Cain v. Johnson

GOLDBERG, Justice,

concurring in part and dissenting in part.

I respectfully dissent from the decision of the majority because I do not believe that under the facts of this case, the decedent’s status on the Cliff Walk that fateful night should be classified as that of a trespasser; nor am I satisfied that the defendants, City of Newport and State of Rhode Island, should benefit from an application of the common law .trespasser’s rule, thereby immunizing these defendants from liability where, in my opinion, the facts demonstrate that Michael Cain (Cain) was an implied licensee. However, for the reasons that follow, I believe that summary judgment on behalf of Salve Regina University (Salve) was correct and appropriate, and that Salve had no duty to repair and maintain the Cliff Walk.

The events that led to this tragic death are particularly sad and egregious. Unfortunately, young Cain, a nineteen-year-old college student, was not the first young man to plunge to his death from the Cliff Walk. In 1987, Brian Putney, a student at Salve, also died as a result of a fall from the Cliff Walk during the nighttime. A member of Putney’s family submitted an affidavit to the hearing justice in this case attesting to promises and representations *167made to the Putney family that a fence would be erected in the area where Putney fell in order to avoid future casualties of this nature. Nothing was done. Further, the record before this Court is replete with evidence that every defendant in this case, for more than a decade before Cain’s tragic death, had actual knowledge of the extremely dangerous conditions on the Cliff Walk, yet did nothing to remedy this dire situation. Indeed, the record disclosed that Sister Lucille McKillop (Sister McKil-lop), then the President of Salve, implored the Newport city manager both before and after Putney’s fatal plunge to take corrective action respecting the extremely dangerous area of the Cliff Walk adjacent to the college. Beginning as early as 1979, Sister McKillop began a letter-writing campaign to the city through which she expressed her fear that the entire under-support of the Cliff Walk in the area adjacent to Salve was so weakened by erosion that the potential for loss of life was great and that safety measures should take priority over the city’s desire to make this attraction available to tourists. In May 1983, the city manager informed Salve that he had directed the director of public works to explore the cost of erecting a chain link fence from Webster Street to Shepard Avenue, the very area of Cain’s unfortunate demise. Nothing was done. On October 7, 1987, Sister McKillop again wrote to the city manager of Newport and again urged the city “in the strongest way possible” to act to rectify this problem, concluding that “the restoration of the Cliff Walk is a problem which will require the cooperation of City, State, Federal and local property owners. However, the proper definition of the edge of the Cliff Walk with chain link fencing can no longer be put off.” Tragically, put off it was. Despite having received written notice of these dangerous conditions and despite the death of Brian Putney, no measures were undertaken to prevent more tragedies.

Further, in July 1989, the North Atlantic Regional Office of the National Park Service produced a report (Park Service Study) that was the culmination of an extensive study of the Cliff Walk commissioned at the request of Congress, designed to evaluate the suitability for including the Cliff Walk in the National Park System. This comprehensive evaluation included formal research into the origins and historical development of the Cliff Walk, a geological appraisal of its significance as a National Natural Landmark, a broad survey of Cliff Walk visitors and various management and maintenance scenarios. Threaded throughout this 1988 study is the recognition that the Cliff Walk is a public easement over private property that has been jealously guarded by the City of Newport as the cornerstone of its tourism industry; and that all parties recognized that the Cliff Walk was in desperate need of improvement from a public-safety standpoint. Significantly, the study noted that “[a] fatality on the cliffs in 1987 and a near fatality in 1988 underline the urgency of stabilizing the treadway. The most recent accident involved a twelve year old girl who survived a forty-foot fall from the Cliff Walk. The fall occurred in an area where vegetation masks severe undermining of the cliff.” Moreover, the Park Service Study suggested that evaluations of the Cliff Walk’s stability made in 1988, three years before Cain’s death, by the United States Army Corps of Engineers and the USDA Soil Conservation Service indicated a serious level of hazard to Cliff Walk visitors.

