Antoniewicz v. Reszcynski

Decision Date10 December 1975
Docket NumberNo. 602,602
Citation236 N.W.2d 1,70 Wis.2d 836
PartiesDean A. ANTONIEWICZ and Patricia L. Antoniewicz, Respondents, v. Anne RESZCYNSKI and Northwestern National Insurance Company, Appellants. * (1974).
CourtWisconsin Supreme Court

deVries, Vlasak & Schallert, Milwaukee, for appellants.

Salza, Penegor & Hauke, Milwaukee, for respondents.


This case presents the question of whether this court should abrogate the heretofore existing common-law immunities of the owners and occupiers of land. We conclude that the distinction between the duty heretofore owed by a land occupied to licensees and to invitees should be abolished, and that the duty of the land occupier be that required in any negligence action--ordinary care under the circumstances. We decline, however, to change the immunities which a land occupier enjoys in respect to trespassers.

This case arises upon demurrer. The court interpreted the allegations of the complaint to demonstrate that the plaintiff had the status of a licensee and, under existing law, there would be liability only where a trap exists upon the property, i.e., a hazard known to the landowner but concealed and unknown to the licensee, or, alternatively, where there has been active operational negligence. The trial judge concluded that, although the law heretofore existing in Wisconsin precluded the plaintiff from recovery, such law was archaic and no rational basis existed for denying liability to the plaintiff in the circumstances set forth. He held that the duty which devolves upon a landowner, irrespective of the common-law status of the person who comes upon the land, ought to be that of ordinary care under the circumstances. The trial judge correctly interpreted the status of the law and the result that would be reached were prior law applied.

The complaint alleges that the plaintiff, Dean Antoniewicz, went to the home of the defendant, Anne Reszcynski, on the evening of February 16, 1973, for the purpose of giving the defendant's daughter a ride to a friend's house; and that on the back porch there was an icy patch, which was known to the defendant but was unknown to the plaintiff and upon which ice the plaintiff slipped and was injured. It is alleged that the defendant was guilty of negligence for failing to warn the plaintiff of the condition of the porch, for the failure to provide proper lighting, and for the failure to prevent the accumulation of ice on the back porch.

The trial judge in his memorandum opinion stated the arguments of the defendant. He said:

'Defendant contends that the injured plaintiff was a licensee; that the alleged defect was unconcealed; and therefore, there was no duty to warn, and that the condition complained of was not the product of active negligence. If one concedes the injured plaintiff's status as a licensee and that the condition was not alleged to be concealed, then the defendant's position is substantiated by the precedent she relies upon.'

The judge then restated the common-law distinctions between the status of trespasser, licensee, and invitee and the tests this court applies for holding a landowner liable when an injury is done to a plaintiff in any of those legal categories. He pointed out that the common-law status of a licensee is important in determining the sufficiency of the cause of action only were common-law distinctions to be retained. He posed the question: Should the trend toward the rule of ordinary negligence be adopted in Wisconsin? He answered that question by concluding that it was time that the antiquated common-law distinctions be rejected and a single negligence standard, that of the duty of ordinary care, govern an owner's liability for any injuries on his premises.

In the recent case of Terpstra v. Soiltest, Inc. (1974), 63 Wis.2d 585, 218 N.W.2d 129, the plaintiff urged that we abandon the existing rules for predicating liability upon an owner or occupier of land and substitute therefor the standard of ordinary care. We declined that request and stated:

'We are aware of the recent trend in other states toward the abolition of the common law distinctions between trespasser, licensee, and invitee in terms of the land-owner's obligations . . ..

'We choose, however, not to consider the abandonment of the traditional rule in this case. If a change is to be considered, it should be on the basis of a record made at trial, where appropriate motions are made and instructions requested that will trigger the exercise of the trial judge's decision on the question as it may apply to a particular case.' (Pp. 593, 594, 218 N.W.2d p. 133)

Ordinarily, as we said in Gonzales v. Wilkinson (1975), 68 Wis.2d 154, 158, 227 N.W.2d 907, we will not consider the abandonment of a traditional rule unless there has been a full trial and full consideration of the issues. In many cases where there has been an order entered on a demurrer, the trial judge may fail to address himself directly to the question of whether an existing rule of law should be abandoned.

