# Washington v. Atlantic Richfield Co.

> Illinois Supreme Court · November 15, 1976 · 66 Ill. 2d 103

URL: https://www.frixlaw.com/law-library/cases/9731056

## Case

- **Full name:** IRA WASHINGTON Et Al., Appellees, v. ATLANTIC RICHFIELD COMPANY Et Al., Appellants
- **Court:** Illinois Supreme Court
- **Decided:** November 15, 1976
- **Citations:** 66 Ill. 2d 103; 5 Ill. Dec. 143; 361 N.E.2d 282; 1976 Ill. LEXIS 473
- **Precedential status:** Published
- **Opinion:** Dissent by Dooley
- **Judges:** Schaefer, Dooley, Crebs
- **Cited by:** 39 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9731056

## Opinion text

MR. JUSTICE DOOLEY, dissenting:
The issue presented by this appeal, as we see it, is the status of a fireman lawfully on the premises fighting a fire at a place where he might reasonably be expected to be. To differentiate between “acts of negligence which might have been contributory causes of the fire” and “negligence in the failure to maintain the premises in a safe condition” is an artificial and meaningless distinction in the law of torts. Moreover, it appears anomalous to say that “the opinion [Dini v. Naiditch (1960), 20 Ill. 2d 406 ,] gives support to plaintiffs’ position” and that “[d] ecisions [of appellate courts] subsequent to Dini, however, have not so interpreted it.”
This court should not look to appellate court opinions for an issue it itself has decided. Yet, it is to the opinions of an intermediate court of review that the majority refers us.
We are constrained to note the reference of the majority to Fancil v. Q.S.E. Foods, Inc. (1975), 60 Ill. 2d 552 , and reference to the risk as one “inherent in the occupation.” This court has on many occasions announced that the assumption of risk concept is confined to negligence actions involving a contractual or employment relationship. (See Pennsylvania Co. v. Backes (1890), 133 Ill. 255, 262 ; Chicago & Eastern Illinois R.R. Co. v. Randolph (1902), 199 Ill. 126, 131 ; B. Shoninger Co. v. Mann (1905), 219 Ill. 242, 266 ; Conrad v. Springfield Consolidated Ry. Co. (1909), 240 Ill. 12, 17 ; O’Rourke v. Sproul (1909), 241 Ill. 576, 580 , Barrett v. Fritz (1969), 42 Ill. 2d 529, 534 .) We refer to negligence actions as distinguished from strict liability in tort cases, where, of course, assumption of risk may be an affirmative defense. Williams v. Brown Manufacturing Co. (1970), 45 Ill. 2d 418 .
In Barrett, it was pointed out how most legal writers urge the abolition of this concept. See James, Assumption of Risk, 61 Yale L.J. 141 , 169 (1952); Wade, The Place of Assumption of Risk in the Law of Negligence, 22 La. L. Rev. 5 (1961); Prosser, Torts sec. 67, at 456 (3d ed. 1964); 2 Harper & James, Torts 1191 (1956) and 2 Supplement 119 (1968); Green, Assumed Risk as a Defense, 22 La. L. Rev. 77 (1961).
Professor James, in both his texts (2 Harper & James, Torts 1191-92 and 2 Supplement 119), and in 61 Yale L.J. 141 , 169, makes this observation:
“Except for express assumption of risk, therefore, the term and the concept should be abolished. It adds nothing to modern law except confusion. For the most part the policy of individualism it represents is outmoded in accident law; where it is not, that policy can find full scope and far better expression in other language.”
Even if considered viable, assumption of risk depends upon the presence of each of the following factors: (1) There is no assumption of the risk of another’s negligence; (2) there must be a voluntary exposure to a given danger; and (3) there must be knowledge of the risk involved. Stated otherwise, there must be a willingness to expose oneself to the particular risk.
As we have observed, this case turns on whether a fireman, on duty at a place on the occupier’s premises where he might reasonably be expected to be, is a licensee or invitee. In Dini v. Naiditch (1960), 20 Ill. 2d 406 , this court expressly overruled “the archaic licensee concept” to which firemen had previously been consigned. ( 20 Ill. 2d 406, 417 .) On the contrary, it announced the duty of reasonable care and stated:
“Inasmuch as firemen obviously confer on landowners economic and other benefits which are a recognized basis for imposing the common-law duty of reasonable care (Restatement, Torts, sec. 343a; Harper, Torts, sec. 96; Prosser, 26 Minn. L. Rev. 573 , 574; 35 Mich. L. Rev. 1161 ), we would agree with the court in the Meiers case [ 229 N.Y. 10 , 127 N.E. 491 ], and with its adherents, that an action should lie against a landowner for failure to exercise reasonable care in the maintenance of his property resulting in the injury or death of a fireman rightfully on the premises, fighting the fire at a place where he might reasonably be expected to be.” ( 20 Ill. 2d 416 -17.)
