# Ouellette v. Blanchard

> Supreme Court of New Hampshire · September 30, 1976 · 116 N.H. 552

URL: https://www.frixlaw.com/law-library/cases/9766279

## Case

- **Full name:** Robert Ouellette & A. v. J. Richard Blanchard
- **Court:** Supreme Court of New Hampshire
- **Decided:** September 30, 1976
- **Citations:** 116 N.H. 552; 364 A.2d 631; 1976 N.H. LEXIS 411
- **Precedential status:** Published
- **Opinion:** Concurrence by Duncan
- **Judges:** Griffith, Duncan, Grimes
- **Cited by:** 75 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/9766279

## Opinion text

Duncan, J.,
concurring in the order:
Without attempting to summarize a factual analysis of the several authorities cited, characterized, or relied upon by the majority of the court, it is sufficient to say that I cannot join in the conclusion that the law of this state will be advanced by abandonment of the traditional distinctions between trespassers, licensees, and invitees in favor of a general or loosely defined standard of “reasonable care under the circumstances.”
Particularly pertinent to the case at bar is the comment in footnote 4 of Prosser on Torts § 62 (4th ed. 1971) where Rowland v. Christian, 69 Cal. 2d 108 (1968) and related cases are discussed: “One may question, for example, whether the rules as to trespassing children... which were worked out over so many years with so much blood, sweat, toil, and tears will be jettisoned completely in favor of a free hand for the jury.” There is too much of value in the restatement of the law with respect to trespassing children (Restatement (Second) of Torts § 339 (1965)), and owners of land *559 in general to warrant its abandonment particularly in instructing juries. See Labore v. Company, 101 N.H. 123 , 135 A.2d 591 (1957); Dorais v. Paquin, 113 N.H. 187, 190 , 304 A.2d 369, 372 (1973). The considerations set forth in the Restatement must be imparted to the jury if it is to be placed in a position to decide whether reasonable care was exercised by the landowner. Moreover, Prosser suggests that even under the decisions which the court now proposes to follow, the traditional categories are still to be considered “on the issue of what was reasonable care.” W. Prosser, supra § 62.
The plaintiff’s opening statement asserted that the children were present on the defendant’s premises with express or implied permission, so that I have no hesitation in concurring in the order entered herein. I would do so even if the plaintiff conceded that the child was present without permission, since upon the facts stated at the trial, the case might be found upon appropriate evidence to be distinguishable from the Labore case supra, at least on the issue of the minor’s appreciation of the risk. Accordingly I concur in the court’s order.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9766279. Public record. Not legal advice.