Antoniewicz v. Reszczynski

*859 Eobert W. Hansen, J.

(dissenting). Two basic issues are raised by the majority opinion in this case:

(1) What is the proper balance between the rights and duties of host and guest when a social guest is injured on the premises of the host?

(2) Who is to do the balancing of the rights and duties involved — this court or the legislature ?

The majority concedes that, up to now, the duty owed by the owner, lessee or occupant of land or living quarters to a social visitor has been “. . . limited to keeping the property safe from traps and to refraining from active negligence ....” 1

The majority abandons this standard as to duty owed by host to guest and puts in its place the higher standard of “duty of ordinary care,” 2 adding a duty to inspect the premises in advance to the duty to warn of traps or concealed hazards. 3

When a duty owed is thus broadened, somebody wins and somebody loses. Here every owner, every lessee and every occupant of land or living quarters loses by the greater exposure to liability. Every social guest, injured while on the premises of the host, gains in the broadened *860 opportunity to seek and secure damages for the injury sustained.

The majority accomplishes placing a heavier burden on owners and occupiers of property in a two-stage operation:

(1) It abolishes the distinction between a business visitor, heretofore considered an invitee, 4 and a social visitor, heretofore considered to be a licensee. 5

(2) It imposes, as to the new class of “invitee-licensee,” not the lower duty owed to a social guest, 6 but the broader duty, heretofore owed only to business invitees. 7

This dissent rests primarily on who — court or legislature — ought to do the balancing rather than on where a proper balance of rights and duties ought be struck. However, as to the first step of the two-step operation, it can be noted that the category of business visitor or invitee has shrunk to a shadow of its former self. With the passage of a safe-place statute in 1911, entrants onto public buildings, commercial establishments and places of employment came under the statute, no longer in the common-law category. 8 Left in the classification were hardly more than baby-sitters, 9 a doctor making a sick call or, as the majority suggests, “. . . an insurance man who may come to the home to deliver a policy.” To merge the two categories, which the writer contends is *861 properly a matter for the legislature to consider and determine (as it did by enacting a safe-place statute), is here to do no more than place a pygmy and a giant in the same bed. However, that does not mean that the nightshirt that fit the pygmy is the one to be put on the giant.

Whether a homeowner or occupant of premises ought owe the same duty to a business visitor as to a social guest is one question. Answered affirmatively, it leaves entirely open the question of whether, the two combined, a lower duty is to be imposed as to business visitors or a higher duty imposed as to social guests. Opting for a wider exposure to liability on the part of owner or occupant, the majority sets forth its reasons concluding that placing a heavier burden as to liability on the host is appropriate. Such reasons appear to be four in number:

(1) Consistent with Legislative Policy? The majority finds its placing a higher duty on homeowners and householders as to social guests as consistent with the legislative policy expressed by enactment of the safe-place statute in 1911. 10 That reckons without the public policy expressed by the enactment of the duty-to-recreational-users statute in 1963. 11 This legislative enactment provided that in the absence of a “valuable consideration,” the owner, lessee or occupant of premises “. . . owes no duty to keep the premises safe for entry or use . . .” as to persons coming on to the premises for certain recreational-type purposes, even if they have permission for entry from the possessor. 12 The legislature placed a very high duty on owners of public buildings, commercial establishments and places of employment. It established a very low duty of a landholder to persons, licensees or trespassers alike, who come on to the premises for the purposes listed in the statute. The majority opinion increases the disparity between the duty owed to a visitor *862 or licensee who comes under the provisions of sec. 29.68, Stats., and a visitor who does not. Carrying out an evident legislative purpose can hardly be claimed for such result.