In addition to this written material, the record before the hearing justice also disclosed that after Cain’s body was recovered, a captain of the Newport Fire Department publicly confirmed that the area from which Cain fell was a bad spot, and that to his knowledge, Cain was the third victim. Accordingly, I am satisfied that these defendants had actual notice of the potential for loss of life posed by this particular area of the Cliff Walk and did nothing to forestall this calamity.

*168Moreover, color photographs in the record depict the area where Cain left the macadam path and fell to his death as a well-worn spot, similar to a man-made overlook, that appears to be a perfectly natural area for a stroller to stop, leave the path, and look out over the Atlantic Ocean. Significantly, this area is defined by an artificial wall at the cliff edge, described in the police report as a “wall next to the walkway where the victim was standing [that] was approximately eight (8) inches tall.” Cain fell through a hole that opened up on the landward side of this man-made concrete barrier, in fulfillment of Sister McKillop’s chilling prediction that the entire under-support near this man-made structure was in danger of collapse. The existence of this man-made structure defining the cliff edge, in my opinion, belies the argument of the defendants that the decedent fell as a result of a natural condition on the land. Moreover, this fact standing alone presents a question of fact respecting the conduct of these defendants and whether the placement of this concrete barrier in an area where the landowner knows full well that the entire understruc-ture of the cliff is in danger of collapse amounts to reckless indifference to the safety of the decedent, particularly when the defendants knew full well that the decedent probably would come upon this hazard.

Perhaps the saddest part of this tragedy that resulted in the death of this young man is that following Cain’s death, then-Governor Bruce Sundlun ordered immediate action and initiated the installation of a fence for the area. We have been informed that the cost of this repair was $11,960. The meager cost of this preventive measure is a shocking circumstance that in my opinion justifies a trial in this case on the issue of reckless indifference to the safety of Michael Cain.

Finally, I believe that concerning Newport and the state, Cain was not a trespasser but rather a licensee whose presence on the Cliff Walk was anticipated by the city and the state, and that these defendants should not be relieved from liability by the judicially created technicality known as the trespasser’s rule. It is well settled that the existence of a duty of care in a negligence case-is always a question of law for the court’s determination. Mallette v. Children’s Friend and Service, 661 A.2d 67, 70 (R.I.1995) (citing Ferreira v. Strack, 636 A.2d 682 (R.I.1994)). “In determining whether such a duty exists, the court considers ‘all relevant factors, including the relationship of the parties, the scope and burden of the obligation to be imposed upon the defendant, public policy considerations and notions of fairness.’ ” Id. at 70 (quoting Kenney Manufacturing Co. v. Starkweather & Shepley, Inc., 643 A.2d 203, 206 (R.I.1994)). The plight of the trespasser is one area of the law in which no duty exists, and as a result, a landowner is immunized from liability.

This Court’s jurisprudence surrounding a landowner’s duty to an entrant upon land has taken its share of hairpin turns over the last quarter-century. In 1975, we attempted, on public policy grounds, to establish “a new judicial frontier with the expectation that our actions will better today’s society,” Mariorenzi v. Joseph DiPonte, Inc., 114 R.I. 294, 306, 333 A.2d 127, 133 (1975), by abrogating the common law classifications of an entrant upon the land of another as that of an invitee, licensee or trespasser, distinctions that had been in effect at least since the mid-19th century. Noting that “there has been a change since the days of Lincoln,” id. at 301, 333 A.2d at 130, that warranted the assignment of this “trichotomy [of invitee, licensee and trespasser] to the historical past” and to “substitute in its place the basic tort test of reasonableness” and foreseeability, we accorded these categories a “final but fitting interment.” Id. at 307, 333 A.2d at 133. However, nineteen years later we partially exhumed this body of law as it relates to trespassers in recognition that an increasing number of courts had rejected the reasoning that underlay *169Mariorenzi. We thereupon reinstated the traditional common-law immunity for injuries suffered by trespassers who are engaged in an activity on the property of another without the owner’s express or implied consent. Tantimonico v. Allendale Mutual Insurance Co., 687 A.2d 1056 (R.I.1994). Since Tantimonico, we have steadfastly adhered to this rule and have upheld the dismissal of claims alleging landowner liability by persons who trespassed upon the land of the defendant. Bennett v. Napolitano, 746 A.2d 138 (R.I. 2000); Wolf v. National Railroad Passenger Corp., 697 A.2d 1082 (R.I.1997); Brindamour v. City of Warwick, 697 A.2d 1075 (R.I.1997).

