Ralph D. Smith and Thelma Smith v. Arbaugh's Restaurant, Inc., a Body Corporate

Smith, Ralph SMITH and Thelma D. Appellants, RESTAURANT, INC.,

ARBAUGH’S body corporate.

No. 23748. Appeals,

United States Court District of Columbia Circuit.

Argued Dec.

Decided June

Rehearing Denied Jan.

On tour inspection, appellant his Smith these descended metal stairs to pits. examine the barbecue Just before reaching bottom, the his left foot skid- ded out from under him and he fell losing backwards, grip on the hand- Harry Washington, Goldberg, Mr. W. rail. Smith on landed his back and C., with whom Max Messrs. M. Gold- D. the bounced to bottom of the stairs. As berg Washington, Altman, and Morris fall, hospital- Smith a result this was brief, appellants. C., were on the for D. ized, substantial amounts of time lost large work, ex- incurred medical Donahue, Rockville, Edward Mr. C. eventually penses, on disabil- retired Md., Miller, with whom Gwinn E.Mr. ity employment. from his Rockville, Md., ap- brief, was on for the commenced and his wife Smith pellee. seeking the action in District Court BAZELON, Judge, Before damages inju- Chief and $65,000.00 personal in for LEVENTHAL, resulting WRIGHT and ry Circuit of consortium loss Judges. corpora- the the defendant creating, failing in tion correct plaintiff of, or warn the a hazardous BAZELON, Judge: Chief premises namely, worn, condition on its — steps appeal This jury is an from a verdict slippery wet and metal with accu- appellee for appellant the after trial on grease mulated thereon. Trial was held Arbaugh’s negligent- Smith’s claim that May in Both his su- of 1969. Smith and ly greasy a maintained set metal pervisor observed testified that had injured. on stairs he fell and was grease steps, the were on also dispute. The relevant facts are in smooth and rounded from continuous appellant March Ralph Lane, cook, On the James the barbecue wear. Smith, Inspector employ- a Health in the testified for the defendant and substan- story Columbia, ment of the District of was tiated the He fall. also Smith’s supervisor inspect directed spare- stated that of uncooked cartons appellee’s barbecue kitchen in restau- ribs were delivered to barbecue kitch- grease A day. fire had occurred in one en rant. twice a At the close of the pits pre- trial, of the barbecue several weeks a verdict fa- returned viously, inspec- purpose vor of the defendant. tion was to determine whether kitchen moved a Smith for new trial repairs completed. had been grounds court trial in- erred structing The barbecue to determine for it- kitchen was located building adjacent the basement of a a invi- self Smith was “business Arbaugh’s premises merely the actual tee” or a “licensee” on restaurant. Large quantities Arbaugh’s spareribs premises, barbe- and thus whether were pits basement, keep cued two duty trans- him the care to owed ported up approximately twenty merely premises reasonably metal safe or steps warning any duty carried into the kitchen of known but him building dangers.1 restaurant serving to be stored before This motion was concealed patrons. denied. trial, timely objection right 1. At Smith made a has a to assume that reasonably court’s instruction. trial that he enter are is invited to purpose court had first ruled that Smith safe for which invi invitee, upon business since he went tation extended.” property Arbaugh’s. pause, benefit the court instructed Without Appendix judge 13. Then the in as to the of care owed licensee, person structed the that “the invitee “a on the rigid appeal2 life into the common law classifi- maintained Smith pur- licensees, cations of undisputed the business facts reveal Arbaugh’s, importantly, More do not be- pose vitees. we of his visit liability imposed by lieve the rules of should have therefore the trial eighteenth century to- courts of law that he was ruled a matter day proper Ar- tools with which to allo- whom invitee” “business toward for baugh’s duty cate the costs and risk of loss human care.3 reasonable owed a injury. verdict in favor He that contends based on could have been the defendant negligence Ordinarily, is for jury’s that erroneous decision to rea- based on the exercise failure a “licensee” toward was instead Smith in conduct of sonable care one’s duty owed, and that he a lesser is whom However, personal activities.4 trial to a new with is therefore entitled landowner/oecupier’s5 duty of care— proper jury instructions. by reason of actions should take he dangerous property— conditions his I. depends solely on the circumstances contention, examining injured entry party’s In we are onto his again by the property.6 once struck awkwardness trespasser, To the land- fitting duty only the circumstances owner owes a to refrain injured party. of another not invitation to the Engineering Arthur v. Standard by perserver- permission rather but cert, judge 903, 906, denied, anee.” The stated: gentlemen, Court, “The ladies and U.S. L.Ed. clarify you point (1952) many would like to one . be This causes cases to you. Court, prior that it has made to decided to their submission to the you ago, jury. a few moments instructed See notes 34 and infra. plaintiff although precise ease, in an this case was In that Smith’s question whether is invitee. The he does not to been de- seem have entirely Columbia, an a licensee is invitee or cided District of of. your that, Sons, discretion. So within B. Dashields W. Moses & App.D.C. generally (1910), will retract the statement made Court you inspectors that the Court states rule that health are business Harper James, plaintiff is an invitee. It invitees. F. F. See 2 you Torts, under all of the to determine The Law of § 27.12 (1956) Harper [hereinafter all of the circumstances & James]. facts a he is an invitee or licensee.” g., Restatement, e. Torts 2d §§ Appendix at 14-15. (1965) ; Harper James, & that his status was a contends Smith § 27.1 judge for the himself matter of law 5. Formulations of the rules of determine. use terms “landowner” and “land- objects judge’s also instruc Smith occupier” interchangeably. Generally it if the that there tion that found party possession is the in of real estate foreign staircase, on the a substance special apply. to whom the rules Re- charge it must also find that someone in statement, 2d Torts 328E. The occu- § “had sufficient time to ascertain that may may pier not be the owner is in condition.” This instruction full clarity but for sake of we Seganish accord our decisions consistently the term use “landowner” Safeway Stores, District of Columbia opinion party this possession. to refer to the Inc., U.S.App.D.C. 117, 120, Harper James, & § (1968) ; Safeway Stores, F.2d 1433; Comment, 27.2 Land Occu- Preston, U.S.App.D.C. Inc. v. Liability pant’s Licensees, Invitees, (1959) ; Brodsky 269 F.2d way v. Safe Trespassers, 31 Tenn.L.Rev. 485 Stores, Inc., (1964). 152 F.2d 677 James, & Re- § 27.1 generally statement, 333-350; 3. It if held the undis- Torts 2d §§ puted see, States, establish the of an en- facts stauts Firfer v. United trant, U.S.App.D.C. 216, 219, the court rule matter should (1953) of law as to what of care is owed intentional, pies govern wanton or willful conduct a landown- maintaining engine “hidden er’s conduct: A landowner must act as a licensee, maintaining prop- of destruction.”7 Toward man erty reasonably active the landowner must refrain from safe condition in negligence, circumstances, including which includes failure view of all the Only perils.8 injury others, hidden warn of known but likelihood of the se- injury, exer- for the invitee must the landowner riousness of the burden avoiding ordinary prudence to cise care and ren- the risk.12 premises reasonably der for the safe visit.9 These distinctions are crucial for II. plaintiff’s case, Ar- since whether years ago, Almost fifteen the United baugh’s will held liable for maintain- Supreme States Court on the commented ing depend greasy its stairs will not on decreasing viability of the common law jury’s conduct, evaluation of this but approach to landowner in a ease largely injured party on whether dealing shipowner’s duty with a to those happened employee, to be an a Health deciding aboard his vessel. In Inspector, fireman, patron a invited import admiralty into law the distinc- simply the kitchen or a curious child.10 tion between the owed an invitee licensee, and a Mr. Justice Stewart predi Rather than continue to wrote for the Court:

cate on the status of the en join trant, we have decided to the mod The distinctions which the common princi- apply ordinary ern trend11 and to law draws between licensee and invi- Daisey Parking, Inc., (9th 1963), v. Colonial 118 322 F.2d 924 patron, Cir. [restaurant U.S.App.D.C. 32, 31, 777, dining room, 331 F.2d “invitee” 778 as to was (1963) ; States, supra platform Firfer v. United “mere licensee” as to band 6, U.S.App.D.C. 219, piano permitted play at 208 she was 528; F.2d at gineering Co., supra Arthur En- v. Standard was fell]. located and from which she 3, U.S.App. Wandering children, however, are treated 401, special McGettigan at D.C. 193 F.2d at 905. with consideration. Washington, v. National Bank States, supra 6, 8. Firfer v. United U.S.App.D.C. 384, 703, 320 F.2d cert. U.S.App.D.C. 219, 528; at F.2d at 943, 348, denied 375 U.S. Academy Holy Cross, Gleason v. (1963). L.Ed.2d 273 U.S.App.D.C. 253, 254, 168 F.2d (1948). Compagnie 11. In Kermarec v. Generale Transatlantique, 625, 631, 358 U.S. Engineering Co., 9. Arthur v. Standard 406, 410, (1959), 3 L.Ed.2d 550 S.Ct. U.S.App.D.C. Supreme Court noted that the com Lloyd, 193 F.2d at Schwartzman v. moving “imposing mon law toward App.D.C. 216, (1936). 82 F.2d 822 single duty occupiers on owners and 10. The need to fit diverse fact situations reasonable care all the circumstances.” categories produces into neat both com vanguard At of this movement are plex reasoning and harsh results. Supreme California, Courts Thomas, District of Columbia v. have de Hawaii and Colorado which 401 F.2d 430 cisively abolished differences between (1908), cert. denied 393 U.S. categories. common Rowland (1969), S.Ct. 21 L.Ed.2d [life Christian, 69 Cal.2d guard saving electrocuted child who was (1968) ; City 443 P.2d 561 Pickard v. passing also killed an electric current County Honolulu, 51 Haw. through swimming pool caused defec (1969) ; High Mile Fence 452 P.2d 445 wiring. employee tive Court held that as (Colo.S.Ct. Radovich, 489 P.2d 308 Co. v. Services, Inc., lifeguard of Government England, 1971). In distinction be rely could not on District of Columbia to long tween licensees and been invitees safety] ; Kinney take due care for his Liability Occupiers’ Act, 5 & abolished. Sun Oil Pa. 262 A.2d 128 6 Eliz. 31c. (1970), injured by gas [fireman defective explosion Inc., fighting Daisey Parking, tank while fire on 12. See v. Colonial recover, could not whereas passerby might] ; Tan, p. West v. Shizuko infra. emphasis tee were inherited a culture mon law’s economic and land, deeply importance rooted exploi- a culture social of free use many per- traced its standards to tation of land above over and heritage safety qualified of feudalism. sonal of those who tions would be date to tions of unwarranted when tem in which status vidual’s estate entirely For the ^[******] . they originated import upon [Such] simplicity [Such] admiralty such foreign to its tradi- appears particularly appears particularly nature conceptual under a depended law at this late respect is remembered practicality. legal sys- the indi- distinc- to real almost trespassers or worthy licensees.15 because he life is no another owner’s life or limb does not pose.” mission but without a business ty may Today, protection by unrestricted freedom. without be more longer accepted. compensation has come preeminence permission important the law nor a become upon under the law Human safe- of land over than a land- less with “A loss land worthy man’s pur- per- less legal system property, realignment being re- This values spect entirely recognized alien the law the in all of tort law. There is a general away trend from immunities sea.13 by conferred on certain classes reason of We believe that common law the clas- their technical The law of equally sifications are now alien status.17 products’ liability become has a field of law, primarily modern tort because strict there is continual establish immunities liability,18 gov away movement erning as the longer comport accepted which no fault with losses, principle for allocation values and common Per- experience.14 enterprise favor of or the haps protection afforded landown- larger seg distribution of over a losses by perceived ers these rules once as through society ment of necessary sparseness in view of the insurance.19 There is no sound reason immunize settlements, inability and the land community’s per landowners from the inspect owners to or maintain distant ception of holdings. prestige The and dominance values.20 landowning believe, class nine- We do not the concurrence as teenth century suggests, allocating contributed to the problem com- Compagnie Restatement, 402A; Kermarec Generale 2d Har- § Torts Transatlantique, supra per note 358 U.S. & James §§ 28.15-.28. 