61 RI Bar J., No. 4, Pg 9. Modernizing Rhode Island's Premises Liability Laws.

AuthorStephen J. Sypole, Esq.Gidley, Sarli and Marusak, LLP, Providence

Rhode Island Bar Journal

Volume 61.

61 RI Bar J., No. 4, Pg 9.

Modernizing Rhode Island's Premises Liability Laws

Rhode Island Bar Journal61 RI Bar J., No. 4, Pg 9 January/February 2013Modernizing Rhode Island's Premises Liability LawsStephen J. Sypole, Esq.Gidley, Sarli and Marusak, LLP, ProvidenceIntroduction

Since the 1970s, the Rhode Island Supreme Court has struggled to develop a system of premises liability laws that properly balances the rights of landowners with the rights of persons injured on their property.(fn1) Many American jurisdictions today continue to apply traditional common law rules that determine the liability of a landowner to an injured entrant based entirely on the status of the entrant as an invitee, licensee, or trespasser.(fn2) Other jurisdictions have rejected these common law rules and determine liability using the tort standard of reasonable care for all cases, regardless of the status of the entrant.(fn3) Rhode Island is one state that has sought a middle ground between these two positions.(fn4) Rhode Island courts apply a two-category system where all lawful entrants (historically categorized as invitees and licensees) are owed a duty of reasonable care, while trespassers are owed only the duty to refrain from willful and wanton conduct after being discovered in a position of peril by the landowner.(fn5)

The application of the common law trespasser rule in Rhode Island sometimes leads to unjust and unpredictable outcomes.(fn6) It is a harsh, bright line rule that denies or limits recovery to all trespassers, regardless of the circumstances surrounding their entry onto the land, and protects negligent landowners from being held responsible for their conduct.(fn7) The law is intended to protect landowners from liability to people who have come on their land unlawfully and without permission, but it is inherently unfair because it fails to distinguish between truly culpable trespassers, such as criminals, and ordinary trespassers, whose presence on the land may be reasonable and not contrary to the interests of the owner.(fn8) Under the present law, the same harsh trespasser rule is applied to persons who are very differently situated. A burglar or a vandal would be denied recovery for their injuries, but so would someone walking their dog who inadvertently wanders onto their neighbor's property.

The challenges faced by Rhode Island, and other jurisdictions, in creating premises liability laws that are fair both to injured plaintiffs and defendant landowners have been addressed in the Third Restatement of Torts.(fn9) The Third Restatement has proposed a system where landowners owe all entrants on their property a duty of reasonable care to protect their safety with only one exception: flagrant trespassers.(fn10) Under this system, regardless of the common law status of an entrant on land, the reasonable care standard is used by the court and by the jury to determine liability, unless the court determines the plaintiff to be a flagrant trespasser, whose presence on the land is antithetical to the rights of the landowner.(fn11) Once a plaintiff is determined to be a flagrant trespasser by the court, the common law trespasser rule would still be used, in most cases, to prevent them from recovering for their injuries.(fn12) Using the Third Restatement's new rule for premises liability as a model, the Rhode Island Supreme Court could ensure that ordinary trespassers are treated fairly while landowners are still protected from meritless lawsuits brought by culpable or flagrant trespassers.(fn13)

Background

Today, most American jurisdictions can be grouped into one of three categories: those retaining the three common law status distinctions;(fn14) those, like Rhode Island, appling a two-category system;(fn15) and those that reject common law entirely in favor of the reasonableness test.(fn16)

The traditional, common law system of premises liability applied in American jurisdictions placed any entrant onto another's land into one of three categories: trespasser, licensee, or invitee.(fn17) The duty owed by the landowner to the entrant varied depending on the categorical status of the entrant, a decision made by the court. (fn18) A trespasser was defined as someone who came onto the land of another without permission or right and they were owed the lowest duty of care.(fn19) A trespasser injured by a dangerous condition on another's land could not recover for ordinary negligence, but only for willful, wanton, or intentional conduct.(fn20) A licensee was someone who entered another's land with permission, but for his or her own purpose and not for the benefit of the landowner. The licensee category generally included social guests.(fn21) A landowner would owe a licensee the duty to take reasonable steps to make their premises safe and to warn the licensee of any known dangers.(fn22) The "most privileged status gradation is that of the 'invitee.'"(fn23) An invitee is someone, such as a shopper in a retail store, who has entered another's land with permission and in order to confer a benefit, usually an economic benefit, on the owner.(fn24) In addition to the duty owed to a licensee, a landowner would also owe an invitee the duty to inspect the premises "and to discover dangerous conditions."(fn 25)

Using the categorical status of the entrant to determine the duty owed by the landowner was "once a fairly uniform system across the states"(fn26) until the California Supreme Court's decision in Rowland v. Christian in 1968.(fn27) The Rowland court rejected the three-category system and held that the liability of landowners would be determined using a reasonableness test, like that applied in a typical negligence case, regardless of the status of the entrant.(fn28) Following this case, other jurisdictions have completely eliminated the three-category common law system and apply a reasonableness test in all premises liability cases, regardless of the status of the entrant.(fn29) This approach replaces the formalistic common law rules with a system founded on the traditional tort principle of exercising reasonable care in the circumstances, taking into consideration the foreseeability of the injury and the burden on the defendant to prevent it. Under the reasonableness test, the plaintiff's status as a trespasser is highly relevant to the fact finder's determinations regarding the foreseeability of the injury and whether due care was exercised by the defendant, but it is no longer determinative as a matter of law.(fn30)

In addition to Rhode Island, more than ten other states have attempted to find a middle ground between these two approaches, eliminating the distinction between licensee and invitee, but maintaining strict rules precluding recovery by trespassers.(fn31) However, the path Rhode Island has taken to reach this point has been bumpy, and the state's premises liability laws have been overhauled more than once in recent history. Rhode Island has experimented with each of the three approaches. Prior to 1975, Rhode Island courts applied the three-category common law system.(fn32) During this time, a strict rule regarding trespassers was applied, as the Supreme Court maintained that a defendant landowner "owe[d] no duty to a trespasser except to abstain from willful and wanton injury to him after he is discovered in a position of peril."(fn33) (emphasis added)

Between 1975 and 1993, Rhode Island applied the reasonable care standard - first adopted by the California Supreme Court in Rowland - for all premises liability cases.(fn34) In Mariorenzi, the Rhode Island Supreme Court said common law status-based rules were outdated and modern society places more value on preventing injuries and saving lives than it does on protecting a landowner's property rights.(fn35) The Court also explained that a finding of liability should be based on a violation of community standards of reasonable conduct rather than the arbitrary distinctions drawn by the common law.(fn36)

The Rhode Island Supreme Court's decision in Banks v. Bowen's Landing Corp. provided guidance on how to apply the reasonable care standard in premises liability cases.(fn37) The plaintiff in Banks had been drinking at a restaurant before he jumped off of a railing into shallow water in Newport Harbor, which resulted in a broken back and "permanent paraplegia."(fn38) Even though the reasonable care standard was to be applied - and the plaintiff's status was not determinative - the Court said that the trial justice still must make an initial determination of whether a duty was owed.(fn39) The Court provided a five factor test to guide trial courts in making this determination.(fn40)

1) [T]he foreseeability of harm to the plaintiff...

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