*1 Reszczynski Respondents, wife, Antoniewicz another, Appellants. Argued (1974). October 2, 1975.
No. 10, 1975. December Decided 1.) reported (Also in 236 W. 2d N. *3 appellants Vries, by For the there de brief oral, Milwaukee, argu- Schallert, Vlasak & S. C. of Stephen ment de Vries. respondents
For by Salza, Pene- there was a brief argument by Milwaukee, & Hauke S. C. of oral ffor Thomas A. Hauke.
Heffernan, presents J. This case abrogate whether this court should exist- heretofore ing occupiers common-law immunities owners and of land. We conclude that the distinction between occupier heretofore owed land to licensees abolished, invitees should and that the occupier required any negligence land be that action— ordinary care under the decline, circumstances. We how- change ever, occupier immunities which a land enjoys trespassers.
This interpreted case arises demurrer. The court allegations complaint demonstrate plaintiff had and, existing status a licensee under law, there would be trap where a exists upon the property, i.e., hazard known to the landowner *4 but concealed and or, unknown to licensee, the alterna- tively, where operational negligence. there has been active judge The trial that, although concluded the law hereto- existing fore precluded Wisconsin plaintiff the from recovery, such law was archaic and no rational basis denying liability plaintiff existed for to the in the cir- cumstances set forth. He held that the de- which upon irrespective the common- landowner,
volves ought person upon land, the law status who comes ordinary to be that of under The care the circumstances. judge correctly interpreted the the law and trial status prior applied. that the result would reached be were law complaint alleges plaintiff, that The the Dean Anton- defendant, Reszezyn- iewicz, the went to Anne home evening February 16, pur- on the for the ski, giving daughter pose of a ride the defendant’s house; porch friend’s that on the back there was an icy patch, defendant but which was known was plaintiff plaintiff unknown to which ice the alleged injured. slipped defendant and was It that the guilty negligence failing plaintiff was for to warn the provide porch, condition of the the failure lighting, proper prevent and for the failure to the ac- porch. of ice on the cumulation back judge opinion The trial his memorandum stated arguments defendant. He said: injured plaintiff
“Defendant contends awas licensee; alleged unconcealed; defect was therefore, warn, there the condi- was no and that complained product negli- not tion was of active gence. injured plaintiff’s If one concedes status as alleged and that licensee condition concealed, position then the defendant’s is substantiated precedent upon.” she relies distinctions judge then common-law restated licensee, and invitee trespasser, the status between holding landowner applies for this court the tests any plaintiff in of those to a injury done liable when common-law categories. pointed out that legal He determining the important aof licensee is status common-law sufficiency of action were cause *5 posed question: Should retained. He to be distinctions ordinary negligence be the trend toward rule question that adopted He answered in Wisconsin? concluding antiquated common- that that it time negligence single rejected law distinctions govern care, ordinary an that of the standard, injuries any premises. on for owner’s Terpstra (1974), Inc. Soiltest, In the recent case urged plaintiff 585, 218 2d N. W. 2d Wis. lia existing predicating rules that we abandon occupier bility of land and substitute upon an owner or ordinary care. declined therefor the We standard request and stated: in other states of the recent trend are aware
“We of the common law distinctions the abolition toward in terms trespasser, licensee, and invitee between obligations .... landowner’s choose, the abandonment however, not to consider “We change to be If a traditional rule this case. at on the of a record made considered, it should be basis instruc- trial, appropriate are made and motions where trial trigger requested exercise of the tions will may apply to judge’s question it on the decision 593, 594) particular (Pp. case.” v. Wilkinson Ordinarily, Gonzales as we said will 154, 158, 2d we 227 W. N. Wis. unless rule of a traditional abandonment consider the and full consideration been a full trial there has order an many there been In where cases issues. judge to address fail demurrer, the trial entered on a existing directly of whether himself of law be abandoned. rule should believes judicial policy, court a matter of As judge’s reason- expression a trial important to have *6 ing particular before him. In the instant on the case case, judge specifi- apparent trial however, it is the policy cally painstakingly himself to the addressed ap- existing underlying the law and considerations reasoning explicated espoused. proach that he His scholarly opinion. no in a and exhaustive There is doubt light that, judge squarely in trial record, this fully presented and dealt with it. He found issue opinion, applying why, informed court in his the law this changed. proper to this case should be The case in a is posture upon for consideration of the issue which judge trial made decision and ordered that the de- murrer be overruled. present respect in
The law in Wisconsin to the duties occupiers owners outlined in land is Szafranski Radetzky 119, 125, 126, Wis. W.N. . 2d 902 in that, trespasser, We stated to a duty owner of land has to refrain from wilful injury. ordinarily intentional He is not liable trespassers for the failure to ordinary exercise care to put condition, obliged his land in a safe nor is he might refrain although from injury, activities cause may some circumstances there be a to warn trespassers highly dangerous known conditions. sliding On the scale duty, increased as determined by person a status of land, who comes greater obligations are owed to a licensee. land The occupier may be liable to a if injury licensee is caused by dangerous trap condition that is to the known —a landowner but concealed from the licensee. In such circumstance, there is a A warn. cause of action by spelled licensee also be out injury when the is by operational caused negligence the active or occupier. land Under such circumstances, or active operational activity must be carried on in the exercise ordinary care. ordi- invitee, that of highest duty to the is owed nary care under circumstances. 2d, Restatement, 2 Torts trespasser defined
A is p. 171, sec. as: in the upon land person who enters remains privilege possession to do so created another without or otherwise.” possessor’s consent outlaw, ipso trespasser, however, facto
A illegal premises purposes. in fact unless he is on rules by the That is true demonstrated numerous Prosser, (hornbook series, ed.), Torts 4th which stated protection particular afford under circumstances some re- “frequent trespassers,” “anticipated trespassers” dangerous trespassers,” spect to “discovered activities, *7 ex- trespassers. “physically trapped” There are also and involving general tres- ceptions to rule years. passing of tender children Nevertheless, trespasser’s entirely dif- is status invitee, that ferent than a licensee or an both either knowledge property enter the consent whom with convincing argument a can be landowner. While exceptions to made demonstrate that the numerous trespasser rule vitiate effect and warrant its abrogation of the rule and the substitution therefor of a ordinary recognizes duty peculiar that cir- care surrounding trespass, cumstances that we conclude great legal the distinction is so that between status ought that of licensee-invitee we not consider abrogation regard trespassers. now the of the rule in case, plaintiff Under facts of this a was not trespasser, trespasser but was licensee. The ato raised. light agree
In herein, factual situation we with Supreme in Peterson v. Balach the Minnesota Court 161, 294 Minn. 199 N. which, W. 2d in dis- cussing injured party in which licensee, case was a trespassers. to rule on a declined landowner’s court said: Minnesota suggests “Judicial this de- restraint be day judgment ferred to a later to another Our case. dictates that rules which have over evolved decades experience common-law in this not be sum- state should marily abrogated thorough adversary setting except in an after a litigants presentation by and careful have who a stake in the outcome. away Sweeping “. . . all distinctions between tres- passers guests and social a dras- business invitees is step good may is, tic be, take because there and often distinguish trespasser
reason
between
and a social
guest.
