*1 crimi- private that said from the record appears It now Attorney the direction No. complaint, 72-53, nal calendar of the criminal assigned been General, has County. Therefore, Court, Washington Superior appeal have become moot. issues raised denied and dismissed. appeal Berberian, Tanenbaum, Aram K. pro se, Berberian & plaintiff. for Israel, George Egan, J. H. Attorney General,
Richard
Special
Attorney
Asst.
defendant.
General,
Biagio Joseph Mariorenzi DiPonte. vs.
FEBRUARY
1975.
Roberts,
J., Paolino, Joslin,
Doris,
C.
Kelleher and
JJ.
Present:
*2
were
actions
wrongful
two
J. These
death
Kelleher,
At the
Superior
Court.
trial
jury
consolidated
justice
testimony
granted
of all
the trial
conclusion
Since
motion for
directed verdict.
the defendants’
the directed
before
is the correctness of
single issue
us
must
a view of
verdict, our narrative
be based on
plaintiff.
evidence which is most favorable to the
Wilkin-
Vesey,
son v.
I.
The
R.
Drive runs in 1961 However, Atwood Avenue. Avenue to ville the edge dead-ended Avenue and at Greenville began Joseph was owned which parcel of land of an 18-acre “Atwood Acres” was called parcel The Inc. DiPonte, contain- development real estate for a to be the site defendant is a corporate 40 homes. more than ing owns 50 percent DiPonte corporation. Joseph family owns the remaining brother Michael stock, and his wives and their constitute the board The brothers half. corporate officer also Joseph DiPonte is a of directors. *3 He employee. records as an told company listed on the personal in of the charge and that he was jury the court Hereafter whenever we refer construction activities. Joseph, or to it will be the name corporation family “DiPonte.” in
The Mariorenzis lived the house Golini Drive The property. that was closest to the DiPonte distance the Mariorenzi home and the actual between construction anywhere from activity being was estimated as 400 to 800 feet. preparations Site for Atwood Acres began 1959. Actual construction did not begin of houses until late 1960 when the foundations for two houses poured. were Later, in or March February 1961, excavations were made sewerage systems for the that were to service each house. Originally, cesspools. it was decided to install Cesspool pits dug they were filled with water. At this point, however, DiPonte discovered that a high water table, clay soil, and an accumulation of surface water cesspool made impossible. installation Accordingly, mid-April, it was decided to switch from cistern-type cesspools to septic septic tanks and fields. The tanks leaching had a 500- capacity. They measured 4 gallon depth feet and about feet in width. deep enough Holes to hold the tanks were so dug top that the actual tank would be some 6 then fields were leaching The level. ground inches below be- measurements the fields’ DiPonte described built. 3 feet. 2 and of between depth with a 18 feet ing holes could tank septic testified engineer A drainage field leaching the confines within either be placed agreed that It was from the field. apart entirely or water, up with fill leaching field would for the excavation There puddle.” a “big looked like filled field when time used an electric DiPonte at one evidence mid-April In excess water. to remove this pump a halt brought burned out and motor pump’s ¡ operations. pumping place began DiPonte spring In the this, In order to do each foundation. frames on wooden permission received to tie Mr. Mariorenzi and he went to systems. and water Mariorenzis’ electrical into the and the electricity power carpenters’ would saws plaster. to make the use water plasterers would end of Mr. Mariorenzi April, A few weeks before the he asked him if could take talked DiPonte and some from the topsoil stripped away that had been con- *4 to repair spots struction and use it several bare on site topsoil placed pile his lawn. The had been in a near the an gave two foundations. DiPonte affirmative answer and told Mr. Mariorenzi to take whatever he needed. April Sunday, 30, 1961, p.m.