The implementation of the trespasser’s rule has without question lead to harsh results, yet its unsparing application has never been in doubt, nor has there been any real effort to revert yet again to a traditional application of negligence law. However, I believe that we are traveling on a two-way street. The availability of judicially created immunity for the owner of land who asserts that no duty was owed to the decedent because of his or her status as a trespasser should be carefully scrutinized for factual accuracy and reliability. I am of the opinion that for a defendant to take advantage of this judge-made rule and thus escape liability, the status of the injured party should be clear and unequivocal. I do not believe that one can hold out an implicit invitation to visit a tourist attraction for the economic benefit of the city/state landowner on the one hand, then seek to escape liability to those who have accepted the invitation and are injured or killed — due to the landowner’s negligence — by arguing that the mishap occurred at a time when the park was closed pursuant to an ordinance that is neither enforced nor brought to the public’s attention. The fact that Cain was completely ignorant that the Cliff Walk purportedly was closed, in my opinion, is fatal to the city’s defense. Accordingly, I am of the opinion that from the standpoint of the City of Newport and the State of Rhode Island, Cain was not a trespasser, but was an implied licensee, and that the grant of summary judgment in favor of the governmental defendants was error. With respect to Salve, I am of the belief that Salve has no ownership interest in the Cliff Walk sufficient to impose a duty of care to guard against injuries that may befall Newport’s summer tourists.

When this Court resurrected the trespasser’s rule in Tantimonico, the distinction between a licensee and an invitee remained interred. Under our law, the duty of care owed to a licensee and an invitee is identical and requires the owner to exercise reasonable care to secure the premises against injury that is foreseeable and preventable by undertaking reasonable precautions. Under this rule, “the basic tort test of reasonableness” defines the duty owed by a landowner toward an entrant onto his or her lands, and “the question to be resolved will be whether the owner has used reasonable care for the safety of all persons reasonably expected to be upon his premises.” Mariorenzi, 114 R.I. at 307, 333 A.2d at 133. Thus, under this analysis, I am satisfied that the evidence in this case demonstrates that Cain was reasonably expected to be upon the Cliff Walk that summer evening, that he was not given notice that the Cliff Walk was closed, and that genuine questions of fact remain relative to whether the governmental defendants were in breach of the aforementioned duty of care.

The majority opinion assumes, without deciding, that the decedent’s relationship to all three defendants was identical and that his status as a trespasser was the same with respect to all defendants. I disagree with the premise that all three defendants should be squeezed under the same umbrella of trespasser immunity. In my opinion, the relationship of the decedent to each defendant, like the Cliff Walk itself, is unique.

City of Newport

I am of the opinion that Cain, as a tourist visitor to Newport’s famed Cliff *170Walk on that fateful August night, was not a trespasser, but was an implied licensee whose presence on the Cliff Walk was not only anticipated, it was welcomed. Further, I believe that Newport has benefited significantly from the continued vitality of the Cliff Walk as the brightest gem in its tourism crown, and accordingly has always held out an implicit invitation to its summer tourists to come to Newport and visit this attraction. The record discloses that Cain and his friends entered the Cliff Walk from Forty Steps, a public entrance to the walk at the end of Narragansett Avenue, an area where the city deliberately decided to forgo the placement of signs notifying the public that the park was closed. Notably, the Park Service Study described the Forty Steps as a long-standing “popular gathering place along the Cliff Walk [that] may in fact predate the development of the walk itself,” and indicated that the restoration of its beloved Forty Steps following the great 1938 hurricane was the first occasion in which the City of Newport expended public funds on a site related to the Cliff Walk. The fact that there was not a single sign indicating the hours the Cliff Walk was closed to the public at this crucial location defeats any suggestion that Cain was anything but a licensee when he and his friends parked a vehicle on the public street, walked down the very public Forty Steps, and entered the Cliff Walk on a moonlit August night. Accordingly, in my opinion, the City of Newport may be hable in damages for Cain’s tragic death, and the judicially created immunity for trespassers ought not be available under the facts of this case. I am satisfied that concerning the City of Newport, Cain was a licensee and that summary judgment on the basis of the trespasser’s rule was inappropriate.