Obviously, a fireman has the status of invitee.
As if that were not enough, there are the allegations of violations of ordinances and laws. These were considered in Dini “as a second basis of liability.” ( 20 Ill. 2d 406, 417 .) There it was held that certain safety ordinances embraced firemen. We see no reason why firemen should not come within the ambit of laws concerning fire protection. The majority opinion not only departs from Dini, but takes a Paul Bunyan step backwards.
Here is put in focus the need to consider that departure from negligence principles through the label given the person on the property.
The common law distinctions between trespasser, licensee and invitee had their origins in a culture whose standards were a heritage of feudalism. According to Professor Bohlen, in his Studies in the Law of Torts 163 (1926), the concept was “that the owner was sovereign within his own boundaries, and as such might do as he pleased on or with his own domain.”
With the multiple industrial accidents which were part and parcel of the Industrial Revolution, negligence principles not only had a new stimulus, but a far broader acceptance. Courts of the mid-Victorian era are generally regarded as the genesis of the three classifications of visitors — trespasser, licensee and invitee. Sweeny v. Old Colony & Newport R.R. Co. (1865), 92 Mass. (10 Allen) 368 , and Indermaur v. Dames (C.P. 1866), 14 L.T.R. (n.s.) 484, aff’d (Exch. Ch. 1867), 16 L.T.R. (n.s.) 293.
Urban society with its close-living conditions gave rise to new individual and economic relationships. Inroads in the classical, common law categories became a necessity. Today the status of the person is not dependent on his relationship to property. “Through this semantic morass the common law has moved, unevenly and with hesitation, towards ‘imposing on owners and occupiers a single duty of reasonable care in all the circumstances.’ ” Kermarec v. Compagnie Generale Transatlantique (1959), 358 U.S. 625, 631 , 3 L. Ed. 2d 550, 555 , 79 S. Ct. 406, 410 .
It has been observed that complexities and confusion have resulted not from the application of the original common law rules, but from “attempts to apply just rules in our modem society within the ancient terminology.” (Rowland v. Christian (1968), 69 Cal. 2d 108, 117 , 443 P.2d 561, 567 , 70 Cal. Rptr. 97, 103 .) As will be manifest herein, it was not until the 20th century that concern for human safety began to transcend the landowner’s freedom. As a result, exceptions were carved into the strict common law categories.
A trespasser is a person who goes upon the premises of another without invitation or permission. (Illinois Central R.R. Co. v. Eicher (1903), 202 Ill. 556 ; Darsch v. Brown (1928), 332 Ill. 592 .) The occupier of the premises owes a trespasser no duty until his presence on the premises is known. Then, that duty is not to wilfully or wantonly injure him. Morgan v. New York Central R.R. Co. (1927), 327 Ill. 339 ; Darsch v. Brown (1928), 332 Ill. 592 ; Briney v. Illinois Central R.R. Co. (1948), 401 Ill. 181 .
Eventually the harshness of this doctrine created exceptions, particularly in the case of minors. Where the occupier knows or should know that children habitually frequent the dangers existing on land and this is likely to cause injury to them, it becomes the duty of that occupier to exercise due care or otherwise protect the children from injury. Wagner v. Kepler (1951), 411 Ill. 368 ;McDermott v. Burke (1912), 256 Ill. 401 .
In Illinois the attractive nuisance doctrine was abolished with the advent of Kahn v. James Burton Co. (1955), 5 Ill. 2d 614, 624 , which exacted ordinary care by the occupier towards children whom he knew or might know would be on the premises.