630-632, (emphasis at at 79 S.Ct. added). general 19. For a of this move- discussion 3; Prosser, supra see ment § Accord, Christian, supra Rowland v. Harper & James 13.1-.7. §§ Cal.Rptr. at 443 P.2d at point 20. Whether these values towards generally accepted explana- This is the mandatory, no-fault, self-insurance development tion for the of the common principles beyond scope of our de- Harper James, law classifications. primary & cision at time. Our con- § 27.2 at 1432 n. Kermarec v. Com- rigid, court-imposed cern is to abolish the pagnie Transatlantique, Generale keeping immunities which are out 630-632, U.S. current common law trends. 406, 3 L.Ed.2d 550. confers on an “[T]he traditional rule occupier special privilege to be land a Christian, 16. Rowland v. quite keeping careless which is out of 443 P.2d at 568. development with the of accident generally Prosser, W. Torts § 58 generally justifiable here and is no more (3d ; 1964) Comment, ed. any than it other would be the case activity.” enterprise useful 17. 32 n. A.L.R.3d 5 & 6. James, & § Gf. 27.3 at 1440. Elgin Columbia, v. District of 119 U.S. App.D.C. 116, F.2d 152 injury tion of factors which is a are relevant of human risks the costs and society that one unrelated to classifi- simple do we believe Nor one. safety ad- cations of licensees and value—human —should recognize In words vitees. California We all others. vanced above Supreme Court, requires the should consider of costs allocation “the of the connection equation, closeness complex one for between resolution of conduct, society provided injury yet the defendant’s has not Rather, the moral blame attached to defend- computer. for centuries preventing conduct, policy been personal have ant’s costs according harm, prevalence and to the future and the allocated availability under all of insurance.” standard circumstances. Beyond establishing immunities, recognized varying common law frequently du- labels This court ties questions of care to them have moral attached involve provided empirical judgments once handled standards of are best relevant foreseeability guide representatives community presence involving determining whole,21 specifically what was reason- cases responsibilities able conduct for landowner. landowner to children of years.22 Therefore, tender in the ab- realities modern life teach us legislative sence action to the con- today that these labels are irrelevant to trary, we the most effective believe that jury’s task. Personal status no way to the costs achieve an allocation of longer depends on one’s relation to real acceptable injury of human which is property.24 society urbanized With community is to allow living comes closer conditions and function under the standard “reason- gregarious population. more tres- able care under all the circumstances.” steps public passer who from a sidewalk today private parking If onto immunities from are to ex- lot is ist, entry they “poacher” the “outlaw” whose be based on eonsidera- should occupants denying respon- Housing than careful Robinson v. Diamond Cf. sibility Corp., careful; U.S.App.D.C. 17, is to make children 150 F.2d 463 occupants may law, (1972) ; know little about 853 v. Ben United States of. nothing nett, U.S.App.D.C. 364, it, but children know 460 F.2d about 148 play (1972). and children will where can. 872 And the in is less McGettigan exceptional supposed. v. National of Wash- Bank than is sometimes ington, supra 10, U.S.App.D.C. immunity occupants Rather, 115 388-389, land, immunity persists, at 320 F.2d An at 707-708. so far as early responsibility unreasonably danger- statement of the values involved Levin, App. exceptions in made Eastburn v. 72 ous conditions is one of the 192, 176, (1940) healthy tendency : growing D.C. 178 to the and underlying question require the law all social conduct occupants arrange is better let their social to conform to standards. premises neigh- disregard James, in total 2 & at § . See also 27.5 boring children, require or to them to 1450-51. precautions per- take such as a normal Christian, 23. Rowland v. son when their would are Cal.Rptr. at at 567. P.2d insidiously dangerous attractive and by gov- dispensed young children 24. “The kinds wealth too to look for them- out entirely those almost selves and when the of such ernment consist intrusion today. ascendancy likely. which are in the forms children is On the one side is forms, gen- individual, occupant’s interest, new such To the these right job, profitable profession, interest, receive in eral use of income, of his various basis land. is the child’s inter- On other society, est, parents in therefore and and the interest statuses meaningful society, most distinctive