# Mounsey v. Ellard > Massachusetts Supreme Judicial Court · June 6, 1973 · 363 Mass. 693 URL: https://www.frixlaw.com/law-library/cases/9523586 ## Case - **Full name:** Wilbur M. Mounsey vs. Robert P. Ellard & Another - **Court:** Massachusetts Supreme Judicial Court - **Decided:** June 6, 1973 - **Citations:** 363 Mass. 693; 297 N.E.2d 43; 1973 Mass. LEXIS 440 - **Precedential status:** Published - **Opinion:** Concurring in part by Quirico - **Judges:** Tauro, Reardon, Quirico, Braucher, Hennessey, Kaplan, Wilkins - **Cited by:** 289 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9523586 ## How later opinions describe it (automated extraction) - finding that occupier of land owes a duty to police officer who fell on an accumulation of ice caused by a defect in the drainage system - explaining that the duty of care is defined in part by the likelihood of injury ## Opinion text Quirico, J. (concurring in part and dissenting in part, with whom Reardon, J., joins). The plaintiff seeks recovery from each of two defendants (presumably husband and wife) for personal injuries sustained by him as a result of the defendants’ alleged negligence, gross negligence, and wilful, reckless or wanton conduct. The sole question before this court is whether the trial judge properly directed verdicts for the defendants on all counts after counsel for the plaintiff stated the following facts in his opening statement. The defendants owned a two year old house which was equipped with gutters to catch water from the roof. There were leaders to carry water out of the gutters, but there were no drainpipes to carry the water from the leaders down to the ground for underground disposal. The gutters were broken in some places. The water from the roof fell from those breaks and from the leaders to the ground where it froze. The plaintiff, a police officer acting in his official capacity, went to the house and there served a summons for a motor vehicle parking violation on one of the defendants. On his way from the house to the street the officer was caused to fall and sustain injuries by reason of ice thus accumulated on the defendants’ property. I concur with that part of the opinion of the court holding that the opening statement “was devoid of any facts *711 which would have warranted a jury finding of gross negligence or wilful, wanton and reckless conduct,” and that the judge properly directed verdicts for the defendants on the counts making those allegations. In directing verdicts for the defendants on the two counts alleging ordinary negligence the judge acted on the basis of the law as heretofore stated and applied by this court in Creeden v. Boston & Maine R.R. 193 Mass. 280, 283 , Brennan v. Keene, 237 Mass. 556, 561 , Brosnan v. Koufman, 294 Mass. 495, 501 , Wynn v. Sullivan, 294 Mass. 562, 564-565 , Aldworth v. F. W. Woolworth Co. 295 Mass. 344, 347-349 , and Carroll v. Hemenway, 315 Mass. 45, 46 . All of these cases state or apply the rule that the status of a police officer or fireman who goes upon the property of another in the performance of his official duties is that of a licensee and that, therefore, he is not entitled to recover for injuries caused to him by the negligence, of the owner or occupant of that property. Compare Parker v. Barnard, 135 Mass. 116 . ' The plaintiff asks in his brief that this court (a) change the rule described above and now “define the status of the plaintiff in his cause to be that of a business invitee,” and (b) hold “that the allowance of the defendants’ motion [for directed verdicts] was error and the case should be remanded for trial.” The court grants the plaintiff’s ultimate request for a new trial. In reaching that conclusion the court discusses at some length the opinions in Learoyd v. Godfrey, 138 Mass. 315 , Toomey v. Sanborn, 146 Mass. 28 , and Gordon v. Cummings, 152 Mass. 513 . It then states that these three cases “provide ample authority for holding in the instant case that the plaintiff was an implied invitee to whom the defendants owed a duty of reasonable care to keep the route of access to their premises in reasonably safe condition. ... At the very least, these three cases have established the occupier’s and landowner’s obligation to keep the access routes to his house in reasonably safe condition for those who are required to use them in the performance of their official duties. . . . Thus, we *712 could rest our decision in the instant case on the narrow ground that the plaintiff was an implied invitee to whom the defendants owed a duty to keep the route of access to their premises in reasonably safe condition” (emphasis supplied). I would (a) eliminate the word “could” from the last sentence quoted above from the court’s opinion, (b) expressly overrule the Creeden, Brennan, Brosnan, Wynn, Aldworth and Carroll cases, all supra, in their holdings that a police officer or fireman is a licensee when on private property in the performance of his official duties, and (c) treat that as the end of the holding in this case. On this basis I would concur with the court’s order sustaining the plaintiff’s exceptions to the direction of verdicts for the defendants on counts 1 and 4 based on negligence, and overruling his exceptions as to all other counts. My concurrence is limited to the part of the opinion and to its conclusions described above. However, the opinion does