Yalowizer v. Husky Oil Co., No. 5457

CourtUnited States State Supreme Court of Wyoming
Writing for the CourtBefore ROSE; RAPER
Citation629 P.2d 465,22 A.L.R.4th 285
Decision Date28 May 1981
Docket NumberNo. 5457
PartiesHenry YALOWIZER and Shirley Yalowizer, husband and wife, Appellants (Plaintiffs), v. HUSKY OIL COMPANY, Appellee (Defendant).

Page 465

629 P.2d 465
22 A.L.R.4th 285
Henry YALOWIZER and Shirley Yalowizer, husband and wife, Appellants (Plaintiffs),
v.
HUSKY OIL COMPANY, Appellee (Defendant).
No. 5457.
Supreme Court of Wyoming.
May 28, 1981.

Michael K. Davis and Rex O. Arney, Redle, Yonkee & Arney, Sheridan, signed the brief and Michael K. Davis, Sheridan, appeared in oral argument for appellants.

James W. Owens, Murane & Bostwick, Casper, signed the brief and appeared in oral argument for appellee.

Before ROSE, C.J., and RAPER, THOMAS, ROONEY and BROWN, JJ.

RAPER, Justice.

The Yalowizers 1, appellants, as plaintiffs, filed in the district court a complaint against the Husky Oil Company, appellee, as defendant, alleging personal injuries and property damage caused by negligence of the appellee. Following discovery and a pretrial conference, appellee moved for summary judgment. After briefing for and argument to the court, it granted summary judgment for the appellee and against appellants.

The issues as presented by appellants are:

Page 466

1. "Should the Court abolish the common law classifications of trespasser, licensee, and invitee, and establish a uniform standard of reasonable care under the circumstances, allowing these classifications to be considered as factors in the determination of reasonable care?"

2. "Is there a genuine question of material fact as to whether the Appellee knowingly maintained a hidden peril or concealed danger which the Appellant Shirley Yalowizer could not and did not discover, giving rise to liability to the Appellant even as a licensee?"

3. "Is there a genuine question of material fact as to whether the Appellee owed the Appellant Shirley Yalowizer a duty of reasonable care under the doctrine of frequent trespass on a limited area?"

We will affirm.

I

The appellee does not disagree with appellants' version of what occurred and brought about this litigation. On December 28, 1979, the appellants, husband and wife, accompanied by their grandson drove to downtown Sheridan for the purpose of shopping at a shoe store. The store was located a few blocks away from a vacant service station leased by the appellee. The appellants each drove separate vehicles; appellant Henry Yalowizer drove a pickup while appellant Shirley Yalowizer followed in a 1974 Oldsmobile owned by her husband. Mr. Yalowizer parked the vehicle he was driving in the street alongside the service station, then joined his wife in the Oldsmobile. They then continued on to the shoe store.

After taking care of their business at the shoe store, Mrs. Yalowizer returned alongside the pickup and let off her husband. She then turned into the filling station concrete drive intending to drive through in order to short-cut onto the street which intersected the one on which her husband's pickup was parked. She was traveling at a slow rate of speed. The vehicle, without warning, came to a sudden halt, throwing Mrs. Yalowizer against the windshield, causing injury to her neck and cutting her head. The vehicle was also damaged.

The sudden stop resulted from the slippage of a steel plate which had been placed in the service station's driveway covering a pit in which valves, used in connection with underground gasoline storage tanks, had been located. The plate's fasteners apparently came loose from their recesses and flipped up when the car's front wheel went over it, causing the wheel to drop into the 24" long by 18" wide by 6" deep hole intended to be covered by the plate.

A former lessee of the property from Husky testified that after termination of his lease, he and his partner Husky jobbers looked after the vacant station and on occasion replaced the plate when it came loose. His deposition testimony was that the station was used by the public as parking and a turnaround. Itinerant vendors with consent were allowed to sell their wares on the station grounds. Appellants claimed that this former lessee was appellee's agent. Appellee denied that the jobber had ever been Husky's agent to look after the station and whatever he did was gratuitous.

The Division Engineer for Husky Oil denied knowledge of the use of the station for parking, a turnaround, and for selling of goods. He admitted he had no responsibility for upkeep of the station after closure and that "no trespassing" signs had not been posted. There were no barriers and no warning signs were posted.

II

The trial court, in finding for Husky, based its decision on Maher v. City of Casper, 67 Wyo. 268, 219 P.2d 125 (1950). There, this court approved the doctrine that while acquiescence in the presence of trespassers on one's property may be evidence of a license to be there, it does not constitute an invitation and the owner of land has no duty to a trespasser or licensee to maintain the premises in a safe condition for their use. It was further held in Maher that when strangers enter upon another's

Page 467

land, they take it as they find it. They cannot assume that the owner has made it safe for persons so entering and they must accept the danger arising from the condition of the premises. This court did limit this rule by recognizing that the owner may not wantonly injure trespassers and licensees.

Appellants ask us to now set aside that precedent and follow what they consider to be a developing trend to abolish common-law classifications of trespasser, licensee and invitee and establish a uniform standard of reasonable care under the circumstances. "A trespasser is a person who enters or remains upon land in the possession of another without a privilege to do so created by the possessor's consent or otherwise." 2 Restatement of Torts 2nd, § 329. "A licensee is a person who is privileged to enter or remain on land only by virtue of the possessor's consent." 2 Restatement of Torts 2nd, § 330. "(1) An invitee is either a public invitee or a business visitor. (2) A public invitee is a person who in invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public. (3) A business visitor is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land." 2 Restatement of Torts 2nd, § 331.