a social
distinguish
There is little or no reason to
between
guest
(Pp. 164, 165)
and a business invitee.”
Supreme
Mounsey
The Massachusetts
Court
Ellard (1973),
E.
Mass.
N.
followed
refusing
abrogate
trespasser
similar rationale in
rule.
7, page
That court
said
footnote
707:
significant
“We feel that
there is
difference in the
legal
trespasses
status of one who
on another’s
land
opposed to one who
on
the land under some color of
right
reason,
as a licensee or
For
invitee.
—such
among others,
they
we do not
placed
believe
should
legal category.”1
the same
logic
Whatever
there
be for the total abolition of
all
classifications of
who come
those
the land of
concurring-
are
opinion
We
not unmindful
of Mr.
Kaplan
*8
Mounsey,
logic
Justice
in
argu
who felt that
of the
abolishing
ment
the distinction between
licensees
invitees was
equally persuasive
respect
trespassers.
He said:
just
distinguish trespassers
“For it is sometimes
as hard to
from
invitees,
distinguish
invitees;
licensees and
as to
from
licensees
trespassers
just
probably
and the
class
as various as either
(pp.
718)
of the other classes.”
interesting
court,
It
is also
to note that
the Massachusetts
al-
though
trespasser
retaining
status,
adopted
later
reason-
“physically trapped” trespassers.
Pridgen
able-care standard for
Housing Authority (Mass. 1974),
v. Boston
In v. Larson 2d Wis. N. court W. discussed the standard for deter mining an status of invitee to whom is owed the ordinary developed— care. Two been theories have theory the “economic-benefit” which embraces business theory. Copeland visitor and the “invitation” points As out: obligation “The imposes upon economic-benefit test an occupier of land when he receives- some actual or potential entry. benefit as a result The invitation theory imposes upon holding based out of premises entered.” purpose as suitable for the for which the visitor (P. 342)
Copeland theory reiterates the economic-benefit is not followed in Wisconsin and that finds this state liability to the representation invitee in a implied from encouragement an gives the landowner fur- others- purposes. ther one “To this court, invitee,’ the terms ‘business ‘business .
visitor,’ and synonyms ‘invitee’ are and we held have person when premises enters another and there ais person by benefit to the entry other mutuality some of interest, the visitor invitee.” (Pp. 342, 343) apparent It is from Copeland that, discussion in discarding with the theory, economic-benefit it is logically impossible to set realistic for the standards guest exclusion of a social from category of invitee. As in Szafranski, we said supra, enigmas one of the parlance common-law is that a guest, social no matter *9 cordially not an invited, nevertheless how he has been is duty of care is licensee, to whom lesser invitee but required. blurring
It and absence of distinctions imposing liability in and not rationale for one case sound impelled in another that has common-law courts between and invitee as abolish the distinctions licensee enlarge- liability. The trend toward the determinative negligence ment of landowners for importance minimization of the of common-law status categories Copeland, been noted in both supra, supra. Terpstra, significant change
The first in this direction was Supreme made the United States Court in Kermarec v. Compagnie Generale Sup. S. U. Ct. 3 L. Ed. 2d in which case the court considered whether common-law rules status property one who comes should be another applied Upon premise maritime law. it is principle shipowner of maritime settled law that a owes exercising reasonable care toward those law fully aboard the vessel who are not members of the crew, the court concluded that inappropriate hold that a different and lower standard care re quired ship’s when the visitor is a “licensee.” The court rejecting separate standard of care stated: “The distinctions which common law draws be- tween licensee and invitee inherited were from a culture deeply land, many rooted to the a culture which traced heritage its to a standards In feudalism. an effort justice to do in an industrialized its society, urban with complex economic and individual relationships, modern necessary common-law courts have found it to formulate increasingly refinements, subtle verbal to create sub- among categories, traditional classifications common-law gradations delineate fine in the standards of care which the landowner owes Yet each. even within a single jurisdiction, classifications subclassifica- produced tions bred the common law have confusion *10 spawned, and conflict. As new distinctions have been Through older ones have obscured. become this semantic moved, unevenly morass the common law has with hesitation, ‘imposing occupiers on towards owners and a ” single duty of reasonable care in all the circumstances.’ (Pp. 630, 631) years
Nine later, Rowland v. Christian 69 Cal. 108, 117, Rptr. 97, 2d relying 70 Cal. Pac. in part upon Kermarec, abolished the common-law status categories and stated: objection ap- “There is another fundamental to the
proach question to possessor’s the of liability the on the upon basis of the common law distinctions based injured party licensee, status trespasser, as a Complexity invitee. can be borne and confusion remedied underlying principles where the based governing liability are upon proper considerations. Whatever have justifications been the historical for the common law distinctions, it is clear those distinctions are not justified light in the society of our modern and that complexity and confusion which has arisen not due is common law rules— n difficulty original applying in they easy are apply original all too in their formula- attempts tion —but is due to the just apply in rules our modern society terminology.” within the ancient (P. 117) “A man’s life or limb does not worthy become less protection by the law nor a worthy compensa- loss less tion under the law because he upon has come the land of permission another without permission or with but purpose. without a business people Reasonable do not ordinarily vary their depending conduct upon mat- such ters, and to focus injured the status of party trespasser, licensee, as a or invitee in order to determine question whether the care, landowner has a contrary to our modern social mores and humanitarian values. luminate the common law rules obscure rather than il- proper govern considerations which should question determination of duty.” (P. 118)
