# Mounsey v. Ellard

> Massachusetts Supreme Judicial Court · June 6, 1973 · 363 Mass. 693

URL: https://www.frixlaw.com/law-library/cases/9523587

## 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:** Concurrence by Kaplan
- **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/9523587

## 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

Kaplan, J.
(concurring). I go along with the court but I am taken somewhat aback by footnote 7 which seems unfaithful to the rest of the opinion. The court holds that the measure of responsibility of an occupier should no longer depend on whether the injured person is characterized as a “licensee’ rather than an “invitee,” or vice versa; the question is to turn on other, more vital factors. But footnote 7 seems to say that “trespassers” stand apart, that that characterization is to remain decisive or highly influential. This tends to perpetuate, although on a smaller scale, the kind of tradition-bound and mistaken analysis that I had supposed the court was aiming to correct. For it is sometimes just as hard to *718 distinguish trespassers from licensees or invitees, as to distinguish licensees from invitees; and the class of trespassers is probably just as various as either of the other classes. The very effort at dry classification and differentation puts the emphasis at the wrong places. Thus it is awkward to leave the suggestion that the basic reasoning of the court’s opinion may stop short of so called trespassers. See Rowland v. Christian, 69 Cal. 2d 108 , and note the unsatisfactory condition of English law as to trespassers after they were excluded from the Occupiers’ Liability Act, 1957 (mentioned in footnote 8). Millner, Negligence in Modern Law, c. 1, p. 11, c. 2, pp. 47-54 (1967). North, Occupiers’ Liability, c. 11 (1971). Herrington v. British Rys. Bd. [1971] 2 Q. B. 107, affd. sub nom. British Rys. Bd. v. Herrington, [1972] A. C. 877.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9523587. Public record. Not legal advice.