Malin v. Consolidated Rail Corp.

• Decision Date: 04 November 1981
• Citation: 438 A.2d 1221
• Parties: Alan R. MALIN, Plaintiff Below, Appellant, v. CONSOLIDATED RAIL CORPORATION, Defendant Below, Appellee.
• Court: Supreme Court of Delaware

Page 1221

438 A.2d 1221

Alan R. MALIN, Plaintiff Below, Appellant, v. CONSOLIDATED RAIL CORPORATION, Defendant Below, Appellee.

Supreme Court of Delaware.

Submitted Sept. 22, 1981.

Decided Nov. 4, 1981.

Upon appeal from Superior Court. Reversed.

Michael Weiss (argued), of Kimmel & Spiller, P. A., Wilmington, for plaintiff-appellant.

Somers S. Price, Jr. (argued) and John E. James, of Potter Anderson & Corroon, Wilmington, for defendant-appellee.

Before McNEILLY, QUILLEN and HORSEY, JJ.

QUILLEN, Justice:

On February 8, 1977, plaintiff, Alan R. Malin, was a sanitation worker for the City of Wilmington. Plaintiff was injured when a train engine owned by defendant, Consolidated Rail Corporation (Conrail), struck the City garbage truck in which the plaintiff was riding. The truck had just disposed of its refuse at the New Castle County landfill and had departed, traveling west on Lambson's Lane, which is the only road that provides an ingress and egress to the landfill area. Lambson's Lane is a public road maintained by the State. Cutting across Lambson's Lane is the railroad track in question, which lies upon a right-of-way owned by Conrail. East of the railroad crossing, the road goes exclusively to the landfill. The collision occurred on Conrail's land. The crossing was maintained by Conrail to a distance of two feet of the outer side of the rail on each side. There was no railroad crossing gate or other warning device which warned the traffic which traveled on Lambson's Lane about oncoming trains. The landfill was open to the public. ¹

Although the State of Delaware usually enters into written agreements with railroad companies, obtaining easements on behalf of the public where roads cross pre-existing railroad tracks, the public records show no such easement at the Lambson's Lane railroad track location. There are no signs at the railroad crossing indicating the crossing is a private one. The railroad crossing is paved and level with the road surface.

Plaintiff brought a negligence action against Conrail in the Superior Court. In an amended answer Conrail asserted an affirmative defense claiming that the Premises Guest Statute, 25 Del.C. § 1501, which bars recovery except for intentional conduct or a wilful or wanton disregard of the rights of others, was applicable to this case. ²

Thereafter, Conrail, pursuant to Superior Court Civil Rule 16, filed a motion for a pretrial legal determination as to whether the Premises Guest Statute was in fact applicable. The Superior Court Judge ruled in favor of Conrail concluding that the statute was applicable since the accident occurred on Conrail's property. The plaintiff has taken an interlocutory appeal to this Court.

The Superior Court, noting that the railroad had tacitly given the public permission to use the crossing for access to the public landfill, held Mr. Malin was a "guest without payment". The Court relied on the fact "that the phrase 'guest without payment' included 'all licensees.' " See Acton v. Wilmington and Northern Railroad Company, Del.Supr., 407 A.2d 204, 206 (1979).

The Superior Court Judge took some pain to express dissatisfaction with his result:

It appears to me that the premises Guest Statute was intended generally to protect the owners or occupiers of private property against suits by trespassers or guests. I find it very hard to believe that the statute was intended to go so far as to protect railroads against a suit brought by a person who alleges that the railroad was negligent when he was hit by a locomotive at a rail crossing when the crossing was on a road which had been used by the public for many years and the crossing was the only legal access to a publicly maintained landfill. However, the wording of the statute is such as to give the Court no choice in this case.

By footnote, the Court added that the instant case was "clearly distinguishable" from Caine v. New Castle County, Del.Supr., 379 A.2d 1112 (1977), a case in which "public invitee" status was held to render the Premises Guest Statute inapplicable. See also Anno. 95 A.L.R.2d 986, et seq.

