Heins v. Webster County, S-94-713

• Decision Date: 23 August 1996
• Docket Number: No. S-94-713,S-94-713
• Citation: 250 Neb. 750,552 N.W.2d 51
• Parties: , 65 USLW 2172 Roger W. HEINS, Appellant, v. WEBSTER COUNTY, Nebraska, doing business as Webster County Hospital, Appellee.
• Court: Nebraska Supreme Court

Page 51

552 N.W.2d 51

250 Neb. 750, 65 USLW 2172

Roger W. HEINS, Appellant, v. WEBSTER COUNTY, Nebraska, doing business as Webster County Hospital, Appellee.

No. S-94-713.

Supreme Court of Nebraska.

Aug. 23, 1996.

Syllabus by the Court

1. Judgments: Appeal and Error. When reviewing a question of law, an appellate court reaches a conclusion independent of the lower court's ruling.

2. Negligence: Invitor-Invitee: Licensee. The distinction between invitees

and licensees is eliminated: we now require a standard of reasonable care for all lawful visitors.

3. Negligence. Among the factors to be considered in evaluating whether a landowner or occupier has exercised reasonable care for the protection of lawful visitors will be (1) the foreseeability or possibility of harm; (2) the purpose for which the entrant entered the premises; (3) the time, manner, and circumstances under which the entrant entered the premises; (4) the use to which the premises are put or are expected to be put; (5) the reasonableness of the inspection, repair, or warning; (6) the opportunity and ease of repair or correction or giving of the warning; and (7) the burden on the land occupier and/or community in terms of inconvenience or cost in providing adequate protection.

Jefferson Downing, of Bruckner, O'Gara, Keating, Hendry, Davis & Nedved, P.C., Lincoln, for appellant.

Daniel L. Lindstrom and Jeffrey H. Jacobsen, of Jacobsen, Orr, Nelson, Wright, Harder & Lindstrom, P.C., Kearney, for appellee.

WHITE, C.J., and CAPORALE, FAHRNBRUCH, LANPHIER, WRIGHT, CONNOLLY, and GERRARD, JJ.

CONNOLLY, Justice.

The question presented is whether this court should abolish the common-law classifications of licensee and invitee and require a duty of reasonable care to all nontrespassers.

Roger W. Heins sued Webster County, Nebraska, doing business as Webster County Hospital, to recover for an injury to his back that he sustained when he fell upon the front entrance steps to the hospital. The district court for Webster County entered judgment in favor of the county, finding that because Heins was merely a licensee, the only duty that the county owed him was to refrain from willful or wanton negligence. Heins appeals, arguing that this court should reverse the decision of the district court and abolish the common-law classifications of licensee and invitee in favor of requiring a duty of reasonable care to all nontrespassers. We conclude that abolishing the distinction between invitee and licensee and requiring a duty of reasonable care to all lawful entrants is a more reasonable method of determining fault and is more responsive to the needs of present-day society. We therefore reverse the judgment of the district court.

FACTUAL BACKGROUND

Webster County experienced a heavy snowfall on October 31, 1991. On November 5, snow accumulation in Red Cloud, Nebraska, remained substantial. On that date, Heins traveled from his home in Sutton, Nebraska, to Red Cloud in order to visit his physician. While in Red Cloud, Heins, accompanied by his wife, Ruth, and daughter Jill, visited the Webster County Hospital. The evidence is disputed concerning the nature of this trip. Webster County claims that Heins was merely paying a social visit to his daughter Julie Heins, who was the director of nursing for the hospital. Heins claims that his visit was not only social, but also to coordinate plans for him to play Santa Claus for the hospital staff during the upcoming Christmas season. During their visit with Julie, Roger, Ruth, and Jill made plans to have lunch with Julie and a friend at a local restaurant.

While Roger, Ruth, and Jill were exiting the hospital through the main entrance, Roger fell. At trial, Roger testified that he held the front entrance door open for his wife and daughter and then started to step out onto the landing himself. At this point, Heins testified, he slipped and "went down into a pretzel, you might say, and I was hanging on to the door, and my behind hit the landing." Both Jill and Heins claim to have seen a patch of ice on the landing after Heins fell, and attribute the cause of his fall to the ice.

Heins brought this action under the Political Subdivisions Tort Claims Act, Neb.Rev.Stat. §§ 13-901 through 13-926 (Reissue 1991 & Cum.Supp.1994), claiming that Webster County was negligent (1) in failing to properly inspect the above-described entrance prior to inviting the public to use the entrance, (2) in failing to warn Heins of the existence of a dangerous condition, (3) in Following a bench trial, the district court found that Heins "went to the Webster County Hospital to visit his daughter who was an employee of the hospital." Furthermore, the court concluded that Heins was a licensee at the time of his fall and that the county did not act willfully or wantonly or fail to warn of known hidden dangers unobservable by Heins. Thus, the court entered judgment in favor of Webster County. Heins appeals.

allowing the ice and snow to accumulate, and (4) in failing to remove the ice and snow.

