Demag v. Better Power Equipment, Inc., 2014 VT 78 (18-Jul-2014)
The history of the law on the subject of landowners and licensees shows a tendency to whittle away a rule which no longer conforms to public opinion. ~ Cameron v. Abatiell, 127 Vt. 111, 114, 241 A.2d 310, 312 (1968)
DOOLEY, J. Plaintiff appeals a summary judgment against him in this case to recover damages for the injuries he suffered as a result of a fall into an uncovered storm drain in defendant BPE’s parking lot. Consistent with our current negligence law, the trial court found that plaintiff was a licensee of BPE, rather than an invitee. It then concluded that plaintiff was entitled to a lesser standard of care from BPE, which allowed for summary judgment against him. We determine that the time has come to abolish Vermont’s common-law negligence distinction between licensees and invitees and reverse and remand.
Plaintiff worked for a car dealership. As a convenience for BPE’s general manager and his wife Plainitff would pick up their car from BPE’s parking lot when it needed service. In January 2009, plaintiff drove to the lot to pick up the car and fell into an uncovered storm drain. Recent snowfall had obscured the drain so that its opening was not obvious. BPE and its employees were not aware that the storm drain was uncovered until plaintiff fell into it.
The trial court correctly noted that under our traditional common-law approach to landowner liability, the landowner’s duty to an entrant on his or her land depends on whether the entrant is an invitee, a licensee, or a trespasser. The trial court found that plaintiff was a licensee at the time of his injury. Citing to the Restatement (Second) of Torts § 342 cmt. c (1965), the court determined that the landowner had no duty to “inspect the land to discover possible or even probable dangers.”
Plaintiff argues that this Court should hold that all lawful visitors to business premises should be entitled to a duty of reasonable care.
We have long maintained the traditional, common-law approach to landowner liability, holding landowners to different duties of care depending on whether a land entrant is an invitee, licensee, or trespasser. Cameron v. Abatiell, 127 Vt. 111, 114, 241 A.2d 310, 312 (1968). In this decision, we do not address the duty owed by a landowner to a trespasser; we focus only on the distinctions we have drawn between licensees and invitees.
An invitee is one who “enters the land for the purpose of business dealings with the landowner.” The landowner owes a duty of reasonable care to an invitee, such that the invitee “is not unnecessarily or unreasonably exposed to danger.” A licensee is one who merely “enters or remains on land with the consent of the landowner.”
We will modify settled aspects of the common law only when plainly justified by evolving common standards.
Common standards have evolved. A slight majority of state courts have now abolished the distinction between licensees and invitees. See Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 51, Reporter’s Note, cmt. a, tbl. (2012). For the last thirty-five years, reform states have included all of Vermont’s closest neighbors.
The arbitrariness, rigidity and complexity of the distinctions that have developed to separate licensees from invitees is one of the reasons many courts have abandoned the classifications. The common law arose when “the presumption [was] that landowners generally were free to act as they pleased within the confines of their own property.” We are now in a different legal context, where control of land use for the protection the public is pervasive. The value we place on human health and safety has increased. The lower standard of care for landowners in relation to licensees is an anomaly in modern tort law.We conclude that this is an issue on which the need for modernization is so strong that we must act.
We hold that a landowner owes the same duty of care to a licensee as to an invitee. The standard of “reasonable care in all the circumstances” will better reflect our common expectation of the duty of care owed by landowners and occupiers to all lawful entrants. An entrant’s status, no longer controlling, is simply “one element, among many, to be considered in determining the landowner’s liability under ordinary standards of negligence.”
In making this change applicable to all lawful land entrants, we reiterate that we make no determination as to the duty owed to trespassers at this time. The rule as to trespassers that we recently stated in Farnham—that “a landowner owes no duty to protect a trespasser from injury caused by unsafe or dangerous conditions”—remains good law in Vermont. Farnham v. Inland Sea Resort Properties, .2003 VT 23, ¶ 8.
The evidence creates a question of fact sufficient to reach the jury under our new standard of care, whether the uncovered storm drain was reasonably foreseeable to BPE.
Plaintiff worked for a car dealership. As a convenience for BPE’s general manager and his wife Plainitff would pick up their car from BPE’s parking lot when it needed service. In January 2009, plaintiff drove to the lot to pick up the car and fell into an uncovered storm drain. Recent snowfall had obscured the drain so that its opening was not obvious. BPE and its employees were not aware that the storm drain was uncovered until plaintiff fell into it.
The trial court correctly noted that under our traditional common-law approach to landowner liability, the landowner’s duty to an entrant on his or her land depends on whether the entrant is an invitee, a licensee, or a trespasser. The trial court found that plaintiff was a licensee at the time of his injury. Citing to the Restatement (Second) of Torts § 342 cmt. c (1965), the court determined that the landowner had no duty to “inspect the land to discover possible or even probable dangers.”
Plaintiff argues that this Court should hold that all lawful visitors to business premises should be entitled to a duty of reasonable care.
We have long maintained the traditional, common-law approach to landowner liability, holding landowners to different duties of care depending on whether a land entrant is an invitee, licensee, or trespasser. Cameron v. Abatiell, 127 Vt. 111, 114, 241 A.2d 310, 312 (1968). In this decision, we do not address the duty owed by a landowner to a trespasser; we focus only on the distinctions we have drawn between licensees and invitees.
An invitee is one who “enters the land for the purpose of business dealings with the landowner.” The landowner owes a duty of reasonable care to an invitee, such that the invitee “is not unnecessarily or unreasonably exposed to danger.” A licensee is one who merely “enters or remains on land with the consent of the landowner.”
We will modify settled aspects of the common law only when plainly justified by evolving common standards.
Common standards have evolved. A slight majority of state courts have now abolished the distinction between licensees and invitees. See Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 51, Reporter’s Note, cmt. a, tbl. (2012). For the last thirty-five years, reform states have included all of Vermont’s closest neighbors.
The arbitrariness, rigidity and complexity of the distinctions that have developed to separate licensees from invitees is one of the reasons many courts have abandoned the classifications. The common law arose when “the presumption [was] that landowners generally were free to act as they pleased within the confines of their own property.” We are now in a different legal context, where control of land use for the protection the public is pervasive. The value we place on human health and safety has increased. The lower standard of care for landowners in relation to licensees is an anomaly in modern tort law.We conclude that this is an issue on which the need for modernization is so strong that we must act.
We hold that a landowner owes the same duty of care to a licensee as to an invitee. The standard of “reasonable care in all the circumstances” will better reflect our common expectation of the duty of care owed by landowners and occupiers to all lawful entrants. An entrant’s status, no longer controlling, is simply “one element, among many, to be considered in determining the landowner’s liability under ordinary standards of negligence.”
In making this change applicable to all lawful land entrants, we reiterate that we make no determination as to the duty owed to trespassers at this time. The rule as to trespassers that we recently stated in Farnham—that “a landowner owes no duty to protect a trespasser from injury caused by unsafe or dangerous conditions”—remains good law in Vermont. Farnham v. Inland Sea Resort Properties, .2003 VT 23, ¶ 8.
The evidence creates a question of fact sufficient to reach the jury under our new standard of care, whether the uncovered storm drain was reasonably foreseeable to BPE.
Reversed and remanded for further proceedings not inconsistent with this opinion.
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