Supreme Court of Nebraska, 1996.

250 Neb. 750, 552 N.W.2d 51.


CONNOLLY, Justice.

            The question presented is whether this court should abolish the common‑law classifications of licensee and invitee and require a duty of reasonable care to all nontrespassers.

            . . .

            [After a heavy snowfall, plaintiff Roger Heins, accompanied by his wife, visited the defendant’s hospital.] The evidence is disputed concerning the nature of this trip. Webster County claims that Heins was merely paying a social visit to his daughter Julie Heins, who was the director of nursing for the hospital. Heins claims that his visit was not only social, but also to coordinate plans for him to play Santa Claus for the hospital staff during the upcoming Christmas season. During their visit with Julie, [Heins] made plans to have lunch with Julie and a friend at a local restaurant.

            While . . . exiting the hospital through the main entrance, Roger fell. At trial, Roger testified that [after he held the front door open for his wife and started to exit, he slipped and fell to the ground, allegedly because of the accumulation of ice and snow, and injured his hip.]


            Heins [claimed] that Webster County was negligent (1) in failing to properly inspect the above‑described entrance prior to inviting the public to use the entrance, (2) in failing to warn Heins of the existence of a dangerous condition, (3) in allowing the ice and snow to accumulate, and (4) in failing to remove the ice and snow.

            Following a bench trial, the district court found that Heins "went to the Webster County Hospital to visit his daughter who was an employee of the hospital."  Furthermore, the court concluded that Heins was a licensee at the time of his fall and that the county did not act willfully or wantonly or fail to warn of known hidden dangers unobservable by Heins. Thus, the court entered judgment in favor of Webster County. Heins appeals.

            Summarized, Heins assigns that the district court erred in not generally holding the hospital to a duty of reasonable care to Heins.   In the alternative, he argues the hospital should be held to a duty of reasonable care for one of the following reasons:  (1) he was a public invitee, (2) he was a social guest on the hospital premises, or (3) hospital personnel knew he was on the premises.

            . . .

            This appeal questions the continued validity of the common‑law classifications of licensee, invitee, and trespasser for the purposes of determining the duty of a landowner in premises liability cases. . . .

            . . .

            [Plaintiff] calls into question the continued usefulness of the licensee and invitee classifications.   In fact, a number of jurisdictions have decided that the common‑law classifications have outlived their usefulness, and have either partially or completely abandoned the common‑law classifications.

            In 1957, England statutorily abolished the common‑law distinction between licensees and invitees and imposed upon the occupier a "common duty of care" toward all persons who lawfully enter the premises. [ ] Shortly thereafter, in 1959, the U.S. Supreme Court decided that the classifications would not apply in admiralty law, stating that the classifications created a "semantic morass."   See, Kermarec v. Compagnie Generale, 358 U.S. 625, 631 (1959); [ ]. In 1968, the Supreme Court of California decided the landmark case Rowland v. Christian, 443 P.2d 561 (Cal. 1968), which abolished the traditional duty classification scheme for licensees, invitees, and trespassers and replaced it with ordinary negligence principles.

            . . .


            A number of policy reasons have been asserted for either abandoning or retaining the common‑law classifications.   Among the jurisdictions retaining the categories, most find value in the predictability of the common law.   Some courts rejecting change have reasoned that replacement of a stable and established system of loss allocation results in the establishment of a system devoid of standards for liability. [ ] It also has been suggested that the harshness of the common‑law rules has been ameliorated by the judicial grafting of exceptions and that creation of sub-classifications ameliorated the distinctions between active and passive negligence. [ ] These states have concluded that abandoning the established system of liability in favor of a standard of reasonable care would decrease predictability and ensure that each case would be decided on its facts. Therefore, these states claim that landowners would be less able to guard against risks. . . .

            The most common reason asserted for abandoning the categories is that an entrant's status should not determine the duty that the landowner owes to him or her. As the California Supreme Court stated in Rowland v. Christian [ ]:

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.

