Clarke v. Beckwith

GOLDEN, Justice,

specially concurring with whom CARDINE, J., joins.

This appeal presents the narrow question whether a Wyoming landowner or occupier owes a duty of reasonable care to his or her social guests to protect them from *297physical harm while they are on his or her premises. I would hold that such a duty is owed. I would apply this ruling to Mrs. Clarke’s case and prospectively to those social guests whose claims accrue after the date of this opinion. My preference for prospective application rests upon my desire to be fair to litigants and to protect reliance upon clear judicial precedent. The majority’s decision today expressly accepts the invitation rejected by this court twelve years ago in Yalowizer v. Husky Oil Co., 629 P.2d 465, 22 A.L.R.4th 285 (Wyo.1981), when Mrs. Yalowizer asked this court to abolish the common law classifications and establish a unified duty of reasonable care regardless of the entrant’s status. Our decision in Allen v. Slim Pickens Enter., Til P.2d 79 (Wyo.1989), offered no promise to abolitionists that this court was poised to repudiate decades of Wyoming jurisprudence following the common law classifications. In my judgment, the prudent Wyoming landowner or occupier, advised of judicial trends, would not have anticipated the expansion of exposure to liability embodied in today’s decision. Thus, for me, prospective application is the better course.

To the extent that the majority opinion answers the narrow question presented by the facts of Mrs. Clarke’s case, I concur in the result. I must part company with my colleagues, however, when their decision today exceeds the boundary of the narrow question presented in order to cut the wider swath and abolish wholesale the common law categories of invitee and licensee.1

To address the narrow question presented in context, I first note the obvious, that historically English and American common law courts have classified persons entering another’s land as either invitees, licensees, or trespassers. See, Joseph A. Page, The Law of Premises Liability, chs. 2, 3, 4 (2d ed. 1988 & Supp.1993-94); Comment, The Common Law Tort Liability of Owners and Occupiers of Land: A Trap for the Unwary?, 36 Md.L.Rev. 816, 822-34 (1977). As a common law court,2 this court has long said that the entrant’s status on the land determines the duty of care owed to him or her by the landowner or occupier. See:

t Thunder Hawk by and through Jensen v. Union Pacific R. Co., 844 P.2d 1045 (Wyo.1992) (child injured upon jumping from a moving train car concedes he was either trespasser or bare licensee; this court adopts the attractive nuisance doctrine as stated by Restatement (Second) of Torts § 339 (1965));
| Slim Pickens, 111 P.2d 79 (the status of the landowner’s long-time friend who *298unexpectedly visited the landowner’s unopened and unprepared summer cabin in response to landowner’s year-old general invitation is unimportant under the particular facts of the case; although the unexpected visitor was not a trespasser, he was either a licensee or a social guest);
| Yalowizer, 629 P.2d 465 (adult motor vehicle operator who drives onto vacant service station premises as a short-cut “was a trespasser and at the most a licensee” as to whom premises owner owes duty not to wantonly injure; this court expressly rejected the trespasser-licensee’s request calling for the abolition of the common-law classifications and establishment of a uniform standard of reasonable care under the circumstances);
t Buttrey Food Stores Div. v. Coulson, 620 P.2d 549, 20 A.L.R.4th 419 (Wyo.1980) (store owner owes duty of reasonable care to customer);
t Sinclair Refining Co. v. Redding, 439 P.2d 20 (Wyo.1968) (affirming a judgment entered upon a jury verdict against a service station lessor and for a motor vehicle passenger who suffered injuries when she tripped and fell while returning from using the restroom to her motor vehicle which had stopped on the premises only for the purpose of letting the passenger use the restroom, this court held, among other things, that the evidence was sufficient to raise a jury issue whether the passenger was an invitee or licensee; in its analysis, this court discussed the determination of “invitee” status on the basis of the “economic benefit” test and the “invitation” test and concluded that sufficient evidence existed upon which a jury could find potential economic advantage to the service station lessor in this factual scenario);
t Stilwell v. Nation, 363 P.2d 916 (Wyo.1961) (trailer court owner owes duty of reasonable care to child of trailer court tenant);
| Maher v. City of Casper, 67 Wyo. 268, 219 P.2d 125 (1950) (Blume, J.) (landowner city’s mere tolerance and passive permission of, and acquiescence in, the use of a water-filled gravel pit as a playground by children does not make the children “invitees” as to whom the landowner owes a duty of reasonable care; the children, if not trespassers, are at most “bare licensees” as to whom the landowner owes a duty not to wantonly injure);
t Honan v. Moss, 359 P.2d 1002 (Wyo.1961) (in affirming the trial court’s judgment for the service station owner, this court discussed the rules of law relating to invitees and licensees in the context of the possibility that a customer’s movement from one part of the premises to another in search of a restroom may change the customer’s status from invitee to licensee);
| Dudley v. Montgomery Ward & Co., 64 Wyo. 357, 192 P.2d 617 (1948) (store customer is invitee as to whom storekeeper owes duty of reasonable care); t Afton Elec. Co. v. Harrison, 49 Wyo. 367, 54 P.2d 540 (1936) (Blume, J.) (child is a trespasser as to whom land occupier owes a duty not to willfully injure; however, when child is lured to an electric pole erected on the premises, the land occupier owes that child a duty of reasonable care);
t Loney v. Laramie Auto Co., 36 Wyo. 339, 255 P. 350, 53 A.L.R. 73 (1927) (Blume, C.J.) (auto repair garage customer’s agent is an invitee as to whom auto repair garage proprietor owes duty of reasonable care);
t Ramirez v. City of Cheyenne, 34 Wyo. 67, 241 P. 710, 42 A.L.R. 245 (1925) (since landowner city did not contend that child was a trespasser, no reason existed to apply the attractive nuisance doctrine; child killed by a falling swing in a public park held to be a public invitee as to whom the landowner owes a duty of reasonable care);

