Mallet v. Pickens, 25807.

Citation522 S.E.2d 436,206 W.Va. 145
Decision Date21 July 1999
Docket NumberNo. 25807.,25807.
PartiesPatricia A. MALLET and Ernest R. Mallet, Her Husband, Plaintiffs Below, Appellants, v. Selbert PICKENS and Anita Pickens, His Wife, Defendants Below, Appellees.
CourtSupreme Court of West Virginia

Roger D. Williams, Esquire, Charleston, West Virginia, Attorney for Appellants.

Heather Heiskell Jones, Esq., Robert A. Lockhart, Esq., Spilman, Thomas & Battle, Charleston, West Virginia, Attorneys for West Virginia Insurance Federation, Amicus Curiae.

David A. Sims, Esquire, Debra Tedeschi Hall, Esquire, Sims & Hall, Elkins, West Virginia, Attorneys for Appellees.

McGRAW, Justice.

Appellants Patricia A. Mallett and Ernest R. Mallet appeal a grant of summary judgment entered against them in their tort action, in which they sought damages for an injury Mrs. Mallet sustained when visiting the home of their friends, Selbert Pickens and Anita Pickens. The lower court granted summary judgment on the basis that Mrs. Mallet, as a social guest, was merely a licensee upon the property of the Pickenses, and that the Pickenses had no duty to Mrs. Mallet, save to refrain from willfully or wantonly injuring her. The Mallets appeal, claiming that Mrs. Mallet should be considered an invitee, or, alternatively, that this Court should instead apply a duty of reasonable care upon landowners with respect to all nontrespassing entrants. Because we concur with the Mallets and choose to abolish the common law distinction between licensees and invitees, following the modern trend in the development of premises liability law, we must reverse the decision of the lower court.


On July 23, 1994, the appellants, Patricia and Ernest Mallet, decided to visit their good friends, the Pickens family. Mrs. Pickens had been injured some time before in an auto accident, and the Mallets wanted to wish her well in her recovery. Although the two families often visited one another, the Pickenses did not know that the Mallets were coming to visit that day.

The Pickenses were having work done to their home, so at the time of the visit, the only access to the front door of the house was by way of a set of temporary, wooden stairs, which did not have a railing or banister. Additionally, because of the construction, a masonry block had been left on the ground near the steps. When Mrs. Mallet exited the home after the visit, the stairs shifted under her weight and she fell, striking her head on the block. Mrs. Mallet suffered broken bones in her face that required surgery.

The Mallets' health insurance carrier originally denied Mrs. Mallet's claim, on the basis that a third party (the Pickenses) was at fault, and that the third party should pay the medical bills. The Pickenses submitted their friend's medical bills to their insurance carrier, which denied the claim. The Mallets filed suit, and the lower court granted summary judgment in favor of Mr. and Mrs. Pickens, ruling that Mrs. Mallet was a licensee, and the Pickenses did not breach their duty of care toward Mrs. Mallet, which was merely the duty not to willfully or wantonly injure her. The Mallets claim the lower court erred in finding Mrs. Mallet a licensee, and they ask, alternatively, that we abolish the licensee/invitee distinction and adopt for landowners a duty of reasonable care under the circumstances for all non-trespassing entrants of land. Because we now abandon the common law distinction between licensees and invitees, we reverse the decision of the circuit court.


"A circuit court's entry of summary judgment is reviewed de novo." Syl. pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). A party moving for summary judgment faces a well-established burden: "A motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law." Syl. pt. 3, Aetna Cas. & Surety Co. v. Federal Insur. Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).

This Court's right to respond to changes in the law is also manifest. Though some have argued that it is not this Court's prerogative to alter the common law in any substantial way, and that our Constitution prohibits such amendments, we have held that, "Article VIII, Section 13 of the West Virginia Constitution and W. Va.Code, 2-1-1, were not intended to operate as a bar to this Court's evolution of common law principles, including its historic power to alter or amend the common law." Syl. pt. 2, Morningstar v. Black and Decker Mfg. Co., 162 W.Va. 857, 253 S.E.2d 666 (1979).1 We elaborated on this holding in a later case:

In Morningstar v. Black and Decker Manufacturing Co.,... we discussed at some length the role of the English common law as precedent for this Court. There, we determined that Article VIII, Section 13 of our Constitution, and W. Va.Code, 2-1-1, which established the English common law as of 1863 as a part of our law, "were not intended to operate as a bar to this Court's evolution of common law principles, including its historic power to alter or amend the common law." ....
We did not hold in Morningstar that we would ignore the English common law, but only that we are not required to accept it as forever binding us, to the point where we cannot make our own assessment of the reasonableness of an ancient common law rule in light of the present condition of our society.

