
Courts in some jurisdictions have abolished the rule that a landowner is not liable to an adult trespasser for injuries resulting from the landowner's negligence. Most of the cases in which the abolition of the rule has been announced did not involve trespassers. See Rowland v. Christian, 69 Cal.2d 108 (1968); Mile High Fence Co. v. Radovich, 175 Colo. 537 (1971); Pickard v. City of Honolulu, 51 Haw. 134 (1969); Smith v. Arbaugh's Restaurant, Inc., 469 F.2d 97 (D.C. Cir.1972), cert. denied, 412 U.S. 939 (1973); Webb v. City of Sitka, 561 P.2d 731 (Alas. 1977); Scheibel v. Hillis, 531 S.W.2d 285 (Mo. 1976); Cunningham v. Hayes, 463 S.W.2d 555 (Mo. App. 1971).
The suggested change in the law would ultimately result in the submission to juries of cases that ought to be decided upon directed verdicts. Compare Watson v. Niagara Mohawk Power Corp., 66 App. Div.2d 996 (N.Y. 1978); Leone v. Utica, 49 N.Y.2d 811 (1980), aff'g 66 App. Div.2d 463 (1979). It might be entirely foreseeable that a thief or vandal would enter someone's premises to commit a crime; yet surely it could not be declared that a duty of reasonable care was owed to that person. Such cases should not be for the jury to decide. The New Hampshire Supreme Court in Ouellette v. Blanchard, supra, recognized this problem and, in essence, created new standards for directing verdicts. After concluding that the common law rule should be abolished, the court stated: "When the intrusion is not foreseeable or is against the will of the landowner many intruders will be denied recovery as a matter of law. In other words, a landowner cannot be expected to maintain his premises in a safe condition for a wandering tramp or a person who enters against the known wishes of the landowner." 116 N.H. at 557. See id. at 561 (Grimes, J., dissenting). This approach merely replaces existing rules of law with a new and relatively undefined set of classifications for determining which cases are to be decided by directed verdicts. This approach creates more confusion than it eliminates.
Other areas of our law are consistent with the result we reach here. The common law recognizes that a person may
During the last fifteen years this court has on a number of occasions made significant changes in the law of torts.
It is commonly asserted that the abolition of the traditional rule will eliminate the harsh results that it has sometimes brought about. See, e.g., Comment, Duty of Owners and Occupiers of Land to Persons Entering the Premises: Should Pennsylvania Abandon the Common Law Approach? 17 Duq. L.R. 153 (1978-1979); Case Comment, 8 Suffolk U.L. Rev. 795, 807, 811 n. 75 (1974). However, a review of the cases readily demonstrates that any such harshness has already been, or can easily be, ameliorated by the simple adoption of the recognized exceptions to the common law rule. Thus, "where a trespasser is in a position of peril ... and his presence becomes known, the owner then has a duty to use reasonable care ... in the circumstances." Pridgen v. Boston Hous. Auth., 364 Mass. 696, 707 (1974). An occupier of land will also be held to a duty of ordinary care
It is apparent then, that upon analysis the reasons commonly stated in favor of abolishing the preclusive effect of the trespasser's status are of little persuasive value. Perhaps the temptation to extend liability in favor of trespassers is born of a desire to permit a reallocation of the costs of serious injuries. This has long been a known tendency of juries, and modern trends in tort law have had this effect. A source of this tendency in the law is the thought that the costs of serious injuries should, through the medium of insurance, be borne by society at large. It has been said that the tendency of modern tort law has been in the direction of a system of liability without fault. See F. Harper & F. James, Torts § 27.1, at 1432 (1956). Perhaps a consequence of these developments has been the emergence in recent years of an attitude shared by some commentators: if someone is injured, it must be someone else's fault — or at least someone else should pay for it. But concerns such as these more properly should be the subject of some sort of universal accident insurance system. They cannot, for reasons too numerous to mention, be addressed by the courts on a piecemeal basis in the context of negligence law. The ready availability of insurance and a sympathetic plaintiff should not allow us to undermine the fundamentals of negligence law. Thus we reject the suggestion of some authorities
The law of negligence is an imperfect method for compensating the victims of accidents. In the absence of a
LIACOS, J. (dissenting, with whom Wilkins and Abrams, JJ., join).
Under our present case law, a trespasser, as an entrant without consent or invitation, is entitled to no greater duty of care than that the landowner refrain from wilful and reckless disregard for the entrant's safety. See Sweeny v. Old Colony & Newport R.R., 10 Allen 368, 372 (1865); Burke v. Toothaker, 1 Mass.App.Ct. 234, 238 (1973); Restatement (Second) of Torts § 333 & Comment b (1965). The court reaffirms this principle today. This court has recognized, however, two exceptions to the general landowner's immunity arising from an entrant's trespasser status, neither of which benefits this plaintiff. In Pridgen v. Boston Hous. Auth., 364 Mass. 696 (1974), the court ruled that "where a trespasser is in a position of peril ... and his presence becomes known, the owner then has a duty to use reasonable care ... in the circumstances." Id. at 707. The decision in Soule v. Massachusetts Elec. Co., 378 Mass. 177 (1979), announced a common law exception to a landowner's immunity vis-a-vis certain foreseeable child trespassers, in conformity with the statutory negligence standard imposed by G.L.c. 231, § 85Q.