Since its inception, the area surrounding the cliffs along the western side of Ea-ston’s Bay out to the Atlantic Ocean always has been open for public use and enjoyment. According to the Park Service Study, as early as 1867, “Newporters began to recognize that they possessed an invaluable asset in the path along the cliffs” that figured prominently in the growing image of Newport as the ultimate vacation spot for the inhabitants of the Gilded Age. As private property along Bellevue Avenue and the ocean became available for development by the robber barons of high society, the Cliff Walk endured and was improved on most parcels to the point that it was connected with drives and walkways through many of the estates. Although no serious effort to block public passage over the Cliff Walk ever has been launched, when it came time for the expenditure of public funds for restoration and rehabilitation projects, questions arose about the legal status of the public’s right to pass along the Cliff Walk through privately owned lands.

On every occasion, the city loudly proclaimed that the Cliff Walk was a public easement over which the city was the supreme authority. In 1968, with a project by the Army Corps of Engineers in the balance, the city enacted an ordinance that placed the Cliff Walk under formal city authority and established the Cliff Walk Commission. Thus, a pattern developed in which whenever public funding was available for Cliff Walk repair and restoration projects, the city repeatedly declared to any one who would listen that the Cliff Walk was a public resource under the aegis of the City of Newport that was to be forever open for the use and enjoyment of the sea by anyone who cared to partake of its grandeur. The Cliff Walk Commission was established to manage and expend funds that may be,

“contributed to or by the City for the repair, renovation, improvement and maintenance of that certain walk known as ‘Cliff Walk’ * * * which walk was originally created by the owners of land abutting on the cliffs and which walk shall be open to the general public for the purpose of passing and repassing on foot along the face of the cliffs.” (Emphasis added.)

*171When the Army Corps of Engineers sought an opinion from the city confirming the public’s right to pass and repass along the right-of-way before it undertook the expensive rehabilitation project, the city solicitor, in a detailed response, opined that the owners of the various estates abutting the cliffs, from about 1840 through 1890, laid out the walk and made an incipient dedication of the Cliff Walk to the public, “and by the continued use by the general public there has arisen a public easement to pass and repass, for pedestrian purposes, a foot path around the edge of the Cliffs.” Not satisfied with this opinion, the Army Corps of Engineers insisted that the City Council act to formally ratify the opinion by council resolution that would assure the Army Corps of Engineers, “that the City will maintain the public easement of passage along the Cliff Walk.” The resolution did the trick, and the money was forthcoming. Work commenced in 1971, resulting in substantial repairs along almost half of the Cliff Walk.

Since that time, Newport continually has exercised its right of sovereignty over the Cliff Walk and has benefited from restoration projects totaling more than $2.5 million in federal, state and municipal money, including a cooperative project in the early 1980’s that restored a deteriorated section adjacent to Salve. Time and again, when confronted with a situation to its economic advantage in which financial aid to maintain and repair the Cliff Walk was in the offing, the city, through its lawyers, repeatedly assured the state and various federal agencies of the public nature of the Cliff Walk and its solemn intention to protect the right of the public to pass and repass over the walk.3 Accordingly, I am satisfied that the Cliff Walk remains a public easement over which the city and the state have ultimate responsibility and control.

