Mariorenzi v. Joseph DiPonte, Inc.

• Decision Date: 24 February 1975
• Docket Number: No. 73-47-A,73-47-A
• Citation: 114 R.I. 294,333 A.2d 127
• Parties: Biagio MARIORENZI v. JOSEPH DiPONTE, INC. Biagio MARIORENZI v. Joseph DiPONTE. ppeal.
• Court: Rhode Island Supreme Court

Page 127

333 A.2d 127

114 R.I. 294

Biagio MARIORENZI v. JOSEPH DiPONTE, INC.

Biagio MARIORENZI v. Joseph DiPONTE.

No. 73-47-Appeal.

Supreme Court of Rhode Island.

Feb. 24, 1975.

[114 R.I. 310] Max Wistow, Providence, for plaintiff.

Martin M. Zucker, Providence, for defendants.

OPINION

KELLEHER, Justice.

These two wrongful death actions were consolidated for a jury trial in Superior Court. At the conclusion of all the testimony the trial justice granted the defendants' motion for a directed verdict. Since the single issue before us is the correctness of the directed verdict, our narrative must be based on a view of the evidence which is most favorable to the plaintiff. Wilkinson v. Vesey, 110 R.I. 606, 295 A.2d 676 (1972). The relevant incident occurred in the spring of 1961.

In April 1961, plaintiff, his wife, and two children lived in the Town of Johnston on Golini Drive. Today, Golini Drive runs in a somewhat westerly direction from Greenville Avenue to Atwood Avenue. However, in 1961 it began at Greenville Avenue and dead-ended at the edge of an 18-acre parcel of land which was owned by Joseph DiPonte, Inc. The parcel was called 'Atwood Acres' and was to be the site for a real estate development containing more than 40 homes. The corporate defendant is a family corporation. Joseph DiPonte owns 50 percent of its stock, and his brother Michael owns the remaining half. The brothers and their wives constitute the board of directors. Joseph DiPonte is a corporate officer and also is listed on the company records as an employee. He told the court and jury that he was in personal charge of the construction activities. Hereafter whenever we refer to the corporation or to Joseph, it will be by the family name 'DiPonte.'

The Mariorenzis lived in the house on Golini Drive that was closest to the DiPonte property. The distance between the Marioarenzi home and the actual construction activity was estimated as being anywhere from 400 to 800 feet. Site preparations for Atwood Acres began in 1959. Actual construction of houses did not begin until late 1960 when the foundations for two houses were poured. Later, in February or March 1961, excavations were made for the sewerage systems that were to service each house. Originally, it was decided to install cesspools. Cesspool pits were dug and they filled with water. At this point, however, DiPonte discovered that a high water table, clay soil, and an accumulation of surface water made cesspool installation impossible. Accordingly, in mid-April, it was decided to switch from cistern-type cesspools to septic tanks and leaching fields. The septic tanks had a 500-gallon capacity. They measured 4 feet in depth and about 8 feet in width. Holes deep enough to hold the tanks were dug so that the actual top of the tank would be some 6 inches below ground level. The leaching fields were then built. DiPonte described the fields' measurements as being 10 by 18 feet with a depth of between 2 and 3 feet. A drainage engineer testified that septic tank holes could be placed either within the confines of the leaching field or entirely apart from the field. It was agreed that the excavation for the leaching field would fill up with water, and when filled the field looked like a 'big puddle.' There was evidence that DiPonte at one time used an electric pump to remove this excess water. In mid-April the pump's motor burned out and this brought a halt to the pumping operations.

In the spring of 1961, DiPonte began to place the wooden frames on each foundation. In order to do this, he went to Mr. Mariorenzi and received permission to tie into the Mariorenzis' electrical and water systems. The electricity would power the carpenters' saws and the plasterers would use the water to make the plaster.

A few weeks before the end of April, Mr. Mariorenzi talked to DiPonte and asked him if he could take some of the topsoil that had been stripped away from the construction site and use it to repair several bare spots on his lawn. The topsoil had been placed in a pile near the two foundations. DiPonte gave an affirmative answer and told Mr. Mariorenzi to take whatever he needed.

