Mounsey v. Ellard

• Citation: 363 Mass. 693,297 N.E.2d 43
• Parties: Wilbur M. MOUNSEY v. Robert P. ELLARD et al.
• Decision Date: 06 June 1973
• Court: United States State Supreme Judicial Court of Massachusetts

Page 43

297 N.E.2d 43

363 Mass. 693

Wilbur M. MOUNSEY v. Robert P. ELLARD et al.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Feb. 6, 1973.

Decided June 6, 1973.

Joseph J. Padellaro, Boston, for plaintiff.

Walter G. Murphy, Boston, for defendants.

Before TAURO, C.J., and REARDON, QUIRICO, BRAUCHER, HENNESSEY, KAPLAN and WILKINS, JJ.

TAURO, Chief Justice.

This is an action in tort brought by the plaintiff to recover for personal injuries sustained when he fell on an accumulation of ice on the defendants' premises. The plaintiff's declaration in six counts alleges negligence, gross negligence, and wilful, wanton or reckless conduct by the coo wners of the premises. The case is here on the plaintiff's exceptions to the direction of verdicts for the defendants on all counts after the plaintiff's opening statement to the jury.

The pertinent facts, as stated in the opening, are as follows. The plaintiff, a police officer in the town of Concord, was acting in his official capacity at the time he was injured on the defendants' premises. On January 20, 1967, at approximately 5:30 P.M. the plaintiff was directed by a superior officer to serve a criminal summons for a parking violation on one of the defendants. After locating the defendants' home, the plaintiff entered upon their premises from the driveway, delievered the summons at the door, and then was injured when he fell on an accumulation of ice on his way out.

Since the plaintiff's opening statement to the jury was devoid of any facts which would have warranted a jury finding of gross negligence or wilful, wanton or reckless conduct, the trial judge properly allowed the defendants' motion for directed verdicts as to counts 2, 3, 5 and 6. Viewed in the light most favorable to the plaintiff, his opening states that there were defects in the drainage system that the defendants failed to repair. A failure to repair such defects which resulted in an accumulation of ice may constitute negligence but such conduct does not '(display) the criminal or quasi criminal quality involved in wilful, wanton or reckless conduct.' 'Carroll v. Hemenway, 315 Mass. 45, 47, 51 N.E.2d 952, 953.

Therefore, the only remaining question before us is whether the trial judge properly allowed the defendants' motion for directed verdicts as to the plaintiff's counts 1 and 4 alleging ordinary negligence. The judge's decision was based on our common law rule that classifies policemen and firemen as licensees who must establish wilful, wanton or reckless conduct, and not just ordinary negligence, on the defendant's part in order to recover for injuries sustained during their performance of official duty on the defendant's land. Brosnan v. Koufman, 294 Mass. 495, 501, 2 N.E.2d 441; Wynn v. Sullivan, 294 Mass. 562, 564, 3 N.E.2d 236; Aldworth v. F.W. Woolworth Co., 295 Mass. 344, 3 N.E.2d 1008. The plaintiff asks us to abandon this artificial classification of public employees as licensees in favor of a rule which would treat public employees, such as policemen and firemen, as a sui generis class to whom the landowner or occupier of land owes an affirmative duty of reasonable care to keep his premises safe when these public employees enter upon the defendant's land in their official capacity and in the performance of their public duties. The plaintiff's challenge to the common law's classification of policemen who enter upon private property as mere licensees has led us to reconsider the historical sources, justifications, and efficacy of the common law's general licensee-invitee distinction.

Our common law places those who enter upon land in three fixed categories: trespassers, licensees, and invitees. These three catgories 'make out, as a general pattern, a rough sliding scale, by which, as the legal status of the visitor improves, the possessor of the land owes him more of an obligation of protection.' Prosser, Torts (4th ed.) § 58, p. 357. These categories were developed in English common law at a time when the law attached supreme importance to a landowner's property interests. See Bohlen, Fifty Years of Torts, 50 Harv.L.Rev. 725. The feudal conception that the landowner was a sovereign within his own boundaries provided the justification for a line of decisions that predicated the existence and distinguished the degree of a landowner's liability for injuries occurring on his land on the type of relationship existing between the landowner and the injured party.