However, notwithstanding these oft-repeated exhortations that the Cliff Walk is a right-of-way over which the city has ultimate authority, before this Court the city sought to avoid responsibility by arguing that its primary defense “is a lack of ownership of the Cliff Walk and thus lack of a duty to repair and maintain the same.” Besides the defense of lack of ownership, the city sought summary judgment on the ground that Cain was a trespasser. This defense rested solely on an obscure ordinance that Newport’s solicitor declared he had no intention of enforcing that provided that the Cliff Walk, “shall be closed for public use between nine p.m. and six a.m. of the following day, daily * * * except that the Cliff Walk shall remain open for the purpose of access to the water for fishing.” Significantly, when asked for his opinion concerning the propriety of establishing closing hours for the Cliff Walk and whether there was a need for signs, the city solicitor reminded the city manager and the chief of police that the Cliff Walk was considered a right-of-way, with the abutting property owners holding the fee subject to the public right-of-way. Thereafter, the solicitor responded that the lack of appropriate signs outlining the restrictions to the public is problematic and that putting up signs would be helpful:

“in terms of enforceability; however, I do not think [signs] are legally necessary to enforce the ordinance. Regardless, from an enforcement perspective in cutting down on the number of potential violators, signage would certainly help. I intend to take the position in prosecuting these offenses that ignorance of the law, at least initially, is an excuse.”

I am satisfied that this ordinance and the Cliff Walk’s purported closing hours, in the absence of signs and an intent to enforce the closing hours, is insufficient, as a matter of law, to terminate the implied license *172extended to the public to use the Cliff Walk for its intended purpose.

Moreover, contrary to the city’s assertion that it has no relevance to this case, the exception in the ordinance providing that the Cliff Walk shall remain open for fishing is the decisive factor in my conclusion that Cain was a licensee whose presence on the Cliff Walk was anticipated. The ordinance specifically provides that the Cliff Walk is never closed “for the purpose of access to the water for fishing.” This exception defeats the defense of trespass because the city has impliedly licensed a class of persons to use the Cliff Walk at any time for a particular purpose, and therefore, it does not matter whether the decedent is a member of that particular class of persons who happen to be carrying fishing poles. Section 330 of the Restatement (Second) Torts (1965) defines a licensee as “a person who is privileged to enter or remain on land only by virtue of the possessor’s consent.” Significantly, comment / to § 330 specifically addresses the instant situation and provides as follows:

“If the possessor has, by word or conduct, sufficiently expressed his consent to the entry of all others or a particular class, it is immaterial whether the particular person entering knows or does not know of the acts or words by which this consent is expressed. So too, where it is local custom for possessors of land to permit others to enter their land for particular purposes, it is immaterial that the particular person entering is not a member of the local community, or, if a member of the local community, is ignorant of the custom.” (Emphases added.)

I am satisfied that in this case, Newport cannot have it both ways; as comment/to § 330 of the Restatement (Second) Torts provides, where the owner extends an invitation to a particular class of persons to use his or her property and an entrant is upon the land with or without knowledge of the invitation or its purpose, that person is a licensee. Accordingly, I am satisfied that with respect to the City of Newport, Cain was a licensee to whom the duty to use reasonable care to prevent his death was owed.

State of Rhode Island

With respect to the state, I believe that there is a genuine issue of material fact with respect to the state’s relationship to the Cliff Walk. The record is replete with evidence of joint city-state efforts to secure funding for Cliff Walk restoration and evidence that during the past two decades the state has spent hundreds of thousands of dollars on improvements to this historical landmark. Obviously, because it is my opinion that the Newport ordinance is insufficient as a matter of law to render Cain a trespasser, likewise the state may not rely upon it as a defense to liability. Thus, as to the defendant State of Rhode Island, I believe that a trial on the merits is warranted, in which the state’s relationship to the Cliff Walk is more fully developed. The record reflects that the state undertook significant preventive measures immediately after this tragedy, including the placement of the chain link fence that clearly would have prevented this tragedy.

Therefore, I would remand for trial on the issue of whether Newport is the only culpable defendant, or whether the state, in light of its conduct with respect to the Cliff Walk, is also an owner that bears some responsibility for its maintenance and repair.