in life and limb possesses.” Reich, compensation injury. Impos- The New wealth he their (1964). ing Property, responsibility apt Yale L.J. is more to make rigid unanticipated courts was both and resented classification cause century. contrary nineteenth It ex broaden certain classifications27 accept owed; principle pand second, to reason as a settled duties parking actually expansion produced of law that a lot owner even further has according his conduct to the sta- toleration varies confusion and conflict and a exceptions only apply who to indi tus those walk across vidual cases.29 boundaries.25 are concerned to avoid continued We III. inequity, reduce and to harshness A further indication that the classifi Dis- current confusion law increasingly cations have become diffi we result trict of Columbia.30 apply is cult to the current trend process today to which the reach process tort law is a erosion eventually of erosion will lead.31 categories sharply of the once defined in the Dis- An examination “increasingly into subtle verbal refine con- among ments, trict reveals the difficulties . subclassifieations . . be- results front Harshness categories, courts. traditional . common-law judging a task graduations essential cause the fine [and] stand prevailing under landowner’s conduct ards of care landowner which the owes community is removed standards to each.” There are reasons for two Through mo- province first, produced this: harsh results jury.32 frequently Christian, noted that 30. This 25. Rowland v. single aimed toward current trend has at P.2d at See, g., Co. e. Hecht standard of care. Compagnie 26. Kermarec v. Generale Jacobsen, Transatlantique, 358 U.S. ; Daisey (1950) v. Colonial F.2d 13 at U.S.App. Parking, Inc., supra 779-780; 33-34, 331 F.2d at D.C. at Elgin public guests noticeably, have been Most Columbia, supra note v. District gradually category moved into U.S.App.D.C. F.2d many jurisdictions. “invitee” Dunnett, Kelly, Inc. v. B. John Lunney Post, 248 So.2d 504 150, 151, F.2d ; Harper (D.Ct.App.Fla.1971) & James (1988) ; Katz, Levine v. 132 U.S. § 27.12 App.D.C. 173, 175, concept 28. Thus the of “active” accuracy predict the with We cannot expanded to toward licensees has include had, have, has will might effect this trend a what otherwise be called “condi litigation frequency in- the examples on the of premises. tion” of the cited See primary con- 11, self-insure. Our Christian, supra centives to note in Rowland v. jury provide cern is the with relevant P.2d at and under which and useful standards & danger James 27.6. Conditions of § today’s litigation. resolve been fitted within concealed have theory trap,” the of a “concealed and reasoning the the of Such was also dangerous” “highly been diluted to has Supreme Court: Colorado “unreasonably dangerous.” Id. § 27.3 suggested num- have “Commentators 1443-44. system; to abandon the erous reasons however, compel this those which now “patchwork” of results is What a con system (1) the court to act that (1969). Note, 44 N.Y.U.L.Rev. fusion 426, waste, judicial creates confusion and examples cited Mile (2) preventing that the Radovich, High supra Fence Co. v. note community applying changing Special excep 489 P.2d 311-312. duties, a a landowner’s standards apply of “ex tions still to conditions inappropriate to a harshness which is Thompson, danger, v. treme” Ward system legal pre- been has (1961), 655, 359 P.2d 143 Wash.2d served.” involving children, Gould v. to cases Radovich, supra High Mile Fence v. Co. DeBeve, 330 F.2d note P.2d at 311-312. ; (1964) Trust Co. v. Louisville (S.Ct.Ky. jury, Nutting, does 437 S.W.2d Even when the case reach plain- 1968). it is for consideration “often verdicts, applied every dismissal, ard of reasonable care directed tions for notwithstanding judgment case.37 liabil- issue of verdict, resolve the courts placed trespassers This court also ity solely facts establish on the highways diverge public into who injured.33 Me- person of the the status category licensees because of by judges legal decisions made chanical treating absurdity them as obvious scrutiny actual eliminate “wrongdoers” con- unforeseeable and the land- of the visitor34 conduct text modern urban life.38 owner.35 DeBeve,39 up- In Gould v. in order unwillingness harsh re- to tolerate An obviously equitable verdict hold expand certain has led courts sults had returned in favor over- create categories and to of visitors two-year “trespasser” a old who out fell have drawn them. lap between We loosely window, screened licensee” between “bare distinction recognized trespassers “types” to ex- in order “licensee invitation” exist and must be differentiated. in- care to tend the foreseeability opinion indicated that qualify as jured parties not who could presence might justify of the child’s of Columbia “invitees” District under imposition higher of a standard com- on semantic law.36 This reliance usually on the landowner than is owed compared plexity Su- must be left but test abolishing preme Court of Hawaii’s unchanged.40 essentially way of holding To our the stand- distinction xiarking on station after the station rather than for the more tiff’s status although private grounds, cars had the de- of whether fundamental prior parked by per- carelessly. occasions been there has acted Thus fendant attending flexibility deprived sons the Uline Arena. neces- sary burden of it to assess the to allow Academy Holy Cross, 36. See Gleason case on the facts each U.S.App.D.C. 253, note community standards.” accord with States, Newman v. United Note, case F.Supp. (D.D.C.1965). example presents of this a clear before us principle, City County 37. Pickard v. of Hono- jury’s primary task since lulu, supra 51 Haw. was an was to determine whether Smith P.2d with a man off the street dealt invitee or licensee. public who used the restroom court- permission Christian, supra house with the the officer Rowland v. guard. lightswitch Cal.Rptr. 97, entered, P.2d 561 As he (summary judgment) ; Firfer v. did work and he fell into a hole United States, 6, U.S.App.D.C. Reversing floor. the trial court’s dismissed) ; (complaint plaintiff struction licensee Engineering law, Supreme su as a matter Arthur pra Standard Court held: “Common law distinctions between verdict). (directed persons logical F.2d 903 have rela- classes no tionship to the exercise of reasonable By complaint affirming 34. dismissal of the safety of others for the .... facts, interpretation its own on of occupier duty land of to use [The] deprived oppor- of the this court safety per- of all reasonable care for tunity to determine for itself whether reasonably anticipated sons to he on scope Firfer had exceeded the of his regardless legal premises, of the of status trying in to leave the Jefferson vitation Id. at 446. the individual.” Firfer the back. v. Memorial Daisey Inc., Parking, 38. See v. Colonial States, supra 6, U.S.App. note 93 United 7, U.S.App.D.C. 31, supra 118 331 note 220-221, at F.2d at D.C. 208 528-529. Daly, F.2d App.D.C. 318, v. U.S. Muldrow 117 Co., F.Supp. (1964). 35. In Nimetz v. Shell Oil 74 329 F.2d 886 court, denying (D.D.C.1947), 360, Supra 29, 39. note trial, new on motion for a insisted classi- F.2d 826. fying trespasser party who fell into open 364, grease pit gas Id. at 40. 330 F.2d 830. an in defendant’s thinking, approach gener- only will stances.” That standard contains duty flexibility necessary ate confusion further over to allow to “types” trespassers.41 variety to owed various take account the infinite already Some doubt exists over the fact situations which affect the foresee- guests ability presence injury,45 owed social licensees.42 other balance values which determines IV. of the risks of hu- allocation costs and injury. man genius It is the of the common recognizes changes our so law that Eliminating reliance on the com Legal economic, cial, moral life. mon law classifications does not leave trespasser and li such as classifications jury awash, without standards to judicial which censee are creations guide its determination no should be cast when aside principles conduct. The are now which controlling longer for the useful as tools applied to are those al be which have jury.43 principle stare decis governed personal negligence ways un strangle keep a meant jurisprudence.46 der our factors respon developments which are hold on weighed in of the be the determination values, experiences, to new sive degree specific care demanded in opinion, In our circumstances.44 situation are “the likelihood that [the put to our total time has come an end injure others, conduct will landowner’s] on reliance these common law labels injury of the taken with the seriousness to focus allow finder fact against happens, if it and balanced the landowner has exercised must the circum- interest landowner] care under all [the “reasonable Accord, Christian, ; Note, supra 29, supra, (1959) N.Y. 41. v. note Rowland 44, 426; Note, supra 105, note 443 P.2d at U.L.Rev. likelihood “[The] U.Colo.L.Rev. 167. consequent probability presence, with its Compare Podwats, v. N.J. Benedict harm, proper . basis (S.Ct.N.J.1970), with 271 A.2d 417 . . .” 