*1
Wilbur M. February 6, 1973. Middlesex. June Braucher, Hennessey, Tauro, C.J., Reardon, Quirico, Present: Kaplan, Wilkins, JJ. & Negligence, estate, person, owning controlling or Invited One real Licensee, official. Public dealing invitees Review of with the distinction between authorities duty determining and licensees occupier in of the owner or land [695-706] toward them. longer The distinction an invitee and a is no to be between licensee determining duty occupier in of land observed of an or owner thereon; instead, occupier toward an entrant has the owner single" duty lawfully using to entrants reason- on the land police [706-709]; able care in all went the circumstances officerwho premises could serve criminal recover from summons premises injuries falling the owners of the for in on sustained guilty ordinary negligence ice if there were owners failing premises use such care of the maintenance warning presence [709-710]; not and Quirico the officer ice JJ., opinion Reardon, were be the decision should limited to the officer was an on the invitee ordinary negligence to whom the would landowners be liable for [711-713, 715-717]; J., questioned an Kaplan, intimation majority opinion that there should continue to be a distinction trespassers lawfully between land thereon in entrants deter- [717-718], mining of the owner or Tort. inWrit date Superior September Court 11,1967.
The action was tried before Travers, J.
Joseph J. Padellaro for the plaintiff.
Walter G. Murphy defendants. Tauro, C.J. This action brought by tort personal recover for sustained injuries when fell on he an accumulation of ice on the defendants’ prem- ises. The plaintiff’s declaration in six counts alleges negligence, gross wanton negligence, wilful, or reck- less conduct by the coowners of the premises.
is here on the plaintiff’s exceptions direction of
Mounsey Ellard. plain- verdicts for the all after defendants on counts *2 tiff’s opening jury. statement
The are as pertinent facts, as stated the opening, follows. The of Con- plaintiff, officer the town police he cord, was in his official at the time acting capacity injured January was on On premises. the defendants’ di- 20, 1967, at 5:30 P.M. was approximately plaintiff rected criminal summons superior officer to serve a for a After violation on one of the defendants. parking entered locating home, upon the defendants’ their delivered the sum- premises driveway, fell on mons at the when he door, injured and then was of ice his out. way accumulation was jury Since the to the plaintiff’s statement opening jury devoid of have warranted any facts which would or reckless wanton finding gross negligence wilful, allowed the defendants’ conduct, trial judge properly 5 and 6. 2, 3, motion for directed as to counts verdicts his plaintiff, Viewed The light most favorable to opening drainage states that there were defects A failure system repair. failed to defendants such which resulted in an accumulation repair defects does ice constitute but such conduct may negligence in- criminal or criminal “[display] quality quasi Carroll wilful, volved in wanton or reckless conduct.” Hemenway, 315 Mass. 47. us is Therefore, before only remaining question defendants’ whether the trial allowed the judge properly counts as to the plaintiff’s motion for directed verdicts The decision judge’s and alleging ordinary negligence. police- on our common rule classifies based law wilful, men and firemen as licensees who must establish conduct, just ordinary negli- wanton or reckless and not in order to recover part on the defendant’s gence, of official during performance sustained their injuries Koufman, Brosnan on the defendant’s land. duty Wynn Sullivan, 564. 501. Aldworth F. W. Woolworth Co. Mass. 344. artificial classification asks us to abandon this rule which as licensees in favor of a public employees fire- as public policemen would treat such employees, sui men, as a class to whom the landowner generis owes an of reasonable land affirmative care to safe when these keep public employ- ees enter official ca- upon the defendant’s land their duties. pacity performance public in the of their classifica- plaintiff’s challenge to the common law’s tion of policemen upon private property who enter mere licensees has led us to reconsider the historical sources, justifications, of the common law’s efficacy general licensee-invitee distinction.
Our common places law who enter land in *3 three fixed categories: licensees, and invitees. trespassers, These three categories “make as a out, general pattern, rough sliding scale, by as the of the which, legal status visitor improves, him more possessor of the land owes ed.) of (4th an of obligation protection.” Prosser, Torts § 58, p. These categories were developed English common law at a time when the law attached im- supreme portance to a landowner’s property Bohlen, interests. See Fifty Years of Torts, 50 L. Harv. Rev. 725. The feudal conception that the landowner was a his within sovereign own boundaries provided the line justification for a of decisions that predicated the existence and distinguished degree a landowner’s liability injuries for occur- on his ring land on the type relationship existing between the landowner and the injured party. Sweeny Old Colony & R.R. 10 Newport Allen 368,
372, this court outlined the common law’s to the approach problem of balancing interests of the occupier against interests a person upon the entering premises. “In order to maintain an action for an injury person or property by reason of negligence or want due care, there must be shown to exist some or obligation duty towards the plaintiff, which the has defendant left un or discharged unfulfilled. This is the basis on which the cause of action rests.”