In Sweeny v. Old Colony & Newport R.R., 10 Allen 368, 372, this court outlined the common law's approach to the problem of balancing the interests of the occupier against the interests of a person entering upon the premises. 'In order to maintain an action for an injury to person or property by reason of negligence or want of due care, there must be shown to exist some obligation or duty towards the plaintiff, which the defendant has left undischarged or unfulfilled. This is the basis on which the cause of action rests.'

Chief Justice Bigelow stated the court's view as to why occupiers or owners of land owed a duty of reasonable care to keep their premises safe only for their invitees. Since trespassers enter the occupier's land without right, they cannot maintain an action based on a claim of negligence because '(t)he owner of the land is not bound to protect or provide safeguards for wrongdoers. So a licensee, who enters on premises by permission only, without any enticement, allurement or inducement being held out to him by the owner or occupant, cannot recover damages for injuries caused by obstructions or pitfalls. He goes there at his own risk, and enjoys the license subject to its concomitant perils. No duty is imposed by law on the owner or occupant to keep his premises in a suitable condition for those who come there solely for their own convenience or pleasure, and who are not either expressly invited to enter or induced to come upon them by the purpose for which the premises are appropriated and occupied, or by some preparation or adaptation of the place for use by customers or passengers, which might naturally and reasonably lead them to suppose that they might properly and safely enter thereon. . . . A mere naked license or permission to enter or pass over an estate will not create a duty or impose an obligation on the part of the owner or person in possession to provide against the danger of accident. The gist of the liability consists in the fact that the person injured jured did not act merely for his own convenience and pleasure, and from motives to which no act or sign of the owner or occupant contributed, but that he entered the premises because he was led to believe that they were intended to be used by visitors or passengers, and that such use was not only acquiesced in by the owner or person in possession and control of the premises, but that it was in accordance with the intention and design with which the way or place was adapted and prepared or allowed to be so used.' Pp. 372--374.

In light of the supreme importance which our early common law attached to property interests, it is understandable that the occupier's interests were favored over the licensee's by the creation of a rule that the only duty an occupier owed a licensee was not to inflict wilful or wanton injury on him. The distinctions drawn by the Sweeny case, supra, between licensees and invitees reflected the English common law rule's reasoning that a landowner should be bound to a duty of reasonable care only in those cases where he had invited the visit for his own purposes. The landowner's passive acquiescence to a licensee's entrance for the licensee's 'own convenience and pleasure,' the Sweeny case, p. 373, did not impose a duty of reasonable care on the landowner because the landowner did not benefit from the licensee's visit or induce it by creating the appearance that visitors 'might properly and safely enter thereon.'

One serious problem raised by the common law's rigid division of the status of all persons entering upon land of another into these three classes of trespassers, licensees, and invitees is the difficulty courts encounter in distinguishing between these latter two categories in dealing with public employees or officials who enter private property by way of a legal privilege that is not conferred by or dependent upon the occupier's consent. The difficulty of placing such official visits by public employees and officials in one of the three categories established by the common law is reflected in this court's first decisions on the subject.

In Parker v. Barnard, 135 Mass. 116, this court noted that public servants acting for the public welfare '(a)s individuals may thus enter upon the land of another, firemen may do so for the protection of property, officers of the law for similar purposes, and, under proper circumstances, for the arrest of offenders or the execution of criminal process. The right to do this may be in limitation of the more general right of property which the owner has, but it is for his protection and that of the public. Metallic Compression Casting Co. v. Fitchburg Railroad, 109 Mass. 277, 280. Hyde Park v. Gay, 120 Mass. 589, 593. Commonwealth v. Tobin, 108 Mass. 426. Commonwealth v. Reynolds, 120 Mass. 190. Barnard v. Bartlett, 10 Cush. 501.' P. 117. Thus, when a police officer enters another's land to perform a lawful duty 'a license so to do is fairly implied, which, at least, should shield him from being treated as a trespasser' (emphasis supplied). P. 117.

However, the court declined to determine the police officer's exact status under the common law. The defendants had argued that the plaintiff police officer 'was no more than . . . (a licensee); he was there at his own risk; and that none of the defendants were under any obligation towards him to keep this entrance or the building in a safe condition.' Pp. 117--118. However, the court found it unnecessary to...