*1 29, 19, argument August on briefs and oral Submitted 22, 1981 3, 1980, September previously held June reversed and remanded
RAGNONE, Petitioner, 1J, PORTLAND SCHOOL DISTRICT NO. Respondent.
(No. A7809-14371, 27257) CA SC
James N. Crow, B. respondent. With him on the brief were William Wiener, Anderson, Nash, & Miller, Yerke Portland. Howell,** Denecke, Justice, and Tongue, Chief Before Linde, Lent, Peterson, Justices.
PETERSON, J. J.,
Lent, concurring. [**] Howell, J., retired November 30,1980.
PETERSON, J. district, a school liability concerns the
This case arising licensee premises, injuries occupier an in the game in a engaged of school children the activities judgment, Plaintiff had verdict and gymnasium. defendant’s defendant, eventually the trial court motion of the upon but the ver- notwithstanding for the defendant judgment entered affirmed, Ragnone v. Portland Appeals dict.1 The Court of 1J, Dist. No. Sch. P2d 1217 We App review, 2.520, to consider whether primarily allowed ORS continue occupier nature of the of a land should the status of the entrant as invitee or licensee. depend upon
1. The facts Plaintiff, a 61-year-old woman, had been employed as a cafeteria worker at Sellwood Middle School in Portland for years several and was on a medical leave of absence following major surgery. She was invited to attend, attend, and did birthday party for the cafeteria manager at the school. After party, the cafeteria manager was summoned to the school office. Plaintiff accompanied her, taking the route “we always *3 took” gymnasium across a floor adjacent to the kitchen.
When the cafeteria manager had finished her busi- ness in the office, school the two women started to return to the kitchen to pick up their coats purses. They used the same route they had taken previously, but on the return trip the gymnasium was being used by a group of students playing ball, bench a game of elimination where try students to hit one another below the shoulders with the ball. The participants were seventh and eighth graders. The teacher responsible for supervision of the students was present. not
Before traversing the gym floor on the return trip, the cafeteria manager called out to the students asking they that stand still and discontinue the game until women reached the kitchen. they When were approximately two-thirds way across the gymnasium, one or two procedural For the case, course of this see footnote 1 concurring opinion. her to bumped plaintiff, knocking into the
of the students hip her whereupon floor was broken. presented was at trial that teachers were
Evidence unsupervised. leave The defendant’s instructed not to classes it for an appropriate instructor testified that was gym gym gym during class to leave the floor supervising adult addition, regula- defendant’s game. of a In progress unsupervised. left provided that students were not to be tions plaintiff’s injury evidence is uncontroverted that The by a student an when she was knocked down occurred was introduced that such occa- unsupervised class. Evidence common at the by plaintiff as the one attended were sions administration, and that and condoned the school school the event. From this specifically was invited attend plaintiff for permissible jury it conclude evidence was class was conduct supervise physically gym failure to active so, Even plaintiff. an risk of creating unreasonable held, Appeals as a matter the trial court the Court both law, not entitled recover. We trial court analysis reasoning turn to an therefore Appeals. Court of court reasoning 2. The trial of Appeals and the Court complaint The second amended contained plaintiffs were only two allegations negligence, several charges negligence Those were: jury. submitted proper “In control and order over failing to maintain * * * class; gym students said supervision provide proper gym In of said class.” failing to court, granting trial the defendant’s motion verdict, stated, judgment notwithstanding for “There was agents its no active committed the defendant or * * *” Appeals in this case. The Court of affirmed essentially reason, saying: the same guest
“A
is a
had a
social
licensee. The defendant
*4
injure
plaintiff by
Kiesel,
negli
or
not to
affirmative
active
528,
(1967)
Blystone
gence.
v.
247 Or
621
(1960);
Peterson,
232,
1069
(1956) (friend
Burch v.
207 Or
maintain
provide
control and
proper supervi-
failure to
(Emphasis added.)
sion.”
Ragnone v. Portland School Dis-
1J,
347,
trict No.
44 App
352,
Or
(1980).
misnomer when applied to the activities of an occupier The rule in Oregon, long established fairly well (with understood and applied one exception, which is dis below), cussed is that an occupier of land has these duties to licensees:
1. As to
land,
conditions of the
the occupier is liable
for injuries arising from the occupier’s willful
act,
or wanton
and for that gross negligence which is equivalent
to willfulness
or wantonness.”
Rogers
Elliott v.
Construction,
257 Or
479 P2d
addition,
In
the occupier must warn
of any pitfall or trap known2 to the occupier which might
cause
to the licensee notwithstanding
the use of reason-
able
by
care
Blystone
Kiesel,
licensee.