Salve Regina University

The relationship of Salve to the Cliff Walk and the decedent requires an entirely different analysis. I am satisfied that Salve owed no duty to Cain, not because of his purported status as a trespasser, but because Salve simply has no duty to repair and maintain the Cliff Walk. The record in this case demonstrates that Salve’s relationship to the Cliff Walk is identical to that of all abutters who own fee title to the walk subject to the public’s right to pass *173and repass. Because the abutters have no right to regulate the goings-on along the Cliff Walk, nor may they lawfully exclude the public, these abutters, in my opinion, have no duty to repair and maintain the Cliff Walk for the thousands of tourists who visit this attraction each year. This determination of no duty is fair and does justice to these, long-suffering abutters who watch approximately 150,000 visitors stroll along their property on a yearly basis.

Moreover, I am satisfied that, unlike the city and state, Salve has never extended an invitation, express or implied, to the public to visit this tourist attraction. Thus, I do not believe that Salve was under a duty to repair or maintain the Cliff Walk to make it safe for the public for recreational purposes. Further, the record demonstrates that Salve never has declared any ownership interest in the Cliff Walk and never has assumed any responsibility for its maintenance or repairs, except for minor landscaping for aesthetic purposes.

Finally, the record is clear that Cain entered the Cliff Walk from a public street and never actually entered Salve’s campus. Accordingly, as to the defendant Salve, I would find that because of the Cliff Walk’s public nature, Salve has no duty to maintain or repair the Cliff Walk, and that the duty of care belongs to the governmental defendants in this case. Although for reasons other than those relied upon by the trial justice, I would affirm the grant of summary judgment in Salve’s favor. See R & R Associates v. City of Providence Water Supply Board, 724 A.2d 432, 436 (R.I.1999).

Statutory Immunity

In the event this Court determined that any of the defendants directly or indirectly invited or permitted Cain to use the subject property for recreational purposes, we directed the parties to address whether the duty toward Cain would differ in any respect from that owed to a trespasser pursuant to G.L.1956 chapter 6 of title 32. My answer to that question is decidedly no, because the statute in effect at the time of this tragedy specifically applied to private landowners, not governmental entities. It was not until 1996 that the General Assembly amended the definition of “owner” to expressly include the state and municipalities (P.L.1996, ch. 234, § 1). Under well accepted rules of statutory construction, the amendment is not given retroactive effect in the absence of a provision clearly according retrospective application to the amendment. Avanzo v. Rhode Island Department of Human Services, 625 A.2d 208, 211 (R.I.1993) (citing Lawrence v. Anheuser-Busch, Inc., 523 A.2d 864, 869 (R.I.1987)).

In Tantimonico, this Court referenced this recreational use statute and stated that the:

“obvious intention of the Legislature was to treat those who use private property for recreational purposes as though they were trespassers. This indicates that to accomplish the objective of opening up land to meet the growing public demand for recreational space, the Legislature resurrected the landowner’s common-law immunity as to trespassers prior to Mariorenzi. The Legislature appears to have made a judgment that the social benefits of resurrecting the common-law classification at least for this purpose outweighed the costs to recreational users.” Tantimonico, 637 A.2d at 1060-61.

Besides the fact that neither the state nor its municipalities was included in the recreational use statutes, I believe that this chapter has no application to Newport’s Cliff Walk because the Cliff Walk is a public place with all of the attributes of a public park. As such, the Cliff Walk does not meet the purpose of the recreational use statute, which is “to encourage owners of land to make land and water areas available to the public for recreational purposes by limiting their liability to persons entering thereon for those purposes.” Section 32-6-1. Accordingly, I believe *174that this chapter has no application to the state’s public parks, beaches and recreation areas that are specifically intended to be open to the public for recreational purposes. Therefore, I would answer question 5 in the negative.

Conclusion

For the reasons stated herein, I would sustain the plaintiffs’ appeal of the entry of summary judgment in favor of the State of Rhode Island and the City of Newport, vacate the judgments in favor of Newport and the State of Rhode Island, and remand this case for a trial on the merits. I would, however, deny plaintiffs’ appeal from the summary judgment in favor of Salve Regina University, but for reasons other than those relied upon by the trial justice.

. Included in these opinion letters is a reference to article 1, section 17, of the Rhode Island Constitution of 1843 that guarantees the right of the people to access to the shore for purposes of fishing and the gathering of seaweed. This reference appears to suggest that the public's right of access is of state constitutional dimensions.