The licensee was one upon the premises for his own purposes with the consent of the occupier and not for some purpose connected with the occupier’s activity or business. (Pauckner v. Wakem (1907), 231 Ill. 276 ; Milauskis v. Terminal R.R. Association (1919), 286 Ill. 547 ; Ellguth v. Blackstone Hotel, Inc. (1951), 408 Ill. 343 .) Towards the licensee the duty of the occupier was to refrain from wilfully and wantonly injuring him. (Illinois Central R.R. Co. v. Eicher (1903), 202 Ill. 556 ; Briney v. Illinois Central R.R. Co. (1948), 401 Ill. 181 ; Ellguth v. Blackstone Hotel, Inc. (1951), 408 Ill. 343, 347 .) To this duty there likewise arose exceptions. Where the occupier was guilty of active negligence, his duty became that of ordinary care. (See Moore v. Ohio Oil Co. (1926), 241 Ill. App. 388, 391 , and Ryan v. Chicago & Northwestern Ry. Co. (1942), 315 Ill. App. 65, 77 ; Kay v. Ludwick (1967), 87 Ill. App. 2d 114 .) So also is there the duty to disclose and warn licensees against hidden dangers of which the land occupier has knowledge. (Seipp v. Chicago Transit Authority (1973), 12 Ill. App. 3d 847 .) Such a failure to disclose may constitute wilfull and wanton misconduct. Schoen v. Harris (1969), 108 Ill. App. 2d 186 ; Hessler v. Cole (1972), 7 Ill. App. 3d 902 .
A social guest was owed no greater duty than was owed a licensee or trespasser. (Madrazo v. Michaels (1971), 1 Ill. App. 3d 583 ; Kay v. Ludwick (1967), 87 Ill. App. 2d 114 .) Witness, however, the expansion of the term “invitee” to embrace an aunt who came to help her niece in a house-moving project. (Madrazo v. Michaels (1971), 1 Ill. App. 3d 583 .) Other jurisdictions have abolished the social guest classification and hold the occupier to the duty of ordinary care. See, for illustrative purposes, Haffey v. Lemieux (1966), 154 Conn. 185 , 224 A.2d 551 , 21 A.L.R.3d 1091 (1968); Foster v. LaPlante (Me. 1968), 244 A.2d 803 ; Telak v. Maszczenski (1966), 248 Md. 476 , 237 A.2d 434 ; Beatty v. Dixon (Okla. 1965), 408 P.2d 339 ; Wood v. Camp (Fla. 1973), 284 So. 2d 691 .
To an invitee the occupier owed the duty to exercise reasonable care for his safety while on that part of the premises required for this purpose. (Paukner v. Wakem (1907), 231 Ill. 276 ; Geraghty v. Burr Oak Lanes, Inc. (1955), 5 Ill. 2d 153, 157 .) So also towards the invitee the occupier owed a duty of maintaining the premises in a reasonably safe condition. (Perminas v. Montgomery Ward & Co. (1975), 60 Ill. 2d 469, 471 .) Thus we have a series of labels, as well as exceptions to each. It was simple justice which dictated the exceptions.
It would seem that the time to abolish all labels is now. There is compelling authority for this position. In England, the distinction between licensee and invitee was abolished by statute in 1957 (Occupiers’ Liability Act, 5 & 6 Eliz. 2, c. 31, 55 20th Century Statutes 831). Hughes, in Duties to Trespassers: A Comparative Survey and Revaluation, 68 Yale L.J. 633 (1959), in commenting upon this statute observed:
“It [the duty of the occupier] ought not to be imported into the law as a categorical proposition, for the answer to the question of whether the defendant has discharged his duty should depend on the totality of the circumstances. The mechanical application of the traditional categories of visitor, and of such concepts as traps and unusual dangers, is a manifestation of [a] lamentable tendency *** >»
The English Law Reform Committee, out of which emanated this statute, concluded with these words: “[The present law embarrasses justice] ‘by requiring what is essentially a question of fact to be determined by reference to an artificial and irrelevant rule of law.’ ” McDonald & Leigh, The Law of Occupiers ’ Liability and the Need for Reform in Canada, 16 U. Toronto L.J. 55 , 65 (1965).
Rowland v. Christian, taking a cue from the United States Supreme Court in Kermarec, struck down the distinctions between trespasser, licensee and invitee, stating:
“There is another fundamental objection to . the approach to the question of the possessor’s liability on the basis of the common law distinctions based upon the status of the injured party as a trespasser, licensee, or invitee. Complexity can be borne and confusion remedied where the underlying principles governing liability are based upon proper considerations. Whatever may have been the historical justifications for the common law distinctions, it is dear that those distinctions are not justified in the light of our modern society and that the complexity and confusion which has arisen is not due to difficulty in applying the original common law rules — they are all too easy to apply in their original formulation — but is due to the attempts to apply just rules in our modern society within the ancient terminology.” 69 Cal. 2d 108, 117 ,' 443 P.2d 561, 567 , 70 Cal. Rptr. 97, 103 .
