Yalowizer v. Husky Oil Co.

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

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 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 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, where it is stated that there is a general trend toward elimination of technical status positions which insulate certain classes from liability and to substitute the broad test of reasonable care under the circumstances. The author of the annotation then concludes that "(s)imilar forces seem to be at work in the field of premises liability," Id. 70 Cal.Rptr. at 110, 443 P.2d at p. 514; then, after considerable academic discussion, discloses that "(t)here are only a few cases which squarely reject the traditional distinction between trespassers, licensees, and invitees as the controlling test in determining the scope and extent of the duty of care owed by landowners to entrants." Id. 70 Cal. Rptr. at pp. 116-117, 443 P.2d at pp. 520-521.

Examination of the last supplement to that annotation issued in August 1980, does not disclose any general clamor and hasty willingness of the highest state courts to jump on a bandwagon of agreement. What appears is a pronounced reticence to reject the traditional distinctions between trespassers, licensees and invitees and a recognition of the continued viability of those distinctions. The so-called "trend" to abolish or alter land occupancy classifications continues to be the minority position in this country.

The following cases from the appellate courts of states as noted particularly reject any notion of abandoning the common-law rule: Whaley v. Lawing, Ala., 352 So.2d 1090 (1977); McMullan v. Butler, Ala., 346 So.2d 950 (1977) (noted "trend" is still minority); Post v. Lunney, Fla., 261 So.2d 146 (1972) (applies new rule only to invitees, not trespassers or licensees toward whom occupier must not be wilfully or wantonly negligent); Epps v. Chattahoochee Brick Co., 140 Ga.App. 426, 231 S.E.2d 443 (1976) (no liability to licensee, summary judgment approved); Ramsey v. Mercer, 142 Ga.App. 827, 237 S.E.2d 450 (1977) (no liability to a social guest as licensee in absence of wilful and wanton conduct and summary judgment proper); Rehwalt v. American Falls Reservoir Dist. # 2, 97 Idaho 634, 550 P.2d 137 (1976); Springer v. Pearson, 96 Idaho 477, 531 P.2d 567 (1975) (Idaho refuses to abolish legal categories of licensee, invitee and trespasser in favor of a general negligence standard); Gartley v. Chicago Housing Authority, 28 Ill.App.3d 705, 329 N.E.2d 252 (1975) (court upheld dismissal of complaint for failure to state a cause of action because it failed to allege status of occupier of land; specifically rejected duty of reasonable care as standard, as promoted by legal writers and a few states); Champlin v. Walker, Iowa, 249 N.W.2d 839 (1977) (plainti...