In Soule we recognized the Legislature's enactment of G.L.c. 231, § 85Q, as an effort to soften the "Draconian" common law doctrine concerning child trespassers. Soule, supra at 180. We also recognized that "the action of the Legislature in passing § 85Q was not meant to, and does not, foreclose us from announcing compatible changes in the common law of torts, consistent with the trend of our decisions in Mounsey v. Ellard, 363 Mass. 693 (1973), Pridgen v. Boston Hous. Auth., 364 Mass. 696 (1974), and Poirier v. Plymouth, 374 Mass. 206, 221-228 (1978)." Soule, supra at 181-182. I perceive no persuasive reason offered by the court's opinion today to decline to extend the Soule principles to a foreseeable adult trespasser. To do so would not invoke the uncertainties the court describes, but would be a natural — and limited — extension not only of recent judicial case law but also of legislative policy.
In Mounsey v. Ellard, 363 Mass. 693 (1973), this court abandoned the common law categories of invitee and licensee as determinants of premises liability. We held in Mounsey that Massachusetts landowners could not claim immunity from negligence liability based simply on the entrant's licensee status. Id. at 703, 706. Ruling that a single duty of due care applied to all lawful entrants, the court concluded that attempts to fashion judicial refinements of status had produced only confusing and often inconsistent results. However, the Mounsey court limited applicability of the new negligence standard to lawful visitors. Justice Kaplan, concurring, took issue with the position of the court as to the
The most offensive aspect of the status rules is the injustice inherent in the harshness of summary disposition against a plaintiff as a matter of law. See, e.g., Mounsey, supra at 707 (allocating risks of injury too complex to be decided exclusively by entrants' status); Webb v. City of Sitka, 561 P.2d 731, 732-733 (Alas. 1977) (reversing summary judgment for defendant which had been based on claimant's status as licensee); Rowland v. Christian, supra at 119 (perpetuating wholesale immunities under common law system can lead only to injustice); Smith v. Arbaugh's Restaurant, Inc., 469 F.2d 97, 103-104 (D.C. Cir.1972),
The entry of this plaintiff on the defendants' land and the plaintiff's use, without consent, of the defendants' quarry was, according to the facts alleged and set out in the court's opinion, entirely foreseeable. Even if a court retained the "status" doctrine in part, such a plaintiff would stand in a position entirely different from that of an outlaw or unforeseen trespasser. Even under the moderate position taken by the Restatement (Second) of Torts, this is a case for a jury. While the Restatement retains the "status" concept (§ 333), § 335 provides, where a possessor of property "knows, or from facts within his knowledge should know, that trespassers constantly intrude upon a limited area of the land, [he] is subject to liability for bodily harm caused to them by an artificial condition on the land, if (a) the condition (i) is one which the possessor has created or maintains and (ii) is, to his knowledge, likely to cause death or seriously [sic] bodily harm to such trespassers and (iii) is of such a nature that he has reason to believe that such trespassers will not discover it, and (b) the possessor has failed to exercise reasonable care to warn such trespassers of the condition and the risk involved." See also Restatement (Second) of Torts §§ 334, 336-338 (1965).
It would be a modest step by this court to adopt this position; it also would be consistent with the standard recognized in Mounsey, supra, as fleshed out by incorporation of the criteria enunciated in Soule, supra at 184, and by the language of G.L.c. 231, § 85Q. Despite the court's protestations, a ruling that a "reasonable care" standard includes
The Legislature, as well as this court, has seen fit to delegate to the jury the interpretation of a landowner's negligence standard in G.L.c. 231, § 85Q. The jury ought to be able to translate to adult trespassers the statutory criteria applicable to children. In a case such as this the standards found in § 85Q which are particularly relevant are whether "(a) the place where the condition exists is one upon which the land owner knows or has reason to know that [persons] are likely to trespass ... (d) the utility to the land owner of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to [persons] involved." G.L.c. 231, § 85Q. I have little doubt that a jury could receive proper guidance from such a standard.
It should be clear that substitution of a general negligence standard would not furnish unwarranted protection to wrongdoers. Restatement (Second) of Torts, Comment b to § 333 (1965), recognizes that the common law rule itself bestowed immunity from liability on the possessor based on his privilege as a possessor of land and not on the fact that the trespasser, as such, is a wrongdoer. As is manifest from the cases cited, shifting to a negligence analysis would permit the jury to consider as a matter of fact the innocence or malevolence of the entry. The negligence approach simply makes the foreseeability of the trespass and the risk of harm a part of the jury's determination of what conduct is reasonable in the circumstances, rather than a matter of law for the court.
Schofield's appeal presents the "concrete fact situation" of an adult trespasser, and thus raises the question which the Soule court deferred, Soule, supra at 186. In Soule the court, reiterating the Mounsey position on trespassers, pointed to a qualitative difference between a child trespasser and a burglar. On the record here, it is not difficult to see a substantive difference between an adult trespasser and
The court then noted that "`[t]here has, however, been quite a vigorous undercurrent of dissent, as to whether this [classification of the social guest as a licensee] is really in accord with present social customs under which it is contended that the guest, invited and even urged to come, rightfully expects more than mere inactivity for his safety; and some writers have urged that the social guest be treated as an invitee.' Prosser, Torts (4th ed.) § 60. See Harper, Laube v. Stevenson: A Discussion, 25 Conn. Bar J. 123; McCleary, the Liability of a Possessor of Land in Missouri to Persons Injured While on the Land, 1 Mo. L. Rev. 45, 58; Notes, 12 Rutgers L. Rev. 599; comments, 22 Mo. L. Rev. 186; 7 Wm. & M.L. Rev. 313." (Emphasis added.) Mounsey v. Ellard, 363 Mass. at 706 n. 5.