With regard to the similar Automobile Guest Statute, various opinions of this Court have often noted that we do not favor the judicial creation of patchwork exceptions to avoid the legislative enactment. See Justice v. Gatchell, Del.Supr., 325 A.2d 97, 104 (1974); Foster v. Shropshire, Del.Supr., 375 A.2d 458, 460 (1977); Loper v. Street, Del.Supr., 412 A.2d 316, 319 (1980). But it should be particularly noted here that both the Acton and Caine cases recognize a separate status for the "public invitee" under the Premises Guest Statute. The Caine case reversed a grant of summary judgment based on the Premises Guest Statute in a wrongful death action involving a sledding accident on a portion of a County recreation area which was under construction. The Court held there was a jury question as to whether the portion of the parkland under construction was "effectively closed to public use", thus preventing "public invitee" status. As noted above, the Superior Court below found that "the instant case was clearly distinguishable from the County park in the Caine case." This comment suggests that the Court below found the public ownership of the land was crucial. This focus is reinforced by a comment in Acton. ³ But we do not think the distinction on the basis of public versus private ownership was intended to be comprehensive or exclusive.

Indeed, a reading of the Caine case demonstrates that this Court for the purpose of the Premises Guest Statute accepted the classifications in the Restatement of Torts (2d ed. 1965). For the immediate purpose of this case, the pertinent language in Caine is found at 379 A.2d 1114-1115:

. . . § 330 defines licensee this way:

A licensee is a person who is privileged to enter or remain on land only by virtue of the possessor's consent.

And § 332 defines a public invitee as:

... a person who is invited to remain on land as a member of the public for a purpose for which the land is held open to the public.

Comment c of § 332 adds:

It is immaterial that the person is one whom the possessor is not willing to receive as an invitee if the possessor's words or other conduct are understood and would be understood by a reasonable man, as indicating the possessor's willingness.

Comment d of § 330 contains similar language.

Initially, therefore, we reject the implication in the letter opinion below that under the Caine case "public invitee" status is dependent upon the public ownership, e.g. in that case, a County park. Rather we think status determinations in the present context were intended to rest on the definitional classifications in the Restatement of Torts. See also Bailey v. Pennington, Del.Supr., 406 A.2d 44, 47-48 (1979), appeal dismissed 444 U.S. 1061, 100 S.Ct. 1000, 62 L.Ed.2d 744 (1980).

Second, contrary to the argument of the defendant, we find no Delaware case under our Premises Guest Statute controlling in the crossing situation factually presented here. This is not a case of plaintiff running alongside of a moving train or operating a motorcycle on a dirt path paralleling the tracks within the railroad's right of way. Compare Acton, supra, and Brackin v. National Passenger Travel Co., Del.Supr., C. A. No. 78C-MR-30, letter opinion dated January 16, 1980. This is a case where the railroad maintained a privately-owned crossing in a manner that had every appearance of being a continuation of a public road regularly used by the public for a public purpose.

Thus, the determination of this interlocutory appeal depends on the characterization of the plaintiff as a "public invitee", a status previously recognized by our case law as not being a "guest without payment", or a "licensee", a status previously recognized by our case law as being a "guest without payment". ⁴

There was no express invitation from the railroad to the plaintiff. The railroad further argues that an invitation cannot be implied because the plaintiff cannot demonstrate his use of the railroad crossing in any way benefited Conrail. On the instant record, we accept factually the absence of benefit asserted by the defendant. We turn therefore to the legal implications of the absence of benefit.

The railroad argues that Delaware law makes one using another's premises for his own benefit a licensee, not an invitee. Slovin v. Gauger, Del.Super., 193 A.2d 452, 460 (1963), aff'd Del.Supr., 200 A.2d 565, 567 (1964). That case involved the permitted use of school property under compulsion of statute by an amateur theatrical group. The plaintiff, a member of the group, was injured in a fall during a dress rehearsal triggered by the movement of a set of steps. Plaintiff was held to be a licensee, not an invitee. The Supreme Court noted "the purpose for which the plaintiff was on the School Board's premises was not for any purpose of the School Board but was for his purpose as a member of the Brookside Players." Slovin, 200 A.2d at 567. That case, however, did not deal with the concept of "public invitee". Compare Caine, supra, 379 A.2d at 1115. Indeed, the whole concept of "public invitee" appears to be one of relatively recent origin. Compare II Restatement of Torts § 330-332 (1934) with 2 Restatement (Second) of Torts § 330 and § 332 (1965). It would thus appear that the Slovin case would not control the issue presented on this appeal.

The question then becomes whether the concept of "public invitee" includes the concept of benefit flowing to the inviter. For guidance on this question, we elect to turn to the most recent Restatement and, not unexpectedly, the parties differ in their views as to what the Restatement says. Because the issue is so pointed and one that has some general interest, we quote the well-reasoned views of the parties at length.

The Plaintiff's Argument

The Restatement of Torts (2d ed.) § 332(2) defines a public invitee as a person who is invited to...