247 Or
(1967).3
P2d 262
Peterson,
232, 236,
Dictum in
(1956),
Burch v.
207 Or
suggested
that an
injuries
of land
be liable
trap
ato
licensee caused
or
pitfall,
occupier
the existence of
which the
could have known
the exercise of
Nickerson,
641, 644-645,
(1965),
reasonable care. Fleck v.
622 land,
2. As to activities on the
has a
occupier
duty to exercise
protection
reasonable
care for the
of a
Kiesel,
Blystone
v.
supra,
Our
decisions often have stated the
“active,”
occupier
“passive”
terms of
“affirmative”
or
Construction,
Rogers
in Elliott v.
negligence.
example,
For
“* * *
supra,
occupier
the rule is stated that
also owes a
duty
injure
through
to a licensee not to
the licensee
active or
* * *”
Blystone
431-432,
negligence.
affirmative
257 Or at
n 1.
“* * *
Kiesel,
v.
supra,
duty
states that the
occupier had
not to
*
active or
injure
through
negligence
affirmative
licensee]
[the
* *.”
Stating
duty
in terms of active or passive negli
led
gence has
to confusion. This case is illustrative. Both the
erroneously
trial court and the Court of Appeals
equated
negligence
commission, passive
active
with
negligence with
omission. The term “active negligence”
or “affirmative
decisions,
negligence,”
previous
as used in our
refers
land,
the negligent
upon
conduct of activities
and the
“passive
term
as
in our
deci
negligence,”
previous
used
sions,
refers
from the
arising
physical
hazards
condi
land,
normally
tion of the
the existence
of which
does
liability
not create
in favor of an injured person.4 “Active
commission;
negligence”
equate
passive
does not
with
any
inspection to discover
condition which creates an unreasonable risk of harm.
Inc.,
369, 371-372, 400
(1965).
Enterprises,
Mickel v. Haines
240 Or
P2d 518
4
stated,
context,
“passive negligence,”
generally
As
this
refers to the existence
*“*
arising
occupier
of hazards
from the condition of the land. It has been said that the
*
any
injure
through
to use reasonable care not to
licensee]
[has]
[the
* * *,
negligence."
negligence
distinguished
passive
affirmative
active
as
added.) McHenry Howells,
697, 702,
(1954).
(Emphasis
v.
201 Or
on the premises, whether she was an invitee licensee, or a under the authorities cited above, the defendant had an obligation to exercise reasonable in care conduct its Blystone Kiesel, activities. supra, Or at 531. As there is no difference in the standard of care defendant would have owed to an invitee, there is no need for this court to address the issue whether, or to extent, what the invitee-licensee dichotomy should be abrogated, the consideration of which has led to the delay in this case.
There being neg- substantial evidence of defendant’s in an ligence conducting activity premises, on its the decision Appeals reversed, of the Court of is this case is remanded trial plaintiff. court to reinstate the judgment LENT, J., concurring.
Plaintiff,
occupied
defendant,
an entrant on
land
injured
person by
in her
of school children
activities
Plaintiff,
in a
engaged
game
gymnasium.
in defendant’s
school
action
damages
injuries,
this
at law for
for her
asserted that
injuries.
of the defendant was
cause of
upon
Plaintiff had
judgment,
verdict
but
motion
eventually
defendant
the trial court
entered
for the
judgment
notwithstanding
defendant
verdict.1
affirmed,
Appeals
opinion
and its
The Court of
Sch.
Ragnone
v. Portland
of that decision
found
support
*7
1J,
See note
(1980).
1,
No.
App 347,
Dist.
