concurring:
The rule established by this court prior to Smith v. Arbaugh’s Restaurant1 requires reversal of the judgment of the District Court. Plaintiff’s counsel called the court’s attention to the proposed Jury Instructions prepared by the Bar Association which set forth, insofar as pertinent:2
“A Landowner owes to a guest (or licensee by invitation) the duty to avoid injuring him through negligence. In addition, he owes him the duty to repair dangerous conditions which are known to the owner and which would not be discernible to the guest or licensee, or to warn him of the existence of such dangerous conditions.”
This suggested instruction was annotated with a reference to Firfer v. United States 3 which clearly supports the wording in the text. However, the defendant’s counsel persuaded the District Court to read Firfer in such a way so as to require active negligence, and to dismiss the case for lack of showing of active negligence. In my view this was a most strained reading, and the dismissal was error.
As for the retrial, I agree with the majority that the sound evolution that is the hallmark of the common law has brought it at the present time to the point where the traditional distinction between licensees and invitees is properly considered the relic of a bygone age. The often technical and arbitrary classifications — including Firfer’s further subdivision into invitees; licensees by invitation (social guests) and bare licensees — seem to promote confusion, and to strait jacket the courts in pursuit of good sense and justice.
In England the legislature adopted the recommendation of the Law Reform Committee to abolish the significance of the common law distinction between invitees, licensees, and contractual visitors, and to place on an occupier of premises the same duty — described as the “common duty of care” — to all lawful visitors.4 However, the English reflection is not necessarily precedent for revision of instructions to the jury as a “mature institution.” Indeed, it appears that the fact that the jury has virtually disappeared from negligence actions in England may have played some part in encouraging passage of the law.5 But the concept was ripe for extension, and has been applied in the United States by the Supreme Court in an admiralty decision,6 and then by the courts of California, Hawaii, Colorado, and recently, after our Smith opinion, by the Minnesota Supreme Court.7
This does not, however, mean that the requirements of judicial administration in a modern, largely urban, industrialized society necessarily extend so far as to require a change in the liability of an occupant of land to a trespasser. I would follow the example of the Minnesota court, and defer, as a separate question, the issue of liability to tres*658passers, which was left unchanged in England. This was the problem that particularly prompted my separate opinion in Smith. The restraint counseled by the Minnesota court, on the ground that the issue of a plaintiff-trespasser was not before the court, is enhanced as to this court by the circumstances that it is no longer the authoritative expositor of the common law of the District of Columbia. So long as our modification of doctrine is not automatically extended for the benefit of trespassers, I agree that the general statement of doctrine need not distinguish between business and residential properties. In the case of trespassers, a higher duty may rightly be put on the occupier of a business property by virtue of both accessibility of insurance and the business reasons that tolerate what is technically a trespass. As for the majority’s comment that owners of residences may soundly be put under an obligation to trespassers because the owners’ financial position can be taken into account, if this means what it says, and owners of side-by-side residences may have different legal obligations depending on their financial means, it is an extraordinary statement for a judicial opinion, and in my view it is, as stated, an unsound proposition.
I don’t think it is proper to instruct the jury that the Goodwins owed plaintiff Cooper “the duty of maintaining their property in a condition reasonably safe under all the circumstances.” To begin with, language should be selected so as to provide in the direct statement of the rule for awareness that the liability may be discharged by giving a warning. More important, I would limit myself, at this time, to a statement of duty that is focused both on a person invited or permitted on the premises and on his reasonably expected use. I would follow the Minnesota opinion (fn. 7), and instruct the jury that a person who occupies land (or is otherwise responsible for its condition) has the duty to take such care, as in all the circumstances of the case is reasonable, to see that any person invited or permitted on the premises will be reasonably safe in using the premises for a purpose that was reasonably to be expected.
. 152 U.S.App.D.C. 86, 469 F.2d 97 (1972).
. Revised Standardized Jury Instruction for the District of Columbia, of the Bar Association of the District of Columbia (rev. ed. 1968) #143 prepared by Junior Bar Association. The same wording appears in the 1963 edition, #128.
. 93 U.S.App.D.C. 216, 208 F.2d 524 (1953).
. Payne, The Oeeupier’s Liability Act, 21 Modern L.Rev. 359 (1958).
. Prosser, Torts § 58 (3d ed.).
. Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 630, 79 S.Ct. 406, 3 L.Ed.2d 550 (1959).
. Peterson v. Balach, 294 Minn. 161, 199 N.W.2d 639 (1972).