(2) Times are A-Changing ? The times, they are a-changing, writes the majority, and common-law courts are “. . . to reflect the spirit of their times, . . .” including evidencing “. . . the state’s concern with the welfare of its citizens who may come by consent upon the property of another. . . .” Concern for owners, lessees and occupants of premises is also a proper concern. That is what the legislature considered when it provided that an owner, lessee or occupant of premises, in absence of “valuable consideration,” had no duty to keep the premises safe for “. . . hunting, fishing, trapping, camping, hiking, snowmobiling, berry picking, water sports, sightseeing or recreational purposes. . . .” 13 It evidences a state of concern as well for the welfare of those upon whose land the campers, hunters, snowmo-bilers, berry pickers, water sports enthusiasts and recreation seekers come. The majority’s authority for moving in a contrary direction is based on a claimed “. . . additional curtailment of the right of unbridled use of private property, . . .” in a recent case dealing with police power zoning regulations related to the ecological balance of the area. 14 Not only did that case involve only the zoning or police power of the state, but any limitation on the rights or use of the property by its owner must be seen as reluctantly invaded because of the need to protect the environment, not enthusiastically abandoned. What had to be done there hardly supports what need not have been done here.

(3) Escape from Feudalism? The majority relates the control of property one owns or occupies and “the rule in *863 respect to licensees and licensors” to the feudal system of land tenure, “. . . when the lord of the land had complete and autocratic control of his property. . . The owner of an unimproved 40 acres in the north woods or the owner of a mortgage-encumbered house in city or village may be flattered by being compared to a lord of a feudal estate. The concept that “a man’s home is his castle” has deeper roots, and can hardly be said, as the majority claims, to have “long since vanished,” in the light of sec. 29.68, Stats., providing certain permitted entrants or users take the premises, as does the owner or occupant, as they find them., 15 It is true that the Magna Carta was wrung from a reluctant king by lords and nobles. 16 But that brake on the divine right of kings went far beyond an assertion of rights by the holders of large estates. It became the shield of protection for the humblest cottager as well as the holders of large estates. 17 As important, it became the foundation for the first ten amendments to our United States Constitution, and es *864 pecially the ninth amendment. 18 Whatever balance is struck between rights and duties of landowners and person permitted on premises, feudalism has little to do with the balancing of the factors to be considered.

(4) Why Not the Same? The majority rhetorically asks whether the welfare of one who comes as a guest is to be more lightly regarded than the welfare of a casual business acquaintance, and answers: “There is no good reason why the business guest should be afforded greater protection than the social guest.” The answer begs the question. As to the duty to be owed by the host to both, the question is not whether a difference in treatment is warranted but what is the duty of the host to be as to both social guest and business visitor. The majority does not discuss the difference between the duty heretofore owed to a business visitor, and as compared to the duty heretofore owed to a social guest. The additional burden, now imposed by the majority as to both business visitor and social guest, appears to be that of a duty of prior inspection so that either the premises are in a safe condition or visitors can be warned of latent or concealed hazards. 19 With no specific reason stated by the majority as to why the higher duty, not the lower, is found to be appropriate, it is difficult to join issue as to which standard should be here applied. A case for a choice of the alternative option can be made. Obviously, it would include the regressive nature of the widened exposure to liability of owner or occupant to a guest that is being mandated. The property or ad valorem tax has been criticized as regressive, but it at least is related to the value of the property owned. Here the owner of a small cottage has the same risk of added liability as does the owner, free and clear, of a mansion. The lessee or renter *865 of a small apartment has as great a risk of added liability to a guest as does the owner of an expensive split-level home. Guests are as likely to slip on a throw rug on a bathroom floor in humble surroundings as in. the plushest of living arrangements. However, this dissent goes more to who should do the balancing, not to where the balance point is placed. So the dissent need go no further here than to point out that a persuasive case for choosing the higher standard as to the duty owed by a householder host to his social guest has not here been established.

As to the second question raised by this appeal — Who is to do the balancing of the rights and duties here involved? — the writer submits that a broadened liability of owners, lessees and occupants of premises to social guests should result from legislative action, not judicial edict.

