Cain v. Johnson

FLANDERS, Justice,

concurring.

I join in the Court’s opinion, but write separately to make the following points and observations:

(1) Although the defendants all knew that the Cliff Walk area in front of Salve Regina University posed certain dangers to users because of soil-erosion problems and the lack of fencing around the cliffs and that these dangers had figured in two deaths and other near-fatal incidents in the past, no evidence suggested that any of the defendants possessed any actual knowledge of the specific condition on the premises — a small gap or hole in the ground between a certain retaining wall in this *165area and the adjacent land mass — that allegedly caused Michael Cain (Cain), the plaintiffs decedent, to plummet to his death.

(2) Given the masking effect of certain vegetation in this area, the existence of this particular defective condition was not shown to be, and, in all likelihood, would not have been obvious to any of the defendants. Indeed, we have no indication that the defective condition in question had even existed for any particular period before Cain’s tragic death, much less that any defendant knew or should have known of its existence.

(3) Although the hole or gap in question was near the artificial retaining wall, the record contains no evidence to suggest that the hole or condition that caused Cain’s death was itself the product of an artificial event instead of a naturally occurring condition, such as erosion, caused by this particular land area’s proximity to the cliff.

(4) No evidence exists to show that any defendant knew the deceased was present on the property before this accident occurred, much less that he was in any position of peril before the fall that led to his death. Mere knowledge from past experience that trespassers may be present on the property at any given time after closing hours does not, of itself, impose a duty of care on the property owner running in favor of trespassers, even when the property owner is aware or should be aware of certain obvious hazards that such trespassers may encounter if they are present on the property at night and then put themselves in certain dangerous places there. Accord Wolf v. National Railroad Passenger Corp., 697 A.2d 1082 (R.I.1997).

(5) Finally, Cain’s asserted ignorance that the Cliff Walk area was closed under a city ordinance when he was present there in the early hours of the morning before his accidental fall is of no legal consequence. A trespasser’s subjective ignorance of the park-hours-closing law, of the park’s actual closed status, and/or of the signs that were posted at certain entrances indicating that the park was closed when the trespasser entered the premises and then suffered personal injuries there do not serve to convert the trespasser into a licensee or invitee. See Bennett v. Napolitano, 746 A.2d 138, 141-42 (R.I.2000) (enforcing park closing ordinance against trespasser who was injured thereon after hours); see also Brindamour v. City of Warwick, 697 A.2d 1075, 1076 (R.I.1997) (treating motorist who entered a public park after closing hours as a trespasser).

On the other hand, if any evidence had existed in this case to show that defendants or any one or more of them knew about this particular hidden peril and further knew that trespassers constantly intruded upon this particular limited area of the land and that they probably would suffer potentially life-threatening injuries upon encountering it unless warned or prevented from doing so, I do not believe I would be voting to affirm the dismissal of these claims on summary judgment. Section 335 of the Restatement (Second) Torts (1986) speaks to this issue:

“Artificial Conditions Highly Dangerous to Constant Trespassers on Limited Area
“A possessor of land who knows, or from facts within his [or her] knowledge should know, that trespassers constantly intrude upon a limited area of the land, is subject to liability for bodily harm caused to them by an artificial condition on the land, if
(a) the condition
(i) is one which the possessor has created or maintains and
(ii) is, to his [or her] knowledge, likely to cause death or serious bodily harm to such trespassers and
(iii) is of such a nature that he [or she] has reason to believe that such trespassers will not discover it, and
(b) the possessor has failed to exercise reasonable care to warn such tres*166passers of the condition and the risk involved.”2

This standard suggests that only a land possessor’s actual preexisting knowledge of the highly dangerous condition on the land and its specific locale — in this case, the hole or opening in the ground where Cain fell — would create liability. Here, no evidence indicated that any defendant created or maintained the hole in the ground into which Cain fell. Indeed, we have no reason to believe any defendant knew of this particular defective land condition. Subpart (iii) of §, 335 of the Restatement also seems to require preexisting knowledge of the specific land condition in question because the land possessor must have a preexisting reason to believe that the dangerous condition is “of such a nature that * * * trespassers will not discover it.” Here, no evidence suggests any defendant knew about this specific danger at the particular spot where Cain fell to his death. The language of § 335, referring to “a limited area of the land” also supports this reasoning. Thus, a land possessor’s mere generalized knowledge of a potential danger presented by an obvious feature of the land — for example, the naturally occurring and obvious danger of a cliff or, for that matter, of an ocean— unaccompanied by the knowledge of some particular additional condition where a hidden danger lurks, would not be enough to give rise to liability, even if the Court were to adopt and follow the above Restatement position. Indeed, other jurisdictions have so held. See, e.g., Helms v. Chicago Park District, 258 Ill.App.3d 675, 196 Ill.Dec. 851, 630 N.E.2d 1016, 1020 (1994) (holding that “a condition may be so blatantly obvious that a defendant cannot reasonably be expected to anticipate that people will fail to protect themselves from any danger posed by the condition” and “[a]n owner or possessor of land has no duty to remedy conditions presenting risks so obvious that even a child would generally be expected to appreciate and avoid them”).

Although the facts in this ease, even under the above analysis, present a close call, I do not believe they are sufficient to overcome the high threshold we have established for trespassers to trigger the existence of a legal duty owed to them by the property owner or possessor. Hence, for these reasons and for those set forth in the Chief Justice’s opinion for the Court, I concur in the decision to affirm the Superi- or Court’s entry of summary judgment in favor of the defendants.

. Comment b to § 335 of the Restatement (Second) Torts (1986) notes that the principle of this section "appear[s] to be equally applicable to natural conditions of the land * * Here, (he record contains no evidence to suggest that the hole or opening into which Cain fell was an artificial condition instead of a naturally occurring phenomenon.