As a matter of judicial policy, this court believes it important to have the expression of a trial judge's reasoning on the particular case before him. In the instant case, however, it is apparent that the trial judge specifically and painstakingly addressed himself to the policy considerations underlying the existing law and the approach that he espoused. His reasoning was explicated in a scholarly and exhaustive opinion. There is no doubt that, in light of this record, the trial judge squarely found the issue presented and dealt with it. He has fully informed this court why, in his opinion, the law applying to this case should be changed. The case is in a proper posture for the consideration of the issue upon which the trial judge made his decision and ordered that the demurrer be overruled.

The present law in Wisconsin in respect to the duties of owners and occupiers of land is outlined in Szafranski v. Radetzky (1966), 31 Wis.2d 119, 125, 126, 141 N.W.2d 902. We stated that, in respect to a trespasser, the owner of land has only the duty to refrain from wilful and intentional injury. He is not ordinarily liable to trespassers for the failure to exercise ordinary care to put his land in a safe condition, nor is he obliged to refrain from activities that might cause injury, although in some circumstances there may be a duty to warn known trespassers of highly dangerous conditions.

On the sliding scale of increased duty, as determined by the status of a person who comes upon the land, greater obligations are owed to a licensee. The land occupier may be liable to a licensee if the injury is caused by a trap--a dangerous condition that is known to the landowner but concealed from the licensee. In such circumstance, there is a duty to warn. A cause of action by a licensee may also be spelled out when the injury is caused by the active or operational negligence of the land occupier. Under such circumstances, the active or operational activity must be carried on in the exercise of ordinary care.

The highest duty is owed to the invitee, that of ordinary care under the circumstances.

A trespasser is defined by Restatement 2d, Torts 2d, sec. 329, page 171, as:

'. . . a person who enters or remains upon land in the possession of another without a privilege to do so created by the possessor's consent or otherwise.'

A trespasser, however, is not ipso facto an outlaw, unless he is in fact on the premises for illegal purposes. That this is true is demonstrated by the numerous rules stated in Prosser, Torts (hornbook series, 4th ed.), which afford some protection under particular circumstances to 'frequent trespassers,' 'anticipated trespassers' in respect to dangerous activities, 'discovered trespassers,' and 'physically trapped' trespassers. There are also exceptions to the general rule of liability involving trespassing children of tender years.

Nevertheless, the trespasser's status is entirely different than that of either a licensee or an invitee, both of whom enter the property with knowledge and consent of the landowner. While a convincing argument can be made to demonstrate that the numerous exceptions to the trespasser rule vitiate its effect and warrant an abrogation of the rule and the substitution therefor of a duty of ordinary care that recognizes the peculiar circumstances surrounding the trespass, we conclude that the distinction is so great between that legal status and that of the licensee-invitee that we ought not consider now the abrogation of the rule in regard to trespassers. Under the facts of this case, the plaintiff was not a trespasser, but was a licensee. The duty to a trespasser is not raised.

In light of the factual situation herein, we agree with the Minnesota Supreme Court in Peterson v. Balach (1972), 294 Minn. 161, 199 N.W.2d 639, in which, discussing a case in which the injured party was a licensee, it declined to rule on a landowner's duty to trespassers. The Minnesota court said:

'Judicial restraint suggests that this question be deferred to a later day and to another case. Our judgment dictates that rules which have evolved over decades of common-law experience in this state should not be summarily abrogated except in an adversary setting after a thorough and careful presentation by litigants who have a stake in the outcome.

'. . . Sweeping away all distinction between trespassers and social guests and business invitees is a drastic step to take because there may be, and often is, good reason to distinguish between a trespasser and a social guest. There is little or no reason to distinguish between a social guest and a business invitee.' (Pp. 164, 165, 199 N.W.2d p. 642)

The Massachusetts Supreme Court in Mounsey v. Ellard (1973), Mass., 297 N.E.2d 43, followed a similar rationale in refusing to abrogate the trespasser rule. That court said in footnote 7, pages 51, 52 of 297 N.E.2d:

'We feel that there is...

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