O'Leary v. Coenen, 9279

• Decision Date: 10 March 1977
• Docket Number: No. 9279,9279
• Citation: 251 N.W.2d 746
• Parties: Helen O'LEARY, Plaintiff-Appellant, v. Ed COENEN, Defendant-Appellee. Civ.
• Court: North Dakota Supreme Court

Page 746

251 N.W.2d 746

Helen O'LEARY, Plaintiff-Appellant, v. Ed COENEN, Defendant-Appellee.

Civ. No. 9279.

Supreme Court of North Dakota.

March 10, 1977.

Syllabus by the Court

For the reasons stated herein, an occupier of premises, as to licensees and invitees, must act as a reasonable man in maintaining his property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk.

Lashkowitz, Lashkowitz & Schneider, Fargo, for appellant; argued by John T. Schneider, Fargo.

Conmy, Rosenberg & Lucas, Bismarck, for appellee; argued by A. William Lucas, Bismarck.

PAULSON, Judge.

This is an appeal from the judgment of the district court of Eddy County dated May 10, 1976, dismissing with prejudice the complaint of the plaintiff, Helen O'Leary (hereinafter Mrs. O'Leary).

Only one issue is raised for our consideration: whether this court will continue to use special categories (e. g., invitee, licensee, trespasser) in premises liability actions, or whether we will abandon such categories and will adopt a single standard of reasonable care and foreseeability for such actions in place of such categories.

This case arose as the result of Mrs. O'Leary's being bitten on February 18, 1975, by the dog of the defendant, Ed Coenen (hereinafter Mr. Coenen) when Mrs. O'Leary was on the Coenen farm premises. Mrs. O'Leary, an insurance sales agent, was in the company of another insurance agent, Lyle Nesemeier, who had driven her to the Coenen farm for the purpose of trying to sell Mr. Coenen an insurance policy. No prior contact had been made with Mr. Coenen by Mrs. O'Leary, Mr. Nesemeier, or the insurance company which they represented. Mrs. O'Leary's arrival at the Coenen farm was based solely on information which she had previously obtained from a plat book which she had in her possession. Her presence there was unannounced, unexpected, and uninvited.

Mrs. O'Leary testified that at the time she arrived at Mr. Coenen's farmyard there were various vehicles parked in his yard and, as a result, she was unable to determine whether anyone was at home. There were no signs posted or other indications which would have signaled the presence of a dog. Mrs. O'Leary testified that after she got out of Mr. Nesemeier's car, but before she reached the Coenen farm home, Rover, Mr. Coenen's pet dog, lunged through the front door of the farm house, chased her back toward the car, and then bit her on her left leg. Mrs. O'Leary also testified that while she was attempting to escape from Rover, she dropped her eyeglasses and broke them. The dog bite necessitated sutures and she was given medication to relieve her pain. Mrs. O'Leary expended the sum of $129.67 for the medical attention she required and for the repair of her broken eyeglasses. Mrs. O'Leary's associate, Mr. Nesemeier, was the only other witness to the incident.

Mr. and Mrs. Ed Coenen had left their farm unattended on February 18, 1975. Mr. Coenen testified that he had left Rover inside the farm house, but he also testified that Rover could get out of the house in two ways, namely, if someone opened the outer door for him, or occasionally, by Rover's scratching at the bottom of the door and pulling the door open with his paw. Mr. and Mrs. Coenen both testified that they had no reason to believe or to suspect that Rover would bite anyone.

Rover was twelve years old at the time of the trial. The Coenens had owned Rover since he was a pup. Rover stood approximately eighteen inches high and weighed approximately thirty-five pounds in February of 1975. Mr. Coenen testified that he used Rover, not as a watch dog, but to assist him in the care and herding of his 75 head of cattle and 80 head of sheep. Mr. Coenen further testified that he had no personal knowledge that Rover had ever bitten any children or hired help or any other unannounced persons (e. g., gas or United Parcel delivery personnel). Mrs. Coenen testified that, several years previously, she had heard that Rover had bitten Mr. Coenen's brother once when he attempted to enter the Coenen home at a time when no one was at home (none of the surrounding circumstances of such incident are contained in the record).

The trial court concluded from these facts that, at the time of the incident, Mrs. O'Leary's presence at the Coenen farm placed her in the category of being a "bare licensee" on such premises. The trial court thus determined, in paragraphs 3 and 4 of its conclusions of law:

"3.