ASSIGNMENTS OF ERROR

Summarized, Heins assigns that the district court erred in not generally holding the hospital to a duty of reasonable care to Heins. In the alternative, he argues the hospital should be held to a duty of reasonable care for one of the following reasons: (1) he was a public invitee, (2) he was a social guest on the hospital premises, or (3) hospital personnel knew he was on the premises.

STANDARD OF REVIEW

When reviewing a question of law, an appellate court reaches a conclusion independent of the lower court's ruling. Nelson v. Metropolitan Utilities Dist., 249 Neb. 956, 547 N.W.2d 133 (1996); Terry D. Whitten, D.D.S., P.C. v. Malcolm, 249 Neb. 48, 541 N.W.2d 45 (1995); Lee Sapp Leasing v. Catholic Archbishop of Omaha, 248 Neb. 829, 540 N.W.2d 101 (1995).

ANALYSIS

This appeal questions the continued validity of the common-law classifications of licensee, invitee, and trespasser for the purposes of determining the duty of a landowner in premises liability cases. We begin by noting that this appeal presents our first consideration of this issue. In Buchanan v. Prickett & Son, Inc., 203 Neb. 684, 279 N.W.2d 855 (1979), a case involving the "fireman's rule," we declined to abrogate the policy of defining the extent of the duty of care by the use of the classifications. However, Buchanan did not raise the issue of whether we should retain the classifications, and we recognized that under the facts in Buchanan a reconsideration of the classifications was unnecessary.

PRESENT NEBRASKA LAW

Under present law, in order to ascertain the duty owed by landowners to entrants upon their land, courts have classified entrants as either licensees, invitees, or trespassers. Landowners owe invitees the duty of reasonable care to keep the premises safe for the use of the invitee. Neff v. Clark, 219 Neb. 521, 363 N.W.2d 925 (1985). An invitee is a person who goes on the premises of another in answer to the express or implied invitation of the owner or occupant on the business of the owner or occupant or for their mutual advantage. McIntosh v. Omaha Public Schools, 249 Neb. 529, 544 N.W.2d 502 (1996). However, we have limited the duty that a landowner owes to a licensee. A licensee has been defined as a person who is privileged to enter or remain upon the premises of another by virtue of the possessor's express or implied consent, but who is not a business visitor. Id. An owner or occupant of premises owes only the duty to refrain from injuring a licensee by willful or wanton negligence or designed injury, or to warn him, as a licensee, of a hidden danger or peril known to the owner or occupant but unknown to or unobservable by the licensee, who is required to exercise ordinary care. Blackbird v. SDB Investments, 249 Neb. 13, 541 N.W.2d 25 (1995). A business visitor is considered an invitee, and thereby receives a higher degree of care, reasonable care, ostensibly because he or she conveys some benefit upon the landowner. See Roan v. Bruckner, 180 Neb. 399, 143 N.W.2d 108 (1966). If Heins was a licensee at the time of his injury, the hospital owed him the limited duty owed to a licensee. Therefore, under existing Nebraska law, the trial court correctly found for the hospital based on its finding that Heins was a licensee.

However, Heins calls into question the continued usefulness of the licensee and invitee classifications. In fact, a number of jurisdictions have decided that the common-law classifications have outlived their usefulness, and have either partially or completely abandoned the common-law classifications.

OVERVIEW OF OTHER JURISDICTIONS

In 1957, England statutorily abolished the common-law distinction between licensees and invitees and imposed upon the occupier a "common duty of care" toward all persons who lawfully enter the premises. W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 62 (5th ed.1984). Shortly thereafter, in 1959, the U.S. Supreme Court decided that the classifications would not apply in admiralty law, stating that the classifications created a "semantic morass." See, Kermarec v. Compagnie Generale, 358 U.S. 625, 631, 79 S.Ct. 406, 410, 3 L.Ed.2d 550 (1959); Keeton et al., supra. In 1968, the Supreme Court of California decided the landmark case Rowland v. Christian, 69 Cal.2d 108, 443 P.2d 561, 70 Cal.Rptr. 97 (1968), which abolished the traditional duty classification scheme for licensees, invitees, and trespassers and replaced it with ordinary negligence principles.

A number of jurisdictions have followed California in abandoning all classifications, including that of trespasser. The jurisdictions that have followed California are: Hawaii (Pickard v. City & County, 51 Haw. 134, 452 P.2d 445 (1969)); Colorado (Mile High Fence v. Radovich, 175 Colo. 537, 489 P.2d 308 (1971)); Smith v. Arbaugh's Restaurant, Inc., 469 F.2d 97 (D.C.Cir.1972), cert. denied 412 U.S. 939, 93 S.Ct. 2774, 37 L.Ed.2d...