2 & James Service, U.S.App. Cook, Inc. v. Solon | 27.9 Kinney (1955) ; D.C. F.2d have considered Califor- Courts Pa. v. Sun Oil 80, adoption principles have of these nia’s Rite Su- 262 A.2d Scottish rejecting compelling no reasons cited preme U.S.App. Jacobs, 105 Council v. them. D.C. 266 F.2d 675 appellate stated lower Florida A Benja Writings only Selected “foresee difficulties” it could Lunney (Hall approach.” v. min Nathan Cardozo 170-72 case “case 1947) ; Note, Post, Ed. 44 N.Y.U.L.Rev. So.2d ; Jersey queried (1969) Mahoney, if Bowles v. 91 U.S. New dissenter One 155, 161-163, injured party App.D.C. an the status bearing (1952), denied, of lia- 326-328 cert. U.S. “element (1953) explained bility,” 97 L.Ed. 719 this was how returning Bazelon). (dissenting opinion Judge practically without Podwats, concept? v. Benedict status Realty Javins First National Cf. (dis- n. 1 at 418 271 A.2d Corp., J.) prob- Hall, senting opinion This (1970). Compare Note, 41 U.Colo. formulating rele- is handled lem (1969), L.Rev. with the Colorado Su- plain- vancy aof of the circumstances High preme Court’s decision Mile strictly entry fore- in terms of the tiff’s Radovich, supra Fence Co. p. seeability presence. P.2d 308. infra. judges California cited the have fewA U.S.App. Jacobsen, 45. Hecht v.Co. Cf. approval: decision D.C. F.2d N.W.2d v. & Ives Swift opin- (concurring 1971) (S.Ct.Iowa agree 46. Commentators such standards Caponi, Becker, J.) ; Hughes, v. applied. Di Cíildo of should be See Duties ion Trespassers: Survey N.E.2d Comparative 2d 18 Ohio St. to A J.). (1969) (Schneider, Revaluation, n. 2 68 Yale L.J. “types” property-owners,50 such risk,”47 these of avoid to sacrifice prolong the also a distinction would jury instructed. should be so by duty squabbles home- over the owed Thus, not hold we do building inspec- firemen vs. owners to their now insurers landowners property,48 tors, vs. habitu- to door-to-door salesmen un endure must or that help guests who social al to it.49 We maintain to reasonable burdens housekeeping those who vs. with the an entrant status of hold that do exceedingly seem don’t51—all of which solely determi is not onto the attempts circum- fit awkward to duty him. owed of care native of law life into common of modern stances course, the circumstances Of categories. entry to relation the visitor’s have some Furthermore, the harsh results which liability. Fore of landowner upon applica- predicts the concurrence presence seeability deter visitor’s of the care standard of reasonable tion injury part the likelihood mines of limited means to homeowners him, of the interest and the extent apartment occur. need never dwellers avoid sacrificed to which must be flexibility retained is sufficient There injury. risk of what is reasonable the determination of “under circumstances” all the status think Nor do we that the In cer- to avoid undue exclusively harshness. de of the should landowner Judge be, well tain there cases duty to those fine the of care he owes hold, “rough common concurring Leventhal would property. The who enter his host should notion that a sense” to the suggests apply opinion that we stand guests greater of his social no take cir under all the ard “reasonable care family. so, If of his own than es business cumstances” to owners of “reasona- host’s conduct can find the the common tablishments but retain might hand, theOn other ble.” duties for owners classifications and care- must be more host creating consider that a Beyond property. residential no notice who have those drawing ful towards problems lines .between new against dangers born of the activities Conway O’Brien, 47. v. be found But can X). (2d 1940) (L. Hand, [others]. Cir. haz- a [visitor]-created in relation to 48. fear of This seems to the consistent only known, or because if it ard grocery lias re- store owners. This been discov- have its duration should negli- peatedly stated that the elements oppor- ered, fair in time to afford a plain- gence be established before must (Footnotes tunity remove it. Thus tiff will be entitled to recover. omitted). Seganish what stated in v. District we And, course, contribu- the defense of Safeway Stores, Inc., Columbia always tory negligence to the available 119-120, U.S.App.D.C. landowner. duty fully 655-656, F.2d at defines charged should also one model of an landowner expected to “assume landowners are not jury: struction for a which are unreasonable burdens of care of the A is not an insurer [landowner] expense light diffi- of the relative [property]. His of bis condition weighed against culty keep them as is to care to exercise probability fore- of the and seriousness property] safe view of the fore- [his [in Daisey v. harm to others.” seeability presence seeable of others of the ” Parking, Inc., course, Colonial responsible, land]. his He is injuries resulting risks created personally employees. More- Lunney Post, supra obligation over, extends of due care (member of Garden 248 So.2d inspection supervision and to reasonable private injured during