On Sunday, April 30, 1961, at about 1:30 p.m. Mr. Mariorenzi and his 5-year-old son Tommy took a wheelbarrow and went over to Atwood Acres. They put some of the topsoil into the wheelbarrow and returned to their premises. The father had his shovel and Tommy had 'his own little shovel.' The father testified that DiPonte came by and saw Tommy and him using the wheelbarrow. Tommy helped his father to cover the lawn's bare spots. At 3:30 p.m. Tommy was given permission to go play with some of the children in the neighborhood. Some 45 minutes later, Mrs. Mariorenzi asked her husband to go look for the 5-year-old. During his canvass of the neighbors, he was told that Tommy was playing on the DiPonte property. When the father went to that area, he saw his son's body floating in a puddle of water that covered a leaching field that was to the rear of one of the foundations. Mr. Mariorenzi jumped into the water and carried the body onto dry land. Resuscitation efforts were fruitless. The father testified that the water came up to a spot somewhere between his neck and chest. The father was 5 feet 6 inches tall.

DiPonte was well aware of the water-filled leaching fields. He was also aware that school children would come onto the site to play. No effort whatever was made to barricade or cover the excavations, and no warning was posted telling of the presence of the water-filled trench. He justified this indifference by his assertion that these children were on 'private property.'

The trial justice in granting defendants' motion for a directed verdict classified Tommy as a trespasser when he returned to Atwood Acres after helping his father topdress the lawn. He then referred to the rule in this state which holds that ordinarily a landowner owes no duty to a trespasser other than to refrain from willfully or wantonly injuring him. He found no such evidence in the record which he felt would make DiPonte liable for the consequence of the April 30 tragedy.

The plaintiff in his appeal has launched a broadside attack on the trial justice's ruling. He argues that Tommy's status on the late afternoon of April 30 was that of either an invitee or a licensee. Failing in these contentions he argues that even assuming Tommy's status was that of a trespasser, there was sufficient evidence from which the jury could find a behavior on DiPonte's part that would qualify as being 'willful or wanton.' Finally, plaintiff contends that if all his points are meritless, the time has come when we should decide that the distinctions recognized at common law between a trespasser, an invitee, and a licensee have no place in the society in which we live.

This jurisdiction has in the past recognized a difference in the duty owed an invitee, licensee or social guest, and a trespasser. Dodge v. Parish of Church of Transfiguration, 106 R.I. 342, 259 A.2d 843 (1969). The invitee is an individual who comes on one's land at the invitation of the landowner, either expressed or implied for the transaction of business or any other purpose beneficial to the owner. To such an individual, the owner owes a duty to keep his premises in a reasonably safe condition. DeMello v. St. Thomas the Apostle Church Corp., 91 R.I. 476, 165 A.2d 500 (1960). A landowner has a duty towards the licensee to refrain from active negligence or from knowingly letting him come upon a hidden peril or from willfully causing him harm. Perry v. St. Jean, 100 R.I. 622, 218 A.2d 484 (1966); Pagliaro v. Pezza, 92 R.I. 110, 167 A.2d 139 (1961). To a trespasser, the landowner's sole duty is to refrain from harming the trespasser in a willful or wanton manner, and the duty arises only after the treaspasser has been discovered in a position of peril. Previte v. Wanskuck Co., 80 R.I. 1, 90 A.2d 769 (1952); Erenkrantz v. Palmer, 69 R.I. 478, 35 A.2d 224 (1944).

We agree with the trial justice's determination as to Tommy's status. He certainly was neither an invitee nor a licensee when he returned to the construction site after helping his father repair the lawn. The father agreed that the invitation extended by DiPonte relating to the taking of loam was directed to him and not to Tommy. Even if we assume there was an implied invitation to Tommy, the invitation was limited to the times he accompanied his father. There was never an implied invitation to go onto the premises by himself.

If we look upon the father as a licensee, he had a limited license. He could go onto the DiPonte property only for the purpose of obtaining loam. Arguendo, if the license extended to the 5-year-old, it had terminated at the time he had completed his lawn repair chores and went off to play with his friends.

Finally, there is no evidence whatever that DiPonte was aware of Tommy's late afternoon return to the construction site. So even if we were to classify the maintenance of the unguarded, unprotected leach field in the 'willful or wanton' category, we would have to affirm the directed verdict because DiPonte's ignorance of Tommy's return nullified any duty of care that might have been due the 5-year-old trespasser. ¹

Having found that Tommy's trespassing precluded any consideration by the jury of DiPonte's total failure to do anything about its puddled leach field, we now come to the question of whether we should continue to measure a landowner's duty of care to one who enters upon his property by classifying the entrant as a trespasser, a licensee, or an invitee. The common-law categories have been in effect since the mid-19th century. The distinctions were first adopted in the United States during the days of the Civil War. Sweeny v. Old Colony and Newport R.R., 92 Mass. 368 (1865); see Hughes, Duties To Trespassers: A Comparative Survey And Revaluation, 68 Yale L.J. 633 (1959); Marsh, The History and...