44 Or
I concur charges to the are jury tions of submitted support There was evidence to those negligence. “active” that support finding jury and to the the charges I this case thereby injured. am not satisfied to decide on however, basis, for we allowed review to consider a question implications. with far broader review, 2.520, primarily allowed ORS to consider
We nature of a land to an duty occupier whether the entrant depend to the entrant as upon should continue status of I to invitee or licensee.2 have come the conclusion that it legislature should not. At the outset I note this duty occupier’s state codified has not the nature land to an reference to the entrant’s status insofar entrant concerned, therefore, facts are are of this case concerned.3 We which, by judicial policy making, granted with some law immunity occupier expense measure of to the land at the denying compensation injured entrant. Evolutionary
The Tradition of Change Judge-Made Law My duty conviction that the nature of the land depend entrant status of occupier upon to should not licensee, admittedly entrant, as invitee would be or judicial gave the same kind which policy making of occupier place. tort in the first immunity measure of however, believe, history I measured against that when quite law, this would be development change of tort insignificant. relatively how recent When one sees any part fault on the of a necessity demonstrating any change 2 I or the now consider in the law as the nature of do not occupier respect trespasser. of the land with standard of care concerned, therefore, liability occupier opinion a land is not This by statutory law, special as in the addressed such case of entrants those situations 105.680, private lands, public woodcutting public use of ORS 105.655 recreational others, on the ORS 105.685 to 105.697. land of *8 support recovery by injured plaintiff, an
defendant order by change, quite one should not be alarmed a decision to in a degree, judge-created immunity liability minor for part occupier. fault on the of the land any organized system Before there was of determin- ing monetary person’s injury whether, how, costs of one injury, another, should be shifted to it was the mere fact of the any regardless concept of of fault in the sense of moral response blameworthiness, which set in motion the to the injury. response The feud. was blood Commencement of predicated upon finding the feud was not some fault on the part injurer, other than the mere fact of the infliction of injury, purpose the compensating and the feud was not commenced for the of injured family but, rather, or his or clan purpose preserving dignity family. primordial
“The seed from which all crime and tort were to germinate characteristically prevailed was the blood feud that society organized wherever there was discernible a barbaric along kinship. the lines of blood The defense of the honor of against harm-inflicting the clan resort to warfare practice kin outsider and his entire was a traditional deep family roots in the need for survival of the unit. The family outrage lay revenge that cried for much in the not so bodily upon desire to enforce atonement for the harm inflicted wounded member as the humiliation that was suffered ”* ** family group. the entire History Malone, “Ruminations on the Role of Fault in the Dept, Transportation, Origin Torts,” in U.S. The Development Negligence Action 1 point society emerged Anglo-Saxon to the As system government and clans over the families to rule suppressed society, government up which made blood family’s by developing for redress of feud substitutes pay death, the killer had to In the case of humiliation. money’s “wer,” worth of the official decedent’s clan injury, according non-fatal to his rank. In the case of decedent paid instances, In called “bot.” both amount to be was the however, dignity the clan which was affront to the it was the any payment other sense deemed a addressed; not was compensation. at 1-2. Id. form of
(1981)_627 upon dependent payment or hot wer concept today a basis for view that in the sense we fault requiring *9 damages compensatory law law. the in tort What today regard rather than a condition a mere remote as would payment require of wer. was sufficient cause of death example given takes of one who Malone Professor killed If the wild beast show. see a wild beast another to pay: latter, had to the former recognize primordial law was content fact that “The being sufficient to as remote causal connection even the most its persuasive evidence of imposition penalty is
justify of blameworthiness on of fault or indifference toward matters proceedings were part person against whom of the *” * * instituted. Id. at 3. trespass century made the action of thirteenth
In the appearance, some need that there was and at first it seems its part showing making the defendant fault on the out a for applied proving of force or violence the element in the sense of plaintiff. property person defendant to the requirement appear any however, first, there does Even at any use of other than the in sense blameworthiness to show necessity by, the for time went or violence. As that force showing For miniscule fault diminished. element of even that any breaking example, of his to show did not need trespass close; mere his to establish fence or wall quietly passed showing ary across the bound- that the defendant says: plaintiffs property Professor Malone sufficed. As artificiality pleading of a mere et armis had assumed “Vi Id. at 9. device.” through liability concept carried
This “no fault” escape respect fire, from the of cattle land as in the case use of firearms, and “non-natural” use of (1868), though Rylands Fletcher, even L R 3 H L 330 trespass. trespass rather than on the case action for was an page 33, Malone, at summarizes: Professor liability emerged from its medieval concept of tort “As the history it afforded English in chrysalis nascent and became or nonexistence the existence little indication much con- a matter of blameworthiness defendant’s early Anglo- only This held not to the law. cern successor, in the suit its eventual proceeding, but for Saxon trespass, developed trespass and even for the later action of on case, however, case. The suit did introduce the notions neglect which were destined to serve as the bases appearance negligencerequirement for the eventual century. the traffic cases later in the nineteenth * * * * it* «* * * likely gain deeper we are insight into the (or significance it) by of fault riveting the lack of our attention upon particular type activity of human involved and the place economic and social demands of the time and than we gain by paying can language judges reverence to the they sought spokesmen have society.” be for their own emphasis) (Original century
The nineteenth early part and the of this century have seen the rise of the notion that tort liability ordinarily fault, should depend upon primarily as expressed the largely judge-developed shaped field which we com- *10 monly denote as negligence liability princi- law. Where strict ples dominant, have been it is because the judges have been chiefly concerned injured party’s i.e., with the plight, with his security in the sense of deterrence dangerous of conduct and compensation by for those injured such conduct. A judicial insistence on fault as a liability condition of stresses differ- concern, ent one for freedom of action importance and the of unduly interfering by imposing liability “upon dangerous activity.” James, “Analysis but useful Origin of the and Development Actions,” of the Negligence Dept, in U.S. of Transportation, Origin Negli- and Development of gence Action
The transportation and industrial revolution of the nineteenth century, creating while wealth eventually and high living, standard of exacted a in high price safety. terms of accepted It was that society permit operation should mills and and transportation systems factories the modern despite dangers inherent therein in order to achieve goals society. the desired of that It was considered that carry activity one should be able to on dangerous produce long economic wealth so as he did not do so in a manner that created an unreasonable risk harm of Thus, responded changes others. the courts arose; century. negligence The law of of concept liability upon based fault became dominant. This dominance lasted into the century, first third of this although erosion early began on.4
Erosion has been the result of legislative both and judicial Early century action. in this came legisla- the flood of tion adopting compensation worker’s During laws. the same period, judges were rules of developing liability vicarious require payment by of one damages per- who has no plaintiffs sonal fault for the injury. In the past years we have upon seen inroads the dominance of the concept fault liability in the judicial adoption of rules of product strict liability. Professor James catalogues several examples other the article above cited pages at 41-43.
