Ford v. Board of County Com'rs of County of Dona Ana

• Decision Date: 20 July 1994
• Docket Number: No. 21671,21671
• Parties: Billie Jo FORD, Plaintiff-Appellant, v. BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF DONA ANA, Defendant-Appellee.
• Court: New Mexico Supreme Court

Page 766

879 P.2d 766

118 N.M. 134

Billie Jo FORD, Plaintiff-Appellant, v. BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF DONA ANA,

Defendant-Appellee.

No. 21671.

Supreme Court of New Mexico.

July 20, 1994.

[118 N.M. 135] Law Systems of Las Cruces, P.A., Anthony F. Avallone, Las Cruces, for appellant.

Law Office of T.A. Sandenaw, Thomas A. Sandenaw, Jr., Las Cruces, for appellee.

OPINION

BACA, Justice.

Plaintiff-Appellant, Billie Jo Ford, appeals the judgment entered against her and in favor of Defendant-Appellee, the Board of County Commissioners of the County of Dona Ana ("the County"). Pursuant to NMSA 1978, Section 34-5-14(C) (Repl.Pamp.1990), we accepted certification from the Court of Appeals to address one issue: What the duty of a landowner is to a public invitee and whether the district court erred in refusing to give an instruction to the jury that Ford was a business invitee. Because our jurisdiction under Section 34-5-14(C) extends to the entire case, State v. Orosco, 113 N.M. 780, 781 n. 2, 833 P.2d 1146, 1147 n. 2 (1992), we address the following additional issue: Whether the district court erred in refusing to give the jury an instruction on circumstantial evidence.

I

This case arose out of injuries sustained by Ford after she fell on a slippery walkway located outside her place of employment. Ford was an employee of the New Mexico Veterans Service Agency ("the Agency"), and the Agency's office was located in a building owned by the County. The covered walkway leading to the Agency was adjacent to other County office facilities. The County owned and controlled the premises where the Agency office was located and also the covered walkway. Ford's job was to assist New Mexico veterans with veteran related problems. Her clients used the covered walkway leading up to the office entrance from the parking lot. Water collected on the walkway when it rained and the concrete surface of the walkway would become slick and smooth. On the day in question Ford entered the walkway after a rainstorm to determine if it was safe for her handicapped client to proceed down the walkway. Ford fell while testing the walkway.

When settling jury instructions, the court refused Ford's tendered instruction as to business visitors, determining that Ford was not a business visitor as to the County. The district court also refused Ford's tendered instruction on circumstantial evidence and gave no circumstantial evidence instruction to the jury. After a jury trial and a defense verdict, judgment was filed against Ford and in favor of the County. Ford appeals from this judgment.

II

We first address whether Ford was a public invitee of the premises owned and operated by the County and, if so, whether a public invitee is owed the same duty of care that a business visitor is owed under our Uniform Jury Instructions (UJI). Before the district court instructed the jury, Ford's counsel objected to the instructions proposed by the court defining Ford as a licensee and requested that the court use the tendered instructions referring to Ford as a business visitor. SCRA 1986, 13-1303 (Repl.Pamp.1991). The court refused to give the tendered instruction, explaining that "the UJI goes one step further on a business invitee and requires that the person coming on the premises be there in connection with the business of the owner, in this case the business of the County." Because Ford was there in connection with business of the State and not the County, the court concluded that she could not be a business invitee within the UJI definition, and instructed the jury only on the definition of "licensee" as provided for in SCRA 1986, 13-1308 (Repl.Pamp.1991).¹

SCRA 1986, 13-1303 provides that "[a] business visitor is a person who is invited to enter, or permitted to remain on, the premises [in the possession] of another for a purpose connected with business dealings with the [owner] [occupant] of the premises." (Brackets in original.) The Directions for Use following the UJI explain that the "instruction is to be used if there is an issue as to whether the plaintiff was a business visitor." The Restatement (Second) of Torts defines a business visitor as "a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land." Restatement (Second) of Torts Sec. 332(3) (1964). In Mozert v. Noeding, 76 N.M. 396, 400, 415 P.2d 364, 366 (1966), this Court approved the Restatement (Second) of Torts' definition of a business visitor. The Court of Appeals in its Second Calendar Notice noted that the Restatement also provides a definition for public invitee. A public invitee is defined as "a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public." Restatement (Second) of Torts Sec. 332(2). The Restatement further provides that "[a]n invitee is either a public invitee or a business visitor." Section 332(1). A licensee, on the other hand, is "a person who is privileged to enter or remain on land only by virtue of the possessor's consent." Restatement (Second) of Torts Sec. 330. The Court of Appeals held that Ford was a public invitee within the Restatement view and certified to this Court the question of whether the duty owed to a public invitee is the same as the duty owed to a business visitor.