            In abolishing the invitee‑licensee distinction, the Massachusetts Supreme Judicial Court recognized:

It no longer makes any sense to predicate the landowner's duty solely on the status of the injured party as either a licensee or invitee. Perhaps, in a rural society with sparse land settlements and large estates, it would have been unduly burdensome to obligate the owner to inspect and maintain distant holdings for a class of entrants who were using the property "for their own convenience" . . . but the special immunity which the licensee rule affords landowners cannot be justified in an urban industrial society.

Mounsey v. Ellard, 297 N.E.2d 43, 51 (Mass. 1973).

            Another justification for abandoning the classifications is to eliminate the complex and unpredictable state of the law necessitated by the harsh nature of the common‑law rules. [ ] As the U.S. Supreme Court proclaimed,

courts have found it necessary to formulate increasingly subtle verbal refinements, to create subclassifications 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 subclassifications bred by the common law have produced confusion and conflict.

Kermarec v. Compagnie Generale, [ ]. The Court recognized that 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." [ ] Referring to the judicial interpretation of the common‑law distinctions as a "semantic morass," the Court declined to adopt them into admiralty law. [ ]


            Those states abandoning the distinctions argue that instead of the entrant's status, the foreseeability of the injury should be the controlling factor in determining the liability of the landowner. [ ] Many jurisdictions that have abandoned the common‑law classifications as determinants of liability have found that they remain relevant in determining the foreseeability of the harm under ordinary negligence principles. [ ]



            The present case illustrates the frustration inherent in the classification scheme.   In many instances, recovery by an entrant has become largely a matter of chance, dependent upon the pigeonhole in which the law has put him, e.g., "trespasser," "licensee," or "invitee." [ ] When he was injured, Heins was exiting a county hospital, using the main entrance to the hospital, over the lunch hour. If Heins had been on the hospital premises to visit a patient or purchase a soft drink from a vending machine, he could have been classified as an invitee. [ ] However, he came to visit his daughter and was denied recovery as a matter of law.

            Thus, Heins was denied the possibility of recovering under present law, merely because on this trip to the hospital he happened to be a licensee rather than an invitee. In the instant case, the hospital would undergo no additional burden in exercising reasonable care for a social visitor such as Heins, because it had the duty to exercise reasonable care for its invitees. A patient visitor could have used the same front entrance at which Heins fell and would have been able to maintain a negligence action; however, Heins has been denied the opportunity to recover merely because of his status at the time of the fall.

            Modern commercial society creates relationships between persons not contemplated by the traditional classifications. [ ] Yet we have continued to pigeonhole individuals as licensees or invitees as a convenient way to ascertain the duty owed by the landowner. For instance, in Presho v. J.M. McDonald Co., 151 N.W.2d 451 (Neb. 1967), a customer of a retail store was injured when she entered a back room of the store with the permission of the store manager, in order to retrieve an empty box. We held the customer to be a licensee rather than an invitee because "[s]he was on an errand personal to herself, not in any way connected with the business of the defendant." We recognized that while she was in the store proper, she was an invitee.   However, we found her to be a licensee when she entered the back room, despite the fact that the ladies' restroom was located in this back room area and was used by customers to the store.

            The common‑law status classifications should not be able to shield those who would otherwise be held to a standard of reasonable care but for the arbitrary classification of the visitor as a licensee. We find no merit in the argument that the duty of reasonable care is difficult for a fact finder to understand or apply, because it has been used successfully with regard to invitees and is the standard used in almost all other tort actions.

            We conclude that we should eliminate the distinction between licensees and invitees by requiring a standard of reasonable care for all lawful visitors. We retain a separate classification for trespassers because we conclude that one should not owe a duty to exercise reasonable care to those not lawfully on one's property. Adopting this rule places the focus where it should be, on the foreseeability of the injury, rather than on allowing the duty in a particular case to be determined by the status of the person who enters upon the property.

            Our holding does not mean that owners and occupiers of land are now insurers of their premises, nor do we intend for them to undergo burdens in maintaining such premises. We impose upon owners and occupiers only the duty to exercise reasonable care in the maintenance of their premises for the protection of lawful visitors. Among the factors to be considered in evaluating whether a landowner or occupier has exercised reasonable care for the protection of lawful visitors will be (1) the foreseeability or possibility of harm;  (2) the purpose for which the entrant entered the premises;  (3) the time, manner, and circumstances under which the entrant entered the premises; (4) the use to which the premises are put or are expected to be put;  (5) the reasonableness of the inspection, repair, or warning;  (6) the opportunity and ease of repair or correction or giving of the warning;  and (7) the burden on the land occupier and/or community in terms of inconvenience or cost in providing adequate protection.