Chief Justice Bigelow stated the court’s view as why reasonable duty or owners of land owed
occupiers invitees. for their only safe keep premises care their right, land without enter the trespassers occupier’s Since negli- claim of an based on a they cannot maintain action is not bound because owner of the land gence “[t]he aSo wrongdoers. or for protect provide safeguards with- only, licensee, by permission who enters on premises held being inducement any enticement, out allurement or recover dam- him or cannot by occupant, out to the owner He pitfalls. or by for caused obstructions ages injuries subject license risk, enjoys at his own goes there lawby duty imposed concomitant No perils. to its in a suitable or occupant premises the owner to keep own for their solely for come there condition those who expressly not either or and who are pleasure, convenience pur- by to come them invited to enter or induced and occu- appropriated for which the are pose place adaptation or or some pied, preparation natur- might customers or passengers, use they might suppose lead them to ally A mere naked ... enter thereon. safely properly an estate will over pass license or to enter or permission part on the impose obligation not create against person possession provide the owner consists liability of accident. *4 gist danger for merely not act did person injured the fact that motives to and and pleasure, his own convenience contributed, oroccupant of the owner sign which no act or led to he was he because entered the but that or visitors by be used were intended to believe that only use was not acquiesced and that such passengers, of the and control in possession the owner or by person intention with the in accordance but it was that premises, was adapted or way place with which the and design 372-374. Pp. or allowed to be so used.” prepared our early supreme importance light is under- interests, property law attached to common over favored interests were occupier’s standable duty only rule that creation of a by the licensee’s Mass. 693 Mounsey v. Ellard. wilful a inflict occupier owed licensee was not to by
wanton on him. drawn injury The distinctions Sweeny supra, re- and invitees between licensees reasoning flected the common law rule’s English landowner should be bound of reasonable care duty only in those for his cases where he had invited the visit own purposes. passive landowner’s acquiescence a licensee’s entrance for the licensee’s “own convenience Sweeny pleasure,” 373, did not case, p. impose reasonable care on the landowner because the landowner did not benefit from licensee’s visit or in- by duce it creating appearance that visitors “might properly and safely enter thereon.”
One serious problem by raised the common law’s rigid division the status of all persons entering land upon another into licensees, these three classes of trespassers, and invitees is the courts in dis- difficulty encounter tinguishing between these latter two categories deal- ing with public employees private officials who enter property by way of legal privilege not con- ferred or dependent upon the occupier’s consent. The difficulty of placing such public official visits by employees and officials in one of three categories established the common law is reflected in this court’s first decisions on the subject.
In Parker Barnard, this court noted
that public servants acting for the
welfare
public
“[a]s
individuals
thus enter
may
another,
land
fire-
men
do
for
may
protection
so
of property, officers of
for similar
law
and, under
purposes,
proper circum-
stances,
the arrest
offenders or the execution of
criminal process. The
do
right
this
be in
may
limita-
tion of the more general
right
property
which the
owner has, but it is for his
protection
that of the
Compression Casting
Co. Fitchburg
public. Metallic
Hyde
Gay,
Railroad,
Mounsey Ellard. “a lawful officer enters to a perform another’s land least, at should which, so do is fairly implied, license to (emphasis shield him from as a being trespasser” treated supplied). P/117. offi- the
However, police the declined determine court to defend- cer’s law. The exact status under the common no “was officer police ants had argued plaintiff that his own more he at licensee]; than was there ... [a any risk; were under and that none of the defendants or build- obligation him to this entrance keep towards However, 117-118. ing a safe condition.” Pp. unnecessary it because point court found to decide this its plaintiff’s injury “proceeded by defendants of an neglect obligation imposed if P. that “even 118. court concluded statute.” demand, as they (p. 118), “they may are but licensees” observe against occupants, the owners of their management in the construction statute P. 120. building.” we a Learoyd Godfrey, upheld result- injuries for
police officer’s to recover tort right open fall hole in outside passage- from a into an an ing had been way apartment. Although tenants, house one of the by asked come to the tenement Holmes decision on the fact Justice rested court’s a passageway had made lawful entry . . . which “from the appearance premises [was] to the tenement approach ques- the intended mode place injury tion.” P. the location Since access as a means of prepared premises, was a route to enter the used any person right premises who had because the defendant’s invitation” “by passageway of approach.” as “the intended mode its appearance P. 323. Learoyd public employee’s case established he is injured recover whenever right
official’s the route failing keep the owner negligence safe condition access to This court’s to be used. as it was intended using *6 Mass. Mounsey v. Ellard. impliedly were that public employees find
willingness
in performance
private
invited
enter upon
property
hold-
our
by
was
evidenced
their official duties
further
Gordon Cum-
Toomey Sanborn,
ings
146 Mass.
Fall River
Gas
mings,
Finnegan
Works Co.