not stop there. It continues with a lengthy discussion of difficulties which have resulted from rules described as having been developed “in a rural society with sparse land settlements and large estates,” but which “cannot be justified in an urban industrial society,” and which allegedly make the right of a person injured on the land of another dependent on an “archaic and rigid classification system” which attempts to label all such persons by “arbitrary categories” of either invitees, licensees or trespassers. The opinion refers to the judicial distinction between invitees and licensees as an “ancient and largely discredited common law distinction which favors the free use of property without due regard to the personal safety of those individuals who have heretofore been classified as licensees.” After completing its discussion of the present rule and of difficulties involved in its application, the court declares a broad rule, new to the jurisprudence of this Commonwealth, in the following language: “Therefore, we no longer follow the common law distinction between licensees and invitees and, instead, create a common *713 duty of reasonable care which the occupier owes to all lawful visitors. . . . Cases which adhere to a contrary rule are no longer followed.” I am unable to agree with the use of the present case as the vehicle for the promulgation of such a broad new rule of law which purports to have application beyond what I believe to be the scope and necessities of the present case. In this respect my position is similar to that which I expressed in my separate concurring and dissenting opinion in Boston Housing Authy. v. Hemingway, ante, 184, at 206 and 219-220. In this connection it may be appropriate to call to mind the following frequently repeated statement made by Chief Justice Marshall in 1821 in Cohens v. Virginia, 6 Wheat. 264, 399-400 , with reference to his own earlier opinion in Marbury v. Madison, 1 Cranch 137 : “It is a maxim not to be disregarded, that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision. The reason of this maxim is obvious. The question actually before the Court is investigated with care, and considered in its full extent. Other principles which may serve to illustrate it, are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated.” O’Donoghue v. United States, 289 U. S. 516 , 550. Humphrey’s Exr. v. United States, 295 U. S. 602, 627 . Swan v. Superior Court, 222 Mass. 542, 545 . Consistent with what I have said above to be my view of the limitation of the decision of this case, I continue, under the clear label of dictum, with a discussion of the rules of law under consideration. 1. Without subscribing to the court’s characterizations of the present system of classifying all persons who enter the property of others as either invitees, licensees or trespassers, I agree that some phases of the present law on this subject deserve the court’s attention and reconsidera- *714 tian. This is particularly true with respect to some of our decisions which have made further distinctions between various “invitees” with a resulting proliferation of subclassifications such as the following: “business invitees,” “business visitors,” “invitees conferring a benefit on invitors,” “social invitees,” “social guests,” “social visitors,” “gratuitous invitees,” “gratuitous social guests,” and perhaps other even more subtle distinctions. See Massaletti v. Fitzroy, 228 Mass. 487 , Comeau v. Comeau, 285 Mass. 578 , Zaia v. “Italia” Societa Anonyma di Navigazione, 324 Mass. 547 , Taylor v. Goldstein, 329 Mass. 161 , and Tomaino v. Newman, 348 Mass. 433 . In decisions too numerous to cite, this court has held consistently that an invitor is not liable for negligence causing injuries to his “social invitee,” “social guest,” “social visitor,” “gratuitous invitee,” “gratuitous social guest,” or his ‘invitee” who did not confer a benefit on him. The result in those cases was the same as that reached in cases involving licensees as distinguished from invitees. It was unfortunate, but perhaps inevitable, that this court would at some point appear to equate these types of nonbusiness invitees with licensees. This appears to have happened in Pandiscio v. Bowen, 342 Mass. 435, 438 , which held that, where a daughter was injured while helping her mother put up some curtains at the mother’s home and at the mother’s invitation, “the daughter’s position, in respect of her mother, was that of a licensee or social guest.” That was probably not intended to be a holding that the daughter was not an “invitee” but rather that as a “social guest” the daughter could no more recover from her mother than could a “licensee.” The Pandiseio decision is not the first in which a court has appeared to treat a social guest as a licensee. The problem existed at least as early as 1892, as indicated by the following language in our decision in Hart v. Cole, 156 Mass. 475 , 477-478: “[W]hether an implied invitation to come as a guest for friendly intercourse can create a liability greater than that to an ordinary licensee, it is *715 not easy to decide. No case in this country involving these questions has been brought to our attention. In Southcote v. Stanley, 1 H.