Ouellette v. Blanchard, No. 7325

CourtSupreme Court of New Hampshire
Writing for the CourtGRIFFITH; DUNCAN; GRIMES
Citation116 N.H. 552,364 A.2d 631
Decision Date30 September 1976
Docket NumberNo. 7325
PartiesRobert OUELLETTE et al. v. J. Richard BLANCHARD.

Page 631

364 A.2d 631
116 N.H. 552
Robert OUELLETTE et al.
v.
J. Richard BLANCHARD.
No. 7325.
Supreme Court of New Hampshire.
Sept. 30, 1976.

Holland & Aivalikles, Nashua (Francis G. Holland, Nashua, orally), for plaintiffs.

Sullivan, Gregg & Horton and Francis L. Cramer (Mr. Cramer, orally), Nashua, for defendant.

GRIFFITH, Justice.

These are actions to recover for personal injuries to the minor plaintiff, Jaye Ouellette, and consequential damages to her father Robert Ouellette in a burning accident on property of the defendant. The plaintiffs allege that on July 23, 1973 the [116 N.H. 553] defendant, with a permit, was burning rubbish in an unsupervised fire on his premises. The plaintiff Jaye Ouellette, then ten years of age, went onto the property with other children and with them threw sand on the fire. Jaye stepped on some hot coals and fell forward on her hands burning both her feet and hands.

The defendant moved for a nonsuit at the close of the plaintiffs' opening statement on the grounds that the opening indicated Jaye was probably a trespasser on defendant's land and at best might be found a licensee. Defendant argued that even were she found to be a licensee defendant owed her no duty of care with regard to hazards known to her. The plaintiffs argued that in Sargent v. Ross, 113 N.H. 388, 308 A.2d 528 (1973), this court had strongly indicated an intention to abolish judicially determined status distinctions as the sole determiant of the standard of care owed by an occupier of land to an entrant on the land. The Trial Court, Flynn, J., denied defendant's motion for nonsuit subject to exception and reserved and transferred without ruling the current applicability of status distinctions to entrants on land.

In Sargent v. Ross, supra, we abolished the limited immunity from liability which landlords had previously enjoyed in regard to injuries caused by defective or dangerous conditions in the leased premises. We

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noted that 'considerations of human safety within an urban community dictate that the landowner's relative immunity, which is primarily supported by values of the agrarian past, be modified in favor of negligence principles of landowner liability.' Sargent v. Ross, supra at 396, 308 A.2d at 533, quoting from Recent Development, Abrogation of Common-Law Entrant Classes of Trespasser, Licensee, and Invitee, 25 Vand.L.Rev. 623, 640 (1972). Accordingly, we there applied to landlords the general principles of tort law under which liability is ordinarily imposed upon persons for injuries caused by their failure to exercise reasonable care under all the circumstances. Our reasoning in Sargent applies equally in the area of landowners' liability.

The three-pronged classification of entrants on land was born judicially in the nineteenth century. In the initial rigid classifications all entrants without the consent of the landowner were trespassers as a matter of law and the landowner's liability was limited to intentional injuries. Clark v. Manchester, 62 N.H. 577 (1883). An entrant on land with the permission of the owner but for the entrant's purposes was a licensee and entitled only to a warning of hidden dangers. Locke v. Payne, 81 N.H. 266, 127 A. 668 (1924). An invitee was an entrant on the property for the transaction of [116 N.H. 554] business with the occupier and as to him the ordinary rules of negligence were applicable to the occupier. True v. Creamery, 72 N.H. 154, 55 A. 893 (1903).

Generally 'the consensus of modern opinion is that the special privilege these rules accord to the occupation of land sprang from the high place which land has traditionally held in English and American thought . . ..' 2 F. Harper & F. James, The Law of Torts 1432 (1956). Whatever its origin, the original rigid classifications and harsh results have been subjected in the passage of time to the twin forces of the industrial age and the development of negligence law. The result has been a refining and erosion of the original rules with exceptions and distinctions piercing the landowner's cloak of immunity.

'In an effort to do justice in an industrialized urban society, with its complex economic and individual relationships, modern common-law courts have found it necessary to formulate increasingly subtle verbal refinements, to create subclassifications among traditional commion-law categories, and to delineate fine gradations in the standards of care which the landowner owes to each. Yet even within a single jurisdiction, the classifications and subclassifications bred by the common law have produced confusion and conflict. As new distinctions have been spawned, older ones have become obscured. Through this rematic morass the common law has moved, unevenly and with hesitation, towards 'imposing on owners and occupiers a single duty of reasonable care under all the circumstances. " Steward, J., in Kermarec v. Transatlantique, 358 U.S. 625, 630, 79 S.Ct. 406, 410, 3 L.Ed.2d 550 (1959).

Some examples from our own jurisdiction are indicative of the accuracy of the above characterization of the common law in this field. In Buch v. Company, 69 N.H. 257, 44 A. 809 (1897), an eight-year-old boy had been brought into a textile mill by his thirteen-year-old brother to learn the brother's job. The boy had been there a day and a half when he caught his hand in a gear box. He was held a trespasser as a matter of law and although his presence was known to the overseer the owners owed him no duty to warn of hidden dangers or to protect him from injury when by acting the landowner could do so. The later rule was repudiated in Castonguay v. Company, 83 N.H. 1, 136 A. 702 (1927), which held a landowner could be liable for failure to act to prevent injury to a known trespasser. The general rule that a landowner was immune to all but intentional acts against a trespasser was broadened at an early time to include negligent acts not only [116 N.H. 555] against known trespassers but against trespassers the landowner should have

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known of. Mitchell v. Railroad, 68 N.H. 96, 34 A. 674 (1894). Hashim v. Chimiklis, 91 N.H. 456, 21 A.2d 166 (1941), holding that a business invitee who asked to use the toilet became a licensee and Sandwell v. Elliott Hospital, 92 N.H. 41, 24 A.2d 273 (1972), placing visitors to the hospital sick in the licensee niche were specifically overruled in Dowd v. Portsmouth Hospital, 105 N.H. 53, 193 A.2d 788 (1963), expanding the invitee class to include persons on the premises for purposes for which the place was designed. See also Stevens v. Bow Mills Methodist Church, 111 N.H. 340, 283 A.2d 488 (1971). Both of the later cases could have claimed kinship to Hobbs v. Company, 75 N.H. 73, 70 A. 1082 (1908), holding a jury could find a boy invited to visit a lumber camp by a lumber jack an invitee, but not with Castonguay v. Company, 83 N.H. 1, 136 A. 702 (1927), holding schoolchildren invited to visit a mill by the manager were trespassers as a matter of law.

This jurisdiction rejected the attactive nuisance theorty in child cases in Frost v. Eastern RR, 64 N.H. 220, 9 A. 790 (1886), and early cases rigidly classified children as trespassers as a matter of law. See, e.g., Buch v. Company, 69 N.H. 257, 44 A. 809 (1897); Lavoie v. Nashua Gummed & Coated Paper Co., 79 N.H. 97, 105 A. 4 (1918). However, more recent cases such as Dunleary v. Constant, 106 N.H. 64, 204 A.2d 236 (1964), and Smith v. Animal Farm, 99 N.H. 243, 109 A.2d 39 (1954), clearly indicate that early child trespassers would now have their status determined by the jury as a question of fact. Indeed it is apparent that if there is a consistency in our cases it lies in the trend away from treating the status of the entrant to be determined as a matter of law rather than fact.

Rather than continue to embroider the garment when the basic fabric has worn out, many courts have now refused to predicate a landowners liability solely on the status of the entrant. The United States Supreme Court in 1959 declared the common law distinctions to be of decreasing viability and declined to impart them into the law of admiralty. Mr. Justice Stewart characterized the state of the law at that time as moving toward 'imposing on owners and occupiers a single duty of reasonable care in all the circumstances.' Kermarec v. Compagnie Generale, 358 U.S. 625, 631, 79 S.Ct. 406, 410, 3 L.Ed.2d 550 (1959).

The California Supreme Court became the first Amercian court to abolish the traditional status distinctions in Rowland v. Christian, [116 N.H. 556] 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561 (1968). Substituting a test of reasonable care under all the circumstances the court observed,...

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