Rowland had far-reaching impact upon the law of occupiers’ liability. Consider the jurisdictions which adopted the Rowland teaching: Hawaii in 1969 (Pickard v. City and County of Honolulu, 51 Hawaii 134 , 452 P.2d 445 ); Colorado in 1971 (Mile High Fence Co. v. Radovich, 175 Colo. 537 , 489 P.2d 308 );in 1972 the United States Court of Appeals for the District of Columbia (Smith v. Arbaugh’s Restaurant, Inc., 469 F.2d 97 ); Rhode Island in 1975 (Mariorenzi v. DiPonte, Inc., 114 R.I. 294 , 333 A.2d 127 ); New Hampshire in 1976 (Ouellette v. Blanchard, 116 N.H. 552 , 364 A.2d 631 ); and New York in 1976 (Basso v. Miller, 40 N.Y.2d 233 , 352 N.E.2d 868 ).
It is the fundamental duty of courts to keep the common law current with the problems and mores of the day. It is this elasticity which has contributed in large measure to the majesty of the common law. The Rhode Island court succinctly described this duty of the judiciary:
“The time has come to extricate ourselves from a semantical quagmire that had its beginning in ancient and misleading phraseology. Mr. Justice Sutherland has emphasized the judiciary’s duty to bring the common law into accord with present day standards of wisdom and justice rather than to continue with some outmoded and antiquated rule of the past. [Citation.] The judiciary gave birth to the invitee, licensee, trespasser trio and the judiciary can lay this triptych to rest. Accordingly, we now give a final but fitting interment to the common-law categories of invitee, licensee, and trespasser as well as their extensions, exceptions, and extrapolations.” Mariorenzi v. DiPonte, Inc. (1975), 114 R.I. 294, 306-07 , 333 A.2d 127, 133 .
When it is considered that most of today’s population live in industrialized, urban communities, and that the social and economic relationships of the man of the day are both complex and close, the logic of abandoning the labels of trespasser, licensee, social guest, and invitee to history is compelling. See Smith v. Arbaugh’s Restaurant, Inc. (1972), 469 F.2d 97, 102-03 ; Ouellette v. Blanchard (1976), 116 N.H. 552 , 364 A.2d 631, 632 ; Kermarec v. Compagnie Generale Transatlantique (1959), 358 U.S. 625, 630 , 3 L. Ed. 2d 550, 555 , 79 S. Ct. 406, 410 ; Rowland v. Christian (1968), 69 Cal. 2d 108, 117 , 443 P.2d 561, 567 , 70 Cal. Rptr. 97, 103 .
Since it was the judiciary which was the genesis of these particular labels, it is the judiciary which must abolish them. The judiciary, it must be remembered, is the cartilage separating the old from the new tissue of the body politic.
Illinois has had experience with the reasonable care criterion in the case of trespassing minors. (Kahn v. James Burton Co. (1955), 5 Ill. 2d 614 .) Subsequent decisions have made manifest the workability of this teaching. Wilinski v. Belmont Builders, Inc. (1957), 14 Ill. App. 2d 100 ; Melford v. Gaus & Brown Construction, Inc. (1958), 17 Ill. App. 2d 497 ; Stewart v. DuPlessis (1963), 42 Ill. App. 2d 192 ; Halloran v. Belt Ry. Co. (1960), 25 Ill. App. 2d 114 ; Skaggs v. Junis (1960), 27 Ill. App. 2d 251 ; American National Bank & Trust Co. v. Pennsylvania R.R. Co. (1964), 52 Ill. App. 2d 406 ; Cora v. Chicago Housing Authority (1971), 131 Ill. App. 2d 23 ; American National Bank & Trust Co. v. Elgin, Joliet & Eastern Ry. Co. (1971), 133 Ill. App. 2d 450 .
We believe that the labels of trespasser, licensee, social guest, and invitee should be abolished. The duty of the occupier to all persons who come upon his property should be that of reasonable care under the circumstances, with foreseeability the measure of liability. This standard of reasonable care is the same as that applied in all negligence cases in this jurisdiction.
Today, unfortunately, the adoption of this teaching has failed. But we predict that Rlinois, if it is to remain in the mainstream of development of the law, will soon recognize it.
The judgment of the appellate court, in our opinion, should be reversed and the cause remanded with directions to proceed in a manner not inconsistent with this dissent.
MR. JUSTICE CLARK joins in this dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9731056. Public record. Not legal advice.