            Although we have set forth some of the factors to be considered in determining whether a landowner or occupier has exercised reasonable care for the protection of lawful visitors, it is for the fact finder to determine, on the facts of each individual case, whether or not such factors establish a breach of the duty of reasonable care.


            We determine that the invitee‑licensee distinction should be abandoned and the new rule applied in the instant case. Considering that other litigants may have relied on our previous rule and incurred time and expense in prosecuting or defending their claims, we conclude, with the exception of the instant case, that the rule announced today shall be applied only to all causes of action arising after this date. We reverse, and remand for a new trial.

 FAHRNBRUCH, Justice, dissenting.

            . . .

            The majority opinion dismantles longstanding common law by eliminating the concept of licensee, thereby forcing a landowner to treat a person who is allowed to enter or remain upon premises with the same standard of care as a person who is invited onto the premises for the mutual benefit of both landowner and invitee.

            Under the majority opinion, a landowner owes a duty of reasonable care to an individual who becomes injured by conducting activities on the premises without the landowner's express permission or knowledge. From this moment on, public and private institutions, as well as residential homeowners, must be especially aware of unknown, uninvited individuals who take advantage of their land and facilities.

            In McCurry v. Young Men's Christian Assn., 313 N.W.2d 689  (Neb. 1981), an individual brought an action against a Young Men's Christian Association (YMCA) as a result of an injury which arose from a fall while the individual was playing basketball on an outdoor asphalt playground owned by the YMCA. The plaintiff was not a member of the YMCA and had not obtained any express permission to use the playground. This court held that the plaintiff was a licensee and affirmed the trial court's directed verdict in favor of the YMCA. Under the majority's opinion, YMCA's and like institutions will be subject to lawsuits which hold them to a duty to treat such uninvited users of their facilities with the same standard of care as the paying members of the institution.

            This court should not enact public policy which, in effect, socializes the use of privately owned property to the extent that the landowner owes the same duty to all, except trespassers, who enter the owner's land. It is not the function of the court to create a liability where the law creates none. [ ]


            Under the majority's opinion, a homeowner would have potential liability for any number of not only uninvited but unwanted solicitors or visitors coming to the homeowner's door.

 CAPORALE, J., joins in this dissent.

Notes and Questions

            1. Under the traditional categories why does Mr. Heins lose? How might playing Santa Claus have been relevant?

2. Why does the court reject the use of the categories in this case?

            3. Why does the court exclude trespassers? Recall the Bennett case, p. ___, supra. Under the approach of the court in Heins would Mr. Bennett still lose?  Why?


           4. What if a burglar, who had just taken something from the hospital gift shop, slipped while carefully leaving the hospital and fell for the same reasons that Mr. Heins fell? Would the court’s factors help in analyzing this case? How would the factors work in deciding the case of the woman who went into the back of the store? How would they work in the case of the basketball player raised by the dissent?

           5. The dissent is concerned about liability to licensees. How might the majority analyze the case of an uninvited solicitor coming to the front door who slips on a defective stair? Is the case different if the solicitor was hurt while going down the stairs after talking with the occupier?

           6. The court concludes that its decision should operate prospectively only—except for this case. What are the arguments for and against prospective overruling generally? What are the arguments for and against making only the decision in the case before the court retroactive? Why have we not previously encountered prospective rulings in this course?

            7. For a time after Rowland, it appeared that the case would signal a massive shift among the states.  After a handful of states quickly followed California, the movement virtually stopped in its tracks.  In Carter v. Kinney, supra, after failing to persuade the court to categorize Mr. Carter as an invitee, the Carters asked the court to overturn the categorical approach and follow California's lead. The court refused to abandon the categories:

            The contours of the legal relationship that results from the possessor's invitation reflect a careful and patient effort by courts over time to balance the interests of persons injured by conditions of land against the interests of possessors of land to enjoy and employ their land for the purposes they wish. Moreover, and despite the exceptions courts have developed to the general rules, the maintenance of the distinction between licensee and invitee creates fairly predictable rules within which entrants and possessors can determine appropriate conduct and juries can assess liability.  To abandon the careful work of generations for an amorphous "reasonable care under the circumstances" standard seems--to put it kindly--improvident.

