Schofield v. Merrill

• Decision Date: 13 May 1982
• Citation: 386 Mass. 244,435 N.E.2d 339
• Parties: Alan P. SCHOFIELD v. George L. MERRILL et al. 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 339

435 N.E.2d 339

386 Mass. 244

Alan P. SCHOFIELD v. George L. MERRILL et al. ¹

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Jan. 5, 1981.

Decided May 13, 1982.

J. Sheffield Dow, Boston, Louis Fox, Newton Center, with him for plaintiff.

Michael E. Mone, Patricia L. Kelly with him, for defendants.

Before HENNESSEY, C. J., WILKINS, LIACOS, ABRAMS, NOLAN, LYNCH and O'CONNOR, JJ.

O'CONNOR, Justice.

The plaintiff's amended complaint alleges that he was injured due to the negligence of the defendants "in the care, operation and maintenance" of land owned and controlled by them. The defendants filed a motion for summary judgment that was allowed on the basis of depositions of the plaintiff and of the defendant George L. Merrill. The uncontroverted material facts are that the plaintiff sustained bodily injury on the defendants' land, where the plaintiff was an adult trespasser who was not helplessly trapped. The parties stipulated that the defendants' conduct was not wilful, wanton and reckless. The question before us is whether we should abolish our common law rule that a landowner is not liable to an adult trespasser for injuries resulting from the landowner's negligence. We conclude that the rule should be retained, and we affirm the judgment of the Superior Court.

The following facts are extracted from the record, which includes depositions of the plaintiff and of the defendant George L. Merrill. On June 22, 1974, the plaintiff, then twenty-three years old, went with four friends to a section of Westford known as Merrill's Quarry, an abandoned quarry excavation filled with water. The plaintiff had never visited the area before. He saw no barrier or warning signs on that day. He knew that neither he nor his friends owned the land. Other people were swimming in the quarry. The plaintiff jumped into the water from a height of about twenty feet, hitting a ledge of rock below the water surface. As a result of the impact, he sustained a fracture in the thoracic spine that has left him with a limited ability to walk and impaired sexual, pulmonary, and bladder functions.

The quarry site had belonged to the defendants' family for about 100 years and had been leased for use as a quarry until 1968. After quarrying ceased, the excavation filled with rain water and was nearly full at the time of the plaintiff's accident. There were repeated efforts to prevent trespassers from entering the quarry site. The defendant George Merrill and his brother blocked the dirt access road with a steel cable anchored to two oak trees and a granite pillar. When the cable and locks were taken down by trespassers, George Merrill or his brother repaired or replaced them. The defendants frequently had trespassers arrested during the summers from 1969 to 1974.

The traditional rule in this Commonwealth is that a trespasser is entitled to no greater duty of care from one with a right of control over land (typically the landowner) than that he refrain from wilful, wanton or reckless disregard for the trespasser's safety. Chronopoulos v. Gil Wyner Co., 334 Mass. 593, 596, 137 N.E.2d 667 (1956). Sweeny v. Old Colony & Newport R.R., 10 Allen 368, 372 (1865). ² In Mounsey v. Ellard, 363 Mass. 693, 297 N.E.2d 43 (1973), we discarded the traditional premises liability distinction between invitees and licensees. Prior to Mounsey, a plaintiff licensee had to show that a landowner's conduct amounted to wilful and wanton disregard of the likelihood of harm. In contrast, invitees needed to show only a breach of a duty of due care. In Mounsey, we held that the standard of due care applied to all lawful entrants. Id. at 703, 706-707, 297 N.E.2d 43. We expressly excluded trespassers from this rule. Id. at 707 n.7, 297 N.E.2d 43.

In Mounsey, the plaintiff was a police officer acting in his official capacity at the time he was injured on the defendant's premises. He was on the premises to serve a criminal summons for a parking violation on one of the defendants. We noted, id. at 701-702, 297 N.E.2d 43, that a public employee who enters upon private property to perform official duties did not fit into any of the traditional categories of invitee, licensee or trespasser. We referred to the "confusing and often inconsistent results" in cases involving the distinction between invitees and social guests, who were considered mere licensees. Id. at 705-706, 297 N.E.2d 43.

The difficulty in distinguishing between invitees and licensees was one reason, but not the principal one, for our abandonment of those categories as determinants of premises liability. The dominant consideration was that such a distinction "no longer comport(s) with modern accepted values and common experience." Id. at 703, 297 N.E.2d 43. ³

In Mounsey, supra at 707 n.7, 297 N.E.2d 43, we expressed our sense "that there is significant difference in the legal status of one who trespasses on another's land as opposed to one who is on the land under some color of right-such as licensee or invitee." We continue to perceive that significant difference and we recognize now, as we did then, that any legal duty owed by a landowner to an entrant upon his land finds its source in existing social values and customs. We can say with confidence that landowners of ordinary prudence customarily exercise care for the safety of trespassers who are known to be in a position of peril, ⁴ certain foreseeable child trespassers, ⁵ and all lawful visitors. ⁶ However, we are not convinced that landowners of ordinary prudence customarily exercise care for the safety of adult trespassers generally.

General Laws c. 231, § 85Q, provides that a duty of reasonable care is owed to certain foreseeable child trespassers. This demonstrates the Legislature's recognition of a community consensus that landowners should exercise care for the safety of foreseeable child trespassers in certain circumstances. When that statute was enacted the Legislature could have abolished the common law trespasser distinction, but it did not do so. This strongly suggests that there is no community consensus that landowners ought to exercise care for the safety of adult trespassers.

The lack of such a consensus makes abolition of the common law rule unworkable. In a negligence case involving lawful visitors, foreseeable child trespassers, and known helplessly trapped trespassers, the trial judge typically instructs the jury that they are to determine whether the defendant exercised that degree of care for the safety of the plaintiff that the ordinarily prudent landowner customarily exercises in the same or similar circumstances. The jury focuses on how the ordinarily prudent landowner would have discharged his responsibility to care for the plaintiff's safety and compares the defendant's conduct. No question arises as to whether such responsibility exists because there is community agreement both that it does exist and that the responsibility is recognized by ordinarily prudent landowners. The current rule assumes a socially accepted moral principle and is therefore workable.

If we were to abolish the trespasser rule, and the trial judge were to instruct the jury that they are to determine whether the defendant exercised that degree of care for the safety of the plaintiff trespasser that the ordinarily prudent landowner customarily exercises in the same or similar circumstances, the jury inquiry would not be limited to comparing the defendant's conduct to how the ordinarily prudent landowner would have discharged his recognized responsibility to care for the plaintiff. Because there is no community consensus, the jury would first consider whether the ordinarily prudent landowner recognizes any responsibility at all to care for the safety of an adult trespasser. The jury's resolution of the question would be likely to turn on such social policy concerns as the privileges that ought to attach to land ownership, or on the jury's view as to the proper allocation of the costs of serious injuries. A jury would thus determine, on a case by case basis, the existence or nonexistence of a legal duty of care. Such a determination would be unpredictable and would be made long after the event that prompted the inquiry. If the present case were to be tried and the facts recited above were in evidence, the jury would be warranted in finding that the plaintiff's intrusion was foreseeable by the defendants. The jury would then be required to determine whether present community values call for the exercise of care for the safety of foreseeable trespassers who are neither children nor known to be helplessly trapped. Such determinations are appropriately made by the court or the Legislature, as has heretofore been the practice, and not by juries.

Courts in some jurisdictions have abolished the rule that a landowner is not liable to an adult trespasser for injuries resulting from the landowner's negligence. Most of the cases in which the abolition of the rule has been announced did not involve trespassers. See Rowland v. Christian, 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561 (1968); Mile High Fence Co. v. Radovich, 175 Colo. 537, 489 P.2d 308 (1971); Pickard v. City & County of Honolulu, 51 Hawaii 134, 452 P.2d 445 (1969); Smith v. Arbaugh's Restaurant, Inc., 469 F.2d 97 (D.C.Cir.1972), cert. denied, 412 U.S. 939, 93 S.Ct. 2774, 37 L.Ed.2d 399 (1973); Webb v. City & Borough of Sitka, 561 P.2d 731 (Alas.1977); Scheibel v. Hillis, 531 S.W.2d 285 (Mo.1976); Cunningham v. Hayes, 463 S.W.2d 555 (Mo.App.1971) . ⁷ Other courts, in cases involving trespassers, have abolished the common law classification, but most of them did not involve adult trespassers. See Ouellette v. Blanchard, 116 N.H. 552, 364 A.2d 631 (1976) (ten year old plaintiff); Mariorenzi v. Joseph DiPonte, Inc., 114 R.I. 294, 333 A.2d 127 (1975) (five year old decedent); Scurti v. City of New York, 40 N.Y.2d 433, 387 N.Y.S.2d 55, 354 N.E.2d 794 (1976) (fourteen year old...