In Toomey case, supra, the the court held that since city at lawfully trash collector was using passageway the the for recover implied owner, invitation the he could injuries back caused failure the occupier’s keep entrance to his in a safe condition. premises reasonably said, court “There was evidence that passageway -had been constructed and for the pur- was maintained pose, among other things, a back entrance to affording the house, and as was, knew, constantly defendant used by the servants for city Boston the purpose of removing the ashes and offal from the that house, and the plaintiff, as such was servant, rightfully using passageway implied invitation of both the owner of the house occupant for this P. purpose.” 33. Gordon Cummings, supra, we held that a letter carrier, who was while injured to deliver mail attempting tenants the building, implied was an invitee. “While the building was intended for workshops ... it still one where, to some extent least, at the tenants received letters, and there awas preparation and adaptation entry, hallway, the plaintiff’s might use which well him lead to believe he safely could enter in the performance of his duty.” P. 515. in the Finally, Finnegan supra, Justice Holmes, for the speaking court, ruled that a water meter was an reader invitee because “it appears that the defendant, by taking water, voluntarily entered into relation, which, result of knew, was to require some one to enter its premises in order to read the water meter. It was bound to use reasonable care to prevent en- place thus necessarily tered deceased from trap.” death being P. the Learoyd,
We think Toomey Gordon cases provide ample authority for instant to whom implied was an invitee
defendants owed care to keep of reasonable safe con- route access to their dition. if the trashman It seems to contend that logical *7 of an safety and mailman can on of rely appearance the in intended mode of use approach they necessarily officer performance duties, of their official the police least, very should be afforded the same right. At these occupier’s three cases have established the his landowner’s routes to keep the access obligation re- house in who are reasonably safe condition for those official to use them in the of their quired performance duties. The a mere fact that a rather than policeman mailman summons should delivered the criminal or owner. occupier affect the standard of care owed "the by we could case on Thus, rest our decision in the instant in- the narrow was an ground plaintiff implied that vitee to duty keep whom the defendants owed a of safe route access to their premises condition.1 argu rely support of their cases which the defendants policeman ment that no is a licensee to owes whom the challenge. duty subject of Bros- reasonable care are to serious Both Koufman, Sullivan, 495, 501, Wynn nan v. 294 Mass. 294 Mass. 562, 564, police contain dictum that enters officer who private premises performance duty in the is a his official licensee. Although officer, police the Brosnan case did not the court involve policemen legal right noted “[w]here that firemen or have to enter —duty premises performance per in the such their while in duty entry formance cannot be forbidden the owner — occupant legal authority enter, at least in the of a absence concerning premises, statute the maintenance of the no more than does licensee, duty create status of and no of care is owed the owner entering. Barnard, to those so Parker Brennan 135 Mass. Keene, However, v 237 Mass. 561.” P. 501. have as we . already noted, police this court declined to determine whether anything case, supra. officer was more than a Parker licensee Moreover, the court’s decision in the Brennan that case police interpretation officer awas licensee rested on its narrow plaintiff’s official duties and its conclusion was no evi there injured acting dence that was while in accordance with interpretation official duties. Our in the Brennan significantly authority reduces the it lends to later cases which suggest policeman (and fireman) is no more than a licensee upon private premises performance when he enters official Wynn Sullivan, distinguished duties. can be on its facts because the court “[t]here that case held that here no general arising premises invitation from the condition of the or from a decision of other
Such would be accord with those State courts which of cir- have relied on variations slight cumstances to find invitee firman was an injured (Clinkscales Mundkoski, instead of a licensee 12) Okla. or a “business invitee” to whom the occupier owed a reasonable care to safe keep (Zuercher Jobbing Northern 166). Co. Minn. This approach underscores the courts’ difficulties underlying with the licensee classification which unduly favors the landowner’s interests over the individual citizen’s inter- est as to his personal safety. history law on the subject of landowners and “licensees” indicates that many courts have broadened the invitee avoid category to the harshness of the licensee rule which no con- longer forms to public opinion.
“Like so many cases in which a barbaric formula has
been
its
retained,
content has been so
modified
inter-
pretation as to remove much of its inhumanity.”
Bohlen,
Fifty Years of Torts, 50 Harv. L. Rev.
740.
725,
Thus,
many courts have avoided the harsh implications of the
licensee rule by holding that certain types of
em-
public
ployees who are
enter
required to
on a person’s property
in the performance of their duties are invitees. See Swift
& Co. v.
Schuster,
Mounsey v. Bllard. way official, who upon private property enters duties, can privilege of his official legal performance be classified as a licensee or invitee. Public either they should be do employees labeled licensees because Sweeny not act for and pleasure,” their “own convenience Colony Newport & R.R. Old when Allen enter land. are not invitees they upon They another’s the freedom because the or owner does not have ordinarily of choice to them is or exclude which admit classifica- considered an essential element the invitee ed.) (4th 396; Harper § tion. See Prosser, 61, p. Torts § James, agree 27.14 1500. We Torts, p. “do not Prosser’s view or officials public employees arbitrary fit well into of the very any categories the law has for the of visitors. established classification privileged are not since are They they trespassers, independent any permission, come. is privilege they would be occupier, consent or license of the so, even and would insist privileged enter, upon doing They if do not come normally he made active objection. are held for which the any purposes premises, open public, frequently, private or under any occupier, do not enter for benefit any which justify expectation circumstances place Prosser, has been to receive them.” prepared ed.) (4th § think illogical Torts We p. the defend- that the this who entered say *9 invitation or ants’ either premises quite independently been no has consent, cannot be an invitee because there even has invitation, though but can be a licensee there some no This has led courts permission. reasoning been firemen as neither licensees nor treat policemen (Buren Midwest class but as sui generis invitees Ky.]; Krauth Indus. Inc. 380 S. 96 2d App. W. [Ct. Spencer Furniture v. B. P. John Geller, Corp. 270; 31 N. J. 359) or owner owes 255 Ore. to which the his safe condition. keep Fred Koch Naiditch, 2d 406. Meiers Dini Ill. Prop- Brewery, 229 N. Beedenbender v. Midtown Y. 10. Inc. (N. Y.) erties, Prosser, Div. 2d 276. See App. (4th ed.) James, Torts, § 398; Torts 61, p. Harper §§ 27.1-27.14, 1430-1503. pp. “im- with difficulty generis” both the “sui plied invitee” cases some mitigate produced results eliminating the licensee rule without the rule itself. Instead of of a challenging efficacy classification that establishes from liability immunities which no longer comport with modern values accepted and common experience, many courts have carved out special exceptions to licensee rule or made procrustean efforts to fit the circumstances of life contemporary into this archaic and rigid system. classification
The Unitéd States
Supreme Court,
admiralty
an
with a
dealing
shipowner’s
duty to
aboard
vessel, discussed the diminished
of the common
viability
law’s approach to possessor’s
liability.
