Coleman v. United Fence Co.

• Decision Date: 07 May 1984
• Docket Number: No. 84-48,84-48
• Citation: 668 S.W.2d 536,282 Ark. 344
• Parties: Wilbur COLEMAN, Appellant, v. UNITED FENCE COMPANY and Gray Supply, Inc., Appellees.
• Court: Arkansas Supreme Court

Page 536

668 S.W.2d 536

282 Ark. 344

Wilbur COLEMAN, Appellant, v. UNITED FENCE COMPANY and Gray Supply, Inc., Appellees.

No. 84-48.

Supreme Court of Arkansas.

May 7, 1984.

Rehearing Denied June 11, 1984.

James E. Smedley, Little Rock, for appellant.

Hall, Tucker & Lovell, Benton, for United Fence Co.

Wright, Lindsey & Jennings, Little Rock, for Gray Supply Co., Inc.

ADKISSON, Chief Justice.

Appellant, Wilbur Coleman, was injured when he stepped in a post hole dug on property owned by appellee, Gray Supply Company, Inc. Appellant had parked his car on appellee's land without permission and had left the car there for approximately two weeks. Subsequently, Gray Supply Company, Inc. contracted with appellee, United Fence Company, to construct a fence on the property. United Fence Company dug post holes and sent word to appellant requesting that he remove his car. When appellant arrived to push his car off the property, he stepped in a post hole and incurred injury to his back. The Pulaski County Circuit Court directed a verdict for both appellees, ruling that the evidence failed to establish that appellant was anything other than a trespasser and that there was no proof of willful or wanton conduct on the part of appellees. We affirm.

Appellant first argues that he was an invitee, not a trespasser or licensee, because others in the neighborhood had parked cars on the property and because appellee, United Fence Company, in asking him to move his car, had "invited" him onto the property. A trespasser is one who comes upon land without the consent of the possessor. A licensee is a person who comes upon the land with a privilege arising from the consent of the possessor. An invitee is one induced to come onto property for the business benefit of the possessor. W. Prosser, Law of Torts § 58 (4th ed. 1981). See also Holiday Inns, Inc. v. Drew, 276 Ark. 390, 398, 635 S.W.2d 252 (1982).

Appellant argues that because appellee requested him to move his car, he became something other than a trespasser. However, it is undisputed that he was a trespasser when he parked his car on the property because of the Arkansas rule that the mere acquiescence by a landowner in the public use of its private land does not amount to an implied invitation of use. Chicago, R.I. & P. Ry. Co. v. Harrison, 204 Ark. 361, 162 S.W.2d 62 (1942). Appellant's abandonment of his car on appellee's property resulted in a continuing trespass on appellee's property. W. Prosser, supra, § 13. The general rule is that the possessor of land is not liable for injury to trespassers caused by his failure to exercise reasonable care to put his land in a safe condition for them. Restatement (Second) of Torts § 333 (1965). There is no evidence here to support appellant's claim that he was an invitee; therefore, appellant owed him no duty to maintain his property in a safe condition. Accordingly, we conclude the trial court did not err in directing a verdict for appellees.

Appellant urges this Court to abolish our long-settled distinction between invitee, licensee, and trespasser which we decline to do.

Affirmed.

PURTLE, HAYS and HOLLINGSWORTH, JJ., dissent.

HAYS, Justice, dissenting.

The majority concludes the appellant was a trespasser as a matter of law because he parked his car on the property of Gray Supply Company, Inc., without permission. But that does not give due regard to the fact that United Fence sent word to appellant to come and move his car, and while that would not elevate appellant to the status of an invitee, it does, I believe, create an issue of fact as to whether appellant was a licensee and, hence, entitled to a somewhat different standard of care than is owed to an undiscovered trespasser. Prosser, Law of Torts, Fourth Ed., § 60, p. 376.

In Webb v. Pearson, 244 Ark. 109, 424 S.W.2d 145 (1968), we said there was...