The leading case representing the view of appellants is Rowland v. Christian, 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561 (1968), 32 A.L.R.3d 496, where the court decided that the exceptions to the classic common-law rules enunciated by this court in Maher do not reflect the major factors which should determine whether immunity should be conferred upon the possessor of land. It accordingly adopted as its rule:

" * * * The proper test to be applied to the liability of the possessor of land in accordance with section 1714 2 of the Civil Code is whether in the management of his property he has acted as a reasonable man in view of the probability of injury to others, and, although the plaintiff's status as a trespasser, licensee, or invitee may in the light of the facts giving rise to such status have some bearing on the question of liability, the status is not determinative." 70 Cal.Rptr. at 104, 443 P.2d at 568. 3

Appellants also point to Annotation, "Modern Status of Rules Conditioning Landowner's Liability Upon Status of Injured Party as Invitee, Licensee, or Trespasser," 32 A.L.R.3d 508,...

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11 practice notes
  • Shaw v. Petersen, No. 1
    • United States
    • Court of Appeals of Arizona
    • June 11, 1991
    ...1102 (Miss.1986); Egede-Nissen v. Crystal Mountain, Inc., 93 Wash.2d 127, 131-32, 606 P.2d 1214, 1218 (1980); Yalowizer v. Husky Oil Co., 629 P.2d 465, 469 2 The majority takes a step toward importing this recognition into the law of licensees, stating, pursuant to Markowitz, that "whether ......
  • Younce v. Ferguson, No. 52168-9
    • United States
    • United States State Supreme Court of Washington
    • September 11, 1986
    ...(Okla.1979); Buchholz v. Steitz, 463 S.W.2d 451 (Tex.Civ.App.1971); Tjas v. Proctor, 591 P.2d 438 (Utah 1979); Yalowizer v. Husky Oil Co., 629 P.2d 465, 22 A.L.R.4th 285 (Wyo.1981). Some without directly confronting the issue, or by deferring to a higher appellate court, continue to adhere ......
  • Mostert v. CBL & Associates, No. 86-220
    • United States
    • United States State Supreme Court of Wyoming
    • August 14, 1987
    ...rule that a landowner has no duty to warn an invitee of risks off the landowner's premises. In Yalowizer v. Husky Oil Company, Wyo., 629 P.2d 465, 467 (1981), we quoted Restatement (Second) Torts § 331 with " '(1) An invitee is either a public invitee or a business visitor. * * * (3) A busi......
  • Lohrenz v. Lane, No. 64618
    • United States
    • Supreme Court of Oklahoma
    • February 27, 1990
    ...Or. 139, 566 P.2d 884 (1977); Egede-Nissen v. Cyrstal Mountain, Inc., 93 Wash.2d 127, 606 P.2d 1214 (1980); Yalowizer v. Husky Oil Co., 629 P.2d 465 (Wyo.1981). See also Landowner Liability-Injured Party Status, 22 A.L.R. 4th 294, 310 et 11 See Washington Metro. Area Transit Auth. v. Ward, ......
  • Request a trial to view additional results
11 cases
  • Shaw v. Petersen, No. 1
    • United States
    • Court of Appeals of Arizona
    • June 11, 1991
    ...1102 (Miss.1986); Egede-Nissen v. Crystal Mountain, Inc., 93 Wash.2d 127, 131-32, 606 P.2d 1214, 1218 (1980); Yalowizer v. Husky Oil Co., 629 P.2d 465, 469 2 The majority takes a step toward importing this recognition into the law of licensees, stating, pursuant to Markowitz, that "whether ......
  • Younce v. Ferguson, No. 52168-9
    • United States
    • United States State Supreme Court of Washington
    • September 11, 1986
    ...(Okla.1979); Buchholz v. Steitz, 463 S.W.2d 451 (Tex.Civ.App.1971); Tjas v. Proctor, 591 P.2d 438 (Utah 1979); Yalowizer v. Husky Oil Co., 629 P.2d 465, 22 A.L.R.4th 285 (Wyo.1981). Some without directly confronting the issue, or by deferring to a higher appellate court, continue to adhere ......
  • Mostert v. CBL & Associates, No. 86-220
    • United States
    • United States State Supreme Court of Wyoming
    • August 14, 1987
    ...rule that a landowner has no duty to warn an invitee of risks off the landowner's premises. In Yalowizer v. Husky Oil Company, Wyo., 629 P.2d 465, 467 (1981), we quoted Restatement (Second) Torts § 331 with " '(1) An invitee is either a public invitee or a business visitor. * * * (3) A busi......
  • Lohrenz v. Lane, No. 64618
    • United States
    • Supreme Court of Oklahoma
    • February 27, 1990
    ...Or. 139, 566 P.2d 884 (1977); Egede-Nissen v. Cyrstal Mountain, Inc., 93 Wash.2d 127, 606 P.2d 1214 (1980); Yalowizer v. Husky Oil Co., 629 P.2d 465 (Wyo.1981). See also Landowner Liability-Injured Party Status, 22 A.L.R. 4th 294, 310 et 11 See Washington Metro. Area Transit Auth. v. Ward, ......
  • Request a trial to view additional results

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