Following rationale, the California court con- cluded continued adherence to the dis- common-law addi- injustice lead to further tinctions would resulting complexity legal fictions, tional with cases. blurring except in the obvious categories, most proper in standard It concluded that all instances determining occupier of applied in of an upon it comes is whether land one who management occupier: property the “. man view . acted as a reasonable . has although plain- probability injury others, and, may in trespasser, licensee, or invitee tiff’s status as giving light the bearing have of the facts rise to such status some liability, on the status Rowland, page determinative.” 119. *11 not It do should be noted that Rowland did what we special do in the rules in this case—it abolished trespassers. to year later,
A of Hawaii Rowland and state followed City County (1969), in Pickard Honolulu Hawaii 2d common- 134, 135, 445, abolished the Pac. law distinctions. The Hawaiian court stated: that “We believe the common law distinctions between logical persons relationship no classes have to safety exercise of reasonable for care of others. We occupier therefore hold that an land has to use safety reasonably persons care for the reasonable anticipated of all upon regardless to be the premises, legal status of the individual.” Supreme In High 1971, Court of in Mile Colorado Fence 537, Co. v. Radovich 2d 489 Pac. Colo. liability occupier that also ruled of a land for injured upon property solely those not did rest on the common-law It status concluded that the entrants. existing judicial classifications created confusion and prevented jury ordinary applying waste and from community negligence standards to a landowner’s duty. perpetuation It stated that the of the common-law in inappropriate distinctions resulted harshness legal system. adopted to a modern The Colorado court foreseeability in reasonable-man standard view injury acknowledged, to It however, that it was others. liability proper jury predicate for to entry on the circumstances individual’s land, i.e., whether, parlance, common-law he was trespasser, licensee, or invitee, but those distinctions were be conclusive. Appeals
In the United States Court of Arbaugh’s Restaurant, District of Columbia Smith v. (D. 1972), App. Inc. C. Cir. 152 U. D. 469 Fed. S. C. 97, adopted appro- a similar rule and held that it was priate apply ordinary principles negligence landowner’s conduct.
The Appeals District of emphasized Columbia Court of are expected landowners not to be insurers but are respond if there is a failure exercise due care under circumstances. recently reported
The most completely case which adopted the Diponte, Rowland rationale is Mariorenzi v. (R. Inc. 1975), I. 333 Atl. 2d 127. Rhode Island court said: “The time has come to extricate from a ourselves quagmire semantical beginning that had its in ancient misleading phraseology. Mr. Justice Sutherland emphasized judiciary’s duty bring the common present law and day into accord with of wisdom standards *12 justice rather than to continue with some outmoded antiquated past. rule of the judiciary gave .. . The invitee, birth to the licensee, trespasser trio" and the judiciary now lay triptych can to rest. Accordingly, we give fitting a final but interment to the common-law categories invitee, licensee, trespasser internment and as well extensions, as their exceptions, extrapola-
tions. assign “As trichotomy we past, the historical we place substitute in its the basic tort test of reasonable- Hereafter, ness. the common-law status an entrant onto the land of longer another will no be determinative degree of care owed the owner, but rather the
850 question owner will whether to be resolved safety persons rea- of all used reasonable care
sonably expected premises. Evidence to be have some relevance status invitee longer question conclusive. but no will be question foreseeability The traditional tort will become (P. 133) (Atl. 2d)2 important.” totally In addition to cases which have abolished these courts, distinctions, a other the common-law number of including supra, Peterson, in and Massa- Minnesota supra, have the tradi- Mounsey, chusetts in abolished invitees, but tional distinctions between licensees and have declined to rule on landowner’s trespassers. toward Additionally, Rowland have a number of courts since categories hold declined to the common-law but abolish guests social should be as invitees considered required of reasonable care be persons categories fall those who under common-law guests into This the class of either social or invitees. supra.3 Rowland, A preceded trend number some cases 2 adopting test, the Rowland see Rosenau v. other For cases City Sargent v. (Iowa 125; Estherville 1972), 199 N. W. 2d Ross Ives Co. 388, 528; v. & (1973), Atl. 2d 113 N. H. 308 Swift Martinez 1971), (concurring opinion) ; (Iowa 172, 183 2d N. W. 178 Realty Co., 819, v. Inc. (1974), 34 2d 316 N. Y. Kaufman-Kane City (concurring opinion); v. Town Silver Williams N. E. 2d 336 Taylor Jersey High 279, v. New (1972), 304; 84 N. 602 Pac. 2d M. way Authority Cunningham (1956), 313; 454, N. 126 Atl. 22 J. 2d Hayes 555; (Mo. (Mo. App. 1971), 463 S. W. 2d Heald v. Cox v. Nutting Trust App. 1972), Louisville Co. v. 107; 2d 480 S. W. (Ky. 1969), S. 2d 484. 437 W. 3 See, e.g., Alexander v. As General Accident Fire & Life Corp. (La. App. 1957), approved surance 730, 98 So. 2d Foggin Guaranty Supreme v. Ins. General Louisiana Court (1969), Co. Preston v. Sleziak (1967), 636; 250 195 2d La. So. Kresge App. 18, 477, citing Polston v. S. S. 16 Mich. 2d 167 N. W. Bramble 575, 578, 638; Co. v. (1949), Mich. 324 37 N. W. 2d Snyder Thompson v. I. (1972), 265; Atl. 2d Md. Jay Realty 1; Co. Scheibel (1959), N. J. Atl. Lipton 308, 328, 102 E. 156 Ohio St. 2d 453. N.