Markey v. Wachtel, 164 W.Va. 45, 58, 264 S.E.2d 437, 445 (1979) (citations omitted).

Today we make our own assessment of the reasonableness of the ancient common law distinction between licensees and invitees, and find that it does not comport with the present condition of our society.

A. Current Law

West Virginia common law presently recognizes a difference regarding the duty owed to entrants of land. An entrant of land must fit into the licensee, invitee, or trespasser category and is owed a different duty of care from a landowner, depending upon that status.

The duty owed to an invitee was outlined in Syl. pt. 2 of Morgan v. Price[, 151 W.Va. 158, 150 S.E.2d 897 (1966)], where we said:

"The owner or the occupant of premises owes to an invited person the duty to exercise ordinary care to keep and maintain the premises in a reasonably safe condition." Point 2 Syllabus, Burdette v. Burdette, 147 W.Va. 313[, 127 S.E.2d 249 (1962)].


However, in the case of a licensee, that is a person on another's property with expressed or implied permission, the property owner does not have to correct the dangers arising from existing conditions. In the Syllabus of Hamilton v. Brown,... [157 W.Va. 910, 207 S.E.2d 923 (1974),] we said:
"Mere permissive use of the premises, by express or implied authority ordinarily creates only a license, and as to a licensee, the law does not impose upon the owner of the property an obligation to provide against dangers which arise out of the existing condition of the premises inasmuch as the licensee goes upon the premises subject to all the dangers attending such conditions." See also Miller v. Monongahela Power Co., 184 W.Va. [663,] 667-68, 403 S.E.2d [406,] 410-11 [ (1991) ].

Cavender v. Fouty, 195 W.Va. 94, 98, 464 S.E.2d 736, 740 (1995) (per curiam); accord Self v. Queen, 199 W.Va. 637, 487 S.E.2d 295 (1997) (per curiam). The third category is that of trespasser, which we have defined as follows:

A trespasser is one who goes upon the property or premises of another without invitation, express or implied, and does so out of curiosity, or for his own purpose or convenience, and not in the performance of any duty to the owner.

Syl. pt. 1, Huffman v. Appalachian Power Co., 187 W.Va. 1, 415 S.E.2d 145 (1991); accord Waddell v. New River Co., 141 W.Va. 880, 93 S.E.2d 473 (1956).2

B. History of the Trichotomy

From the outset we must bear in mind that the categories of licensee, invitee, and trespasser evolved in a much different time, and in a significantly different legal climate than exists today. Scholars studying the subject regard the English cases of Parnaby v. Lancaster Canal Co., 11 Ad. & E. 223, 113 Eng. Rep. 400 (Ex. 1839), and Southcote v. Stanley, 1 H. & N. 247, 156 Eng. Rep. 1195 (Ex. 1856), as the progenitors of the licensee/invitee distinction, soon adopted by jurisdictions in this country, e.g. Sweeny v. Old Colony & Newport R.R. Co., 92 Mass. (10 Allen) 368, 87 Am. Dec. 644 (1865).3

The ancient precept of "sanctity of property," and the concept of "privity of contract," were the basic principles underpinning the employment of these categories. See Charles P. Dribben, Comment, The Outmoded Distinction Between Licensees and Invitees, 22 Mo. L.Rev. 186, 188 (1957). One of the main "benefits," as seen through eyes of the time, of employing the licensee/invitee/trespasser trichotomy was the protection of property owners, who were a privileged minority, from the vagaries of juries, comprised mostly of land entrants and not landowners.4

Inherent in such a scheme was the notion that a jury could not be trusted to enter a just verdict; however, we have long ago cast off such suspicion of the jury system:

Chesterton, the "prince of paradox," framing the experience of two millennia in Tremendous Trifles: The Twelve Men, said:
"Our civilization has decided, and very justly decided, that determining the guilt or innocence of men [natural or artificial] is a thing too important to be trusted to trained men. It wishes for light upon that awful matter, it asks men who know no more law than I know, but who can feel the things that I felt in the jury box. When it wants a library catalogued, or the solar system discovered, or any trifle of that kind, it uses up its specialists. But when it wishes anything done which is really serious, it collects twelve of the ordinary men standing round. The same thing was done, if I remember

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