As our case law reveals, the Wyoming landowner or occupier owes the invitee a duty of reasonable care and owes the licensee and the trespasser only a duty to refrain from willfully or wantonly injuring him or her. Generally speaking, this court *299has not been particularly troubled in determining whether a trial court or jury properly defined the status of a given entrant. It is noteworthy, however, that this court struggled in Redding as it stretched to transparency the “economic benefit” test for determining “invitee” status to apply to a motor vehicle passenger who was injured after using landowner’s restroom, which use was the only reason for her being on the premises.

Interestingly enough, none of this court’s cases in this specific area of premise liability law has involved a social host-guest relationship such as the instant case presents to us. Thus, in that precise sense, this is a case of first impression. After thoroughly studying our case law, the case law from other jurisdictions, and the scholarly commentary in the treatises and legal periodicals, I have concluded, as did the Indiana Supreme Court recently in Burrell v. Meads, 569 N.E.2d 637, 642 (Ind.1991), “[m]uch of the discomfort in our recent premises liability decisions reflects a sense late in this century that the economic benefit test promotes injustice when applied to social guest cases.” After a solid analysis of this issue, the Burrell court held, correctly in my view, that a social guest is an invitee and, thus, entitled to a duty of reasonable care from a landowner or occupier as that duty is defined in Restatement (Second) of Torts § 343 (1965).3 Burrell, 569 N.E.2d at 643.

Striking to the heart of the issue, the Burrell court stated:

Courts have justified the exclusion of social guests from the invitee category on the basis that guests come only to receive their hosts’ hospitality and therefore have no right to expect that the hosts will take more precautions for their safety than the hosts would ordinarily take for the safety of members of their own households. This justification simply does not comport with modern social practices.

Burrell, 569 N.E.2d at 643 (citations omitted) (emphasis added).

Continuing in its analysis, the Indiana court remarked:

As we see it, the reasons for the Restatement’s use of an invitation-based test support requiring landowners to exercise reasonable care for the protection of their invited social guests. If a landowner induces a social guest to enter his land by express or reasonably implied invitation, then the landowner leads that guest, like any other entrant, to believe that the land has been prepared for his safety.