851 -Rowland, expanded cate- post have also decisions guests.4 gory of invitees to include social change Prior the trend of the set in motion it, a progeny Rowland and and concommitant with its legal and reviews number writers treatises law pointed have out the tenuous basis for the common-law categories responsibilities occupiers that determine of land. James, Torts, Harper treatise, 2 Law & in the origin 1432, 27.1,
p. sec. stated medieval of these rules. They said: opinion “But of modern consensus special privilege occupation accord to these rules high sprang place land from the tradi- which land has English thought tionally held in American and and landowning continuing prestige still class development. dominance and England during period the formative of this sanctity ownership included This land importance
notions of economic and its de- social sirability exploitation of the free use Prob- land. ably especially it included, England, also more intangible up overtones bound with values of social system heritage that traced much of its of feudalism.” discussing application After of the rules in occupiers Harper of land, owners and James concluded: occupier “. .. the traditional rule confers on an special privilege land a of quite to be careless which is out keeping development gen- with the of accident law erally justifiable nois more here than would inbe any enterprise activity. case of other useful As special privilege we have ing suggested, is reced- 1440, . . .”. P. sec. 27.3. Hughes 1959,
In Trespassers: Graham in Duties to Comparative Survey A Revaluation, 68 Yale Law 4 Camp (Fla. 1973), 691; Wood 284 2d So. Sideman v. Gutt (1972), App. man Supp. 263; 38 Div. 2d 330 Y.N. 2d Hix v. (Fla. 1973), Mangione 209; Billen 284 2d (1972), So. v. Dimino App. Supp. 683; Caponi 2d Y. Div. N. 2d DiGildo v. 18 Ohio St. N. E. 2d 732. *14 English commenting upon in statute
Journal and licensees which abolished the distinction between invitees, stated: legislation feeling, strongly sprang from ex- “This years, plaintiff pressed in recent that the of character entry premises in on his lawful the defendant’s should determining in no more than a relevant circumstance discharged care. defendant of whether the has his imported categorical ought It not to be into as a the law question proposition, for the to the of whether answer discharged depend on defendant the the should totality appli- of the circumstances. The mechanical categories visitor, of and of cation concepts the traditional of such traps dangers, and as unusual is manifestation tendency propositions of the lamentable to transmute propositions law,
fact into which Glanville Williams ” ‘besetting of the has called sin law of tort.’ A in (1969), writer 18 Univ. of Kansas Law Review 161, 162, stated: existing exceptions judicial “. . . extensions [T]he pervade which the common-law rules manifest a basic surrounding application confusion those rules symptomatic justice attempt are of an to attain in working system individual case while within a lawof
which frustrates the attainment of that con end. This inequity occupier’s liability fusion and stems from an ciples sacrosanct.” in the area of attempt apply prin old common-law society longer in a which no holds the landowner Stites, Liability Comment: Oc Land cupier Criticism Kansas Law. Injured to Persons on His Survey Premises: A English The Law Reform Committee Report, out grew eliminating which the British separate revision categories, by saying: concluded present justice] ‘by requiring law “[The embarrasses essentially what is of fact to be determined ” reference an artificial and irrelevant rule of law.’ Leigh, in Cited Occupiers’ McDonald & The Law Li ability and the Need Canada, 16 U. of for Reform Toronto (1965), 55, Law Journal 65. was unsatisfactory common of the law condition The long ago legislature recognized as Wisconsin 101.11, safe-place statute, sec. the enactment legislature adopted by the 1911. first Stats., com- traditional in effect safe-place abolished statute come to those who classifications mon-law purpose buildings employment. The places public capsulized by Justice safe-place Mr. statute majority opinion in Lewko to the in a dissent Crownhart 190 W. Milling N. 179 Wis. Co. Krause safe-place to the statute: He in reference 924. said *15 put the humane into statutes words, “In the other wiped the Draconian doc- courts, and out of the doctrine concerned.” or invitees are trine far as licensees so enlightened legislation adopted in Despite the buildings employment, places applicable public of to policy adopt the toward never fit to this court has seen legislature way, con- the led but instead has which rules and Draconian tinued to follow unrealistic to in Lewko. referred Automo court in McConville v. State Farm Mut.
This (1962), 15 2d bile Ins. Co. N. W. Wis. analogy of the licensor- fit, abolish however, saw respect an relationship in of to the condition licensee gratuitous guest ride, may in automobile which outgrowth assump duty and held that the licensor its — principle of the tion of be discarded in favor risk —should guest the same that the driver of automobile owes his ordinary that The MeCon- care he owes others. upon the ville Case rested rationale burden falling injuries upon upon the community, as well as ought injured parties, individual rather to be borne placed heavy McConville also reliance tort-feasor. liability upon the fact that automobile insurance was generally spread That available cost the risk. present respect property factor is also to real where liability protect property insurance is available Moreover, premises. upon owner and those who come his court it should be borne in mind that in McConville the dealing voluntarily plaintiff proceeded with a who rarely course, is, the face of a known risk. This but respect invitee situation either a licensee or an occupier’s property. on an reasoning McConville, applied oc-
cupier-of-land situation, occupier that both means charged land and one who it are comes with care, though ordinary and even be the owner liability negligent, may found well reduced negligence plaintiff principles under the familiar comparative-negligence of our law.
