Antoniewicz v. Reszczynski

236 N.W.2d 1, 70 Wis. 2d 836, 1975 Wisc. LEXIS 1373

• Court: Wisconsin Supreme Court
• Decided: December 10, 1975
• Docket: 602 (1974)
• Status: Published

Opinions

Heffernan, J.

This case presents the question of whether this court should abrogate the heretofore existing common-law immunities of the owners and occupiers of land. We conclude that the distinction between the duty heretofore owed by a land occupier to licensees and to invitees should be abolished, and that the duty of the land occupier be that required in any negligence action— ordinary care under the circumstances. We decline, however, to change the immunities which a land occupier enjoys in respect to trespassers.

This case arises upon demurrer. The court interpreted the allegations of the complaint to demonstrate that the plaintiff had the status of a licensee and, under existing law, there would be liability only where a trap exists upon the property, i.e., a hazard known to the landowner but concealed and unknown to the licensee, or, alternatively, where there has been active operational negligence. The trial judge concluded that, although the law heretofore existing in Wisconsin precluded the plaintiff from recovery, such law was archaic and no rational basis existed for denying liability to the plaintiff in the circumstances set forth. He held that the duty which devolves upon a landowner, irrespective of the common-law status of the person who comes upon the land, ought to be that of ordinary care under the circumstances. The trial judge correctly interpreted the status of the law and the result that would be reached were prior law applied.

The complaint alleges that the plaintiff, Dean Anton-iewicz, went to the home of the defendant, Anne Reszezyn-ski, on the evening of February 16, 1978, for the purpose of giving the defendant’s daughter a ride to a friend’s house; and that on the back porch there was an icy patch, which was known to the defendant but was unknown to the plaintiff and upon which ice the plaintiff slipped and was injured. It is alleged that the defendant was guilty of negligence for failing to warn the plaintiff of the condition of the porch, for the failure to provide proper lighting, and for the failure to prevent the accumulation of ice on the back porch.

The trial judge in his memorandum opinion stated the arguments of the defendant. He said:

“Defendant contends that the injured plaintiff was a licensee; that the alleged defect was unconcealed; and therefore, there was no duty to warn, and that the condition complained of was not the product of active negligence. If one concedes the injured plaintiff’s status as a licensee and that the condition was not alleged to be concealed, then the defendant’s position is substantiated by the precedent she relies upon.”

The judge then restated the common-law distinctions between the status of trespasser, licensee, and invitee and the tests this court applies for holding a landowner liable when an injury is done to a plaintiff in any of those legal categories. He pointed out that the common-law status of a licensee is important in determining the sufficiency of the cause of action only were common-law distinctions to be retained. He posed the question: Should the trend toward the rule of ordinary negligence be adopted in Wisconsin? He answered that question by concluding that it was time that the antiquated common-law distinctions be rejected and a single negligence standard, that of the duty of ordinary care, govern an owner’s liability for any injuries on his premises.

In the recent case of Terpstra v. Soiltest, Inc. (1974), 63 Wis. 2d 585, 218 N. W. 2d 129, the plaintiff urged that we abandon the existing rules for predicating liability upon an owner or occupier of land and substitute therefor the standard of ordinary care. We declined that request and stated:

“We are aware of the recent trend in other states toward the abolition of the common law distinctions between trespasser, licensee, and invitee in terms of the landowner’s obligations ....

“We choose, however, not to consider the abandonment of the traditional rule in this case. If a change is to be considered, it should be on the basis of a record made at trial, where appropriate motions are made and instructions requested that will trigger the exercise of the trial judge’s decision on the question as it may apply to a particular case.” (Pp. 593, 594)

Ordinarily, as we said in Gonzales v. Wilkinson (1975), 68 Wis. 2d 154, 158, 227 N. W. 2d 907, we will not consider the abandonment of a traditional rule unless there has been a full trial and full consideration of the issues. In many cases where there has been an order entered on a demurrer, the trial judge may fail to address himself directly to the question of whether an existing rule of law should be abandoned.

As a matter of judicial policy, this court believes it important to have the expression of a trial judge’s reasoning on the particular case before him. In the instant case, however, it is apparent that the trial judge specifically and painstakingly addressed himself to the policy considerations underlying the existing law and the approach that he espoused. His reasoning was explicated in a scholarly and exhaustive opinion. There is no doubt that, in light of this record, the trial judge squarely found the issue presented and dealt with it. He has fully informed this court why, in his opinion, the law applying to this case should be changed. The case is in a proper posture for the consideration of the issue upon which the trial judge made his decision and ordered that the demurrer be overruled.

The present law in Wisconsin in respect to the duties of owners and occupiers of land is outlined in Szafranski v. Radetzky (1966), 31 Wis. 2d 119, 125, 126, 141 N. W. 2d 902. We stated that, in respect to a trespasser, the owner of land has only the duty to refrain from wilful and intentional injury. He is not ordinarily liable to trespassers for the failure to exercise ordinary care to put his land in a safe condition, nor is he obliged to refrain from activities that might cause injury, although in some circumstances there may be a duty to warn known trespassers of highly dangerous conditions.

On the sliding scale of increased duty, as determined by the status of a person who comes upon the land, greater obligations are owed to a licensee. The land occupier may be liable to a licensee if the injury is caused by a trap — a dangerous condition that is known to the landowner but concealed from the licensee. In such circumstance, there is a duty to warn. A cause of action by a licensee may also be spelled out when the injury is caused by the active or operational negligence of the land occupier. Under such circumstances, the active or operational activity must be carried on in the exercise of ordinary care.

The highest duty is owed to the invitee, that of ordinary care under the circumstances.

A trespasser is defined by Restatement, 2 Torts 2d, p. 171, sec. 329, as:

a person who enters or remains upon land in the possession of another without a privilege to do so created by the possessor’s consent or otherwise.”

A trespasser, however, is not ipso facto an outlaw, unless he is in fact on the premises for illegal purposes. That this is true is demonstrated by the numerous rules stated in Prosser, Torts (hornbook series, 4th ed.), which afford some protection under particular circumstances to “frequent trespassers,” “anticipated trespassers” in respect to dangerous activities, “discovered trespassers,” and “physically trapped” trespassers. There are also exceptions to the general rule of liability involving trespassing children of tender years.

Nevertheless, the trespasser’s status is entirely different than that of either a licensee or an invitee, both of whom enter the property with knowledge and consent of the landowner. While a convincing argument can be made to demonstrate that the numerous exceptions to the trespasser rule vitiate its effect and warrant an abrogation of the rule and the substitution therefor of a duty of ordinary care that recognizes the peculiar circumstances surrounding the trespass, we conclude that the distinction is so great between that legal status and that of the licensee-invitee that we ought not consider now the abrogation of the rule in regard to trespassers. Under the facts of this case, the plaintiff was not a trespasser, but was a licensee. The duty to a trespasser is not raised.

In light of the factual situation herein, we agree with the Minnesota Supreme Court in Peterson v. Balach (1972), 294 Minn. 161, 199 N. W. 2d 639, in which, discussing a case in which the injured party was a licensee, it declined to rule on a landowner’s duty to trespassers. The Minnesota court said:

“Judicial restraint suggests that this question be deferred to a later day and to another case. Our judgment dictates that rules which have evolved over decades of common-law experience in this state should not be summarily abrogated except in an adversary setting after a thorough and careful presentation by litigants who have a stake in the outcome.

“. . . Sweeping away all distinctions between trespassers and social guests and business invitees is a drastic step to take because there may be, and often is, good reason to distinguish between a trespasser and a social guest. There is little or no reason to distinguish between a social guest and a business invitee.” (Pp. 164, 165)

The Massachusetts Supreme Court in Mounsey v. Ellard (1973), 363 Mass. 693, 297 N. E. 2d 43, followed a similar rationale in refusing to abrogate the trespasser rule. That court said in footnote 7, page 707:

“We feel that there is significant difference in the legal status of one who trespasses on another’s land as opposed to one who is on the land under some color of right — such as a licensee or invitee. For this reason, among others, we do not believe they should be placed in the same legal category.”¹

Whatever logic there may be for the total abolition of all classifications of those who come upon the land of another, we are satisfied that the merits of total abolition should be considered by a common-law court only in a case involving a trespasser. Accordingly, we do not by this opinion intend to make any disposition of the immunity rule in respect to trespassers. On the facts before us, we are concerned only with the distinction between invitees and licensees.

In Copeland v. Larson (1970), 46 Wis. 2d 337, 174 N. W. 2d 745, this court discussed the standard for determining the status of an invitee to whom is owed the duty of ordinary care. Two theories have been developed— the “economic-benefit” theory which embraces a business visitor and the “invitation” theory. As Copeland points out:

“The economic-benefit test imposes an obligation upon the occupier of land when he receives- some actual or potential benefit as a result of the entry. The invitation theory imposes a duty based upon a holding out of the premises as suitable for the purpose for which the visitor entered.” (P. 342)

Copeland reiterates that the economic-benefit theory is not followed in Wisconsin and that this state finds liability to the invitee in a representation implied from an encouragement the landowner gives to others- to further one of his purposes.

. “To this court, the terms ‘business invitee,’ ‘business visitor,’ and ‘invitee’ are synonyms and we have held that when a person enters upon the premises of another and there is a benefit to the other person by the entry or some mutuality of interest, the visitor is an invitee.” (Pp. 342, 343)

It is apparent from the discussion in Copeland that, with the discarding of the economic-benefit theory, it is logically impossible to set realistic standards for the exclusion of a social guest from the category of invitee. As we said in Szafranski, supra, one of the enigmas of common-law parlance is that a social guest, no matter how cordially he has been invited, is nevertheless not an invitee but a licensee, to whom the lesser duty of care is required.

It is this blurring of distinctions and the absence of a sound rationale for imposing liability in one case and not in another that has impelled common-law courts to abolish the distinctions between licensee and invitee as determinative of liability. The trend toward the enlargement of the duty of landowners for negligence and the minimization of the importance of common-law status categories has been noted in both Copeland, supra, and Terpstra, supra.

The first significant change in this direction was made by the United States Supreme Court in Kermarec v. Compagnie Generale (1959), 358 U. S. 625, 79 Sup. Ct. 406, 3 L. Ed. 2d 550, a case in which the court considered whether the common-law rules of status in respect to one who comes upon the property of another should be applied to maritime law. Upon the premise that it is a settled principle of maritime law that a shipowner owes the duty of exercising reasonable care toward those lawfully aboard the vessel who are not members of the crew, the court concluded that it was inappropriate to hold that a different and lower standard of care is required when the ship’s visitor is a “licensee.” The court in rejecting that separate standard of care stated:

“The distinctions which the common law draws between licensee and invitee were inherited from a culture deeply rooted to the land, a culture which traced many of its standards to a heritage of feudalism. In an effort to do justice in an industrialized urban society, with its complex economic and individual relationships, modern common-law courts have found it necessary to formulate increasingly subtle verbal refinements, to create sub-classifications among traditional common-law categories, and to delineate fine gradations in the standards of care which the landowner owes to each. Yet even within a single jurisdiction, the classifications and subclassifica-tions bred by the common law have produced confusion and conflict. As new distinctions have been spawned, older ones have become obscured. Through this semantic morass the common law has moved, unevenly and with hesitation, towards ‘imposing on owners and occupiers a single duty of reasonable care in all the circumstances.’ ” (Pp. 630, 631)

Nine years later, Rowland v. Christian (1968), 69 Cal. 2d 108, 117, 70 Cal. Rptr. 97, 443 Pac. 2d 561, relying in part upon Kermarec, abolished the common-law status categories and stated:

“There is another fundamental objection to the approach to the question of the possessor’s liability on the basis of the common law distinctions based upon the status of the injured party as a trespasser, licensee, or invitee. Complexity can be borne and confusion remedied where the underlying principles governing liability are based upon proper considerations. Whatever may have been the historical justifications for the common law distinctions, it is clear that those distinctions are not justified in the light of our modern society and that the complexity and confusion which has arisen is not due to difficulty in applying the original common law rules — ■ they are all too easy to apply in their original formulation — but is due to the attempts to apply just rules in our modern society within the ancient terminology.” (P. 117)

“A man’s life or limb does not become less worthy of protection by the law nor a loss less worthy of compensation under the law because he has come upon the land of another without permission or with permission but without a business purpose. Reasonable people do not ordinarily vary their conduct depending upon such matters, and to focus upon the status of the injured party as a trespasser, licensee, or invitee in order to determine the question whether the landowner has a duty of care, is contrary to our modern social mores and humanitarian values. The common law rules obscure rather than illuminate the proper considerations which should govern determination of the question of duty.” (P. 118)

Following this rationale, the California court concluded that continued adherence to the common-law distinctions would lead only to further injustice and additional legal fictions, with the resulting complexity and blurring of categories, except in the most obvious cases. It concluded that in all instances the proper standard to be applied in determining the liability of an occupier of land in respect to one who comes upon it is whether in the management of the property the occupier:

“. . . has acted as a reasonable man in view of the probability of injury to others, and, although the plaintiff’s status as a trespasser, licensee, or invitee may in the light of the facts giving rise to such status have some bearing on the question of liability, the status is not determinative.” Rowland, page 119.

It should be noted that Rowland did what we do not do in this case — it abolished the special rules in respect to trespassers.

A year later, the state of Hawaii followed Rowland and in Pickard v. City and County of Honolulu (1969), 51 Hawaii 134, 135, 452 Pac. 2d 445, abolished the common-law distinctions. The Hawaiian court stated:

“We believe that the common law distinctions between classes of persons have no logical relationship to the exercise of reasonable care for the safety of others. We therefore hold that an occupier of land has a duty to use reasonable care for the safety of all persons reasonably anticipated to be upon the premises, regardless of the legal status of the individual.”

In 1971, the Supreme Court of Colorado in Mile High Fence Co. v. Radovich (1971), 175 Colo. 537, 489 Pac. 2d 308, also ruled that the liability of a land occupier for those injured upon his property did not rest solely on the common-law status of the entrants. It concluded that the existing classifications created confusion and judicial waste and prevented the jury from applying ordinary community standards of negligence to a landowner’s duty. It stated that the perpetuation of the common-law distinctions resulted in a harshness that is inappropriate to a modern legal system. The Colorado court adopted the reasonable-man standard in view of foreseeability of injury to others. It acknowledged, however, that it was proper for the jury to predicate the question of liability on the circumstances of the individual’s entry upon the land, i.e., whether, in common-law parlance, he was a trespasser, licensee, or invitee, but those distinctions were not to be conclusive.

In 1972, the United States Court of Appeals for the District of Columbia in Smith v. Arbaugh’s Restaurant, Inc. (D. C. Cir. 1972), 152 U. S. App. D. C. 86, 469 Fed. 2d 97, adopted a similar rule and held that it was appropriate to apply ordinary principles of negligence to a landowner’s conduct.

The District of Columbia Court of Appeals emphasized that landowners are not to be insurers but are expected only to respond in liability if there is a failure to exercise due care under the circumstances.

The most recently reported case which completely adopted the Rowland rationale is Mariorenzi v. Diponte, Inc. (R. I. 1975), 333 Atl. 2d 127. The Rhode Island court said:

“The time has come to extricate ourselves from a semantical quagmire that had its beginning in ancient and misleading phraseology. Mr. Justice Sutherland has emphasized the judiciary’s duty to bring the common law into accord with present day standards of wisdom and justice rather than to continue with some outmoded and antiquated rule of the past. . . . The judiciary gave birth to the invitee, licensee, trespasser trio" and the judiciary can lay this triptych to rest. Accordingly, we now give a final but fitting interment to the common-law categories of invitee, licensee, internment and trespasser as well as their extensions, exceptions, and extrapolations.

“As we assign the trichotomy to the historical past, we substitute in its place the basic tort test of reasonableness. Hereafter, the common-law status of an entrant onto the land of another will no longer be determinative of the degree of care owed by the owner, but rather 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. Evidence of the status of the invitee may have some relevance to the question of liability but it no longer will be conclusive. The traditional tort question of foreseeability will become important.” (P. 133) (Atl. 2d)²

In addition to these cases which have totally abolished the common-law distinctions, a number of other courts, including Minnesota in Peterson, supra, and Massachusetts in Mounsey, supra, have abolished the traditional distinctions between licensees and invitees, but have declined to rule on the question of the landowner’s duty toward trespassers.

Additionally, a number of courts since Rowland have declined to abolish the common-law categories but hold that social guests should be considered as invitees and the duty of reasonable care be required in respect to those persons who under the common-law categories fall into the class of either social guests or invitees. This trend in some cases preceded Rowland, supra.3 A number of post -Rowland, decisions have also expanded the category of invitees to include social guests.⁴

Prior to the trend of the change set in motion by Rowland and its progeny and concommitant with it, a number of writers of legal treatises and law reviews have pointed out the tenuous basis for the common-law categories that determine the responsibilities of occupiers of land.

2 Harper & James, in the treatise, The Law of Torts, p. 1432, sec. 27.1, stated the medieval origin of these rules. They said:

“But the consensus of modern opinion is that the special privilege these rules accord to the occupation of land sprang from the high place which land has traditionally held in English and American thought and the still continuing dominance and prestige of the landowning class in England during the formative period of this development. This sanctity of land ownership included notions of its economic importance and the social desirability of the free use and exploitation of land. Probably it also included, especially in England, more intangible overtones bound up with the values of a social system that traced much of its heritage of feudalism.”

After discussing the application of the rules in respect to owners and occupiers of land, Harper and James concluded:

“. . . the traditional rule confers on an occupier of land a special privilege to be careless which is quite out of keeping with the development of accident law generally and is no more justifiable here than it would be in the case of any other useful enterprise or activity. As we have suggested, this special privilege is receding . . . .” P. 1440, sec. 27.3.

In 1959, Graham Hughes in Duties to Trespassers: A Comparative Survey and Revaluation, 68 Yale Law Journal 688, in commenting upon the English statute which abolished the distinction between licensees and invitees, stated:

“This legislation sprang from a feeling, strongly expressed in recent years, that the character of the plaintiff in his lawful entry on the defendant’s premises should be no more than a relevant circumstance in determining whether the defendant has discharged his duty of care. It ought not to be imported into the law as a categorical proposition, for the answer to the question of whether the defendant has discharged his duty should depend on the totality of the circumstances. The mechanical application of the traditional categories of visitor, and of such concepts as traps and unusual dangers, is a manifestation of the lamentable tendency to transmute propositions of fact into propositions of law, which Glanville Williams has called the ‘besetting sin of the law of tort.’ ”

A writer in 18 Univ. of Kansas Law Review (1969), 161, 162, stated:

“. . . [T]he existing exceptions and judicial extensions which pervade the common-law rules manifest a basic confusion surrounding the application of those rules and are symptomatic of an attempt to attain justice in the individual case while working within a system of law which frustrates the attainment of that end. This confusion and inequity in the area of occupier’s liability stems from an attempt to apply old common-law principles in a society which no longer holds the landowner sacrosanct.” Stites, Comment: Liability of a Land Occupier to Persons Injured on His Premises: A Survey and Criticism of Kansas Law.

The English Law Reform Committee Report, out of which grew the British revision eliminating the separate categories, concluded by saying:

“[The present law embarrasses justice] ‘by requiring what is essentially a question of fact to be determined by reference to an artificial and irrelevant rule of law.’ ” Cited in McDonald & Leigh, The Law of Occupiers’ Liability and the Need for Reform in Canada, 16 U. of Toronto Law Journal (1965), 55, 65.

The unsatisfactory condition of the common law was recognized by the legislature of Wisconsin as long ago as the enactment of the safe-place statute, sec. 101.11, Stats., first adopted by the legislature in 1911. The safe-place statute in effect abolished the traditional common-law classifications in respect to those who come upon public buildings and places of employment. The purpose of the safe-place statute was capsulized by Mr. Justice Crownhart in a dissent to the majority opinion in Lewko v. Krause Milling Co. (1922), 179 Wis. 83, 94, 190 N. W. 924. He said in reference to the safe-place statute:

“In other words, it put into the statutes the humane doctrine of the courts, and wiped out the Draconian doctrine so far as licensees or invitees are concerned.”

Despite the enlightened legislation adopted in 1911 applicable to public buildings and places of employment, this court has never seen fit to adopt the policy toward which the legislature led the way, but instead has continued to follow the unrealistic and Draconian rules referred to in Lewko.

This court in McConville v. State Farm Mut. Automobile Ins. Co. (1962), 15 Wis. 2d 374, 113 N. W. 2d 14, saw fit, however, to abolish the analogy of the licensor-licensee relationship in respect to the condition of an automobile in which a gratuitous guest may ride, and held that the licensor duty and its outgrowth — assumption of risk — should be discarded in favor of the principle that the driver of an automobile owes his guest the same duty of ordinary care that he owes to others. The MeCon-ville Case rested upon the rationale that the burden of injuries falling upon the community, as well as upon the individual injured parties, ought rather to be borne by the tort-feasor. McConville also placed heavy reliance upon the fact that automobile liability insurance was generally available to spread the cost of the risk. That factor is also present in respect to real property where liability insurance is available to protect the property owner and those who come upon his premises. Moreover, it should be borne in mind that in McConville the court was dealing with a plaintiff who proceeded voluntarily in the face of a known risk. This is, of course, but rarely the situation in respect to either a licensee or an invitee on an occupier’s property.

The reasoning of McConville, as applied to the occupier-of-land situation, means that both the occupier of land and one who comes upon it are charged with the duty of ordinary care, and even though the owner be found negligent, his liability may well be reduced by the negligence of the plaintiff under the familiar principles of our comparative-negligence law.

It would appear, therefore, that there is little to commend the continued use of the categories of licensee or invitee in respect to the liability of the occupier of property. As we have noted, the factual distinctions between licensees and invitees are hazy and the law blurred. There is no reason why one who invites a guest to a party at his home should have less concern for that guest’s safety than he has for the welfare of an insurance man who may come to the home to deliver a policy. Is the life or welfare of a friend who comes as a guest to be more lightly regarded than the life or welfare of a casual business acquaintance? To state the question is to answer it. There is no good reason why the business guest should be afforded greater protection than the social guest. Particularly in Wisconsin, where the economic-benefit theory has been discarded in respect to invitees, no logical basis for any dichotomy remains.

While the common-law categories may have had some virtue under the feudal system of land tenures, when the lord of the land had complete and autocratic control of his property irrespective of harm to the community, such concept of land holding has long since vanished. We recognize numerous limitations upon the right to use real property, most of which are imposed by the police power. An owner for many decades, in Wisconsin, has been unable to determine the use to which his property shall be put without reference to the needs of the community, usually expressed through police power zoning regulations. More recently, in Just v. Marinette County (1972), 56 Wis. 2d 7, 201 N. W. 2d 761, we have approved additional curtailment of the right of unbridled use of private property when it may affect the ecological balance of the area. The state’s concern with the welfare of its citizens who may come by consent upon the property of another ought to be equally grave.

The only present merit that the rule in respect to licensees and licensors has is that it is old, and as Holmes said:

“It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IY. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.” Holmes, The Path of the Law, 10 Harvard Law Rev. (1897), 457, 469.

It is the tradition of common-law courts to reflect the spirit of their times and discard legal rules when they serve to impede society rather than to advance it. This principle, which has always been the guide of the courts, was well stated by Mr. Chief Justice Winslow in Borgnis v. Falk Co. (1911), 147 Wis. 327, 133 N. W. 209, in which the constitutionality of the workmen’s compensation law was upheld. Although he spoke in reference to constitutional interpretation, the rationale is appropriate to any change in the common law. He said:

“. . . the conditions and problems surrounding the people, as well as their ideals, are constantly changing. The political or philosophical aphorism of one generation is doubted by the next, and entirely discarded by the third; the race moves forward constantly, and no Canute can stay its progress.” (P. 349)

In finding the workmen’s compensation law constitutional, although the authors of our Wisconsin Constitution could not have dreamed of such legislation, Mr. Chief Justice Winslow went on to say:

“When an eighteenth century constitution forms the charter of liberty of a twentieth century government must its general provisions be construed and interpreted by an eighteenth century mind in the light of eighteenth century conditions and ideals? Clearly not. This were to command the race to halt in its progress, to stretch the state upon a veritable bed of Procrustes.” (P. 349)

While we deal in this case not with a constitution, but with a venerable principle of the common law, the rationale for our departure from that outmoded creed remains the same. Whatever utility the dichotomy between licensors and licensees may once have had has long ago ended. The common-law process itself has preserved its viability only by the mending and shaping of substantially inapplicable principles to the case at hand. The exceptions to the rule and the difficulty in applying the rule demonstrate that the rule itself is worthless. As the Supreme Court of Massachusetts said in Mownsey, supra, pages 706, 707:

_ “We can no longer follow this ancient and largely discredited common law distinction which favors the free use of property without due regard to the personal safety of those individuals who have heretofore been classified as licensees. The problem of allocating the costs and risks of human injury is far too complex to be decided solely by the status of the entrant, especially where the status question often prevents the jury from ever determining the fundamental question whether the defendant has acted reasonably in light of all the circumstances in the particular case.”

We therefore, on the basis of the analysis contained herein and assisted materially by the excellent and scholarly opinion of the trial judge, abolish the special immunities that heretofore applied to licensees and invitees. The duty toward all persons who come upon property with the consent of the occupier will be that of ordinary care. By such standard of ordinary care, we mean the standard that is used in all other negligence cases in Wisconsin. Typical of such formulations is that appearing in Osborne v. Montgomery (1931), 203 Wis. 223, 236, 234 N. W. 372. See also: Pfeifer v. Standard Gateway Theater, Inc. (1952), 262 Wis. 229, 55 N. W. 2d 29; Schilling v. Stockel (1965), 26 Wis. 2d 525, 133 N. W. 2d 335. Under that test, as we have repeatedly stated, negligence is to be determined by ascertaining whether the defendant’s exercise of care foreseeably created an unreasonable risk to others. That test is to be applied at the negligence phase of the analysis to the world at large and not to the particular plaintiff. In this respect, our analysis of negligence does not follow the Cardoza majority opinion in Palsgraf v. Long Island R. R. Co. (1928), 248 N. Y. 339, 162 N. E. 99. We rather rely upon the Andrews dissenting rationale that, if the defendant has been negligent under that standard, the question is one of cause — substantial factor, i.e., cause in fact, and proximate cause, which may include policy factors that may exclude liability in the particular circumstances. Under the licensor-licensee, invitor-invitee rationale heretofore prevailing, were there a legal finding that there was no violation of duty of any kind to the entrant on the property, the question of contributory negligence did not arise. Scheeler v. Bahr (1969), 41 Wis. 2d 473, 164 N. W. 2d 310. Under the ordinary-care standard, which we hold to be applicable to the occupier of land, a duty of ordinary care falls also upon the entrant, and his negligence must be considered by the jury as in any other negligence case.

Although in this opinion we decline to go the full route followed by the trial judge and do not change the existing rule in respect to trespassers, the standard of ordinary care was properly imposed upon the defendant Reszczyn-ski, and it was on the alleged violation of that duty to the plaintiff that the trial judge properly overruled the demurrer.

Although we apply the duty of ordinary care to the defendant in this case, in respect to all other defendants in similar circumstances, the duty shall be prospective only and affect only those cases in which injuries occur following the date of this mandate. State v. Michels Pipeline Construction, Inc. (1974), 63 Wis. 2d 278, 303b, 217 N. W. 2d 339, 219 N. W. 2d 308.⁵

By the Court. — Order affirmed.

1 We are not unmindful of the concurring- opinion of Mr. Justice Kaplan in Mounsey, who felt that the logic of the argument abolishing the distinction between licensees and invitees was equally persuasive in respect to trespassers. He said:

“For it is sometimes just as hard to distinguish trespassers from licensees and invitees, as to distinguish licensees from invitees; and the class of trespassers is probably just as various as either of the other classes.” (pp. 717, 718)

It is also interesting to note that the Massachusetts court, although retaining the trespasser status, later adopted the reasonable-care standard for “physically trapped” trespassers. Pridgen v. Boston Housing Authority (Mass. 1974), 308 N. E. 2d 467.

2 For other cases adopting the Rowland test, see Rosenau v. City of Estherville (Iowa 1972), 199 N. W. 2d 125; Sargent v. Ross (1973), 113 N. H. 388, 308 Atl. 2d 528; Ives v. Swift & Co. (Iowa 1971), 183 N. W. 2d 172, 178 (concurring opinion); Martinez v. Kaufman-Kane Realty Co., Inc. (1974), 34 N. Y. 2d 819, 316 N. E. 2d 336 (concurring opinion); Williams v. Town of Silver City (1972), 84 N. M. 279, 602 Pac. 2d 304; Taylor v. New Jersey Highway Authority (1956), 22 N. J. 454, 126 Atl. 2d 313; Cunningham v. Hayes (Mo. App. 1971), 463 S. W. 2d 555; Heald v. Cox (Mo. App. 1972), 480 S. W. 2d 107; Louisville Trust Co. v. Nutting (Ky. 1969), 437 S. W. 2d 484.

3 See, e.g., Alexander v. General Accident Fire & Life Assurance Corp. (La. App. 1957), 98 So. 2d 730, approved by the Louisiana Supreme Court in Foggin v. General Guaranty Ins. Co. (1967), 250 La. 347, 195 So. 2d 636; Preston v. Sleziak (1969), 16 Mich. App. 18, 167 N. W. 2d 477, citing Polston v. S. S. Kresge Co. (1949), 324 Mich. 575, 578, 37 N. W. 2d 638; Bramble v. Thompson (1972), 264 Md. 518, 287 Atl. 2d 265; Snyder v. I. Jay Realty Co. (1959), 30 N. J. 303, 153 Atl. 2d 1; Scheibel v. Lipton (1951), 156 Ohio St. 308, 328, 102 N. E. 2d 453.

4 Wood v. Camp (Fla. 1973), 284 So. 2d 691; Sideman v. Guttman (1972), 38 App. Div. 2d 420, 330 N. Y. Supp. 2d 263; Hix v. Billen (Fla. 1973), 284 So. 2d 209; Mangione v. Dimino (1972), 39 App. Div. 2d 128, 332 N. Y. Supp. 2d 683; DiGildo v. Caponi (1969), 18 Ohio St. 2d 125, 247 N. E. 2d 732.

5 The dissent misstates the effect of the majority’s opinion. The result of what the court does is not a merger of the licensee or invitee categories but the abolition of them as relevant legal distinctions. No category of licensee-invitee is created; both are discarded as determinative of liability. Ordinary tort law applies.

The dissent apparently asserts that there is a right to be unreasonably careless to social guests. It also overlooks, of course, numerous persons heretofore classified as licensees, frequently denied recovery under the ancient rules. Police and firefighters in the course of their duties are among those heretofore denied recovery. See: Hass v. Chicago & North Western Ry. Co. (1970), 48 Wis. 2d 321, 325, 179 N. W. 2d 885; Note, 52 Marquette Law Rev. (1969), 431. While denial of liability to these public servants is hardly rational, the situation is the direct result of the attempt to use ancient categories for modern conditions.

It is false to assert that the balancing of interests between land occupiers and those who come upon the land “has been up to now ... a matter for legislative action.” It has been wholly a matter of court-made common law, with the exception of the safe-place statute and the recreational-use statute; and, as the dissent states, the latter statute is obviously unaffected by this decision. The present chaotic condition of the law is the fault of the courts and not of the legislature. Courts have the initial responsibility to correct the ocmmon-law rules which they have established.

Moreover, the ringing and significant words of Lord Chatham would better and more correctly be employed by the dissenter in a case involving the trespass of state officials upon private property. The reference is to searches and seizures and is irrelevant to the duty toward one who enters by consent.