In answering this question, we first address whether Ford was a business visitor or a public invitee, and whether the district court erred in refusing to instruct the jury on the definition of business visitor. New Mexico follows the Restatement view of invitees and licensees, and the Uniform Jury Instruction for business visitors directs the courts and the bar to the Restatement. We conclude that Ford was not a public invitee within the definition of the Restatement because she was not on the land "as a member of the public for a purpose for which the land is held open to the public;" rather, she was an employee of the Agency. We also determine that Ford was not a licensee, but a business visitor. As an employee of the County's tenant, the Agency, Ford "was a business visitor to whom [the County], as owner of the building, owed such a duty." Broome v. Byrd, 113 N.M. 38, 39, 822 P.2d 677, 678 (Ct.App.1991); see also Latham v. Aronov Realty Co., 435 So.2d 209, 210 (Ala.1983) (determining that employee of tenant was invitee of landowner); Peay v. Reidy, 321 Mass. 455, 73 N.E.2d 737, 738 (1947) (holding that plaintiff-employee was a business invitee of tenant and defendant-landlord owed employee the same duty it owed tenant). Ford was a business visitor of the County and the district court erred in concluding that Ford was merely a licensee and in instructing the jury as to the duty of care owed to a licensee.²

Having concluded that the proper jury instruction was not given as to Ford's status on the land, we now undertake, as we indicated we might do in Bober v. New Mexico State Fair, 111 N.M. 644, 648-49 n. 5, 808 P.2d 614, 618-19 n. 5 (1991), to follow the minority of jurisdictions that have eliminated the distinction between licensees and invitees, and substitute instead a single standard of reasonable care under the circumstances, while retaining trespassers as a separate classification. See, e.g. Wood v. Camp, 284 So.2d 691, 695 (Fla.1973); Poulin v. Colby College, 402 A.2d 846, 851 (Me.1979); Mounsey v. Ellard, 363 Mass. 693, 297 N.E.2d 43, 51-52 & n. 7 (1973); Peterson v. Balach, 294 Minn. 161, 199 N.W.2d 639, 647 (1972); O'Leary v. Coenen, 251 N.W.2d 746, 751 (N.D.1977); Hudson v. Gaitan, 675 S.W.2d 699, 703 (Tenn.1984); Antoniewicz v. Reszcynski, 70 Wis.2d 836, 236 N.W.2d 1, 11 (1975).

The first jurisdiction to abandon the rigid application of the common-law categories was, ironically, the jurisdiction of their birth. In 1957 Great Britain's Parliament enacted a statute abolishing the distinctions between licensees and invitees. Occupiers' Liability Act, 1957, 5 & 6 Eliz. 2, ch. 31 (Eng.). A few years later the United States Supreme Court declined to adopt the common law distinctions for admiralty proceedings, reasoning that

[t]he distinctions which the common law draws between licensee and invitee were inherited from a culture deeply rooted to the land, a culture which traced many of its standards to a heritage of feudalism. In an effort to do justice in an industrialized urban society, with its complex economic and individual relationships, modern common-law courts have found it necessary to formulate increasingly subtle verbal refinements, to create subclassifications among traditional common-law categories, and to delineate fine gradations in the standards of care which the landowner owes to each. Yet even within a single jurisdiction, the classifications and sub-classifications bred by the common law have produced confusion and conflict. As new distinctions have been spawned, older ones have become obscured. Through this semantic morass the common law has moved, unevenly and with hesitation, towards "imposing on owners and occupiers a single duty of reasonable care in all the circumstances."

Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 630-31, 79 S.Ct. 406, 410, 3 L.Ed.2d 550 (1959) (footnotes omitted). The Court proceeded to hold that "the owner of a ship in navigable waters owes to all who are on board for purposes not inimical to his legitimate interests the duty of exercising reasonable care under the circumstances of each case." Id. at 632, 79 S.Ct. at 410.

Thereafter, California became the first United States jurisdiction to completely abrogate the common-law distinctions. Rowland v. Christian, 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561 (1968). The California Court stated:

[T]o focus upon the status of the injured party as a trespasser, licensee, or invitee in order to determine the question whether the landowner has a duty of care, is contrary to...