its
supporting
decision not to import
the licensee-invitee distinction into
admiralty law,
the court noted that
distinctions
“[t]he
which the common law draws between
in-
licensee and
vitee were inherited from a culture
rooted to the
deeply
land, a culture which traced
many
its standards
ato
heritage of feudalism.
In an effort
do
justice
industrialized
urban
society,
its
economic
complex
and individual
relationships, modern common-law courts
have found it
necessary
formulate
subtle
increasingly
verbal
refinements,
to create subclassifications
among
traditional
common-law categories, and to delineate fine
gradations
in the standards of care which the landowner
owes to each.
...
classifications
and subclassi-
[T]he
fications bred by the common law have produced confu-
sion and conflict. As new distinctions have been spawned,
older ones have become obscured.” Kermarec Com-
pagnie
Transatlantique,
Generate
A review of our own decisions in this area supports generis application We think the sui rule is too restrictive in its responsibility when it limits defendants’ to areas of common access. - Brewery, 10; See Meiers v. Fred Koch 299 N. Y. Beedenbender v. Mid Properties, App. town (N. Inc. Y.) Div. 2d
Supreme Court’s conclusion that the the application licensee-invitee distinction the modern has context “produced confusion and conflict.” Kermarec v. Com- pagnie Generate Transatlantique, supra. Although our early decisions seemed to indicate proper that test invitee was status implicit assurance safety act of invitation itself,3 later to adopt decisions seemed the “economic benefit” theory which invitee predicated status on potential economic benefit the occupier may derive from the visitor’s But the economic presence.4 benefit has theory not been and can- consistently applied not be used to explain Pope Willow decisions like Garages Inc. 274 Mass. 440, Kelley Goldberg, Mass. 79, where plaintiffs were treated invitees despite the fact that there no mutuality economic interest between the plaintiffs and defendants in those cases. These decisions seem to rest on invitation rationale that the occupier’s duty of reasonable care is any based on of economic between mutuality interest the plaintiff and the defendant but on implied repre- that, sentation when an owner or occupier encourages others to enter further a purpose own, of his reason- able care must be exercised to make the safe for place whose visitors con- directly indirectly or presence nected to that purpose. Sweeny case, 368, Congrega See the Davis v. Allen Central Plain, 367, tional Soc. Jamaica 129 Mass. court held where the person attending meeting application a church was an “The invitee. liability depends of the rules which the on defendant’s is not affected by society, religious and that consideration this is solely gratification. or no came her own benefit It makes pecuniary profit difference that no or was received or other benefit expected by is society. invitation fact that the comes enough impose care] on [of the defendant reasonable liability. Contra, P. lies at the foundation of this . . .”
Holiday
Groton,
Parish
First
Church
Mounsey v. Ellard. which rationale, However, this broadened invitation Prosser, the does represents view majority according not invited the why guests social explain expressly most jurisdictions are considered licensees in ac- our own. our case including law, Under invitee per- status a benefit quires by “conferring of formance defendant has an something provided interest is than ‘those in- benefit other from mere social tangible advantages arising inter- ” Taylor Goldstein, 161, course.’ v. 329 165. A Mass.