It appear, therefore, would is little to com- there categories mend the use of continued or licensee occupier invitee in to the property. noted, have As we the factual distinctions be- hazy tween licensees and invitees are and the law blurred. why There guest is no reason one party who invites to a at his guest’s home should have less concern for that safety than he has for the welfare of an man insurance who come to the home policy. to deliver a Is the life guest welfare of a friend who comes aas to be more lightly regarded than the life or welfare of a casual *16 acquaintance? business To state the is to good answer it. There no is why reason the business guest greater should be afforded protection the than guest. social Particularly in Wisconsin, where the eco- theory nomic-benefit has been respect discarded in logical invitees, no any dichotomy basis for remains. categories While the common-law may have some had virtue system under the feudal of land tenures, when the lord of the complete had land and autocratic control of property irrespective his of harm to community, the such concept holding of land long has since vanished. We recognize numerous upon right limitations to use by police imposed are property, real most of which many Wisconsin, decades, power. An owner for property to determine the to which been unable use com- put reference to needs of the shall be without zoning usually through power munity, expressed police regulations. County recently, in Just Marinette More 761, ap- have (1972), 56 Wis. W. 2d we N. right proved of unbridled additional curtailment ecological private property may use of it affect the when balance of the area. The state’s concern with the welfare upon prop- by come citizens who consent its ought grave. erty equally another present The merit the rule in old, that it licensees and has is and Holmes licensors is as said: revolting “It is to have no reason better for a rule Henry law than that so it was laid down in the time of IY. revolting grounds It more if still which long
was laid since, down have vanished rule and the simply persists past.” from blind Holmes, imitation of The Law, Path (1897), Harvard Law Rev. 469. It is the tradition of common-law courts to reflect spirit legal they of their times and discard rules when impede society serve to rather than to advance This it. principle, always courts, guide which has been the by Borgnis was well stated Mr. Chief Justice Winslow 327, 133 v. Falk Co. Wis. N. which W. constitutionality compensation of the workmen’s law upheld. Although spoke he in reference to constitu tional interpretation, appropriate any rationale is change in the common He law. said: problems “. . . the surrounding conditions and people, well ideals, changing. as their constantly are political philosophical aphorism generation of one entirely doubted next, discarded third; the race moves forward constantly, no Canute progress.” can stay (P. 349) its *17 finding compensation constitu- law In the workmen’s although Constitu- of our tional, Wisconsin the authors legislation, Mr. tion could not dreamed such have say: on to Chief went Justice Winslow the eighteenth century forms an constitution “When century government liberty of a twentieth charter must its general interpreted provisions and be construed eighteenth light eighteenth century mind in the Clearly century were and not. This conditions ideals? progress, to command the race to halt in its stretch 349) (P. bed of Procrustes.” state veritable constitution, but deal in While we this case with principle ra- law, with a common venerable departure re- tionale our from that outmoded creed utility dichotomy between mains same. Whatever ago long once have licensors licensees had process preserved its ended. The common-law itself has viability mending shaping of substan- tially inapplicable principles The to the at case hand. exceptions difficulty applying the to the rule in rule demonstrate that the rule itself is worthless. As Supreme Mownsey, supra, Court of Massachusetts said pages 706, 707: longer largely can no “We follow ancient and _ discredited common law distinction which free favors the regard property safety personal use without due to the of those individuals who have been heretofore classified problem allocating licensees. costs injury
risks of human solely by status complex is far too to be decided especially of the entrant, status where question prevents jury often from ever determining the fundamental whether the de- reasonably light fendant has acted of all the circum- particular stances case.” therefore, analysis We on the basis of contained herein materially by and assisted the excellent and scholarly opinion of the trial judge, special abolish the applied immunities that heretofore in- licensees and
857 duty persons upon vitees. toward all come who property occupier with the consent of the will be that ordinary By ordinary care. such standard of we care, negligence mean the standard that in all is used other Typical in cases of such that Wisconsin. formulations appearing in Montgomery Osborne (1931), v. 203 Wis. 236, 223, 234 N. 372. also: W. See Standard v. Pfeifer Gateway Theater, (1952), 229, Inc. 262 55 2d N. Wis. W. 29; Schilling 525, 133 Stockel (1965), v. 26 Wis. 2d N. W. 2d stated, 335. repeatedly Under that test, as have we negligence ascertaining is to by be determined whether the defendant’s foreseeably exercise of care created unreasonable risk to That applied others. at test is to be negligence phase analysis large at the world particular plaintiff. and not to the In respect, this our analysis negligence does not ma follow the Cardoza jority opinion Palsgraf Long in Island R. Co. R. (1928), 248 rely N. Y. N. E. 99. rather We upon the dissenting that, Andrews rationale de if the negligent fendant has been under that standard, question is one of cause —substantial factor, i.e., in cause fact, proximate cause, may policy which include fac tors that exclude particular in the circum stances. Under licensor-licensee, invitor-invitee rationale heretofore prevailing, legal finding were there a that there was no duty any violation of kind to the entrant on the property, contributory negligence did not arise. Scheeler v. Bahr (1969), 41 2d 473, Wis. 2d N. W. 310. ordinary-care Under the standard, which we applicable hold to be occupier land, duty ordinary care falls also en negligence trant, and his must be jury considered any in negligence other case.
Although opinion in this go we decline to the full route judge followed the trial change and do not existing respect rule to trespassers, ordinary standard of properly care imposed upon the Reszczyn- defendant duty alleged violation of ski, and was on the properly judge overruled plaintiff the trial demurrer.
Although ordinary care to apply the we case, all other defendants defendant prospective circumstances, shall in similar injuries occur only in which and affect those cases Pipe following v. Michels the date of this mandate. State 303b, 2d Construction, Inc. line Wis. 2d 308.5 219 N. W. 217 N. W.
By the Court. —Order affirmed. 5 majority’s opinion. effect of the The dissent misstates the merger of the licensee The result of the court does is what legal categories of them as relevant or invitee but abolition created; category are licensee-invitee is both distinctions. No liability. Ordinary ap law discarded as determinative plies. tort right apparently be un there to The dissent is asserts course, guests. reasonably overlooks, It also careless social frequently licensees, persons classified as numerous heretofore firefighters in recovery Police and ancient rules. denied under the among those heretofore denied re their duties the course of covery. are Ry. (1970), Chicago Co. North Hass v. & Western See: Marquette 885; Note, Law 2d N. W. Wis. public servants these denial While Rev. 431. attempt hardly result of the rational, is the direct the situation is categories modern conditions. for to use ancient balancing land of interests between that the It false to assert is up upon to now occupiers the land “has been who come and those wholly mat- legislative It action.” has been a matter ... exception law, of the safe- with the common of court-made ter statute; and, the dissent place the recreational-use and statute by obviously decision. unaffected states, the latter statute is courts is the fault of the present law condition chaotic The responsibility initial legislature. Courts have the and not they have established. rules which the ocmmon-law to correct significant Chatham of Lord ringing words Moreover, and by employed correctly the dissenter more better and would private trespass involving of state officials a case ir- is and and seizures to searches reference property. The by enters duty one who consent. toward to the relevant (dissenting). W. J. Two basic issues Eobert Hansen, by majority opinion are raised in this case: (1) proper rights What is balance between the guest guest injured duties host and when a social premises on the host?