            The court quoted a passage from Prosser & Keeton that speculated that the failure of more states to join the "trend"

may reflect a more fundamental dissatisfaction with certain developments in accident law that accelerated during the 1960's--reduction of whole systems of legal principles to a single, perhaps simplistic, standard of reasonable care, the sometimes blind subordination of other legitimate social objectives to the goals of accident prevention and compensation, and the commensurate shifting of the balance of power to the jury from the judge.  At least it appears that the courts are . . . acquiring a more healthy skepticism toward invitations to jettison years of developed jurisprudence in favor of beguiling legal panacea.

            The Carter court concluded that the "experience of the states that have abolished the distinction between licensee and invitee does not convince us that their idea is a better one.  Indeed, we are convinced that they have chosen wrongly."

            The Rowland trend seemed strong in the 1970s, weakened in the 1980s, but may have regained strength in the late 1990s. Heins reports that of the 37 states to reconsider their positions after Rowland, 23 have abolished some or all of the categories; 14 have retained them. The rest have not reconsidered their positions.

            8. As noted, several of the courts rejecting the categorical approach limited their action to the distinction between invitees and licensees, maintaining the categorical treatment for trespassers.  The impact of the Rowland approach on trespassers was not tested early because of a lack of suits brought by trespassers.  In the early 1980s, however, concern about potential liability to trespassers and burglars induced the legislature to adopt a provision that protected landowners against liability to persons hurt on premises while committing or attempting to commit one of 25 enumerated offenses.  The bar applies only upon a charge of a felony and the conviction for that felony or a lesser included felony or misdemeanor.  The civil action is to be delayed until the conclusion of the criminal action.  Calif.Civil Code § 847.  For discussion of a similar approach, see Sun v. State of Alaska, 830 P.2d 772 (Alaska 1992).

            9. Landlord and Tenant.  What affirmative obligations, if any, does a landlord owe a tenant to protect the latter from harm?  The traditional rules of liability for defective conditions have insulated landlords from liability except in a few situations.  As summarized in Sargent v. Ross, 308 A.2d 528 (N.H. 1973), a landlord was liable in tort only "if the injury is attributable to (1) a hidden danger in the premises of which the landlord but not the tenant is aware, (2) premises leased for public use, (3) premises retained under the landlord's control, such as common stairways, or (4) premises negligently repaired by the landlord."

            Liability was much less likely if the landlord had promised to repair but had failed to take any steps to do so.  That distinction between bad repairs and no repairs at all is disappearing.  In Putnam v. Stout, 345 N.E.2d 319 (N.Y. 1976), the court overturned its earlier view and imposed a duty where a promise had been made:

            First, the lessor has agreed, for a consideration, to keep the premises in repair;  secondly, the likelihood that the landlord's promise to make repairs will induce the tenant to forgo repair efforts which he otherwise might have made;  thirdly;  the lessor retains a reversionary interest in the land and by his contract may be regarded as retaining and assuming the responsibility of keeping his premises in safe condition;  finally, various social policy factors must be considered:  (a) tenants may often be financially unable to make repairs;  (b) their possession is for a limited term and thus the incentive to make repairs is significantly less than that of a landlord;  and (c) in return for his pecuniary benefit from the relationship, the landlord could properly be expected to assume certain obligations with respect to the safety of the others.  [ ]

In the cited Sargent v. Ross, the court took a much more dramatic step to increase the liability of landlords.  A child visiting a tenant in defendant's residential building fell to her death from a stairway.  The claim was that the stairway was too steep and the railing inadequate.  (The stairway was not common premises because it went only to the tenant's apartment.)  On appeal, the court adopted the following position:

            [A] landlord must act as a reasonable person under all of the circumstances, including the likelihood of injury to others, the probable seriousness of such injuries, and the burden of reducing or avoiding the risk. . . .  The questions of control, hidden defects and common or public use, which formerly had to be established as a prerequisite to even considering the negligence of a landlord, will now be relevant only inasmuch as they bear on the basic tort issues such as the foreseeability and unreasonableness of the particular risk of harm.