Against this background demonstrating law, pronounced by judges, change, accommodates we quarter cenury “In the [sic], first of the nineteenth these hitherto discon embryonic liability negligence nected began threads of to combine into a principle application, discernible gradually of wider emerged from which concept separate modern liability. broadly as a basis of tort Its rise Revolution, coincided with undoubtedly by the Industrial and was stimulated machinery advent along turnpike railway. and the faster traffic and Untold new appearance, sources of risk and losses made their and confronted the law with problems by inherited, which it was unable to solve recourse to its archaic tort stage re-orientation, remedies. At this crucial of social and economic the courts responded pattern loss-adjustment by to the call for a new fastening on the concept negligence. liability quickly The axiom ‘no without raised to a fault’ dogmatic postulate justice, because it was best calculated to serve the interests expanding industry rising class, relieving and the middle them from the hampering liability conducing burden of strict to that freedom of individual enterprise will contemporary aspirations. which was at the of all forefront forces, negligence concept Borne these century in little more than a completely liability. transformed the basis of tort The measure of its success is negligence litigation today attested the fact that overwhelmingly occupies the courts, proved pervasive attention of the and has so as to transform even the liability trespass. Helped by, erstwhile strict assisting, turn disintegration action, negligence unifying of the old forms of became a force of potential.
vast *11 society “But neither nor law are static. The forces that moulded nineteenth century thought long spent, assumptions have underlying been and the the negligence concept subjected increasingly challenge. are The individualistic dogma replaced by fault security, century quest has been the mid-twentieth for social today admonitory and the function of the law of torts is seen less in its ensuring compensation in value than the distributing of accident victims and among result, legal cost those who can best bear it. As a mechanism of exposed which, being any rate, is to stresses in some areas at have already liability. gradual initiated a return to stricter transformation of negligence, response trend, in throughout to this modern will be observed ensuing Fleming, (5th 1977) (footnotes discussion.” The Law of Torts 102-103 ed omitted; emphasis added). immunity that the the measure of attention to now turn our entrants injuries of land for occupiers has law accorded or activities of the land resulting the condition by occupier. thereon conducted Immunity by The Creation Duty Prescription of the Nature of are a case in we concerned witli Since by charged negligence, defendant is we should start not so stating negligence. it is that constitutes That is what century ago, easy appear. Writing as it half a Professor might capable that “the word is still Harper Fowler V. stated 152, (1933). Law of One meanings.” Harper, several Torts § approve adequate the definitions which he seemed to from Restatement of the Law Torts: partly drawn ‘falls “Negligence of conduct which below consists protection by law for the of others standard established ” against unreasonable risk.’ Id. at later, work quarter century A of a in the 68. § James, Fleming with Professor Harper Professor co-authored is “generally accepted view” the definition it is stated that Torts, in of the Law of 282: found the Restatement § * * * any which falls “[Njegligence conduct below protection others law for the standard established harm.” against unreasonable risk of James, 2 Harper & Law of Torts 16.1 This § incomplete, definition is at least for one must look elsewhere find the “standard established law.” In the Restatement (Second) Torts, that is found 283: § “ * * * the standard of conduct which he must conform being negligent
to avoid is that of a man reasonable under like circumstances.” least, been, vague offering at Prosser has
Dean (4th 1971), Prosser, ed a definition. In Law Torts § a discussion of the elements of following he states the negligence: upon cause of action founded law, duty, recognizedby requiring obligation, “1. A conduct, standard of to conform to a certain actor protection unreasonable risks. against of others *12 part “2. A to the standard failure on his to conform required. go up These two elements to make what courts usually quite frequently negligence; called but the term is have ” * * * applied to the second alone. later, Dean Restatement pages purports quote Two Prosser Torts, of the Law of for the definition that is § by falls conduct “which below standard established law unreasonably great risk of protection against of others added.) Prosser, supra (Emphasis harm.” at 145. There is no by why the author as to he the Restate- explanation misquoted by preceding ment the word adding “great” changing adjective word from an to an following page adverb. On text, Dean Prosser states that already “Negligence has been defined as conduct which protection falls a below standard established the law for the harm”, against of others unreasonable risk of and, by footnote, purported refers the reader back to the Id. at 146. There quotation from the Restatement. nothing is to indicate significance what the author attached to the presence or absence of the “great” word in the definitions he accept. may seemed to It be that the inclusion of the word was a mere later, matter of editorial oversight, pages for 104 at page we find the following:
“Negligence, repeated, it must be is conduct which falls protection below the standard established law for the * * *” against others unreasonable risk. something This court has been less than precise its use of the term. example, For consider our statement Springs, Bertrand v. Palm (1971): 532, 536, 480 P2d 424 “Negligence involving is conduct an unreasonable risk of harm, among the factors to be considered are the likeli- others, injure hood that the actor’s conduct will seriousness of the and the happens.” if it because, This statement is open although negli- to criticism gence “involving” harm, is conduct an unreasonable risk of conduct is not under negligence, “generally accepted” supra, James, Harper definition of unless it falls short of what a man in the reasonable would or would not do (or same or similar him- protect circumstances another self, matter) against for that the unreasonable risk of is respect
harm. In this last
the statement
in Bertrand
defi-
taking
relationship
cient
in not
into consideration
utility
risk and the
the actor’s
magnitude
between the
(Second)
Torts,
conduct.
Restatement
291:
§
Cf.
act
is
which
reasonable
would
“Where an
one
man
another,
involving
risk is
recognize
risk of harm to
as
if
negligent
and the
the risk is of such
unreasonable
act
utility
regards as
magnitude
outweigh
what the law
particular
manner in
it is
the act
done.”
*13
477,
In
v.
Or
Shepler Weyerhaeuser Company, 279
(1977),
apparent
n.
quoted
This is as as are find definition effect, construct, although are not what is or we sure effect, ordinary prudence,” intended of the “of which modifier Fleming Professor adds to the Restatement definition as (Second) in the of Restatement presently found combination Torts, “ordinary and seems indicate that of 282 283. He §§ helps a term the trier of fact to determine prudence” is which The Fleming, or foreseeable. Law of Torts what reasonable (5th 1977). ed 107 concept negligence is much like that
This Brown early leading subject, in an case on the expressed Kendall, (6 Cush) (1850),5 60 292 in which the court held Mass he show plaintiff that the could not recover unless could intended to defendant’s act which was either injured result of the defendant’s failure to cause the harm or it express The went on to what meant ordinary use care. court care”: by “ordinary term, ordinary care, may proper it using
“In this be state, ordinary vary care will that what constitutes case, actually trespass recognized brought in rather than but is as That cause was early concept very apply negligence, being with its cases to the modern one of James, emphasis See concern the actor rather than victim. on fault and for Dept, Development Negligence Analysis Origin S. Actions” U. and Negligence Origin Development Transportation, Action general, of cases. In it kind and the circumstances means that care, prudent use, degree would and cautious men required by case, exigency such as is and such as is necessary guard against probable danger.” (6 Cush) concept appears Mass at 296.It that the of what is years remained same has about the over supra, present. Kendall, Brown v. until the negligence, For there to be a cause action for there duty, recognizedby part law, must be some on the of the actor requiring him to conform to the standard of care above resulting injury. discussed, a of that breach See supra Prosser, § at 30. Immunity Occupier
Partial Land contemporaneously Almost with the onset of the negligence, judges recognized cause of action for that to juries negligent allow to determine whether defendant was simply inquiring comported whether defendant had him- prudent self would the reasonable man the circum- give leeway stances, would too much to the factfinders. Their authority to determine whether defendant’s conduct fell by adopting below standard could be circumscribed rules duty required by as to the nature the law in various *14 relationships plaintiff. between defendant
“Apprehensive subjecting of defendants to the uncontrolled unsympathetic juries, arbitrament of the new formula ensured large judicial by expedi- retention of a measure of control the dividing persons of entering categories, ent land into distinct by fixed purpose visit, to the with reference their corres- ponding precisely defined standards of care owed to each.” (Footnote omitted.)