After this majority holding, as before, it will continue to be true that the duty of a possessor or owner of property with respect to those who come upon his premises will vary with the legal status of the person who suffers an injury on the premises. True it is that this variance as to duty owed derives from the common-law delineations of the statuses of trespasser, licensee and invitee. However, for nearly three-quarters of a century, the only changes made as to such categories or the duty owed as to each have been made in this state by its legislature. There are two such changes, legislatively enacted:

(1) The Safe-Place Statute. Enacted in 1911, this statute changed the duty owed by owners of public buildings and places of employment to persons coming on such premises to the duty to “. . . so construct, repair or maintain such place of employment or public building as to render the same safe.” 20

(2) Liability of Landowners Statute. Enacted in 1963, this statute provides that, as to persons given permission for entry but not for a valuable consideration: "An *866 owner, lessee or occupant of premises who gives permission to another to hunt, fish, trap, camp, hike, snowmobile, sightsee, berry pick or to proceed with water sports or recreational uses upon such premises does not thereby extend any assurance that the premises are safe for such purpose, or constitute the person to whom permission is granted an invitee to whom a duty of care is owed. . . .” 21 Whether narrowly construed or not, this statute clearly establishes a group of licensees or guests to whom no standard of host care is applicable, and to which the majority’s establishment of such standard of care as to guests or licensees does not apply. 22

With the only changes in the common-law standard of landowner or occupier liability to those who come upon his premises thus made by the legislature, the writer would see the merging of the categories of business visitor and social guest, except as sec. 29.68, Stats., applies, as well as the choice of the appropriate standard as to duty owed to the partially-combined “invitee-licensee” class to be a matter for the legislature to consider and determine. Something more than continued deference to the legislative branch to do the balancing of the rights and interests involved and to determine an appropriate public policy is involved.

In part, the writer’s conclusion that only legislative action is here appropriate, rests on the tripartite nature *867 of our government, with its division of authority for the conduct of public affairs between three coordinate branches of government, i.e., legislative, executive and judicial. 23 This has been termed a system of “checks and balances,” with the legislative branch to set the public policy, the executive branch to administer the public policy thus set, and the judicial branch to interpret such public policy enactment and to test its being within constitutional limits. 24 However, more is involved than “checks and balances” upon any one branch of government seeking to alone determine, administer and review what is to be the public policy.

The wisdom and vision of the founders of this republic enabled them to see the setting of public policy as most satisfactorily and democratically accomplishable by the legislative branch, the administering of such policy as best conducted by the executive branch and the review and interpreting of such public policy as best done by the judicial branch. The case before us is a classic illustration of why this is so. Here is involved a balancing, or a re-balancing, of the respective rights and duties of *868 those who own, lease or occupy land or home, and of the rights and duties of those who enter on such land or home and are injured. If striking the balance between the rights and interests involved were left, as it has been up to now, as a matter for legislative action, those individuals and groups who identify with the entrants upon premises who sustain injury (or who believe that everybody everywhere owes to everybody else a standard of ordinary care) would appear at committee meetings, write to their assemblymen and state senators, and seek public support for their point of view. Similarly, those who identify with the owner, lessee or occupant of premises (or who believe that home ownership ought not be saddled with additional burdens or liabilities) would do exactly the same, seeking to have their point of view made the law of the state. Such legislative process, while it may have its detractors, insures the widest possible input of individuals or groups affected or concerned in the establishment of an appropriate public policy on issues of public concern.

In contrast, when resort, as here, is to the courts to do the balancing of the rights and interests involved (with the court to locate and establish the appropriate public policy), there is no way of providing any similar opportunity for public participation in the decision-reaching process. Here we have before us, as did the trial court, only the slender briefs and brief oral arguments of the attorney for the plaintiff and the attorney for the defendant. In one brief-enough court opinion conference a vote of the seven justices was taken, and, by majority vote, a result is reached that determines the public policy and affects the rights and duties of very nearly all of the citizens of our state. Where the vote is four-to-three, this means that one member of this court has decided where the balance is to be struck between the contending rights, duties and interests of two large segments of our citi *869 zenry. That is indeed a fragile basis for deciding an issue of public policy in a democratic republic, and particularly so in an area of concern that has traditionally been one considered a part of the legislative, not the judicial, process.

As to the general matter of this court altering long-established common-law or court-made rules or standards, our court recently held:

“ ‘Moreover, we have made it clear that this court, in general, would depart from stare decisis only where unintentional conduct was involved and then only when there were compelling reasons for altering a court-made rule. Estate of King (1965), 28 Wis. (2d) 431, 137 N. W. (2d) 122 . In Wilcox v. Wilcox (1965), 26 Wis. (2d) 617, 623, 133 N. W. (2d) 408 , we pointed out our reluctance to deviate from precedent where rules of contract or property were involved.’ ” (Emphasis supplied.) 25

In the writer’s opinion, such compelling reasons do not here exist for altering the common-law rule, either as to a partial merger of “invitee” and “licensee” categories or in selecting an appropriate standard of duty to be owed by owners, lessees and occupants to the “invitees-licensees.” So the writer would reverse, finding the complaint de-murrable for failure to allege a breach of the duty owed by the defendant-host to the plaintiff-social guest, with leave granted to the plaintiff to plead over if a cause of action for active negligence or failure to keep the property safe from a trap or concealed hazard can be and is pleaded. 26

*870 I am authorized to state that Mr. Justice Leo B. Hanley and Mr. Justice Connor T. Hansen join in this dissent.

Copeland v. Larson (1970), 46 Wis. 2d 337, 341 , 174 N. W. 2d 745 .

Id. at page 342.

Balas v. St. Sebastian’s Congregation (1975), 66 Wis. 2d 421, 426, 427 , 225 N. W. 2d 428 , this court stating: “At common law, the highest duty owed by an owner of land toward someone on the premises was that of ordinary care, owed to an invitee. This duty could be satisfied by alternative means. The landowner might either have his premises in a reasonably safe condition or give the invitee adequate and timely warning of latent and concealed perils which are known to the invitor but not to the invitee. Another way of stating this same proposition is that there is no duty to inspect and warn unless it is shown that the premises were not in a reasonably safe condition.”

Copeland v. Larson, supra, footnote 1, at page 342, this court holding: “To this court, the terms ‘business invitee,’ ‘business visitor,’ and ‘invitee’ are synonyms . . . .”

Flintrop v. Lefco (1971), 52 Wis. 2d 244, 247 , 190 N. W. 2d 140 , this court holding: “At the time of the accident, the plaintiff was a social guest of the defendant and between them the duty owed was that of licensor to .licensee.”

See: Footnote 1.

See: Footnotes 2, 3.

See: Sec. 101.11, Stats.

See: Schlicht v. Thesing (1964), 25 Wis. 2d 436, 438-440 , 130 N. W. 2d 763 .

Sec. 101.11, Stats.

Sec. 29.68, Stats.

Id.

Id.

Just v. Marinette County (1972), 56 Wis. 2d 7 , 201 N. W. 2d 761 .

Thus sec. 29.68, Stats., gives to certain entrants with permission no greater landowner duty than that owed to trespassers. See: Copeland v. Larson, supra, footnote 1, at page 341, this court summarizing the common-law rule as to landowner liability to trespassers as follows: “He [the owner of the land] is not liable for injury to trespassers, as a general rule, caused by his failure to exercise reasonable care to put his land in safe condition for them, nor is he obliged to refrain from operations or activities that might cause injury [text authority cited], at least until the trespasser is discovered.”

See generally, Holt, Magna Carta (Cambridge University Press, 1965), ch. VI.