On about 1:30 Mr. 5-year-old Tommy Mariorenzi and his son took a wheel- went over to Atwood They put barrow and Acres. some topsoil into the wheelbarrow and returned to their The father had premises. his shovel and Tommy had “his The father own little shovel.” testified that DiPonte came Tommy and him using and saw the wheelbarrow. helped his father to cover Tommy the lawn’s bare spots. Tommy given was p.m. permission At 3:30 go to play neighborhood. of the Some 45 with some children her later, go husband to minutes Mrs. Mariorenzi asked 5-year for old. canvass of the During neigh- look his DiPonte bors, Tommy playing he was told that was on the his property. area, When father went to he saw puddle water floating son’s that covered a body one field that was rear of of the founda- leaching Mariorenzi jumped tions. Mr. into the water and carried dry onto land. Resuscitation efforts fruit- body were father testified that the water up less. The came to a his neck spot somewhere between and chest. The father was 5 feet inches tall. was
DiPonte well aware of the water-filled leaching fields. He was also aware that school children would come play. onto the to No effort site whatever made or cover the excavations, barricade no warning was trench; telling of the posted presence of the water-filled He justified indifference by his assertion that these “private property.” children were justice The trial in granting defendants’ for motion directed verdict classified Tommy trespasser when he returned Atwood Acres after helping top- his father dress the lawn. He then referred to the rule in this state that ordinarily which holds a landowner owes no other than to refrain from or willfully wan- him. tonly injuring He found no such in the evidence he record which felt would make DiPonte liable April consequence tragedy. appeal plaintiff has launched a broadside justice’s the trial ruling.
attack on He argues that Tom- on the late afternoon my’s April status 30 was that of or invitee a licensee. Failing either an in these conten- that even argues assuming tions he Tommy’s status was *5 trespasser, there was of a sufficient that evidence from find could a jury behavior which DiPonte’s part
299 Finally, “willful or wanton.” being qualify would that meritless, are points if all his that contends plaintiff the distinctions decide we should come time has when an in- trespasser, a between common law recognized society which in the place have no a licensee vitee, and we live. recognized a difference past in the has jurisdiction
This
guest,
or social
licensee
invitee,
an
duty owed
in the
the Trans
the Church
Dodge
Parish
trespasser.
(1969). The invitee
A.2d 843
R. I.
259
figuration,
one’s land at the invitation
comes on
who
individual
is an
implied
or
expressed
landowner, either
to
other
beneficial
purpose
any
of business or
transaction
duty
individual,
the owner owes
an
To such
the owner.
De
reasonably
safe condition.
keep
premises
I.
Corp.,
Church
Apostle
R.
Thomas
Mello v. St.
a duty
A landowner has
towards
A.2d
476, 165
from active
or from
negligence
refrain
the licensee
a hidden
or from
upon
peril
him come
letting
knowingly
Jean,
Perry
him harm.
v. St.
R. I.
willfully causing
Pezza,
Pagliaro
I.
(1966);
R.
willful or
position
in a
of peril.
been discovered
trespasser has
Co.,
I.
If we property DiPonte go could onto the limited license. He if loam. only purpose obtaining Arguendo, for the had 5-year-old, extended to terminated license completed repair he had his lawn chores and the time play with his friends. went off there no Finally, evidence whatever that DiPonte Tommy’s aware of late afternoon return to con- was site. So even if we were to classify struction mainte- unguarded, unprotected of the nance leach field or wanton” we category, “willful would have to affirm the directed verdict because DiPonte’s ignorance of Tommy’s return any duty nullified care that might have been 5-year-old trespasser.1 due the found that Having Tommy’s precluded trespassing any consideration the jury of DiPonte’s total failure to do about anything puddled leach field, we now come to question of whether we should continue to measure a landowner’s care to one who enters upon his property classifying the entrant as a trespasser, a li- censee, or an invitee. The common-law categories have been in effect since the mid-19th century. The distinc- adopted tions were first in the United States during the Sweeny War. v. Old Colony Newport days Civil & R.R., see Hughes, Duties To Tres- 368 (1865); 92 Mass. Comparative passers: A Survey And Revaluation, 68 Yale (1959); Marsh, History and Comparative L.J. may who 1For those wonder at our failure to refer to the so-called trespassing doctrine, nuisance or attractive child point we would out that recognized doctrine, we have such a while our 1971 adoption given application. strictly prospective Haddad v. First Stores, Nat’l Inc., 109 Tommy's mishap I. 280 A.2d R. years occurred some 10 Haddad. before L.Q. Rev. Invitees, Trespassers, 69 Licensees and Law of since the change However, there has been a *7 of days Lincoln. a statute 1957,
In Parliament enacted Great Britain’s licensees and invitees. abolishing the distinction between Act, (1957). Later, 5 & Eliz. c. 31 Occupier’s Liability Supreme its dissatis- the United Court indicated States in refusing apply faction when the licensee-invitee dis- admiralty it proceeding tinction an said: “The distinctions the which common law be- draws tween licensee and were inherited from invitee a * * * deeply culture rooted to the land which traced many of its to a of heritage standards feudal- In justice ism. an effort to in do an industrialized society, complex urban with and indi- economic relationships, vidual have modern common-law courts necessary increasingly found it to formulate subtle refinements, among verbal to create subclassifications delineate categories, traditional and to common-law the fine of care which gradations the standards single Yet landowner owes to each. even within and subclassifications jurisdiction, classifications produced have confusion bred the common law spawned, new have been and conflict. As distinctions this sem- Through older have become obscured. ones moved, unevenly law has the common antic morass on owners and hesitation, ‘imposing and with towards in all the reasonable care occupiers single of ” Generate Compagnie Kermarec circumstances.’ S.Ct. Transatlantique, 630-31, 358 U. S.
410, 3
554-55
L.Ed.2d
DeBeve,
(D.C.
In the California Court traditional classification and in its place substituted the *8 whereby liability test is by measured whether or not the particular landowner has circumstances exercised reasonable care. In taking stand, court observed that man’s worthy life or limb does not become less “[a] * * * of protection by the law because he has come upon * * *” land permission of another without and ob- that status, served the entrant’s of instead having past its potential conclusive the issue of liability, would be just one in assessing factor the landowner’s conduct. Row- Christian, land 108, 69 Cal.2d 118, P.2d Rptr. 97, 70 Cal. 104 (1968). The rule, common-law with all niceties and fine distinctions such as “child tres- passers,” “frequent use of a limited area exception,”2 subcategory 2This is sometimes known as path exception.” “beaten The defendant in such instances injured is liable to a while using containing a limited area an unreasonable risk of harm. In 2 Re (Second) (1965) statement Torts §334 at 185 concept the identical is expressed thusly: possessor knows, “A of land who or from knowledge facts within his know, trespassers constantly should upon intrude a limited area thereof, subject liability bodily is for harm there caused to them carry activity involving his on an failure risk of death or serious bodily harm with safety.” reasonable care present for their Chief dissenting opinion in a Justice in Zoubra York, R.R., New NJS. & H. I. 41, 48, (1959), 89 R. 150 A.2d position took the that Zoubra licensee,” “implied guests,” “social trespassers,” “technical uniform simple aby visitor,” replaced “business and law. negligence of in other areas well worked that has test the circumstances under care reasonable That test foreseeability. of terms measured can be liability where California. company with joined Hawaii later, year A “* ** common law ruled that Court Supreme Its logical have no persons classes between distinctions care for the of reasonable the exercise rélationship to Honolulu, County City Pickard v. & of others.” safety Colorado P.2d 135, 452 Hawaii highest when its path paved Rowland in the followed (1) cre- trichotomy the common-law observed court waste,” (2) preserved judicial “confusion ated legal sys- modern to a inappropriate which is harshness applying chang- from jury “the prohibits tem because Mile landowner’s duties.” community standards ing Radovich, Colo. 489 P.2d 537, 542, High Fence Co. v. 308, 311-12 Arbaugh’s Rowland’s is Smith v. progeny
The latest of Restaurant, Inc., (D.C. 1972). There, 469 F.2d Cir. inspector, sought damages injuries a health plaintiff, performance engaged he sustained while inspector defendant restaurant. The argued at the duties *9 The jury a invitee.” apparently that he was “business that he was a “licensee.” Chief Judge determined Baze- ' jettisoning the common lon,- judicially in law wrote: rely exception sought damages on the found in §334 could she injuries crossing she sustained when was struck a train while the language pro- The in which now tracks. Chief Justice has somewhat n “* * * phetic nothing simply I tone observed think it achieves call to ‘trespasser.’ agree plaintiff reasoning adopted the I with the in other jurisdictions plaintiff’s in cases this kind the of of definition the presence unimportant, property reasonably status is since his on the anticipated, be to The existence of a care [citations omitted] of elementary compelled by principles cases in these of reasonable- negligence which basis all ness of conduct is the of law.” liability
“Rather than continue to predicate join to entrant, of the we have decided status of ordinary principles modern trend to apply and to A land- negligence govern a landowner’s conduct: maintaining man in owner must act as a reasonable in safe in view property condition reasonably * * * injury others, likelihood of serious- of injury, avoiding and the burden of ness risk.” Id. at 100. are not to be insurers emphasizing
In landowners distinguished be unreasonably, jurist or to burdened continued: course, “Of the circumstances of entry the visitor’s * * *
have some relation landowner liabil- [’s] ity. Foreseeability presence of the visitor’s determines part of likelihood injury him, and the extent the interest of which must be sacrificed to avoid the injury.” of Id. risk at 106. provided
The Rowland decision3 has
impetus
which
jurisdictions
has
several
caused
to reassess the viability
of the common-law entrant classes. Our neighbor to the
Massachusetts,
north,
has abolished the distinction be
tween licensee and
invitee
all areas. Mounsey v.
Ellard, Mass., 297
43 (1973).
N.E.2d
There,
the plain
police
tiff was a
officer who fell on the defendant’s
driveway
serving
after
a summons. The court
chose
Christian,
3Rowland
Cal.2d
Rptr.
443 P.2d
70 Cal.
(1968),
adopted
and the
which have
cases
rationale
whole or in
generated
part, have
much comment.
expressions,
Some of the more recent
Liability
favorable,
all
can
found
in Landowner's
Distinc
—Traditional
Trespassers,
tions Between
Licensees and Invitees Abolished as Deter
Visitor,
the Standard
minative
Owed
Care
25 Ala.
of
Rev. 401
of
L.
(1972);
Changing
Licensees,
Standard
Care Owed
Invitees
of
Trespassers,
(1973);
L
Abolition
Howard
J. 220
the Distinction Be
of
tween Licensees and Invitees Entitles All
Visitors to a Standard
Lawful
Care,
(1974); Abrogation
Reasonable
8 Suffolk
L. Rev.
Common-
Licensee,
Trespasser,
Invitee,
Law Entrant Classes
25 Vand. L.
(1972); Invitees,
Trespassers
Licensees and
Rev. 623
Trend Towards
*10
—A
Abolishing
Entrants,
(1973-74).
L.
W.Va.
Rev. 202
Classification of
that
time not to embrace Rowland in
in that
entirety
still retained the
category.
Kap-
Mr. Justice
lan,
concurring opinion,
in a
took issue
this omission
with
because of
belief
that adherence to this
would
category
“* * * perpetuate,
scale,
although
a smaller
kind
of tradition-bound
analysis
and mistaken
I
sup-
had
posed the court was
Id.
In-
aiming
correct.”
at 57.
terestingly enough,
Supreme
Massachusetts
Judicial
within the past year
Court
was confronted with the case
of an 11-year-old
injured
who was
after he climbed
through
escape
hatch onto the roof of an elevator car.
The court noted the
trend
everincreasing
of imposing upon
or occupiers
premises
owners
a single duty of reason-
able care to
persons
all
coming thereon.
Accordingly,
court ruled that
the owner
duty
owes a
of reasonable care
“trespasser
to a
who has become helplessly trapped on
the premises
to the owner’s
Pridgen
knowledge.”
Housing
Boston
Authority, Mass.,
The spirit of the
expressed
sentiments
by Chief Judge
Bazelon was
Kenison
recently
echoed Mr. Chief Justice
Sargent
Ross,
113 N. H. 388,
Within
of
being
days
as
live described
in which we
times
rhetoric
society.” Such
“great
or the
frontier”
the “new
presi-
but
campaign oratory,
as
be classified
might
new
establishes a
as this court
apropos
is
lingo
dential
that our
will
expectation
actions
frontier with the
judicial
extricate
The time has come to
today’s society.
better
begin-
from a
had
quagmire
semantical
ourselves
misleading4 phraseology. Mr. Justice
in ancient and
ning
bring
to
judiciary’s duty
has emphasized
'Sutherland
present day
with
standards
law into accord
common
justice rather
to continue with some
of
than
wisdom
guest,
hold that a
comments that
those decisions which
social
4Prosser
invitation,
host’s
in law a
rather
no
how cordial the
licensee
matter
puzzled generations
has
for a “distinction which
than an invitee makes
n of
(4th
Prosser,
lawyers.”
Torts
at 378
ed.
§60
and even some
law students
judicial
1971).
and in Louisiana
decision
In Connecticut
statute
degree
guest
the same
care
is the invitee.
is owed
of
social
§52.557a;
v. General Accident Fire
Assur
Alexander
&
C.
A.
6. S.
Life
1957).
Supreme
(La.App.
Corp.,
The Ohio
Court re
passer *12 interment fitting final but give we now Accordingly, and tres- invitee, licensee, categories to the common-law extrapo- extensions, exceptions, their passer as well as lations. we past, to the historical assign trichotomy
As we
of reasonableness.
place
the basic tort test
substitute
onto
the common-law status of an entrant
Hereafter,
longer
land of another will no
be determinative
owner,
question
of care owed
rather the
degree
but
resolved will
used
be whether
owner has
reason
care for the safety
persons reasonably expected
able
of all
upon
premises.
to be
Evidence of the status of the
may
question
invitee
have some relevance to the
of lia
bility
longer
but
no
will be
The
conclusive.
traditional
question
tort
of foreseeability
important.
will become
So,
example,
for
whether
presence
visitor’s
was reason
ably anticipated will be a factor which the factfinder will
use
evaluate the owner’s conduct. The rule of law
,in
adopted here is,
with our
keeping
past practices, ap
plicable to
cases at bar and to
personal
all
injuries
or property damage occurring
days
60
after the
filing
opinion.
this
This hiatus will afford all
parties
interested
a reasonable opportunity to become aware of
opinion
this
steps
and to take whatever
deem
they
necessary. Haddad
Stores, Inc.,
Nat’l
v. First
109 R. I. 59,
The appeals are sustained. The judgments appealed from are vacated and the cases are remitted to Superior Court for further proceedings. Joslin,
Mr. Justice
dissenting.
I respectfully dissent be-
judicial
calling
this is a case
my judgment
cause
Legislature.
deference to
restraint and
traditionally
rule
Subject
qualifications,1
to certain
n followed
that a
jurisdictions
and most
this state
except to
duty to a
of land owes no
possessor
wantonly after dis-
him
or
injuring
willfully
refrain from
Previte v. Wanskuck
position
peril.
him in
covering
England
New
Co.,
(1952);
R.
90 A.2d
1, 3,
I.
39, 43
A.2d
Palmer,
387, 394,
Pretzel Co.
I.
75 R.
Silva,
A.
344, 190
(1949);
Downes v.
57 R. I.
R.R.,
I.
York, N.H. H.
R.
Boday
v. New
(1937);
&
reason for
principal
Yet,
today’s decision rejects that
and abandons
policy,
. n arule
carefully developed
over the
here
centuries both
n in England.
It establishes instead
negligence
that
an
liability
upon
entrant
land, irrespective of his status
invitee,
(cid:127)as
licensee or trespasser, depends upon whether
entry
reasonably
Lis
was
foreseeable,
if
and,
so, whether
reasonable care
provide
was used to
safety.
majority
find
support
several
decisions,
recent
hut none of
cases cited in fact involves an injury Stores, Inc.,
First
1Haddad Nat’l
59,
109
I.
(1971);
R.
The socio-economic rationale
may
accurate, but a
explanation
more realistic
is,
think,
I
the abolition
“* * *
immunity
rule
part
of a
continual move-
ment away from
as the governing principle for allo-
fault
losses,
cation of
in favor
enterprise
liability or the dis-
tribution
losses
larger
over a
segment of society through-
Arbaugh’s
insurance.” Smith v.
Restaurant,
Inc., 469 F.2d
(D.C.
Cir.
1972).
Irrespective of which reason
underlies today’s decision,
the majority have made,
effect, judgment
value
it is more acceptable to our
Christian,
2In Rowland v.
Cal.2d
Rptr.
P.2d
70 Cal.
(1968),
guest
injured
a tenant’s
using
faulty
social
while
bathroom
*14
fixture,
reported
which defect had been
the landlord-defendant;
in
City
County
Honolulu,
134,
Pickard v.
&
51 Hawaii
(1969),
452
P.2d 445
injured
unexpectedly
a
through
licensee was
when he
fell
a hole in the
in
courthouse;
floor
the restroom of the defendant’s
High
in Mile
Fence
Radovich,
175
(1971),
Co.
Colo.
If that less upon presumed precedent persuasive sis by my concurring I abide would acceptability, public Sons, W. Eshelman 99 R. I. Henry v. J. in opinion “[wjhile There I said that (1965). A.2d 527, 209 in the initiation of changes Legislature deferral often may affecting public policy appro in matters concept required demanding where it is not priate, majority’s But de origins.” judicial is change it Instead, purely rests on what premised. so is cision not policy. desirable socially judgment in their I think circumstances, judgment these Under who are legislators certainly been left should have position gauge public than judges a better senti that of the tens of thousands of home including ment, If majority in this are correct in owners state. their I attitude, have of the social confidence that assessment would react did British Parliament Legislature our question when resolved a similar abrogating licensees and between invitees and de distinction occupier owes the same that a land claring care Occupier’s Liability Act, 5 & Eliz. II, to both. c. Wistow, Max plaintiff. for Zucker, M.
Martin defendants. Torts 3 2 & at 1438 §27.3 James, Harper