Fleming, supra at 432. Thus did Professor Fleming express liability circumscription respect that with to the occupiers
of land to entrants.6 quoted, just In footnote 1 to material the Pro- Fleming (1866) fessor cites v. Indermaur Dames L.R. 1 (1867) Edgerton C.P., 274, and Gautret L.R. C.P. 371. (death second) Each those cases involved agree Fleming 6 I do not it with Professor that is the standard of care which was defined, except indirectly. professedly changed. was standard of care It was duty purported the nature of the to courts define. plaintiff by in a to a fall caused condition of real plaintiff property. shaft, fell down a and his In Indermaur upheld to verdict was because his evidence showed him have today Because what would be classified an invitee. been occupier held the defendant of the real that property court plaintiff duty shaft, to a to warn him owed fence presence, its or illuminate the floor so as to make the shaft plaintiffs fell a hole In Gautret the decedent into on visible. crossing defendant’s land while the land. The circumstances crossing today were such that decedent would be demurrer to the declara- classified as licensee. Defendant’s duty no on the tion was sustained on the basis that there was occupier part of land to fence the hole or warn the defendant presence he not on the land in decedent of its connection with the business of the defendant but was because was
merely pass being land the defendant to across the on allowed own errand. decedent’s two cases were not the first to describe the
These duty occupier’s according to the status of the nature entrant-plaintiff, reports for the show that both counsel and same tenor. These the court aware of earlier cases were judge, shaping demonstrate, however, cases do that the well duty according entrant, the nature of the status prevent recovering or not a could defendant’s from whether reasonably pru- conduct fell that which a below person prevent another from dent would have exercised by simply announcing falling hole. was into a This done duty to exercise the there was no case of licensee required guard the invitee would have been same care that against words, an risk of harm. In other an unreasonable judi- immunity liability injurious for such conduct respect cially granted occupier to the licensee. early condition were concerned with the Those cases policy making judicial property. The same sort of the real occupier owing a different in the land seems have resulted respect he to the invitee with to the licensee than does occupier on his land. the activities ‘bare,’ land with ‘gratuitous,’ or ‘mere’ —enter “Licensees — *15 permission only purposes own occupier’s but their To occupier’s interests. which not connected with the are duty occupier dangers them owes to warn of concealed about, premises actually duty he and which knew to — active conduct unreasonably dangerous from refrain generally precautions carry- to take would mean reasonable ing might injurious on activities which be to licensees. * ** invitee, emphasis] [Original Whatever the test of an occupier duty him owes the affirmative of care to discover may unreasonably premises of the that be conditions dan- invitee, remedy gerous for the either to defect or occupier also must acquaint danger. the invitee The with foreseeably unreasonably which is conduct refrain added; dangerous (Emphasis to his invitee.” footnotes omit- ted.) James, & Harper that, at 1431. It supra respect is clear
to the condition of premises, duty occupier of the materially licensee differs from that owed to the invitee. With on, respect however, activities carried the difference is not pronounced; so it that appears occupier while the owes to the duty only licensee the precautions take reasonable carrying land, on may activities on he owe to the invitee altogether to refrain activity from the if necessary to avoid an unreasonable risk of harm to the invitee.
The decisions of the trial court of the Court assumption turn on an Appeals is a there difference in the of the duty nature owed to the respect licensee with than occupier That, activities is owed invitee. course, position has also been the of the defendant at all stages of this case.
Dissatisfaction with Predication Duty upon Entrant Classification system the nature of predicating duty owed upon the given classification entrant has rise to much criticism. system categories “The rigid trespasser, licensee or
invitee, fit, into one of which must be forced to long legal unhappy, made has writiers and has disturbed some judges, particularly since there are are cases which difficult to ” * * * dispose any specifications. of under of the three (Footnotes omitted.)
