Alexander v. Medical Associates Clinic

STREIT, J.,

concurring specially.

This case involves an innocent trespasser seriously injured by what ordinarily might be considered negligent conduct if the landowner had a duty of reasonable care. The majority imposed no duty of care upon the landowner, however, because of Alexander’s status as a trespasser. I disagree with the majority’s conclusion. Though this case is a potential illustration of the injustice of the majority’s holding, Alexander did not demonstrate he is entitled to a trial. His resistance to the Clinic’s motion for summary judgment failed to generate sufficient facts to support his assertion that, even under the California standard, the Clinic owed him a duty of care.

Despite the majority’s comfort in going with the “prevailing belief,” I believe today’s modern times present circumstances in which injustice will result from the application of our current land-entrant classification system. The horror stories alluded to by the majority concerning cases of trespassing California criminals recovering for premises injuries is misplaced and unfounded. Under the reasonable care criteria first discussed by the four justices in Sheets, such an extreme would not happen. The continuation of the status classification system is not different from the by-gone days of contributory negligence where a plaintiff was barred from recovery for the slightest negligence on his or her part. See Goetzman v. Wichern, 327 N.W.2d 742, 753-54 (Iowa 1982), superseded by statute as stated in Slager v. HWA Corp., 435 N.W.2d 349 (Iowa 1989) (In response to Goetzman, the legislature enacted a modified form of comparative fault in Iowa Code chapter 668 which retained the essential character of comparative fault lim *86 iting it only to the extent that a plaintiff whose fault is greater than the combined fault of the defendant(s) cannot recover. See 1984 Iowa Acts ch. 1293, § 3 (codified as amended at Iowa Code § 668.3 (1986))). In Goetzman , we considered both “current ‘social and economic customs’ and modern ‘conceptions of right and justice.’ ” Id. (quoting Hoffman v. Jones, 280 So.2d 431, 436 (Fla.1973)). In so doing, we concluded the adoption of comparative fault was necessary to ameliorate the harshness of the “all or nothing” approach of contributory negligence and to achieve fairness for all involved parties. Goetzman, 327 N.W.2d at 749 . To use the status of the plaintiff to determine duty was wrong then and is wrong now.

The common law enforced such distinctions with land because, at that time, land was considered predominant over life. Using status as the litmus test in premises liability was perceived as necessary because landowners were not able to inspect and make safe distant property. And while these distinctions “may have provided a just disposition in England when the culture was deeply rooted to the land and tied to a heritage Of feudalism, we must consider whether the distinctions do justice in an industrialized urban society.” Wal-Mart Stores, Inc. v. Garza, 27 S.W.3d 64, 69 (Tex.Ct.App.2000). Unlike feudal England, jurors today are more likely to be landowners and able to recognize the limitations a landowner faces in protecting his or her property. Tab J. Keener, Can the Submission of a Premises Liability Case Be Simplified? 28 Tex. Tech. L.Rev. 1161,1172 (1997).

By eliminating status as the determinative factor, we would not eliminate it altogether from our consideration of whether a particular landowner satisfied the appropriate standard of care. Rather, we should maintain the traditional classifications of licensee, invitee, and trespasser as but only one factor in a multi-step analysis of premises liability.

Moreover, abolishing this trichotomy would not leave the judge or jury without standards upon which to judge a landowner’s conduct. The principle I now advocate to apply in premises liability actions has long been the standard governing personal negligence. The trier-of-fact would have the opportunity to weigh various factors to determine the requisite duty of care under the particular circumstances of each case. Among the factors to consider are:

1) foreseeability or possibility of harm;

2) purpose for which the entrant entered the premises;

3) time, manner, and circumstances under which the entrant entered the premises;

4) use to which the premises are put or are expected to be put;

5) reasonableness of the inspection, repair, or warning;

6) opportunity and ease of repair or correction or giving of the warning; and

7) burden on the land occupier and/or community in terms of inconvenience or cost in providing adequate protection.

Sheets v. Ritt, Ritt & Ritt, Inc., 581 N.W.2d 602, 606 (Iowa 1998). The majority is concerned with the interests of the landowner above all else. However, the analysis above does not favor the trespasser over the landowner. In fact, this analytic framework functions as a restriction on a landowner’s liability as it forces the trier-of-fact to consider foreseeability of the harm and the reason for and circumstances surrounding the trespasser’s entry. Furthermore, to characterize a general duty of ordinary care as a “one-rule-fits-all approach” minimizes the balance *87 the duty of reasonable care strives to achieve. Such a label is a more fitting description of the majority’s approach where they could not imagine a situation in which a landowner owed a duty of care to someone unexpectedly finding herself in a hazardous situation.

The majority claims the duty of care a landowner owes a trespasser under our present system “strikes an appropriate balance between the interests of the landowner and the trespasser.” Despite references to this so-called “reasonable balance,” the majority opinion is devoid of any discussion of what consideration we may give to the trespasser under a common law rule. Perhaps this discussion is missing because the rigid classification system does not permit balancing of competing interests. It is an examination of only one interest — the interest of the landowner. It does not consider the interests of a trespasser under any circumstances. There is no room for balance in a test that merely determines a land entrant’s status as a trespasser and accordingly concludes the landowner owed the trespasser the narrow duty of care not to injure the trespasser maliciously or deliberately.

Surely the majority can imagine circumstances under which even a trespasser is owed a modicum of care. On the other hand, it is not difficult to conjure up extreme horror stories where it would be wholly unjust to impose any liability on the landowner. But in doing so, we ignore the vast gray area of cases where, despite the landowner’s negligent or even reckless conduct, we impose effectively no duty of care upon the landowner. The analysis I advocate takes into consideration a multitude of factors allowing the trier-of-faet to arrive at the most just resolution, especially where the facts are close regarding the entrant’s technical status. To satisfy the overall duty of care standard, a landowner is not required to eliminate any and all dangers on the property. Rather, the ordinary standard of care is to take steps to avoid only foreseeable, unreasonable risks. Herein lies the true balance, as the landowner is not required to do anything more than to act with reasonable care under the circumstances.