(2) balancing rights to do the Who is duties legislature involved —this court or the ? majority that,
The up duty concedes now, owed owner, occupant living lessee or quar of land or to a ters social keeping visitor has been “. . limited . property traps refraining safe from and to from ac negligence tive ....”1 majority abandons duty this standard toas owed guest puts higher host to place its standard “duty ordinary care,”2 adding duty inspect
premises in advance to traps to warn of concealed hazards.3
aWhen broadened, owed is somebody thus wins somebody every Here owner, loses. every lessee and every occupant living quarters of land or by the loses greater exposure liability. Every injured guest, social premises while on the gains of the host, in the broadened *20 1 Copeland (1970), v. Larson 337, 341, 46 2dWis. 174 N. W. 2d 745. 2 page Id. at 342. 3 Congregation Balas v. (1975), St. Sebastian’s 421, 66 Wis. 2d 427, 426, 428, stating: 225 N. W. 2d law, this court “At common highest duty the owed an owner of land toward someone on premises ordinary care, was that owed to an invitee. This duty might could be satisfied alternative The means. landowner premises reasonably give either a have his safe condition or adequate timely warning perils invitee and of latent and concealed which are known to the but not invitor invitee. Another to way stating proposition duty this same is there no inspect premises and warn unless it is shown were not reasonably ain safe condition.”
860 injury damages
opportunity to seek secure sustained. placing burden majority accomplishes a heavier two-stage in a occupiers property
on owners operation:
(1) between business It the distinction abolishes invitee,4 social visitor, heretofore considered a licensee.5 visitor, be heretofore considered “invitee- (2) to the new class of imposes, It as guest,6 licensee,” to a social but not the owed lower business duty, the broader heretofore owed invitees.7 legisla- primarily on who—court or dissent rests
This ought balancing rather than on where do ture — rights ought proper be struck. balance duties However, step two-step operation, as the first category it can noted that business visitor to a invitee has shadow of its former shrunk self. With safe-place passage 1911, of a statute entrants onto public places of buildings, commercial establishments and longer employment statute, came under no category.8 common-law Left in the classification were hardly baby-sitters,9 making than more a doctor a sick majority suggests, or, call “. . . an insurance policy.” man come to who the home to deliver To merge the categories, two which the writer contends 4 Copeland Larson, supra, page 342, footnote v. at this court holding: court, invitee,’ “To ‘business terms ‘business synonyms visitor,’ and ‘invitee’ are . . . .” 5 Flintrop 244, 247, 52 190 Wis. N. 2dW. Lefco holding: accident, plaintiff this court the time “At guest a social of the defendant and them the between of licensor .licensee.” owed was that 6 See: Footnote 1. 7 Footnotes 3. See: 101.11, See: Sec. Stats. Thesing (1964), 436, 438-440, See: Schlicht v. Wis. 2d 2dW. 763. N. *21 legislature to properly matter for the consider a statute), by enacting safe-place is (as a it did determine giant place in the pygmy and a here do no more than a to night- However, that not mean that bed. does same giant. pygmy put that fit the the one to on the shirt be ought occupant premises a or homeowner Whether duty to a owe the to a visitor as social same business guest affirmatively, question. it leaves is one Answered combined, open question whether, entirely the two duty imposed a a to to business or lower as visitors higher guests. duty imposed Opting toas social for exposure liability part on occu- wider owner or majority concluding pant, sets forth reasons its placing a heavier burden on the host is as appear appropriate. Such reasons be four number: (1) Legislative Policy? majority Consistent with The placing higher duty finds its on homeowners and house guests legisla holders as social consistent with policy expressed by safe-place tive enactment of the public statute in 1911.1 That policy reckons without the expressed by duty-to-recreational- the enactment of the legislative users statute in 1963.11 pro This enactment consideration,” vided the absence of a “valuable owner, occupant premises lessee “. . . no owes duty premises keep entry safe for or use . . .” as coming persons premises on to the for certain recrea tional-type if purposes, they permission even have for entry possessor.12 legislature from the placed very high duty public on owners buildings, commercial places employment. establishments and It established very low aof landholder to persons, licensees or trespassers alike, who come on premises to the purposes listed the statute. The majority opinion in disparity creases between owed to a visitor 101.11, Sec. Stats. 29.68, Sec. Stats. 12 Id. *22 29.68, provisions of sec. comes under
or licensee who Carrying an evi- out Stats., who does not. and visitor legislative hardly for such purpose claimed can be dent result. they A-Changing times, are
(2) are ? The Times a-changing, majority, common-law courts writes in- spirit times, . .” their . are . to reflect of “. . cluding evidencing “. . . the state’s concern with may upon of citizens who come consent welfare its owners, property of another. . . .” Concern for occupants premises proper con- lessees is also legislature That is what considered when cern. occupant provided owner, premises, that an in lessee or keep consideration,” of “valuable no absence had premises hunting, trapping, for “. . fishing, safe . berry camping, snowmobiling, picking, hiking, water sports, sightseeing purposes. or recreational . .”13 It . of concern for evidences state as well the welfare those whose land the campers, hunters, snowmo- bilers, berry sports water pickers, and recrea- enthusiasts majority’s moving tion The authority seekers come. contrary in a direction is based on claimed . . “. addi- right tional curtailment of the private use of unbridled property, dealing . .” police power . in a recent case with zoning regulations ecological related to the balance only Not did zoning area.14 that case involve or police power any state, rights but limitation on the property by or use its owner must be seen as reluc- tantly invaded protect because the need to the environ- ment, enthusiastically abandoned. What be had to hardly done supports there what need not have been done here.