“member of a family group household group in household rou- acquaintances rendering friendly help tine or commonplace tasks to another member of the licensee or social visitor un- does cease be a group less the character or circumstances assistance make clearly dominant rather aspect relationship than a routine (em- social or incident activities” group Pandiscio phasis 342 Bowen, supplied). v. Mass. 435, 437-438. of the Pan-
Not surprisingly, this court’s application discio has produced test a series of confusing and often inconsistent results in cases with patterns. similar fact v. in O’Brien Myers, Thus, 354 we 131, Mass. held that was merely social when she guest went to her sister’s house to help dispose of their deceased aunt’s Rollins but Marengo, effects, Mass. 354 decided about two months we later, held the plaintiff, who “for visiting purpose godmother of being the the defendants’ old baby two-week and to take the baby from the home to the to be church baptized,” [defendants’] Colbert Ricker, was an invitee. Compare Huska Clement, 361 Mass. 523-524. Moreover, since the dominant purpose entrant’s may visit change during visit, courts are also con- with the problem fronted difficult when determining Glouces- Pereira status takes change place. See ter (one Pier Assn. Community Inc. Mass. who comes as a premises business visitor becomes a if he licensee continues to remain in after Newman, Tomaino concluded), his business (social may become in automobile Mass. 433 guest remain guest the defendant requests invitee when has broken after the automobile and render assistance down). con can be borne
Admittedly, “[c]omplexity such gov principles underlying remedied where the fusion *12 considerations,” upon proper are based liability erning specious guide and the distinction but the licensee-invitee rele the illuminate obscure rather than lines it generates determination govern factors which should vant Christian, 69 Cal. 2d Rowland duty. of See question his maintaining 117. The owner’s conduct 108, is a his visitor does not on whether depend the visitor’s Moreover, social or business acquaintance. worthy protection become less does not safety invitee.5 not a business is social and guest law because he land- predicate sense to any makes It no longer as injured party status solely on the duty owner’s society in a rural Perhaps, or invitee. a licensee either it would estates, large land settlements sparse to the owner obligate burdensome to unduly have been of en- a class for holdings distant and maintain inspect own con- “for their property were using trants who 368, supra) (the but 10 Allen Sweeny venience” land- rule affords which the licensee immunity special society. industrial in an urban justified cannot be owners Inc. 469 F. 2d Restaurant, Arbaugh’s See Smith § (D. Torts, 27.2, p. James, Cir.); Harper 101 C. follow ancient no this longer can 1432, n. We favors which distinction common law discredited largely 5 however, vigorous dis quite has, undercurrent been “There guest licensee] as a sent, the social [classification of this as whether is really present customs under which social in accord with come, rightfully urged guest, even invited and contended safety; inactivity and some writers expects than mere more Prosser, guest urged as an invitee.” be treated social have Discussion, Harper, A (4th ed.) Laube v. Stevenson: 60. See Torts § Liability Land McCleary, 123; a Possessor 25 Bar J. Conn. Land, L. Rev. Injured 1 Mo. on the While in Missouri to Persons 186; comments, 599; 22 Mo. L. Rev. 58; Notes, Rutgers L. Rev. 12 & M. L. Rev. 313. 7 Wm. the per regard due the free use of without property have heretofore sonal those individuals who safety of allocating problem been classified licensees. complex is far too costs and risks human injury
be solely entrant, especially decided the status of the jury where the prevents status often question ever whether determining the fundamental question defendant acted of all the cir has light High Mile Fence cumstances in case. 6 See particular Radovich, Co. 175 Colo. 541-544. distinc
Therefore, we no
follow the common law
longer
tion between
create
and, instead,
licensees and invitees
common
of reasonable
which
duty
care
owes
to all lawful visitors.
This decision is in accord with
the modern trend
in the common law
the Supreme
Arbaugh’s
case, supra,
See
Restaurant
103-104. “Harshness
using
results [when
visitor’s status
determine the
owed
judging
him] because the essential task of
a landowner’s conduct under
*13
prevailing community
province
standards is
from the
removed
jury. Through
verdicts,
dismissal,
motions
for
for
directed
and for
judgment
verdict,
notwithstanding the
courts resolve the issue of
liability solely
person
on the
which
facts
establish the status of the
injured.
legal
by judges
jury
Mechanical
decisions made
eliminate
scrutiny of the actual conduct of the visitor and the
The
landowner.”
presents
example
plain
problem
before us
a clear
of this
as
right
depended
tiff’s
to recover
on his classification as an invitee.
7
significant
legal
feelWe
there is
difference
of
in
status
trespasses
one
opposed
who
on another’s
land
one
is on the
who
—right
land under some color of
such as a licensee or invitee. For this
reason, among others,
they
placed
we
do
believe
should be
in the
legal category.
example,
jumps
same
For
one who
a six foot
over
swimming
neighbor’s
pool
fence to make
of
use
his
in his absence does
logically belong
legal
in the same
as a licensee or
classification
not_
Frankly,
persuaded
logic
reasoning
invitee.
we are not
toas
and
Christian,
108,
in
same
placing
Rowland v.
trespassers
69 Cal.
2d
in the
legal
possible
status as licensees and invitees. The
difference in
trespassers
compared
classes of
is miniscule
These
the others.
dif
can
ferences
be considered when
arise in future cases.
8
Christian,
City
See Rowland 69 Cal.
108
2d
Pickard
&
(1968),
County
Honolulu,
High
(1969),
51
Fence
Hawaii 134
Mile
Co. v.
of
Radovich,
Smith (1971) (the
police
officer),
Court has characterized as toward moving care of reasonable single duty owners occupiers Generate Compagnie all the circumstances.” Kermarec “A supra, .631. Transatlantique, p. '358 U. at S. maintaining man in landowner must act as reasonable all in view of safe condition property of injury the likelihood including circumstances, and the burden others, the seriousness of the injury, Restaurant The Arbaugh’s avoiding risk.” be-we supra, action, 100. legislative at the absence the circumstances” lieve that this “reasonable care all to achieve way most effective provide standard will which con- injury an allocation the costs human values.9 present community forms and the The distinction abolition of the licensee-invitee a “reasonable care in all the circumstances” creation of leave without standards jury standard will not conduct. determination of reasonable their guide are which are to be principles applied now See always governed personal negligence. have Restaurant Arbaugh’s case, supra, at Our decision or in- as a licensee status merely prevents plaintiff’s in assess- factor being the sole determinative vitee foreseeability However, ing occupier’s liability. History Comparative ser, ed.) 62; Marsh, (4th Law Torts § Q. 359; Mc- Invitees, Trespassers, L. Rev. Licensees and Liability Occupiers’ Leigh, and the need & Donald Reform The Law 55; Notes, Rutgers Canada, J. 16 U. Toronto L. Q. 33; comments, 691; 22 Mo. 599; L. L. 19 Mod. L. Rev. Rev. Rev. 186; L. Rev. 44 N. Y. L. Rev. 426. U. *14 sug approach adopt simplistic reasons, cannot the For these we permit recovery placing gested by plaintiff, namely, him in the reject suggestion category this because the of so of invitee. We business logical doing basis for there no rational or our conviction that even may plaintiff. The though case favor the it decide the in holding permit are sound such a not based on which would cases only complicate reasoning. matters them would serve To follow language Marshall in of Chief Justice further. The often cited present application Virginia, to the 6 Wheat. has no Cohens expressions.” dealing “general On here situation. are not We legal raised, namely, contrary, deciding the the are the sole issue we by abolishing be plaintiff. distinction We this the status the do invitees, the result clarifies law licensees which tween admittedly irration of confusion because is in state area subject. ality large on the in a of cases and inconsistencies number Mass. 693 manner, place and time, of the and the presence visitor’s remain relevant entry circumstances of surrounding “in factors determine the likelihood part which will which must injury him, and the extent interest Arbaugh’s be sacrificed to the risk injury.” avoid supra, Restaurant case, at 106.
