dissenting. I respectfully dissent be*308cause in my judgment this is a case calling for judicial restraint and deference to the Legislature.
Subject to certain qualifications,1 the rule traditionally ■followed in this state and most jurisdictions is that a possessor of land owes no duty to a trespasser except to refrain from injuring him willfully or wantonly after discovering him in a position of peril. Previte v. Wanskuck Co., 80 R. I. 1, 3, 90 A.2d 769, 770 (1952); New England Pretzel Co. v. Palmer, 75 R. I. 387, 394, 67 A.2d 39, 43 (1949); Downes v. Silva, 57 R. I. 343, 344, 190 A. 42, 43 (1937); Boday v. New York, N.H. & H. R.R., 53 R. I. 207, 208, 165 A. 448 (1933). The principal reason for this immunity is that * * in a civilization based upon private ownership, it is considered a socially desirable policy to .allow a man to use his own land in his own way, without the burden of watching for and protecting those who come there without permission or right.” Prosser, Ports §58 at 367 (3d ed. 1964).
Yet, today’s decision rejects that policy, and abandons .■a rule carefully developed over the centuries both here ■and in England. It establishes instead that negligence liability to an entrant upon land, irrespective of his status •as invitee, licensee or trespasser, depends upon whether Lis entry was reasonably foreseeable, and, if so, whether reasonable care was used to provide for his safety.
The majority find support in several recent decisions, hut none of the cases cited in fact involves an injury to *309a trespasser.2 The theme common to most, however, is that the immunity rule originated in feudal England, a society dominated by owners of large estates who presumably placed high importance on their freedom from concern for the safety of those entering their land without right or permission. A rule so founded, those authorities say, has little validity in today’s urban industrial climate where landownership, diffused and largely residential, has less economic significance. Contemporary society,' they conclude, places greater value on the lives and limbs of trespassers than on a landowner’s right to the private and free use of his land.
The socio-economic rationale may be accurate, but a more realistic explanation is, I think, that the abolition of the immunity rule is part of a “* * * continual movement away from fault as the governing principle for allocation of losses, in favor of enterprise liability or the distribution of losses over a larger segment of society through-insurance.” Smith v. Arbaugh’s Restaurant, Inc., 469 F.2d 97, 101 (D.C. Cir. 1972). Irrespective of which reason underlies today’s decision, the majority have made, in effect, a value judgment that it is more acceptable to our *310society that the risk of loss due to foreseeable injury sustained by a trespasser while on another’s land — in any event a slight and readily insurable risk3 — be shifted from him to the land’s possessor.
Max Wistow, for plaintiff. Martin M. Zucker, for defendants.If that judgment were premised more upon legal analysis and persuasive precedent and less upon presumed public acceptability, I would abide by my concurring opinion in Henry v. J. W. Eshelman Sons, 99 R. I. 518, 527, 209 A.2d 46, 51 (1965). There I said that “[wjhile a deferral to the Legislature in the initiation of changes in matters affecting public policy may often be appropriate, it is not required where the concept demanding change is judicial in its origins.” But the majority’s decision is not so premised. Instead, it rests purely on what in their judgment is a socially desirable policy.
Under these circumstances, I think that judgment should have been left to legislators who are certainly in a better position than judges to gauge the public sentiment, including that of the tens of thousands of homeowners in this state. If the majority are correct in their assessment of the social attitude, I have confidence that our Legislature would react as did the British Parliament in 1957, when it resolved a similar question by abrogating the distinction between licensees and invitees and declaring that a land occupier owes the same duty of care to both. Occupier’s Liability Act, 5 & 6 Eliz. II, c. 31 (1957).
Haddad v. First Nat’l Stores, Inc., 109 R. I. 59, 280 A.2d 93 (1971); Downes v. Silva, 57 R. I. 343, 190 A. 42 (1937). See also Zoubra v. New York, H.H. & H. R.R, 89 R. I. 41, 48, 150 A.2d 643, 646 (1959) (Roberts, J. dissenting); 2 Restatement (Second) Torts §§333-339 (1965).
In Rowland v. Christian, 69 Cal.2d 108, 443 P.2d 561, 70 Cal. Rptr. 97 (1968), a tenant’s social guest was injured while using a faulty bathroom fixture, which defect had been reported to the landlord-defendant; in Pickard v. City & County of Honolulu, 51 Hawaii 134, 452 P.2d 445 (1969), a licensee was injured when he unexpectedly fell through a hole in the floor in the restroom of the defendant’s courthouse; in Mile High Fence Co. v. Radovich, 175 Colo. 537, 489 P.2d 308 (1971), an on-duty police officer, who the defendant argued was a licensee, sustained injury when he walked down an alley in the course of his work and stepped into an unprotected fence hole dug by the defendant; in Smith v. Arbaugh’s Restaurant, Inc., 469 F.2d 97 (D.C. Cir. 1972), a building inspector was injured while examining the barbecue kitchen in the defendant’s restaurant. See also Sargent v. Ross, 113 N. H. 388, 308 A.2d 528 (1973), where the plaintiff-tenant’s 4-year-old daughter lost her life when she fell from the defendant-landlord’s outdoor stairway.
2 Harper & James, Torts §27.3 at 1438 (1956).