(3) Escape Feudalism? majority The relates from property control occupies one owns or and “the rule in 13 Id. County Just v. Marinette 56 Wis. 2d 201 N. W. 2d 761. system to the licensees licensors” feudal tenure, of land “. . . land when the lord of the had complete property. and autocratic control of . his . unimproved The of an owner 40 acres the north woods mortgage-encumbered city or owner of a house village being compared be flattered to a lord concept a feudal estate. that “a man’s home deeper roots, hardly castle” can said, majority claims, “long to have vanished,” since *23 light providing of 29.68, Stats., permitted sec. certain or entrants users take the premises, as the does owner them.,15 they occupant, as find It true is that the Magna wrung king Carta was by from a reluctant lords But right kings and nobles.16 that brake on the divine beyond rights went far by assertion of the holders large It protection estates. became the shield of the for cottager humblest large as well as the holders of estates.17 important, As became the foundation for the first ten to our amendments United States Constitution, es- 51 29.68, gives Stats., Thus sec. to certain per entrants with greater duty mission no landowner than that to owed tres passers. Copeland Larson, supra, See: page footnote at summarizing this court the common-law rule as to landowner trespassers to as follows: “He owner of [the the land] injury not trespassers, general is liable for to rule, as a caused by put his failure to exercise care reasonable to his land safe them, obliged condition operations nor is he from refrain might injury or activities authority cited], that cause at [text trespasser least the until is discovered.” generally, Magna Holt, (Cambridge University See Carta Press, 1965), ch. VI. poorest may cottage “The man his bid defiance to all may frail, may shake; force the Crown. It roof be its may through it; may enter, the wind blow storms rain —the King England enter, enter; cannot all —but forces dare the threshold of the not cross ruined tenement!” (Earl Chatham) Speech the Excise Bill. Pitt on William Roberts, — Hoyt’s Cyclopedia Quotations (Funk New Practical Wagnalls page Company, 1923), at 371. & is balance Whatever pecially ninth amendment.18 per- rights of landowners and duties between struck do with little to premises, feudalism permitted on son balancing considered. the factors be rhetorically majority The Why (4) Not Same? guest is a of one who comes as whether the welfare asks regarded a casual lightly than welfare to more be good no acquaintance, “There is and answers: business greater guest why be afforded the business should reason begs guest.” The answer protection than the social both, duty by question. to the owed host As in treatment not difference whether duty to be but what is the of the host as warranted guest majority does The both social business visitor. duty the difference heretofore between discuss visitor, compared to the owed to business as guest. burden, heretofore owed to social additional imposed majority now both business visitor guest, appears prior and social to be of a inspection premises so either are condi- safe tion or visitors can be of latent warned or concealed specific majority no hazards.19 With reason stated why higher *24 to duty, as not the lower, is to be found join it appropriate, is difficult to issue as to which applied. standard should be here A case for a choice option of the alternative can be Obviously, made. it would regressive include the nature of exposure the widened liability guest to occupant or being owner to a that is property mandated. The or ad valorem tax has been regressive, criticized as but it at least is related to the property value of the Here the owned. owner of a small cottage has same liability risk of added as does the owner, clear, free and of a mansion. The lessee or renter IX, Const., providing: Art. U. S. “The enumeration in the Constitution, rights, of certain deny shall not be construed to disparage by people.” or others retained 19 See: Footnote 3. liability great apartment a risk of added as of a has small guest expensive split-level of an to does the as owner rug likely on slip to on a throw are as home. Guests surroundings plushest as in. floor in humble bathroom goes living arrangements. However, more this dissent balancing, not where balance to who should do go placed. here point further So the dissent need no choosing the point persuasive than that a case for out higher duty by as to the owed a householder standard guest not host to his social here been established. by appeal As to second raised —Who rights balancing is to in- do and duties here volved?—the writer that a broadened submits owners, occupants of premises lessees and to social guests legislative judicial action, from should result edict. majority holding,
After this as it will continue before, duty possessor be true that the prop- or owner of erty respect to premises with those who come legal vary will person with the status of the who suffers injury premises. on the True is that this variance duty as to from owed derives the common-law delinea- tions of the statuses of trespasser, licensee invitee. nearly However, three-quarters for century, of a changes categories made duty as such or the as to owed each have been legislature. made in this state its are changes, There two legislatively such enacted: (1) The Statute. Enacted 1911, this Safe-Place changed statute owed public owners of build- ings places employment persons coming on such premises to to “. . . so construct, repair or maintain place such employment public building as to render the same safe.”20
(2) Liability Landowners Statute. Enacted in provides this statute given that, persons permission entry but not for a valuable "An consideration: *25 20 101.11, Sec. Stats. gives permis occupant premises
owner, who or lessee camp, hike, snow hunt, fish, trap, to another to sion water proceed with sightsee, berry pick or to mobile, premises upon does sports or recreational uses such premises are safe any that the thereby extend assurance per person to whom purpose, for such or constitute is granted duty of to a care is an invitee whom mission narrowly not, or . . .”2 construed owed. Whether guests to clearly group or a of licensees statute establishes applicable, and to no care which whom standard host majority’s care as establishment such standard guests apply.22 to or licensees does not changes only in the
With common-law standard occupier liability of landowner or to those who come premises made thus writer legislature, merging categories would see the of business guest, except ap- visitor and 29.68, social Stats., sec. plies, appropriate as well as the choice of the standard as partially-combined owed “invitee-licensee” legislature class be matter for the consider Something determine. more than continued deference legislative balancing rights branch to do the and interests involved determine appropriate public policy is involved.