Our in the case does make land- instant owners and nor does occupiers property insurers their The “rea- impose it unreasonable maintenance burdens. sonable care in all the will al- circumstances” standard low the determine of care jury to what burdens are unreasonable light and diffi- expense relative10 on culty they impose weighed owner against the probability and seriousness of the foreseeable harm to others. Indeed, particular facts some cases could a directed verdict for the defendant require there basis that was no evidence of negligence Wayside Inn, See Vance Inc. jury’s consideration. cases in the cited. instant Thus, case, if the plaintiff policeman, the course of chasing thief, was injured at a.m. when he fell into an un- guarded hole in the defendants’ private cellar, the de- fendants well might be entitled to a directed verdict because the time and place of the policeman’s entrance was not an event which the defendants should have fore- seen in the exercise of reasonable care. On other if hand, the defendants directed the to search policeman cellar or knew he was there, be going could found that the defendants were under an to warn obligation policeman of the dangers known to the defendants.
We believe that care reasonable standard will give jury flexibility need to assess burden of liability on facts of each in accordance with community standards as to what constitutes acceptable behavior on'the occupier’s Cases adhere part. to a rule no contrary are longer followed. 10Thus, might impose what be a reasonable burden to on one owner
may require Arbaugh’s unreasonable sacrifices for another. Res taurant *15 act- while injured
In the plaintiff instant officer as a police his official duties in accordance with ing premises. on the defendants’ lawfully and therefore was mainte- to him for negligent The defendants were liable oc- since the Moreover, injury premises. nance their sum- a criminal had delivered plaintiff curred after may be warranted defendants, finding one a mons to warn plaintiff the defendants owed ice condition. dangerous 1 and and The are as to counts sustained exceptions and 6. 2, 3, are overruled as to counts ordered.
So dissenting part, J. (concurring part Quirico, re- seeks Reardon, J., joins). whom husband (presumably from each of two defendants covery wife) him as a injuries for sustained personal negli- gross alleged negligence, defendants’ result The sole conduct. wilful, reckless or wanton gence, prop- judge is whether trial before this court question on all counts for the defendants erly directed verdicts following stated after counsel for owned statement. The defendants facts in his opening with gutters old house which was equipped two year carry leaders There were from the roof. catch water drainpipes were no but there gutters, water out for ground leaders down to the the water from the carry in some were broken gutters disposal. underground breaks fell from those The water from the roof places. froze. The where it ground leaders to the and from the capacity, in his official acting officer police plaintiff, and there served a summons house went on one of the defendants. violation parking motor vehicle officer was street way from the house to the hisOn reason ice thus sustain injuries fall and caused to property. on the defendants’ accumulated of the court hold- opinion I with that part concur “was devoid of facts any statement the opening ing *16 Mounsey v. Ellard. of gross would have warranted a jury finding conduct,” reckless
negligence or wanton and wilful, that the for the defend- directed verdicts judge properly ants on the counts making allegations. for the on the two directing verdicts defendants
counts
acted on
alleging ordinary negligence
judge
the basis of
law
and applied by
as heretofore stated
this court in Creeden v. Boston & Maine R.R. Brennan v.
Keene,
Brosnan
280, 283,
237
556, 561,
Mass.
v.
Wynn
Koufman,
Sullivan,
294
294
495, 501,
Mass.
Aldworth v. W.
F. Woolworth Co.
Mass.
562, 564-565,
Hemenway,
Carroll
Mass.
347-349,
Mass. 45, 46. All of
cases
these
state
rule
apply
that
police
status
officer or fireman who goes
another
in
of his
property
performance
official
duties
that of a licensee and
he
that,
therefore,
is not
entitled
recover for
him
injuries
caused to
negligence,
owner or occupant of
property.
that
Compare Parker v. Barnard,
The court grants the plaintiff’s ultimate
for a
request
new trial.
In reaching that conclusion the court dis-
Learoyd Godfrey,
cusses at some length
opinions
Toomey
Sanborn, Mass.