“The poorest man may in his cottage bid defiance to all the force of the Crown. It may be frail, its roof may shake; the wind may blow through it; the storms may enter, — the rain may enter, — but the King of England cannot enter; all his forces dare not cross the threshold of the ruined tenement!” William Pitt (Earl of Chatham) — Speech on the Excise Bill. Roberts, Hoyt’s New Cyclopedia of Practical Quotations (Funk & Wagnalls Company, 1923), at page 371.

Art. IX, U. S. Const., providing: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

See: Footnote 3.

Sec. 101.11, Stats.

Sec. 29.68 (2), Stats.

See: Copeland v. Larson, supra, footnote 1, at page 343, this court holding: “An examination of sec. 29.68, Stats., indicates the landowner owes the ordinary duty of reasonable care to those entering upon his land for certain recreational purposes only if the permission to enter the land is granted for a valuable consideration. To a licensee the liability for ‘traps’ and ‘active negligence’ was altered by this statute to a liability for ‘willful or malicious failure to guard or to warn against a dangerous condition, use, structure or activity,’ and therefore the statute is in derogation of the common law and requires a strict construction.”

See; Art. I, U. S. Const., as to legislative powers; Art. II, as to executive powers; and Art. Ill, as to judicial powers. See also: Art. IV, Wis. Const., as to the legislative power, Art. V, as to the executive power; and Art. VII, as to the judicial power.

See:. State ex rel. Broughton v. Zimmerman (1952), 261 Wis. 398, 405 , 52 N. W. 2d 903 , overruled on other grounds, State ex rel. Reynolds v. Zimmerman (1964), 22 Wis. 2d 544 , 126 N. W. 2d 551 , where the court stated: “‘The legislative department determines what the law shall be, the executive department executes or administers the law, and the judicial department construes and applies the law. Neither one of these departments can arrogate to itself any control over either one of the other departments in matters which have been solely confided by the constitution to such other department.’ ” See also: Department of Revenue v. Nagle-Hart, Ine., ante, p. 224, 226, 234 N. W. 2d 350 , this court holding: “It is not the function of the tax department to locate, define and enforce an appropriate public policy. That is the law-maMng function of the state legislature.”

State v. Michels Pipeline Construction, Inc. (1974), 63 Wis. 2d 278, 296 , 217 N. W. 2d 339 , 219 N. W. 2d 308 , quoting irom Gottlieb v. Milwaukee (1967), 33 Wis. 2d 408, 431 , 147 N. W. 2d 633 .

Footnote 5 of the majority opinion states that the “result of what the court does is not a merger of the licensee or invitee categories but the abolition of them as relevant legal distinctions.” This cannot be done completely because of sec. 29.68, Stats. (See: *870 Footnote 11.) To the extent that it ean be partially accomplished, it creates a new class that can be termed either “invitee-licensee” or “nontrespasser.”' To such nontrespassers (not covered by sec. 29.68) the majority applies “. . . the highest duty owed by an owner of land towards someone on the premises. . . .” Even under this “highest duty,” heretofore applied only to invitees, it is to be noted that this complaint is still demurrable because it does not allege that the condition was “latent or concealed.” (See: Footnote 3.) The complaint alleges the icy patch plaintiff slipped on was known to the defendant. If the condition was concealed, the defendant had the same duty to warn the plaintiff whether he was a licensee or an invitee. (See: Szafranski v. Radetzky (1966), 31 Wis. 2d 119, 126 , 141 N. W. 2d 902 and footnote 3.) Since a defendant landowner has no duty to warn of a condition that is not latent or concealed, the failure to allege the latency or concealment of the condition is fatal, and the complaint is demurrable. See: Schutt v. Schmid (1973), 60 Wis. 2d 173, 175 , 208 N. W. 2d 306 , the court holding, in reference to a licensor-licensee situation where concealment of the condition is also a prerequisite for the landowner’s duty to warn: “Since there is no allegation that the condition was concealed, the demurrer to the complaint should have been sustained.”