Commonwealth v. CallahanCommonwealth v. Callahan
- Reporters:
- , ,
- Before:
- O'Connor
A grand jury indicted the defendant for motor vehicle homicide in violation of
The judge reported the following two questions of law: “(1) As a matter of law and based on the facts as presented in this case, was this property a place to which the members of the public had access as invitees or licensees within the meaning of
The judge’s report states the following facts. On April 5, 1986, the defendant drove his pickup truck to a location off Route 115 in the town of Norfolk known as the “sand pits.” The “sand pits” is a thirty-three acre parcel owned by Carlo Musto of Westwood, and an adjoining “barren, wide, open,
The report continues: “Even though the property was privately owned, people would enter the property and ride on it on various types of recreational vehicles. This use was without the permission of the owners. All ‘No Trespassing’ signs, except one, that had been posted at one time had, over the . years, been vandalized and removed. The owners were aware that people had been using the sand pits, but they took no affirmative steps to exclude the public. They did notify the Norfolk Police who said that they would patrol the area. A stop sign had been placed on the property by the owners to help traffic exit onto Pine Street. No barriers were ever erected to prevent access to the property.”
The accident occurred when the defendant, who had been operating his vehicle in four-wheel drive on the property, drove up an incline and through an opening in the ridge. While traveling at four or five miles an hom:, his truck struck Scofield, who was coming down the other side of the ridge in his “go cart.” Scofield sustained fatal injuries.
The first question requires that we determine whether the “sand pits” is a “place to which the members of the public had access as invitees or licensees” within the meaning of the relevant statutes. The words, “invitee” and “licensee” as used in G. L. c. 90, are terms borrowed from common law, which at one time distinguished between the duties a landowner owed to a person who was on his land by “invitation,” one who was there by “license,” and one who was a trespasser. See
Mounsey
v.
Ellard,
363 Mass. 693, 695 (1973). The Legislature’s use of the words, “invitee” and “licensee” in c. 90 can be traced to our decision in
Commonwealth
v.
Paccia,
338 Mass. 4 (1958). In that case we held that
The Commonwealth asserts that the “sand pits” is property to which the public had access as “licensees” as this court has construed that term in the tort context. In support of this contention, the Commonwealth cites cases in which we have referred to a tort plaintiff as a licensee when he was on property with the “passive acquiescence” or “tacit acquiescence” of the owner. See Mounsey v. Ellard, supra at 697 (discussing Sweeny v. Old Colony & Newport R.R., 10 Allen 368 [1865]); Donovan v. Vennik, 345 Mass. 769, 770 (1963); Prondecka v. Turners Falls Power & Elec. Co., 238 Mass. 239, 241 (1921), S.C., 241 Mass. 100 (1922). The Commonwealth argues that, based on the judge’s findings, the public’s recreational use of the “sand pits” property was with the “passive acquiescence” of the owners.
Based on the facts reported by the judge, we are not persuaded that the “sand pits” is property to which the public had
In light of these findings, it is more reasonable to conclude for the purposes of this criminal case that members of the public had access to the property only as trespassers, who enter land “without a privilege to do so, created by the possessor’s consent or otherwise.” Restatement (Second) of Torts § 329 (1965). Gage v. Westfield, 26 Mass. App. Ct. 681, 695 n.8 (1988). Monterosso v. Gaudette, 8 Mass. App. Ct. 93, 99-100 (1979). Mere failure to object is not necessarily the consent or permission needed to transform a trespass into presence by license. See Restatement (Second) of Torts § 330 comment c (1965). In reaching this conclusion, we note that “[t]he precise dividing line between a trespasser and a nontrespasser for common law tort liability purposes has not been defined in Massachusetts.” Gage, supra at 695 n.8. Such a distinction is, in many cases, including this one, difficult to make. See Mounsey v. Ellard, supra at 717-718 (Kaplan, J., concurring).
However, our conclusion is consistent with the decision reached by at least one other court that has had occasion to consider, on similar facts, the distinction between trespassers and licensees for tort purposes. See
Bonney
v.
Canadian Nat’l Ry.,
613 F. Supp. 997, 1000-1002 (D. Me. 1985) (where railway bridge had long history of public use which the railway knew about and tolerated and did nothing effective to prevent, and “no trespassing” signs had been removed or vandalized, a person injured in a fall from the bridge was a trespasser), rev’d on other grounds, 800 F.2d 274 (1st Cir. 1986). Our conclusion also is consistent with
Moreover, it is far from clear that the Legislature contemplated the application of § 24G
(b)
and § 24 (2)
(a)
to a situation like the instant one. The
Paccia
case, which first prompted the Legislature to apply a motor vehicle law to a “place to which members of the public have access as invitees or licensees,” involved intoxicated driving on a paved, privately owned roadway used by the public for access between two public ways.
Id.
at 5. There is reason to believe that the same language was added to
Also, we must be “mindful of the principle that criminal statutes must be construed strictly against the Commonwealth.” Commonwealth v. Perry, 391 Mass. 808, 813 (1984). We conclude that the “sand pits” property on which the offenses occurred was not a “place to which the public has a right of access or . . . any place to which members of the public have access as invitees or licensees.” Accordingly, we answer the reported question, “No.”
In answering this question, we have referred to the facts as the judge reported them to us. We do not interpret the question, as does the Commonwealth, as a request for a determination whether the evidence introduced at trial was sufficient to convict the defendant of motor vehicle homicide or leaving the scene of a collision after causing personal injury. 2
Judgments reversed.
Findings set aside.
Notes
The Commonwealth in its brief correctly observes that, even though punishment under
Nor are we concerned with whether the evidence would have warranted a finding of manslaughter as defined at common law since the defendant was not charged with that crime. Commonwealth v. Welansky, 316 Mass. 383, 396-401 (1944).