In part, legislative writer’s only conclusion that action is appropriate, here tripartite rests on the nature Sec. 29.68 Stats. Copeland Larson, See: supra, page footnote at holding: this court “An 29.68, Stats., examination of sec. indi cates ordinary landowner owes the of reasonable care entering upon to those his land purposes for certain recreational permission if the granted to enter the land is for a valuable liability consideration. To ‘traps’ licensee the and ‘active negligence’ altered this statute to a for ‘willful guard or malicious failure to against or dangerous to warn use, condition, activity,’ structure and therefore the statute derogation requires the common law and con strict struction.” *26 authority for the government, of of our its division with public coordinate conduct of affairs between three and i.e., legislative, executive government, branches judicial.23 system and of “checks This been termed a balances,” legislative public the with the to set branch public the executive branch to administer policy, policy judicial interpret set, thus and such branch public policy being and con- enactment to test its within than However, stitutional limits.24 more is involved govern- upon any “checks and balances” one branch of seeking ment determine, to alone review administer and public what policy. is to republic
The wisdom and vision founders this setting enabled public them see the policy as most satisfactorily and democratically accomplishable by the legislative branch, administering policy as such by best conducted the executive branch and the review interpreting public policy such as best done judicial branch. case before us is classic illustra- why tion of Here is so. is involved a balancing, or re-balancing, rights respective duties 23 See; I, Const., legislative Art. U. S. as powers; II, Art. powers; as to Ill, judicial executive powers. and Art. as to See IV, Const., legislative also: power, Art. Wis. as to V, Art. as power; VII, judicial to the executive power. Art. as to the Broughton ex (1952), State rel. 24 See:. v. Zimmerman 398, 405, grounds, Wis. N. W. 2d overruled on other State Reynolds ex rel. v. Zimmerman 22 Wis. 2d 126 N. W. legislative department where court stated: “‘The be, department determines what law shall the executive exe law, judicial department cutes or administers and the con applies departments strues and the law. Neither one these arrogate any can to itself control either one over of the other departments solely which have matters been confided ” department.’ Department constitution such other See also: Nagle-Hart, Ine., p. ante, 224, 226, Revenue 234 N. 2dW. of 350, holding: “It this court the function the tax de partment locate, appropriate public define and enforce an policy. law-maMng legislature.” is the That function state own, occupy home, and of or those who lease or land rights land on such of those who enter duties injured. striking between home and If the balance are rights left, been it has and interests involved were up legislative action, indi- those now, as a matter for groups identify viduals and who with entrants premises (or every- injury who who sustain believe *27 body everywhere everybody of owes else standard ordinary care) appear meetings, would at committee assemblymen write their and seek senators, state and public support point Similarly, for their of those view. identify owner, occupant who prem- with the lessee or of (or ought ises ownership who believe that home not be saddled liabilities) with additional burdens or do would exactly same, seeking point to have their of view made the legislative of the law state. process, Such while it have its detractors, pos- insures the widest input sible groups individuals or affected or concerned in the appropriate establishment public policy of an on public issues concern.
In resort, contrast, when here, is to the courts to do balancing rights and (with interests involved the court to locate appropriate public establish the policy), way there providing any is no op- similar portunity public participation for in the decision-reach- ing process. Here we have before us, as did the trial only court, arguments slender briefs and brief oral attorney plaintiff for the attorney and the for brief-enough In one opinion defendant. court conference a vote justices of the seven taken, and, majority vote, a result reached that public policy determines the rights affects very nearly duties of all of the citizens of our state. Where four-to-three, vote is this means that one member of this court has decided where the balance is to be struck between contending rights, large duties segments and interests of two of our citi- 10] fragile deciding an
zenry. for That basis is indeed par- public policy republic, a democratic issue traditionally ticularly of concern that has so in an area part legislative, one not been considered judicial, process. altering long- general
As matter this court standards, or rules or established common-law court-made recently court held: our “ ‘Moreover, have made clear that we court, only depart
general, would from stare decisis unin- where tentional conduct were Estate and then when was involved there compelling altering reasons a court-made rule. King (1965), (2d) (2d) 431, 137 Wis. N. W. (2d) In Wilcox v. 122. Wilcox Wis. (2d) pointed 133 N. deviate erty we our W. out reluctance precedent from prop- contract where or rules ” (Emphasis were supplied.)25 involved.’ opinion, compelling
In the writer’s such reasons do altering rule, exist for here common-law either as merger partial categories “invitee” and “licensee” selecting appropriate standard of to be owed *28 occupants owners, to the “invitees-licensees.” lessees finding the writer complaint So would the reverse, de- allege duty murrable for failure to breach the owed by the plaintiff-social to the guest, defendant-host with granted plaintiff plead leave to the to over if a cause of negligence action for keep active or to prop- failure the erty trap safe from a or concealed hazard can be and is pleaded.26 25 Pipeline Construction, State (1974), v. Michels Inc. 63 278, 296, 339, quoting 2d 308, 2d Wis. 217 N. W. 219 W. 2d N. (1967), 408, Gottlieb irom v. Milwaukee 2dWis. N. W.
2d 633. majority opinion Footnote 5 of that states “result merger not a what court does is licensee or of the invitee categories legal but the abolition them as distinctions.” relevant completely 29.68, (See: This cannot be done Stats. because sec. B. I that Leo am Justice authorized state Mr.
Hanley join in this T. Justice Connor Hansen Mr. dissent. accomplished, 11.) partially that it ean Footnote To the extent be can termed either “invitee-licensee” it creates new class that (not nontrespassers “nontrespasser.”' or covered To such highest duty majority 29.68) applies owed “. . the sec. . premises. Even . . .” owner of land towards someone on invitees, duty,” applied “highest under this heretofore complaint demurrable because is still it is to that be noted concealed.” allege “latent or the condition was it does not plaintiff alleges icy patch 3.) complaint (See: Footnote condition was slipped If the defendant. on was known plaintiff concealed, to warn defendant had the same (See: invitee. a licensee or an whether he was Szafranski 119, 126, 2d 902 and Radetzky 141 N. 2d W. 31 Wis. warn 3.) has no a defendant landowner footnote Since concealed, failure is not latent of a condition that fatal, latency condition allege or concealment (1973), 60 Wis. v. Schmid complaint Schutt See: is demurrable. holding, reference 306, the court 208 W. 2d N. condi concealment where situation to a licensor-licensee duty to warn: the landowner’s prerequisite for also tion is concealed, allegation condition there is no “Since complaint sustained.” have been should
the demurrer