tour of home Club identify protect of the opened gratuitously home Club against perils potential view [in owner) . injury probability For others]. Podwats, liability may spring reason, Benedict also safeguard negligent A.2d failure Also, dangers any the value exploitation a landowner’s what of unrestricted or defects. property might of the other. maintenance on a “reasonable” be may require respect, overly all believe With I this for one homeowner burden simplifies issues. What is ultimate- sacrifices We unreasonable another. ly “people” not versus in the ab- issue here is these standards cannot set “property,” cru- but rather how to allocate All these considerations stract. jury’s de- costs of loss of the and risk for human evaluation cial to gree jury. “under all the demanded specific situation. circumstances” change in the Those who advocate by the All three factors to be balanced governing persons rules jury likelihood and seriousness controlling property frequently —the re- real required injury, to and the sacrifice ne- fer to the commercial and industrial practically not sus- risk—“are avoid the strong life, cessities of modern estimate, any quantitative ceptible of pastoral yes- from the life differences generally so, not and the second two are teryear. completely as I convinced am theoretically. reason a so- even For this policy lead which would to reasons always preference, some lution involves an end to the dif- to announce incommensurables, or choice between possessor land ferential of a duties consigned because is to a respect invitees with licensees, thought likely most their decision is where the land is used accepted commonly stand- accord I so business am not establishment. ards, real or fancied.” sweep ma- clear as to the jority’s broader myself rule. I therefore limit we see our task this field as Since concurring sepa- result, in the and to being promotion of the resolution my rate statement of reasons. disputes according to commu- nity acceptable behavior, it standards use of the common distinc- proper no more for us to dictate is respect tions with to business establish- govern what standards owners because, ments is mischievous gov- property residential than what establishment, context it is of a business property. The erns owners of business reasoning impossible generally tell the almost today of our decision admits trespassers licensees, or either from the landowners, of no distinctions between from the invitees. If a man scales any land- since what is “reasonable” my yard a short- fence and uses back owner, necessity, varies with cir- difficulty cut, saying I -in he have little every case. cumstances each my premises trespasser, is a without my But if he takes a shortcut consent. Accordingly, appellant Smith through store, my parking lot or classi- entitled a new trial at which the fication is beclouded. While a business- Arbaugh’s owed him is instructed that prefer his man not duty maintaining its thoroughfare, does value used as a he reasonably a condition safe under all the goodwill individuals, prospective often circumstances. baugh’s Ar Whether good- totality, In the such customers. duty is for the breached this prob- will is a asset. Given the business jury to resolve. anyone ambiguity of the status of able Reversed remanded. property, business I am satisfied proper rule in such circumstances LEVENTHAL, Judge, Circuit concur- gives one which broad latitude general ring: to affix under a stand- majority understands to ard of the cir- case reasonable care all of pose a clear conflict in values: value cumstances I assume it case. safety hand, of human on the one understood that “circumstances” Conway O’Brien, 111 F.2d at 612. legal legal duty, trespass holder has no as to the factual include re- the case Presumably entering consent, fill ers without his parties. lationships up tidy up prop awarding holes and verdicts otherwise not be the burglars. will erty reasonably con that it is in safe so though concep this a broad dition— tion underscores A factor which second subject exceptions*. limited I do change estab- to business of rule as principles not “awkward find these of loss-distribu- is the matter lishments modern in. circumstances of harms of foreseeable tion. The costs “accepted contrary life” or values context, can, distributed in a business Perhaps my experience.” diffi among of insur- all customers means culty is that I have not studied these ance self-insurance. problems deeply enough. then, they But However, capa- loss-distribution bar, are not in the case at involved bility necessarily apply in non- does argued. were not occupier of situations. The business position residential is not in a to distribute either costs of foreseea-