"That defendant (Mr. Coenen) owes no duty to a bare licensee, other than not to harm her wilfully or wantonly, or to set traps for her, or to act in such a grossly negligent manner as to constitute wilfullness or wantonness.

"4.

"That no act or omission on the part of the defendant is such as to establish any liability on the part of the defendant to the plaintiff (Mrs. O' Leary)."

This court recently considered the same issue raised herein, in Sendelbach v. Grad, 246 N.W.2d 496 (N.D.1976), in which case the parties did not brief or argue the question of abandonment of the use of the common law categories. In Sendelbach, supra, this court adhered to the use of the common law categories in premises liability actions in a manner consistent with our opinion in Werth v. Ashley Realty Company, 199 N.W.2d 899 (N.D.1972), by applying the "hidden peril" exception to the licensee category. ¹ The "hidden peril" exception requires that the possessor of land, once having notice of the "hidden peril", owes a duty not to knowingly expose a licensee to such peril, in addition to holding the possessor of land to the traditional standard of care owed a licensee not to willfully, wantonly, or intentionally cause or inflict injury upon a licensee or his property. Sendelbach v. Grad, supra 246 N.W.2d at 501; Werth v. Ashley Realty Company, supra 199 N.W.2d at 904; 65 C.J.S. Negligence § 63(38), p. 710.

In the instant case, this court is asked to eliminate the use of the common law categories in premises liability actions and to adopt a single standard of reasonable care and foreseeability. We now undertake, as we indicated we would do in Werth, supra 199 N.W.2d at 907, to reexamine recent developments in the law of premises liability to determine whether North Dakota should continue its use of the common law categories with exceptions where necessary, as in Sendelbach v. Grad, supra ; or whether we should abandon such distinctions, based upon the status of a visitor, and adopt a single standard of reasonable care and foreseeability under all the circumstances as the measure of the duty of a landowner or landoccupier.

The use of common law categories of entrants upon land to determine the degree of care owed to such entrants by an occupier of premises has recently been substantially modified or totally abandoned in many jurisdictions. We note eight jurisdictions which have abandoned the use of the common law categories as the sole method of determining the degree of care owed by an occupier of premises to entrants upon his premises. ² Such jurisdictions now hold that an occupier's liability to one injured upon his premises is governed by a standard of reasonable care under the circumstances, taking into consideration the foreseeability of the entrant's presence, the likelihood of injury to him, and the extent of the interest which must be sacrificed to avoid the risk of injury to him. Such jurisdictions assert that they have not made an occupier an insurer of his property, or required him to endure unreasonable burdens to maintain his property. Reasons cited for abandoning the common law categories include: (1) that the policy considerations that led to the judicial creation of invitee, licensee, and trespasser immunities no longer retain their viability under modern conditions because such categories bear no logical relationship to the exercise of reasonable care for the safety of others, because, in today's society, human safety is of greater importance than is a land occupier's unrestricted freedom, and because public opinion today favors assigning enterprise liability or distributing losses over a greater segment of society through insurance in lieu of forcing the entrant to suffer such burden; (2) that it is becoming increasingly difficult to categorize the circumstances of modern life into the right common law classifications of invitee, licensee, and trespasser (our recent decision in Sendelbach v. Grad, supra, is a good example of how definitive such a determination can be); (3) that the use of common law classifications prevents a jury from applying changing community standards to the duty owed by an occupier of premises to entrants thereon (i. e., Werth v. Ashley Realty Company, supra, where a local jury could well have found possessors of premises located in or near urban areas which the public frequents to be under a higher standard of care than the possessors of rural property); (4) that jury confusion sometimes results over the inclusion of social guests, no matter how formally invited, in the licensee category and not the invitee category; and (5) that the many exceptions and distinctions make the use of the common law categories complex, confusing, inequitable, and, paradoxically, nonuniform a brief listing of some of the exceptions and distinctions complained of would include: discovered and undiscovered trespassers; owner and nonowner cases; nonowners using the premises for their own convenience and nonowners acting on the owner's behalf; active negligence (i. e., dangerous activities) and passive negligence (i. e., dangerous conditions); dangerous conditions obvious to the owner and those not obvious to the owner; child trespassers frequent use of limited area exception; technical trespassers; social guests; implied licensee; business visitor; and trapped trespassers. As was noted in Scurti v. City of New York, sup...