How does this new approach differ from the Sargent court's summary of earlier law?

            10. Liability for harm outside the premises. On occasion, pedestrians and others outside the premises claim to have been hurt by conditions or activities within the premises. As a recent example, consider Largosa v. Ford Motor Co., p. ___ , supra. One defendant was conducting a bungee-jumping business close to a busy highway. Plaintiff claimed to have been “cut off by an unknown vehicle whose driver was gaping at bungee-jumpers adjacent to and over [the interstate highway]” forcing plaintiff to swerve and hit the divider. The court reviewed its cases involving duties to people on adjacent highways and concluded that the focus was “on the reasonable foreseeability of the injury.” The court quoted Restatement §368 that imposed liability on possessors who create artificial conditions “so near an existing highway” that they realize or should realize that it involves an “unreasonable risk” of harm to travelers using due care on that highway. The court denied liability because the defendant’s business “did not pose a foreseeable danger directly to plaintiffs on the highway. None of the bungee jumpers launched themselves out onto the highway or even over it. Therefore, we will not impose a duty that would unnecessarily expose defendant to extensive liability for unforeseen negligence.”

The court was unclear what measures defendant could “reasonably have taken to avoid distracting motorists. A warning sign would have been a small burden but might only have increased the number of gaping motorists. A wall or curtain would have been impractical since the jumping platform was 180 feet high.  The motorists on the highway “were in the best position to avoid accidents by operating their vehicles with care.”  The court noted that the highways coming into and out of Chicago offered several distractions, including airplanes and occasional fireworks from a baseball stadium. Also, Lake Shore Drive furnished sights of people flying kites, playing golf, roller skating and sun bathing. What about an accident caused by motorists looking at a high school football game being played alongside the road? See Lompoc Unified School District v. Superior Court, 26 Cal.Rptr.2d 122 (App. 1993) (denying liability).

Criminal Activity

During the long development of the category-based approach, most cases involved physical conditions of the premises or the negligent conduct of others.  Later, plaintiffs began to sue for harms caused them by criminal conduct occurring on the premises.  Most commonly, tenants began suing landlords for providing inadequate protection against criminal activity.  The major early case was Kline v. 1500 Massachusetts Ave. Apartment Corp., 439 F.2d 477 (D.C.Cir.1970), in which the court imposed a duty of care on the landlord of a large apartment building toward a tenant who had been assaulted in a common hallway of the building.  Crime had been occurring on the premises with mounting frequency.  Although the owner could take some steps, such as extra heavy locks or guards, "no individual tenant had it within his power to take measures to guard" against these same perils:

            Not only as between landlord and tenant is the landlord best equipped to guard against the predictable risk of intruders, but even as between landlord and the police power of government, the landlord is in the best position to take the necessary protective measures.  Municipal police cannot patrol the entryways and the hallways, the garages and the basements of private multiple unit apartment dwellings.  They are neither equipped, manned, nor empowered to do so.  In the area of the predictable risk which materialized in this case, only the landlord could have taken measures which might have prevented the injuries suffered by appellant.

            . . .

            . . .  We do not hold that the landlord is an insurer of the safety of his tenants.  His duty is to take those measures of protection which are within his power and capacity to take, and which can reasonably be expected to mitigate the risk of intruders assaulting and robbing tenants.  The landlord is not expected to provide protection commonly owed by a municipal police department;  but as illustrated in this case, he is obligated to protect those parts of his premises which are not usually subject to periodic patrol and inspection by the municipal police.

            The court recognized that the discharge of this duty might often cause "the expenditure of large sums" and that these costs "will be ultimately passed on to the tenant in the form of increased rents.  This prospect, in itself, however, is no deterrent to our acknowledging and giving force to the duty, since without protection the tenant already pays in losses from theft, physical assault and increased insurance premiums."  The landlord "is entirely justified in passing on the cost of increased protective measures to his tenant, but the rationale of compelling the landlord to do it in the first place is that he is the only one who is in a position to take the necessary protective measures for overall protection of the premises."