Prosser, supra system at 62. The productive has been § grist an inordinate amount of for the appellate judicial mill. *16 emphasis high and categories “This on label involves a proved degree experience has to be a of formalism which distinctions, capricious of unrealistic results fertile source many appeals questions on what should be but all too of fact * * *” added.) (Emphasis questions law. are distorted into at supra 432. Fleming, draws
“The which the common law between distinctions deeply were inherited a culture licensee and invitee land, many of its a culture which traced rooted justice In heritage a an effort to do standards to feudalism. society, complex in urban with economic an industrialized its relationships, courts and individual modern common-law necessary increasingly it to formulate subtle verbal have found refinements, among to traditional create subclassifications in gradations fine categories, and to delineate common-law landowner owes to Yet the standards of care which the each. jurisdiction, and sub- single even within a classifications produced by the common law have confu- classifications bred spawned, new have been sion and conflict. As distinctions Through this semantic older ones have become obscured. moved, unevenly law has and with morass common hesitation, occupiers ‘imposing a towards on owners ” duty in single care all the circumstances.’ reasonable (Footnotes omitted.) Generale, 625, 630-631, 358 79 S Ct Compagnie
Kermarec v. US (1959). 406, 410, L Ed 2d 554-555 country of its system with the in Dissatisfaction statute, Lia- by Occupiers’ its The birth led to abolishment January Act, 1957, II, 6 Eliz became effective bility & the nature of the 1958. The statute is concerned with rather, impose single duty trespassers; it is to a occupier’s provides expressly statute duty to all lawful visitors. The “as the duty is owed are the same persons to whom * * * law be treated as invitees persons who would at common 5(1). or licensees.” § 2(2) ‘a duty of is section as
“The ‘common care’ defined is as in all the circumstances reasonable take such care reasonably using will safe the visitor be see permitted he is premises purpose for which invited ” occupier be there.’ Act, Liability 21 Mod L Rev Payne, The Occupiers’ has immediately arises to what question According experience statutory change. been the Fleming: Professor operation Kingdom in the United
“After more than a decade’s Zealand, seriously being this reform is now consid- and New elsewhere, adoption including Australia Canada. ered for thereby prominent past A has been over concern actually^ long- abandoning juries; valued controls over but longer prejudice against juries this field is no standing anywhere justified, if ever was. are near it Juries often and, composed property even if the owners themselves private perhaps generally householder still uninsured liability, actually against public most the claims involve which, premises deserving and business far from industrial judicial subsidy, channel for loss offer suitable distribution. * * *” (Footnotes omitted.) *17 Torts, The Law of at 432-433. Fleming, Shortly after the country mother proceeded abol- ishment the occupier’s partial immunity of of claims injured licensee, the courts began of the American states examine the continuing validity grant immunity. of As above, noted the questioning premises immunity did explode scene; rather, full-blown on the legal criticism writers had been on going many years. for It generally regarded that the leading case on this side the Atlantic in rule rejecting the that the of duty nature should almost depend entirely on the Christian, status the entrant is Rowland v. 108, 561, 69 Cal 2d (1968). 443 P2d Rptr 70 Cal In that case a occupier knew that faucet handle in the bathroom was defective. Knowing guest-licensee that the social was about to bathroom, use the the occupier failed to warn the licensee of defect. handle broke it, while the entrant using severely injuring the entrant’s In reversing summary hand. judgment defendant, Court, the California Supreme going beyond might necessary what have been dispose of the case it, before
“rejected categories the status as anachronisms and held that premise liability all cases should henceforth be decided under general negligence formula.” Hawkins, Liability Premises Repudiation the Status After Categories: Judge Functions, Jury Allocation Utah Hawkins). (1981) (hereinafter L Rev cited
Professor Hawkins finds that since
eight juris-
Hawaii, Colorado,
dictions have followed California’s lead:
Columbia,
Island,
York,
District
Rhode
New
New
Louisiana,
Hampshire,
and Alaska. He finds that five other
repudiated
states
have
licensee-invitee distinction as
duty,
the nature of the
fixing
occupier’s
basis
but have
occupier’s
retained the
limited
respect
to tres-
Massachusetts,
passers: Minnesota,
Wisconsin, North
hand,
Dakota and Maine. On the other
he finds that seven
states have recently
reject
categories
declined to
the status
Alabama, Florida, Kansas,
and have affirmed them:
Mis-
Oklahoma, Texas and
sissippi,
appellate
Utah. Another seven
courts have deferred to the
or a
court as to
legislature
higher
Arizona, Delaware,
change
whether
should be made:
Illinois,
Missouri,
Maryland,
Jersey and
this
Oregon,
New
1J,
Ragnone
App
state in
v. Portland Sch. Dist. No.
Professor Hawkins observes change in the effecting line of cases applauded have however, adverse comment rules; there has been traditional has Probably disagreement the chief from other scholars. Henderson, Jr., in 51 writing Professor James A. come from title, Negli- (1976), Expanding under the Ind L J 467-527 Hen- the Rule Law. Professor Retreat gence Concept: judicial amount changes opinion derson is of the *18 in the hands of responsibility place and abdication fact. rather than issues of law factfinders for resolution being aspect as one change sees this Professor Henderson lot- “negligence-under-all-the-circumstances what he terms Ind L J at 525. tery.” 51 7 Maryland authority deferring Professor Hawkins cites for both to other
reserving question further consideration. Sargent (1976), Inger, This court was invited v. P2d 1303 548 invitee, inappropirate discard the distinction between licensee but found it change prevail consider the because the evidence was insufficient for even had she been an invitee.