Cummings,
Gordon
could narrow instant case on the rest our decision to whom invitee was an implied ground the route of access keep owed defendants (emphasis condition” their safe supplied). (a) the last
I would word “could” from eliminate the (b) ex- sentence above the court’s quoted opinion, Wynn, Brennan, Brosnan, Creeden, overrule the pressly supra, Aldworth and Carroll in their holdings all cases, on pri- or fireman is a licensee when police officer *17 duties, official performance in the of his property vate (c) in this as the of the case. and treat end I order sus- On this basis would concur with court’s of ver- to the direction taining plaintiff’s exceptions 1 4 on negli- for the on and based dicts defendants counts as other counts. and to all gence, overruling exceptions opinion is of the part concurrence limited to the My However, its described above. and to conclusions lengthy does continues with a stop there. It opinion of rules discussion difficulties which have resulted “in rural society as been having developed described estates,” but land settlements and sparse large with society,” which be in an urban industrial justified “cannot person injured which make allegedly right and “archaic the land another on an and dependent to label all system” attempts classification which rigid “arbitrary invitees, of either persons by categories” such judi- refers to the trespassers. opinion licensees distinction between and licensees cial invitees and common law distinction “ancient discredited largely due regard favors free use of without property individuals who have personal safety to the those heretofore been classified as licensees.” rule its present
After discussion completing in its the court de- application, of difficulties involved rule, new to the this jurisprudence clares broad “Therefore, in Commonwealth, following language: law between no the common distinction longer we follow common instead, create a and, and invitees licensees to all reasonable care which owes lawful . contrary visitors. . . Cases which adhere to a rule are no followed.” longer
I am unable to use of the agree present as the for the new promulgation vehicle such a broad rule of beyond law which to have purports application I what to be the scope believe necessities case. In this is similar present respect my position I that which expressed my separate concurring Authy. Housing Heming in Boston dissenting opinion way, ante, 184, at and 219-220. In this connection it may be appropriate to call to mind the fre following quently repeated statement made Chief Justice Mar Virginia, shall in 1821 in Cohens 399- Wheat. Marbury
400, with reference to his own earlier opinion Madison, Cranch is a maxim 137: “It not to be disre garded, general opinion, are to expressions, every be taken in connection with the case which expres sions are used. If be they go beyond case, they may respected, but ought not to control judgment suit when subsequent point very presented *18 decision. The reason of this maxim is obvious. The question actually before Court is investigated with care, and considered in its full extent. Other principles which may serve illustrate are it, considered their relation decided, their but possible bearing all other cases seldom completely investigated.” O’Donoghue v. States, United Hum 516, 289 U. S. 550.
phrey’s Exr. United States, Swan 602, 295 U. S. 627. Superior Court, Mass. 545. 542, v.
Consistent I with what have said above to be my view of the limitation the decision this I continue, under the clear label of with a dictum, discussion rules of law under consideration.
1. Without to the court’s subscribing characterizations present system of classifying persons all who enter property others as either invitees, licensees tres- I that some passers, agree phases of the present law on subject this deserve the court’s attention and reconsidera- Mass. 693
714. to some respect tian. This is true with particularly be- decisions further distinctions our which have made resulting proliferation with a tween various “invitees” in- following: as the “business subclassifications such a bene- conferring vitees,” visitors,” “business “invitees “social “social invitors,” invitees,” guests,” fit on “social social “gratuitous visitors,” invitees,” “gratuitous more subtle distinctions. other even guests,” perhaps Fitzroy, Comeau Massaletti v. 228 Mass. See Anonyma Zaia v. “Italia” Societa Comeau, Taylor Navigazione, Goldstein, di Mass. Newman, Tomaino Mass. Mass. 161, and has held decisions too numerous to this court cite, liable for negligence is not consistently that invitor “social invitee,” guest,” his causing injuries “social social visitor,” invitee,” “gratuitous “social “gratuitous confer a benefit on who did not ‘invitee” guest,” him. The result cases was the same from licensees as involving distinguished reached in cases inevitable, was but unfortunate, perhaps invitees. It point appear equate this court would at some This these of nonbusiness invitees with licensees. types Bowen, in Pandiscio appears to have happened held 435, 438, that, daughter where a was up put her curtains at injured while mother some helping invitation, home and at the mother’s “the the mother’s of her was that of daughter’s position, respect mother, probably a licensee or social That was in guest.” not an “in daughter tended be daughter vitee” rather that as “social guest” but no more her mother than could a could recover “licensee.” Pandiseio decision is not the first in which a court *19 treat a social as a licensee. The appeared
has to guest at as problem existed least as as indicated early in Hart Cole, in our following language decision 475, 477-478: invita implied “[W]hether tion to come as a can guest friendly intercourse create a that to an liability greater ordinary licensee, than it is
Mounsey Ellard. country involving decide. No case in this easy not to to our attention. these has been brought questions Stanley, Southcote v. substance, in is said, H.&N. a an owner a liability dwelling-house is is no express greater
visitor who there on invitation of Indermaur than a licensee. ... In the late case v Dames, . . . L. C. P. . treats R. court] [the to be guest as a mere licensee. It seems the rule .... in that an in a England, ordinary guest dwelling-house, no although expressly invited, greater rights has than licensee.” may time well be when, at hand in a case raising
the issue, we should if many, all, discard of the dis- tinctions which our decisions have made between busi- ness invitees and other invitees hold that an invitor owes invitee, to his whether business or social whether invited expressly impliedly, to exercise rea- sonable care maintain the premises covered by the invitation a reasonably safe condition all circumstances.
