Ouellette v. Blanchard

Grimes, J.,

dissenting: Although there may be less reason to maintain the distinction between social guests and business invitees than between trespassers and licensees or invitees, I see no reason to disturb our present law. My primary concern, however, is with the liability to trespassers.

Of the cases cited by the majority to support the elimination of distinctions involved in a landowner’s liability, only six jurisdictions purport to eliminate the trespasser distinction. Of those jurisdictions, only one case actually involved injury to a trespasser. In Rowland v. Christian, 69 Cal. 2d 108 , 443 P.2d 561 , 70 Cal. Rptr. 97 (1968), a tenant’s social guest was injured while using a faulty bathroom fixture. In Pickard v. City and County of Honolulu, 51 Hawaii 134 , 452 P.2d 445 (1969), a licensee was injured when he unexpectedly fell through a hole in the floor in the restroom of the defendant’s courthouse. In Mile High Fence Company v. Radovich, 28 Colo. App. 400 , 474 P.2d 796 (1970), an on-duty police officer, characterized by the defendant as a licensee, was injured as he walked down an alley in the course of his work and stepped into an unprotected hole dug by the defendant. In Smith v. Arbaugh’s Restaurant, Inc., 152 U.S. App. D.C. 86 , 469 F.2d 97 (1972), a building inspector was injured while examining the barbecue kitchen in the defendant’s restaurant. In Basso v. Miller, 40 *560 N.Y.2d 233 , 352 N.E.2d 868 , 386 N.Y.S.2d 564 (1976), it appears from the extracts of the concurring opinion that a licensee was involved.

Because none of these cases specifically involved a trespasser, elimination of the trespasser distinction can only have been tangential to the actual legal principle as applied to the factual situation in each case and is mere dicta.

The remaining cases cited by the majority served only to abolish the traditional distinctions governing licensees and invitees, but retained the trespasser category. Antoniewicz v. Reszcynski, 236 N.W.2d 1 (Wise. 1975); Mounsey v. Ellard, 297 N.E.2d 43 (Mass. 1973); Peterson v. Balach, 294 Minn. 161 , 199 N.W.2d 639 (1972); Kermarec v. Compagnie Generate Transatlantique, 358 U.S. 625, 630 (1959). Even England’s Occupiers’ Liability Act of 1957 (5 and 6 Eliz. II, c. 31) which abolished the distinction between invitees, licensees and so-called contractual visitors did not make any change in the law as to the liability of an occupant of land to trespassers.

Solid support for the court’s action is, therefore, reduced to a single case (Mariorenzi v. Joseph Diponte, Ind., 333 A.2d 127 (R.I. (1975)) which has squarely faced the issue. In fact, the great majority of jurisdictions continue to retain the distinctions of liability based on the status of the injured party. The Restatement also retains the distinction. Restatement (Second) of Torts § 334 (1965).

I fear that the elimination of the trespasser distinction in the determination of the landowner’s duty of care will result in unreasonable, unrealistic and unjust consequences. Every owner, lessee, and occupant of land will be faced with increased exposure to liability. If there are no good reasons for drawing a distinction between licensees and invitees, trespassers are in a fundamentally different position from those persons whom the landowner has expressly or by implication invited onto his property. Peterson v. Balach, 294 Minn. 161 , 199 N.W.2d 639, 642 (1972). As was stated in Mounsey v. Ellard, 297 N.E.2d 43, 51-52 (Mass. 1973) at footnote 7, “We feel that there is significant difference in the legal status of one who trespasses on another’s land as opposed to one who is on the land under some color of right — such as a licensee or invitee. For this reason, among others, we do not believe they should be placed in the same legal category. For example, one who jumps over a six-foot fence to make use of his neighbor’s swimming pool in his absence does not logically belong in the *561 same legal classification as a licensee or invitee. Frankly, we are not persuaded as to the logic and reasoning in Rowland v. Christian ... in placing trespassers in the same legal classification as a licensee or invitee.” See also Smith v. Arbaugh’s Restaurant, Inc., 152 U.S. App. D.C. 86 , 469 P.2d 97 , 108 (1972), Leventhal concurring.

I think it unwise to withdraw the court from its traditional role and leave a determination of what duty exists to the unbridled discretion of the jury. Elimination of the distinctions will result in the impotency of the court to control abuses by the jury. “If withdrawal of such guidelines expanded the discretion of juries on the one hand, it would limit pro tanto the power of the court to control abuses on the other, for want of yardsticks applicable to appropriate categories of situations. The citizen would be at a loss to learn factually just what the law demands of him as a landowner.” Beauchamp v. Los Gatos Golf Course, 273 Cal. App. 2d 20, 26 , 77 Cal. Rptr. 914, 919 (1969).

The court purports to reject the classification of “good” and “bad” trespassers and yet states that in some vague way it will be determined as a matter of law that certain trespassers will be denied recovery. If this is not the same thing then the difference escapes me.

One difficulty I have with the court’s decision is that it casts aside a whole body of law, built up over the years, which clearly defines the rights and obligations of the property owner on the basis of the relationship he has with those who came upon his land. It is fundamental in tort law that the duty is created by the relationship. Under this law, the owner knows in advance what his duty is. In place of this well-settled and reasonable set of rules, the court now substitutes a single vague duty of reasonable care, under which the property owner acts at his peril with no standard by which he can judge his obligations in advance. The kinds of trespassers are many. The only thing they have in common is that they have no right on the land. And yet it is to be determined after the event what the owner’s duty was before the event with regard to each of these various kinds of trespassers who enter upon his land.

Protesters who invade a company’s property and are injured because of some condition of the premises will be able to have a jury decide after the event what duty the company owed to them. A burglar who is injured while scaling a fence in a high-crime area where burglars are not unexpected would be able to put the *562 owner to the risk of a jury decision on the question if he had used reasonable care toward the burglar. Such claims should of course be dismissed at the outset as they would be under our preexisting law.

In RSA 212:34 (Supp. 1975) the legislature has very recently shown its concern for protecting landowners from liability to trespassers. Today’s decision seems to go contrary to the spirit of that statute.

My major disagreement with the court lies in its denigration of the importance of private ownership of property. I believe that the social and policy considerations which led to the trespasser distinction still apply. In a State which by its constitution recognizes the right of “acquiring, possessing and protecting property” (N.H. Const, pt. I, art. 2), I submit that it is desirable that a person be able to use his property in his own way without the burden of watching for and protecting those who come upon his land without permission or right and against his will.