639 between Distinction of the Abolishment and Invitees Licensees of the five the lead this court follow I would have by Hawkins alike to treat electing listed jurisdictions those jurisdictions In each of lawfully property. on the persons injury whether the applied a rule to be announced the court In four of premises.8 of the or to condition was due to activities condition; in the North a injury was due to the cases the In the occupier. a dog was from Dakota case the the entrant- with facts in which we are concerned case at bar on the defendant- as a result of activities injured licensee was any forego has elected to majority occupier’s premises. premises from the condition concerning injury decision us. until that case is before law distinction in mind that the common
Keeping product of the mores with which we are concerned was virtual society which accorded to the landowner values of land, longer I the distinction no sovereignty over his believe this today’s society. recognized The courts have validity has rigid which flow from the consequences devices to avoid the of almost infinite early subcategories classifications. We find invitee,” visitor,” “invitee,” “business “business gradation: invitee,” “licensee,” by permission,” “implied “licensee licensee,” licensee,” “implied licensee,” “naked “bare “mere invitation,” licensee,” “gra- licensee,” “social “licensee a court licensee,” guest,” “social etc. Each time tuitous a result at label, purpose reaching it is for the invents a new duty owed to a the nature of the describing odds with the law perpetuate logic There is no reason less favored entrant. making. this kind of decision are life teach us that these labels
“The realities of modern
longer
Personal status no
today
jury’s
task.
irrelevant
property. With urbanized
depends
to real
on one’s relation
gregarious
society
living
and a more
comes closer
conditions
* * *
accept
contrary
reason to
as a settled
population.
It is
* * *
actually
occupier]
varies his
principle of law that
[an
who walk across his
according to the status of those
conduct
boundaries.”
8
Balach,
161, 199
jurisdictions
294 Minn
Peterson v.
The cases and
are as follows:
(1973);
Ellard,
(1972); Mounsey
Antoniewicz v. 1979). (Me College, (ND 1977); Colby A2d 846 and Poulin NW2d *19 Arbaugh’s (DC Inc., v. Restaurant,
Smith Cir 97, 102-103 469 F2d 1972) (footnotes omitted). Perpetuation favoring of the traditional distinction regard safety personal the use free of land without due place we those have classified as licensees is out of the quarter century. complex last society the twentieth Our modern problem allocating
must deal with the the costs of injury. concept human cripple way We have abandoned the that the way begging.
must make his on the street corner One minimally feeding, clothing another, or the cost sheltering injured agree the will be I distributed. with the Supreme Judicial Court Massachusetts: human allocating costs and risks of problem of the “The solely by status of complex to decided too be far pre- question entrant, status often especially where the ques- determining fundamental from ever jury vents reasonably light of all has acted the defendant
tion whether particular in the case.” circumstances (1973). Mounsey 43, 51 693, 707, Ellard, 297 NE2d v. 363 Mass say that would now I that this court would occupier’s as it is under the same to licensee will be concept Adoption present that an the law to invitee. state of safety occupier an insurer of the not would make jury judge without the trial entrant; would it leave neither jury guidelines. those cases still take from The court would clearly say meets the actor’s conduct in which it could that clearly required it. falls below standard care judges as assumption that “Implicit process in this is the kind of conduct something about the juries know aswell community and acceptable in the not acceptable or is deemed ends of continuum that, higher and lower at least at standard, say does or does can that the conduct the court meet the standard.” Plywood 603, 607-608, 469P2d Co.,255 Or Stewart Jefferson respective discharging functions, the their In juries the factors concerned with still be and the would courts respect occupier applied past have been invitee. vis-a-vis
Negligence in the Case at Bar plaintiffs jury verdict and thereon judgment Since entering judgment were set aside the trial court notwith- *20 verdict, standing judgment we must reinstate her unless support there is no evidence to the verdict. Or Const Art VII court, (Amend), Before this is entitled to have plaintiff 3.§ as true all evidence and inferences therefrom in the accepted Lines, Barge most favorable to her. Jacobs v. Tidewater light 562 P2d The verdict jury’s establishes the facts recited in the majority opinion. presented
In this case evidence was at trial unsupervised. teachers were instructed to leave classes plaintiff’s evidence is uncontroverted occurred she when was knocked down a student in an unsupervised class. Evidence was introduced that such occa- by plaintiff sions as the one attended were common at the school and condoned administration, the school and that specifically was invited to attend the event. From this evidence it plausible jury for the to conclude that failure supervise physically gym active class was conduct creating an unreasonable risk of injury plaintiff, and that plaintiffs circumstances presence, availability of rea- sonable safeguarding, and the nature of plaintiffs activities were not such as should preclude recovery.9
I agree that decision of the Appeals Court of must reversed, be and this case be remanded to the trial court reinstate the judgment plaintiff. for partially injuries, damages Plaintiff was found to be at fault her and her were accordingly. reduced