2. The next question whether the time is at hand go further and declare, the court purports to declare today, under the law of this Commonwealth the rule governing liability of owners occupiers of real estate to their invitees who are injured thereon shall also apply to licensees who are I injured thereon. do not believe that it is.
In thus enlarging the
liability
licensees,
this court
appears to have adopted and subscribed to much of the
Arbaugh’s
Smith
contained in
language
opinion
Restaurant,
(D.
Inc.
health He was inspector. on on injured fall stairs defendant’s he was then inspecting his official There capacity. the court reviewed the com- mon law rule the liability of the owner or occupant land toward licensees invitees, and trespassers injured
thereon, concluded, criticised the at rule, p. 101, these classifications law, pri- are “alien to modern tort marily because liability establish immunities which no longer comport values and common accepted experience,” and then to declare a purported, p. 102, at new rule “reasonable care circum- requiring under all the stances,” apparently applicable categories to all three injured persons. That the same rule which this court in the case is present apparently declaring applicable all invitees and licensees, for future considera- reserving tion its applicability to trespassers. Smith Arbaugh’s Inc., Restaurant, deciding
supra, the court assumed that the
was an invitee
at the time
place
of his
It
at
fn.
injury.
said,
p.
3, that
case,
Smith’s
although
precise
question
“[i]n
does not seem to have been decided in the
District
Columbia,
...
it is generally
rule that
in
health
2 F.
See
spectors are business invitees.
and F.
Harper
(1956).”
James,
§
of Torts,
Law
27.12 at 1482
It
said further, at p. 100, that
for the invitee must
“[o]nly
the landowner exercise ordinary care and
prudence
render his premises
safe for the
visit,” citing
the cases of Arthur v. Standard
Engr.
thereof
support
Co. 193 F.
(D.
2d
Cir.),
C.
cert. den. 343 U. S.
Lloyd,
Schwartzman
(D.
964, and
Mounsey Ellard. *21 licensees. invitees to cover sion of the rule of liability a rest on in our law should Such fundamental change Smith case. than the dictum foundation stronger case both sides before present argued was as stated this on our law was court that assumption Clement, in Huska most recently April 3, 1972, on Mass. to recover plaintiff’s right that “[t]he is an his status as ordinary negligence dependent upon he invitee,” and if he a licensee could re- that was not cover. us to rule. The They change did not ask that only asked that his held to be an invitee client be and he injured. licensee when The court this acknowledges that case could be decided favor basis, that but instead it establishes new of liability rule to licensees. The briefs and oral arguments before this court did not concern themselves with such a rule. From I that think we may assume that the parties did not consider the case as involving the issue of extension of liability to If licensees. such a fun- damental our law is change otherwise it desirable, should more be appropriately accomplished in which the issue is raised, in which court has the bene- fit of briefs and arguments specifically thereto, directed and in which the court can better and weigh consider the far reaching implications consequences such a change. I (concurring). go with the along court
Kaplan, J. I but am taken somewhat aback footnote seems unfaithful the rest of opinion. The court holds that the measure of responsibility of an occupier should no longer depend on whether the injured person is characterized aas “licensee’ rather than “invitee,” or vice versa; question is to turn on more other, vital factors. But footnote 7 seems to say that “trespassers” stand that apart, characterization is to remain decisive highly influential. This tends perpetuate, on a although scale, smaller the kind of tradition-bound I analysis mistaken had supposed court was aiming to correct. For is sometimes as just hard DeBrosky.
Commonwealth as to invitees, from licensees trespassers distinguish tres class of and the invitees; licensees distinguish other either of the as various just is passers probably and differ dry classification very effort at classes. Thus it wrong places. at the emphasis puts entation reason the basic suggestion leave the awkward called tres short of so may stop opinion court’s ing Christian, Rowland 2d 69 Cal. See passers. as to law English condition of unsatisfactory
note Occupiers’ excluded from the were after trespassers 8). (mentioned Millner, in footnote Act, Liability c. 47-54 1, p. 11, 2, pp. c. Law, in Modern Negligence *22 (1971). (1967). c. Liability, North, Occupiers’ Herrington British Rys. Bd. [1971] Q. B. 107, affd. sub nom. British Rys. Bd. Herrington, [1972] A. C. 877. DeBrosky vs. Richard Commonwealth 1). (and nine cases companion 8, 1973. 5, June March Franklin. C.J., Wilkins, JJ. Kaplan, Reardon, Quirico, & Tauro,
Present: record, Evidence, Cor- Practice, Criminal, Business Place of trial. understanding, evidence, Immunized witness. roborative Witness’ Identification. who, G. L. c. judge § under A of discretion in the exercise robbery, elderly an victim ordered the cross-examination unexpectedly exhaustion, hospitalized continue in for nervous county, hospital in the same her air-conditioned auditorium of impair properly, de- publicized did the transfer who fully rights a witness to cross-examine fendants’ constitutional against [720-722] them. name, being registration a false under
A defendant motel subject cross- admission, registration a witness hotel evidence, hearsay” not violate did examination not “double were judge’s any event, 78, and, in the admissible were G. L. c. § DeBrosky against Richard companion cases are Four of the against five are Lawrence Coburn.