Walton v. Norphlett

• Decision Date: 22 December 1977
• Docket Number: No. 77-77,77-77
• Citation: Walton v. Norphlett, 371 N.E.2d 978, 56 Ill.App.3d 4, 13 Ill.Dec. 886 (Ill. App. 1977)
• Parties: , 13 Ill.Dec. 886 Lillian WALTON, Plaintiff-Appellant, v. Estelle NORPHLETT, Defendant-Appellee.
• Court: Appellate Court of Illinois

Page 978

371 N.E.2d 978

56 Ill.App.3d 4, 13 Ill.Dec. 886

Lillian WALTON, Plaintiff-Appellant, v. Estelle NORPHLETT, Defendant-Appellee.

No. 77-77.

Appellate Court of Illinois, First District, Fourth Division.

Dec. 22, 1977.

Rotman, Medansky & Elovitz, Ltd., Chicago (Louis S. Elovitz and Adrienne J. Hersh, Chicago, of counsel), for plaintiff-appellant.

Dent, Hampson & McNeela, Chicago (Roger C. Goble, Chicago, of counsel), for defendant-appellee.

DIERINGER, Presiding Justice:

This is an appeal from the circuit court of Cook County. The trial court granted defendant's motion for summary judgment. The plaintiff appeals.

The sole issue presented for review is whether this court should overturn over 100 years of well-settled Illinois law and rule a homeowner owes a duty to a licensee who enters upon his property, said duty being to make the property safe.

The facts of the case are undisputed. The defendant, Estelle Norphlett, invited the plaintiff, Lillian Walton, to her home for dinner. The plaintiff, while leaving the home of the defendant, slipped on a portion of the concrete stairs which was broken, fell and injured herself.

The plaintiff argues it is time for the courts of Illinois to make a homeowner liable for acts of ordinary negligence. The plaintiff concedes the law in Illinois now makes the occupier of land liable only for willful and wanton negligence to one who enters upon his land, as a licensee. While this court finds itself in sympathy with this contention of the plaintiff, it is not for this court to reverse the many cases and opinions of the Illinois Supreme Court. The cases cited by the defendant, Sims v. Sneed (1967), 118 Ill.App.2d 294, 254 N.E.2d 316; Belden Mfg. Co. v. Chicago Threaded Fasteners (1967), 84 Ill.App.2d 336, 228 N.E.2d 532, correctly point out the duty of the Appellate Court of Illinois is not to modify rules of law enunciated by our Supreme Court, but to follow them. What the plaintiff asks this court to do is not within the power of this court.

As both sides correctly state in their briefs, the law in Illinois is the occupier of land is only liable for willful and wanton misconduct towards a licensee. Both sides agree there was no willful and wanton misconduct in the instant case. Following the rule of law long established in Illinois and recently enunciated again by the Supreme Court in Washington v. Atlantic Richfield (1976), 66 Ill.2d 103, 5 Ill.Dec. 143, 361 N.E.2d 282, we must affirm the decision of the trial court.

Accordingly, for the reasons contained herein, the judgment of the circuit court of Cook County is affirmed.

AFFIRMED.

JOHNSON, J., concurs.

LINN, Justice, specially concurs.

I must agree with the decision reached by the majority. It is in conformance with traditional negligence principles governing the duty of an owner or occupier to persons coming onto the land. There is, however, merit in the plaintiff's challenge that the time has come for the courts to re-evaluate the application of the arbitrary categories of trespasser, licensee and invitee, to determine the liability of a landowner for injuries to persons who have entered upon the land.

The rules regarding the liability of a possessor of land are a departure from the fundamental rule that a person is liable for his own carelessness. It has been suggested that the special privileges and immunities accorded the occupier of land arose from the social and economic importance that land ownership has held in English and American history. (2 Harper and James, The Law of Torts § 27.1, at 1432 (1956).) Formulated during the 19th century, the traditional approach categorizes persons entering the land as trespassers, licensees and invitees, and graduates accordingly the duties owed by the land occupier. Sweeny v. Old Colony & Newport R.R. Co. (1865), 92 Mass. (10 Allen) 368.

The common law distinctions among trespasser, licensee and invitee have become unworkable in a modern industrialized society where individual and economic relationships are no longer based on feudalistic notions. Thus, the landowner's immunities have begun to give way to the overriding social view that where there is foreseeability of substantial harm, a landowner, as well as other members of society, should be subjected to a reasonable duty of care to avoid it.

In an effort to obtain justice within the framework of the rigid three-category approach, modern courts have carved out of the common law classifications, a series of exceptions and exceptions to the exceptions. It has been suggested that the confused state of the law is not due to the difficulty in applying the original common law rules, "but is due to the attempts to apply just rules in our modern society within the ancient terminology." (Rowland v. Christian (1968), 69 Cal.2d 108, 117, 70 Cal.Rptr. 97, 103, 443 P.2d 561, 567.) Members of our own supreme court have noted that the law of Illinois has not escaped this confusion. Washington v. Atlantic Richfield Co. (1976), 66 Ill.2d 103, 5 Ill.Dec. 143, 361 N.E.2d 282 (dissenting opinion filed on the denial of Petition for Rehearing, April 1, 1977).

A trespasser is one who comes upon the land without invitation or permission, and merely for his own pleasure or to gratify his curiosity. (Trout v. Bank of Belleville (1976), 36 Ill.App.3d 83, 343 N.E.2d 261; 62 Am.Jur.2d Premises Liability § 55, at 297 (1972).) To a trespasser, the owner owes only a duty not to willfully and wantonly injure him and is under no duty to keep the premises in any particular state to promote safety. (Hessler v. Cole (1972), 7 Ill.App.3d 902, 289 N.E.2d 204; Gartley v. Chicago Housing Authority (1975), 28 Ill.App.3d 705, 329 N.E.2d 252.) However, if the owner discovers the trespasser in a place of danger, he must use ordinary care to avoid injury to him. Briney v. Illinois Central R.R. Co. (1948), 401 Ill. 181, 81 N.E.2d 866.

An exception exists where the owner knows, or should know, that young children may frequent the property on which a dangerous condition exists and which is likely to cause injury. In such cases the occupier must exercise due care to remedy the condition or to otherwise protect the trespassing child from harm. (Wagner v. Kepler (1951), 411 Ill. 368, 104 N.E.2d 231.) Although the attractive nuisance doctrine has been abandoned, the law requires an owner or occupier to exercise ordinary care towards children whom he knows, or should know, are likely to trespass. Kahn v. James Burton Co. (1955), 5 Ill.2d 614, 126 N.E.2d 836.

The licensee is a person who enters the premises of another by permission for his own purpose and not in connection with the business of the owner. (Pauckner v. Wakem (1907), 231 Ill. 276, 83 N.E. 202.) The owner owes the licensee a duty only to refrain from willful and wanton conduct (Ellguth v. Blackstone Hotel, Inc. (1951), 408 Ill. 343, 97 N.E.2d 290), and to refrain from affirmative acts which are injurious to him (Joseph v. Philip Henrici Co. (1907), 137 Ill.App. 171; Moore v. Ohio Oil Co. (1926), 241 Ill.App. 388; Kay v. Ludwick (1967), 87 Ill.App.2d 114, 230 N.E.2d 494). The licensee must take the premises as he finds them; however, the owner must not fail in his duty to warn of traps, concealed defects or conditions which create a new danger of which the licensee has no knowledge. (Snow v. Judy (1968), 96 Ill.App.2d 420, 239 N.E.2d 327; Seipp v. Chicago Transit Authority (1973), 12 Ill.App.3d 852, 299 N.E.2d 330.) Failure to warn of hidden dangers constitutes willful and wanton misconduct. Schoen v. Harris (1969), 108 Ill.App.2d 186, 246 N.E.2d 849; Hessler v. Cole (1972), 7 Ill.App.3d 902, 289 N.E.2d 204.

A social guest, as in the case before us, although he be on the premises at the invitation of the owner, has no greater rights than a mere licensee. (Biggs v. Bear (1943), 320 Ill.App. 597, 51 N.E.2d 799.) In an effort to prevent the harsh application of this rule, the courts have strained to find some possible pecuniary relationship that will push a licensee or social guest into the protection of the invitee category. (Compare Madrazo v. Michaels (1971), 1 Ill.App.3d 583, 274 N.E.2d 635 with Kapka v. Urbaszewski (1964), 47 Ill.App.2d 321, 198 N.E.2d 569.) Other jurisdictions have abolished the social guest classification and hold the occupier to the duty of ordinary care. See, for example, Alexander v. General Accident, Fire & Life Assurance Corp. (La.App.1957), 98 So.2d 730; Foster v. LaPlante (Me.1968), 244 A.2d 803; Telak v. Maszczenski (1968), 248 Md. 476, 237 A.2d 434; Beatty v. Dixon (Okl.1965), 408 P.2d 339.

A public servant who confers some economic or other benefit on the landowner has also found refuge in the invitee category. In Dini v. Naiditch (1960), 20 Ill.2d 406, 170 N.E.2d 881, the Illinois Supreme Court determined that firemen were no longer to be regarded strictly as licensees, as had previously been the law in Illinois. A landowner is now held liable for failure to exercise reasonable care to maintain his property which results in the injury or death of a fireman rightfully on the premises (20 Ill.2d 406, 416-417, 170 N.E.2d 881, 886); but he is not liable for negligence in causing the fire (Washington v. Atlantic Richfield Co. (1976), 66 Ill.2d 103, 5 Ill.Dec. 143, 361 N.E.2d 282).

The definition of invitee, having been expanded to encompass these exceptions, includes one who comes on the premises at the owner's request, either express or implied, to transact business in which he and the owner have a mutual interest, or in furtherance of the owner's business or an activity which the owner conducts or permits on the premises. Madrazo v. Michaels (1971), 1 Ill.App.3d 583, 587, 274 N.E.2d 635.

To an invitee the occupier owes the duty to use reasonable care for his safety. (Pauckner v. Wakem (1907), 231 Ill. 276, 83 N.E. 202; Geraghty v. Burr Oak Lanes, Inc. (1955), 5 Ill.2d 153, 125 N.E.2d 47.) The owner of the premises must use reasonable care and...