&N. 247, it is said, in substance, that the liability of an owner of a dwelling-house to a visitor who is there on his express invitation is no greater than that to a licensee. ... In the late case of Indermaur v . Dames, L. R. 1 C. P. 274, . . . [the court] treats a guest as a mere licensee. .... It seems to be the rule in England, that an ordinary guest in a dwelling-house, although expressly invited, has no greater rights than a licensee.” The time may well be at hand when, in a case raising the issue, we should discard many, if not all, of the distinctions which our decisions have made between business invitees and other invitees and hold that an invitor owes to his invitee, whether business or social and whether invited expressly or impliedly, the duty to exercise reasonable care to maintain the premises covered by the invitation in a reasonably safe condition in all the circumstances. 2. The next question is whether the time is at hand to go further and declare, as the court purports to declare today, that under the law of this Commonwealth the rule governing the liability of owners or occupiers of real estate to their invitees who are injured thereon shall also apply to licensees who are injured thereon. I do not believe that it is. In thus enlarging the liability to licensees, this court appears to have adopted and subscribed to much of the language contained in the opinion in Smith v. Arbaugh’s Restaurant, Inc. 469 F. 2d 97 (D. C. Cir.), where the facts were very much like those of the present case, and to have assumed that case to be a precedent for such an enlargement of liability. There the plaintiff was a health inspector. He was injured in a fall on stairs on the defendant’s premises which he was then inspecting in his official capacity. There the court reviewed the common law rule on the liability of the owner or occupant of land toward invitees, licensees and trespassers injured *716 thereon, criticised the rule, concluded, at p. 101, that these classifications are “alien to modern tort law, primarily because they establish immunities from liability which no longer comport with accepted values and common experience,” and then purported, at p. 102, to declare a new rule requiring “reasonable care under all the circumstances,” apparently applicable to all three categories of injured persons. That is the same rule which this court in the present case is apparently declaring applicable to all invitees and licensees, reserving for future consideration its applicability to trespassers. In deciding Smith v. Arbaugh’s Restaurant, Inc., supra, the court assumed that the plaintiff was an invitee at the time and place of his injury. It said, at p. 99, fn. 3, that “[i]n Smith’s case, although the precise question does not seem to have been decided in the District of Columbia, ... it is generally the rule that health inspectors are business invitees. See 2 F. Harper and F. James, The Law of Torts, § 27.12 at 1482 (1956).” It said further, at p. 100, that “[o]nly for the invitee must the landowner exercise ordinary care and prudence to render his premises reasonably safe for the visit,” citing in support thereof the cases of Arthur v. Standard Engr. Co. 193 F. 2d 903, 905 (D. C. Cir.), cert. den. 343 U. S. 964 , and Schwartzman v. Lloyd, 82 F. 2d 822 (D. C. Cir.). Since the court assumed that Smith was a business invitee, and the law of the District of Columbia already permitted a business invitee to recover for injuries caused by the negligence of the owners or occupants of premises, it is difficult to understand how anything which the court said about changing the law on the rights of licensees was either necessary to the decision or a part of its holding. After stripping the opinion in Smith v. Arbaugh’s Restaurant, Inc., supra, of its dictum, some of which is reminiscent of language in Javins v. First Natl. Realty Corp. 428 F. 2d 1071 (D. C. Cir.), and exposing the limited holding in the case, the opinion is of questionable value as a claimed precedent to support the broad exten *717 sion of the rule of liability to invitees to cover licensees. Such a fundamental change in our law should rest on a stronger foundation than the dictum of the Smith case. 3. The present case was argued by both sides before this court on the assumption that our law was as stated most recently on April 3, 1972, in Huska v. Clement, 361 Mass. 522, 523 , that “[t]he plaintiff’s right to recover for ordinary negligence is dependent upon his status as an invitee,” and that if he was a licensee he could not recover. They did not ask us to change that rule. The plaintiff asked only that his client be held to be an invitee and not a licensee when he was injured. The court acknowledges that this case could be decided in favor of the plaintiff on that basis, but instead it establishes a new rule of liability to licensees. The briefs and oral arguments before this court did not concern themselves with such a rule. From that I think we may assume that the parties did not consider the case as involving the issue of extension of liability to licensees. If such a fundamental change in our law is otherwise desirable, it should more appropriately be accomplished in a case in which the issue is raised, in which the court has the benefit of briefs and arguments directed specifically thereto, and in which the court can better weigh and consider the far reaching implications and consequences of such a change. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9523586. Public record. Not legal advice.