ble los'ses or the cost insurance

against He must those bear such losses.

costs himself.

Today’s exposes many decision less-af-

fluent homeowners—whose modest home represents major capital their asset— al., G. S. Appellants, LEONARD et apartment dwellers, to lawsuits not previously permitted, where no there is BHJK CORPORATION. sliding rug. concealed defect—e. It No. 71-1440. may insuring increase the costs of against risks, may such and it increase United Appeals, States Court of insuring the risks of not at all. This District of Columbia Circuit. may public policy. not be sound Fur- Argued June thermore, may the rule be unwise inso- Sept. Decided permits far recoveries, as it where in- available, surance too-ready with the acquiescence of the owner or resident of apartment. broad, home In the I am concerned that this rule of law redressing furnish incentives for through litigation,

loss and a corre- sponding persons disincentive for to in- against

sure themselves losses due to personal injury. As to premises, residential I while see good places case for a rule that busi

ness and social visitors on the same

footing, rough I also discern some com

mon-sense in the notion that a social guest, broadly, takes is, a host as he ex

pecting that the host will take as much guest

care himself, he takes of point

and that he will out latent defects. certainly I rough see some common

sense in the broad notion that a house

* Compare (Second) Restatement Torts 333-339. §§

Case Details

Case Name: Ralph D. Smith and Thelma Smith v. Arbaugh's Restaurant, Inc., a Body Corporate

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Jan 5, 1973

Citation: 469 F.2d 97

Docket Number: 23748

Court Abbreviation: D.C. Cir.