Burrell, 569 N.E.2d at 643. The Burrell analysis captures my thinking quite well. In this regard, I recall the words of Justice Cardozo who wrote:

I think that when a rule, after it has been duly tested by experience, has been found to be inconsistent with the sense of justice or with the social welfare, there should be less hesitation in frank avowal and full abandonment. 4 * * There should be greater readiness to abandon an untenable position when the rule to be discarded may not reasonably be supposed to have determined the conduct of the litigants, and particularly when in its origin it was the product of institutions or conditions which have gained a new significance or development with the progress of the years
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If judges have woefully misinterpreted the mores of their day, or if the mores of their day are no longer those of ours, they ought not to tie, in helpless submission, the hands of their successors.

Benjamin Cardozo, The Nature of the Judicial PROCESS, 120 (1921) (quoted in Fred W. Catlett, The Development of the Doctrine *300of Stare Deoisis and the extent to Which It Should be Applied, 21 Wash.L.Rev. 158, 166 (1946)).

Mrs. Clarke and her fellow Christmas party-goers were all individuals known to Mr. Beckwith, the landowner, and they came to his premises upon his express invitation. I conclude that he owed his expressly invited Christmas party guests a duty of reasonable care.

Although this conclusion removes a significant obstacle to the presentation of Mrs. Clarke’s negligence action, another equally formidable one looms large, namely, the natural-accumulation-of-snow-and-ice rule. See, Sherman v. Platte County, 642 P.2d 787 (Wyo.1982). Under the application of this rule, a landowner’s duty of reasonable care is suspended from operation m the case of a natural accumulation of snow and ice on his or her premises. Recently, in Eiselein v. K-Mart, Inc., No. 92-48, oral argument was heard on the question whether the natural-accumulation rule should be abolished. This court asked for re-briefing in that case by order dated June 25, 1993. Our decision in that case will, of course, significantly determine the future course of Mrs. Clarke’s case upon remand.

. The majority claims that in the twelve years since Yalowizer considerable development has occurred in this area of premises liability law. Slip. op. at 5. The majority cites to four decisions from other jurisdictions, apparently to demonstrate that considerable development. The North Dakota case of O’Leary v. Coenen, 251 N.W.2d 746 (N.D.1977) and the Maine case of Poulin v. Colby College, 402 A.2d 846 (Me. 1979), were decided several years before Yalowizer. In contrast to the other two decided a few years after Yalowizer, viz,, Waters by Murphy v. United States Fidelity & Guar. Co., 369 N.W.2d 755 (Wis.App.1985), and Hudson v. Gaitan, 675 S.W.2d 699 (Tenn.1984), according to one scholar, by the late 1970’s increasing numbers of courts either specifically refused to abolish the common law classifications, postponed the decision to abolish them, or reaffirmed the traditional rules. Joseph A. Page, the Law of Premises Liability, § 6.7 at 139 (2d ed. 1988).

Since 1988, five courts have refused to abandon the traditional rules. See, Moore v. Tucson Elec. Power Co., 761 P.2d 1091 (Ariz.1988); Baldwin by Baldwin v. Mosley, 295 Ark. 285, 748 S.W.2d 146 (1988); Kirschner by Kirschner v. Louisville Gas & Elec. Co., 743 S.W.2d 840 (Ky. 1988); Lohrenz v. Lane, 787 P.2d 1274 (Okla.1990); Preston v. Baltimore & Ohio R. Co., 550 N.E.2d 191 (Ohio App.1988).

Among our Rocky Mountain sister states, Utah rejected the invitation to abolish the common law classifications in 1979, Tjas v. Proctor, 591 P.2d 438 (Utah 1979); Idaho reaffirmed the traditional rules in 1975, Springer v. Pearson, 531 P.2d 567 (Idaho 1975) and again in 1980, Huyck v. Hecla Mining Co., 101 Idaho 299, 612 P.2d 142 (1980); and in Colorado the legislature reinstated the common law categories in 1986, only to have the Colorado Supreme Court invalidate the legislative effort in 1989 because as written the law violated the equal protection clauses of both the state and federal constitutions, Gallegos v. Phipps, 779 P.2d 856 (Colo.1989).

Based upon the foregoing activity since Ya-lowizer in 1981, one is hard-pressed to conclude that a trend in favor of abolition of the common law categories is developing.

. Wyo.Stat. § 8-1-101 (1989).

. § 343. Dangerous Conditions Known to or Discoverable by Possessor

A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he
(a)knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger.