Gerchberg Ex Rel. Gerchberg v. Loney

576 P.2d 593, 223 Kan. 446, 1978 Kan. LEXIS 242

• Court: Supreme Court of Kansas
• Decided: February 25, 1978
• Docket: 48,241
• Status: Published

Opinions

The opinion of the court was delivered by

Fromme, J.:

Rolf Gerchberg, a five-year-old boy, received burn injuries while playing on the premises of the neighbors, Mr. and Mrs. Roy Loney. At the close of plaintiff’s evidence the district court directed a verdict in favor of defendants. The Court of Appeals reversed the judgment and remanded the case for trial on the theory of attractive nuisance. See Gerchberg v. Loney, 1 Kan. App. 2d 84, 562 P.2d 464.

The plaintiff-appellant urged the Court of Appeals to discard the traditional classification of trespassers, licensees and invitees, and to abolish the distinctions in our law as to the duty of care owed to each class. In place thereof he urged the court to adopt one duty of care owed to all who are on the premises of another, i.e., a duty of reasonable care under all facts and circumstances of the case. The Court of Appeals declined to do so and plaintiff-appellant sought review in this court.

The Court of Appeals determined that the evidence of plaintiff made a submissible case on the theory of attractive nuisance. The defendants-appellees sought review in this court on the attractive nuisance question.

This area of premises law is one in which the opinions of the justices have and continue to differ. See Brittain v. Cubbon, 190 Kan. 641, 647, 378 P.2d 141, and Frazee v. St. Louis-San Francisco Rly. Co., 219 Kan. 661, 667; 549 P.2d 561. The petitions for review were granted and the case has been heard in this court on the record, briefs, supplemental briefs, and with oral arguments as provided in Rule No. 8.03, Rules of the Supreme Court (220 Kan. xlvi).

After careful consideration of the case a majority of the members of this court approve the disposition of the case by the Court of Appeals and approve the opinion as written for the majority. We need not set forth herein our re-examination of the evidence or apply the law to those facts. Suffice it to say, the plaintiff Rolf Gerchberg, a five-year-old boy, received serious burns when he returned to an unattended smoldering fire in a barrel used by the defendants as an incinerator. Rodney Loney, the ten-year-old neighbor boy, had previously been directed to burn papers and had started the fire. Rolf was with him and saw Rodney place a stack of papers near the incinerator and start the fire. After a short while both boys left the premises. The fire had not been extinguished and was still smoldering on the Loney premises when Rolf returned to the barrel. He began putting the papers into the barrel. The fire blazed and his clothing caught on fire. Serious injuries resulted.

We feel the evidence introduced in the trial court made a submissible case on the theory of attractive nuisance. (Carter v. Skelly Oil Co., 191 Kan. 474, 382 P.2d 277.) A possessor of land is subject to liability for bodily harm to children intruding thereon caused by some condition that he maintains on the premises if:

(1) the possessor knows, or in the exercise of ordinary care should know, that young children are likely to trespass upon the premises, and

(2) the possessor knows, or in the exercise of ordinary care should know, that the condition exists and that it involves an unreasonable risk of bodily harm to young children, and

(3) the children because of their youth either do not discover the condition or understand the danger involved in coming into the dangerous area, and

(4) one using ordinary care would not have maintained the condition when taking into consideration the usefulness of the condition and whether or not the expense or inconvenience to the defendant in remedying the condition would be slight in comparison to the risk of harm to children.

The foregoing rules governing the liability of the possessor of premises in cases where a submissible case has been made under the theory of attractive nuisance have been adopted by this court and generally follow the Restatement of the Law, Second, Torts, § 339, p. 205. See Brittain v. Cubbon, supra.

Now let us turn our attention to plaintiff’s argument that the traditional classification of trespassers, licensees and invitees should be discarded, and that the distinctions in our law covering the duty of care owed to each class be abandoned in favor of a single standard of reasonable care under the circumstances. Plaintiff contends there is no logical reason for protecting the possessor of premises by requiring his negligence to be wilful, wanton, or in reckless disregard for the safety of the trespasser or licensee before it is actionable.

Under the present law of Kansas a trespasser is one who enters on the premises of another without any right, lawful authority, or an express or implied invitation or license. The possessor of premises on which a trespasser intrudes owes a trespasser the duty to refrain from wilfully, wantonly, or recklessly injuring him. (Frazee v. St. Louis-San Francisco Ely. Co., supra. See also PIK 2d [Civil] 12.20 and 12.21.)

A licensee is one who enters or remains on the premises of another by virtue of either the express or implied consent of the possessor of the premises, or by operation of law, so that he is not a trespasser thereon. The possessor of premises on which a licensee intrudes owes a licensee the duty to refrain from wilfully or wantonly injuring him. (Graham v. Loper Electric Co., 192 Kan. 558, 561, 389 P.2d 750; Weil v. Smith, 205 Kan. 339, 469 P.2d 428. See also PIK 2d [Civil] 12.10 and 12.11.) The parties agree that Rolf Gerchberg was a licensee under the facts of this case.

Under the law in this jurisdiction a social guest has the status of a licensee and his host owes him only the duty to refrain from wilfully, intentionally, or recklessly injuring him. (Ralls v. Caliendo, 198 Kan. 84, Syl. ¶ 1, 422 P.2d 862; Duckers v. Lynch, 204 Kan. 649, 465 P.2d 945.)

An invitee is one who enters or remains on the premises of another at the express or implied invitation of the possessor of the premises for the benefit of the inviter, or for the mutual benefit and advantage of both inviter and invitee. The possessor of premises on which an invitee enters owes a higher degree of care, that of reasonable or ordinary care for the invitee’s safety. This duty is active and positive. It includes a duty to protect and warn an invitee against any danger that may be reasonably anticipated. (Weil v. Smith, supra, Syl. ¶ 3; Graham v. Loper Electric Co., supra, p. 563. See also PIK 2d [Civil] 12.01 and 12.02.)

Under the law in this and other jurisdictions a child may be presumed conclusively incapable of contributory negligence. (Williams v. Davis, 188 Kan. 385, 390, 362 P.2d 641.) Children are not held to the same strict accountability to appreciate a danger and to care for themselves as persons of full age. (Weber v. Wilson, 187 Kan. 214, 220, 356 P.2d 659.) Therefore the attractive nuisance exception has been recognized to accommodate for a child’s incapacity to understand and appreciate the possible dangers to which he may be attracted. The exception is not new in Kansas and was recognized as early as 1878 in the case of K. C. Rly. Co. v. Fitzsimmons, 22 Kan. 686, 31 A.R. 203.

The traditional classification of trespassers, licensees and invitees and the distinctions as to the duty of care owed to each came to this country with the common law and has been applied generally in this country. This system of classification which began in England was first discarded by that country in 1957 by way of a statute which imposed the same duty of care to licensees and invitees. The statute declared that the possessor of premises owes the same “common duty of care” to both, with reasonable care modified according to the circumstances of the entry. (Occupiers’ Liability Act, 5 & 6 Eliz. 2, c. 31. Discussed in Prosser, Law of Torts, 4th Ed., Ch. 10, § 62, p. 398.)

In considering the question of whether this state should discard all classifications and distinctions two things should be noted concerning the change in England. First, the change to a common duty of reasonable care did not extend to trespassers and second, the use of a jury in negligence actions had virtually disappeared in England and these actions were being tried to the court.

In the nine or ten states in this country which have discarded the traditional classifications it was concluded that their courts were confused by the classifications and would be better able to instruct their juries in premises cases if the standard of reasonable care were required under all circumstances. It was generally agreed in those states that a jury should determine the circumstances which would relieve a possessor of premises from liability to a trespasser, an invitee and a licensee. We doubt the validity of those conclusions. It should be kept in mind that in England negligence cases are tried to the court without a jury. This is not so in the United States.

It has been argued that additional instructions to the jury to the effect that it should consider the foreseeability of plaintiff’s presence on the premises, the foreseeability of possible harm, the likelihood that others would not appreciate or be aware of the danger, and the extent of the burden on the possessor to remove the danger or notify of the risk would sufficiently protect the possessor of the premises. These general admonitions to a lay jury may or may not suffice.

If the traditional classifications are discarded the legal distinctions which have heretofore governed the courts in imposing a particular standard of care are also discarded. In such case the standard, reasonable care under all the circumstances, would have to be applied by the jury to the specific facts of each case. Can a lay jury reasonably be expected to consider the proper relative effect of natural and artificial conditions on the premises which are or may be dangerous, the degree of danger inherent in such conditions, the extent of the burden which should be placed on the possessor of premises to alleviate the danger, the nature, use and location of the condition or force involved, the foreseeability of the presence of the plaintiff on the premises, the obviousness of such dangerous condition or the plaintiff’s actual knowledge of the condition or force which resulted in injury? It would appear these considerations should be imparted to the jury if it is to be placed in a position to decide whether reasonable care was exercised by the possessor of the premises. Otherwise the jury will have a free hand to impose or withhold liability.

A majority of the members of this court do not feel that the traditional classifications of trespassers, licensees and invitees should be jettisoned. The traditional classifications were worked out and the exceptions were spelled out with much thought, sweat and even tears by generations of Kansas legal scholars who have gone before us. Should this body of law be discarded completely in favor of a free hand by a lay jury? We feel at this time there is too much of value in our premises law with respect to rights of possessors of premises to warrant its abandonment.

It should be noted that the adoption of one standard of care not only will have the effect of lowering the standard of care owed to trespassers and licensees but also would lower the standard of care presently owed to invitees. Under our present law the duty owed to an invitee is active and positive. It includes a duty to protect and warn an invitee against any danger that may be reasonably anticipated. Not only does it extend to dangerous conditions known to the possessor but also to dangerous conditions discoverable in the exercise of a duty to inspect and keep the premises free of unreasonable risk of harm.

It has been suggested that the jury need not be left without guidance even though the traditional classifications are discarded. It is further suggested that after a jury is advised of the single standard of care the court can further instruct the jury by setting out the applicable rules found in the Restatement of the Law, Second, Torts, §§ 333 through 343B. The Restatement classifies these rules as follows: Title B. Liability of Possessors of Land to Trespassers; Title C. General Liability of Possessors of Land to Licensees and Invitees; Title D. Special Liability of Possessors of Land to Licensees; and Title E. Special Liability of Possessors of Land to Invitees. If such a suggestion is followed in advising the jury what if anything is gained by discarding the traditional rules? The traditional classifications (trespassers, licensees and invitees) are still to be considered by the court. If, as the appellant suggests, the traditional classifications are confusing, unreasonable and arbitrary any change which embraces the Restatement rules will be subject to similar charges. In such case we would be merely changing the extent of the duty owed by a possessor of premises. The extent of that duty would still be dictated by the circumstances surrounding entry on the premises, the danger involved and the burden to be placed on the possessor to make the premises reasonably safe. The traditional classifications would remain but the traditional rules worked out over so many years would be discarded and new rules governing a possessor's liability would have to be relearned.

A majority of this court feel if the mores and values of present society dictate changes such changes should be worked out individually as the circumstances of a particular case may warrant. Such changes will result in less general confusion and better understanding of each particular change.

Plaintiff-appellant calls our attention to the issues raised in four points which he presented to the Court of Appeals but which were not addressed in its opinion. We will address these points briefly. He argues that the traditional classifications must be abandoned because they deny licensees and trespassers injured by the negligence of the possessor of premises equal protection of the law under the 14th Amendment to the United States Constitution and §§ 1 and 2 of the Kansas Bill of Rights. In support he cites Henry v. Bander, 213 Kan. 751, 518 P.2d 362, in which this court examined the former provisions of K.S.A. 8-122b, the guest statute, and declared the separate classification of guests riding in automobiles arbitrary and discriminatory and without rational basis. Liability to an automobile guest under this statute depended on whether a person was a paying or nonpaying passenger. The case is not in point. No statute is involved in our present case and the classifications with which we are now dealing arose from the common law. They have a rational basis which has been recognized for hundreds of years and have served the courts of this country by providing a basis for instructing juries on the duty of care owed by the possessor to those coming upon his premises. Appellant is hardly in a position to complain in this case of a denial of his constitutional rights since we hold he is justified in presenting his case to a jury on the theory of attractive nuisance.

Appellant next argues that the case should be presented to the jury on the dangerous instrumentality theory, another exception to the status classification which has been recognized in Kansas. (See Wroth v. McKinney, 190 Kan. 127, 373 P.2d 216.) In Wroth, a loaded revolver left in plain view and easily accessible to a four-year-old boy was held to be a dangerous agency or instrumentality. It was noted the theory had been applied previously to dangerous explosives such as dynamite. Again the appellant can hardly complain that we do not view the unattended smoldering fire in the incinerator and the nearby papers as a dangerous instrumentality. We view it as a possible attractive nuisance and as such his case goes to a jury. The distinction between the two theories is nebulous at best and the terms have been used interchangeably in certain circumstances where children are involved. (62 Am. Jur. 2d, Premises Liability, § 137, p. 405.)

Appellant further argues that the evidence established a cause of action based on active negligence as distinguished from passive negligence. In support thereof he points to what was said in Morris v. Atchison, T. & S. F. Rly. Co., 198 Kan. 147, 422 P.2d 920. At page 160 of that opinion the argument of active negligence was made and rejected. The court did not embrace the theory proposed. It merely pointed out such a theory could not apply in the case because the presence of the licensee was neither known nor reasonably could have been known when the alleged acts of negligence occurred. There is at least one other case where an active negligence theory was mentioned. See Montague v. Burgerhoff, 150 Kan. 217, 92 P.2d 98. However, these two cases merely speak of wilful and wanton acts as active negligence which injure a person whose presence is known. In spite of what was said in the dissent in Lemon v. Busey, 204 Kan. 119, 128, 461 P.2d 145, this court has not adopted active negligence as an exception to the traditional classifications recognized in premises law. The term has been used only when wanton or wilful negligence may have been present. The argument of appellant is without merit.

The appellant contends that Mrs. Loney, the mother of Rodney, owed plaintiff an independent duty to assist the plaintiff when she discovered his plight, and having failed to do so she failed to exercise reasonable care to prevent further harm.

Under plaintiff’s evidence Mrs. Loney, an elderly lady, had lost one eye and the vision in her remaining eye was extremely limited. When she was called to her backdoor she saw the fire in her backyard and proceeded to extinguish the flames. However, there was no evidence she saw that the young boy’s clothes were burning. Mr. Williams, a neighbor, arrived in the Loney backyard and removed the burning trousers from the boy at about the same time. The boy’s mother and Mr. Williams carried the boy home. Mrs. Loney was in the backyard at that time and nothing was said to indicate Mrs. Loney had been aware of the boy’s condition.

In Prosser, Law of Torts, 4th Ed., Ch. 9, § 56, pp. 342-343, it is said:

“It also is recognized that if the defendant’s own negligence has been responsible for the plaintiffs situation, a relation has arisen which imposes a duty to make a reasonable effort to give assistance, and avoid any further harm. Where the original danger is created by innocent conduct, involving no fault on the part of the defendant, it was formerly the rule that no such duty arose; but this appears to have given way, in recent decisions, to a recognition of the duty to take action, both where the prior innocent conduct has created an unreasonable risk of harm to the plaintiff, and where it has already injured him. . . .

“Where the duty is recognized, it is agreed that it calls for nothing more than reasonable care under the circumstances. The defendant is not liable when he neither knows nor should know of the unreasonable risk, or of the illness or injury. . . .” (Emphasis supplied.)

Under the allegations of the petition and evidence introduced by plaintiff such a cause of action is not supported. Assuming for the purposes of argument that the rule should be adopted in Kansas, the rule would not be applicable in the present case.

In conclusion we wish to acknowledge what has been referred to as a trend in this country toward abolition of the traditional classifications. Apparently the bellwether case in the United States was handed down in 1968, Rowland v. Christian, 69 Cal. 2d 108, 70 Cal. Rptr. 97, 443 P.2d 561. Our research indicates that in the ten years which have elapsed since Rowland only nine states have followed the lead. During this same period of time several states have elevated licensees to a common class with invitees, and five states have placed social guests in the category of invitees. During this same period of time a large majority of states have continued to follow the traditional common law classifications. At least six states have considered the advisability of following Rowland v. Christian, supra, and have declined to do so. The jurisdictions which have abolished all classifications are not sufficient in number to constitute a clear trend.

In the present case the plaintiff’s evidence was sufficient to require submitting the case to a jury on the theory of attractive nuisance and, even if a majority of this court were inclined to do so, this case is not a proper vehicle for discarding the traditional classifications. The case is one for the jury and we believe the members of the jury will be better informed as to the duty of the possessor of the premises toward this five-year-old plaintiff if it receives instructions on the law relating to an attractive nuisance as set forth in PIK 2d (Civil) 12.40.

Accordingly we approve the majority opinion of the Court of Appeals. The judgment of the District Court of Douglas County is reversed and the case is remanded for further proceedings.