Betty Hall v. Timothy Dale Cagle ( 1998 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 1998-CT-01163-SCT
BETTY HALL
v.
TIMOTHY DALE CAGLE AND BILL JOHNSON, d/b/a JOHNSON MOBILE HOMES
ON WRIT OF CERTIORARI
DATE OF JUDGMENT: 05/14/1998
TRIAL JUDGE: HON. ROBERT WALTER BAILEY
COURT FROM WHICH APPEALED: LAUDERDALE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: JAMES C. PATTON, JR.
ATTORNEYS FOR APPELLEE: J. RICHARD BARRY
F. GREGORY MALTA
BRETT W. ROBINSON
NATURE OF THE CASE: CIVIL - PERSONAL INJURY
DISPOSITION: REVERSED AND REMANDED - 09/28/2000
MOTION FOR REHEARING FILED: 10/12/2000; denied 12/21/2000 & Par.8 modified
MANDATE ISSUED: 12/28/2000
EN BANC.
MILLS, JUSTICE, FOR THE COURT:
¶1. On certiorari we reverse the judgments of the Court of Appeals and the trial court and remand for
further proceedings.
FACTS AND PROCEEDINGS BELOW
¶2. Betty Hall was injured in an accident on August 28, 1995, at the home of Timothy and Beverly Cagle.
The Cagles were moving into a mobile home, and Betty Hall was helping the Cagles unload boxes and
arrange furniture. The Cagles purchased the home from Johnson Mobile Homes which had delivered it and
provided temporary steps. Hall claimed that she assisted the Cagles from approximately nine o'clock in the
morning until two o'clock in the afternoon. Hall stated in deposition testimony that she knew the steps to be
shaky and that a Johnson employee cautioned her to be careful. Hall asserted that, upon leaving the Cagles'
mobile home by a back door, she lost her footing on the steps and fell, thereby injuring herself.
¶3. Hall filed an action in the Lauderdale County Circuit Court for damages against both the Cagles and Bill
Johnson d/b/a Johnson Mobile Homes but the case was dismissed on motions for summary judgment after
the circuit court found that she was a "licensee" rather than an "invitee." The Court of Appeals affirmed the
circuit court, Hall v. Cagle, No. 1998-CA-01163-COA (Miss. Ct. App. August 3, 1999), and denied
Hall's motion for rehearing.
DISCUSSION
¶4. We have stated:
This Court employs a de novo (without deference) review on grants of summary judgment. Owen v.
Pringle, 621 So.2d 668, 670 (Miss.1993). The trial court must review the evidence most favorably
to the nonmoving party. Sanford v. Federated Guaranty Ins. Co., 522 So.2d 214, 217
(Miss.1988). There can be no issues of material fact in dispute. Stegall v. WTWV, Inc., 609 So.2d
348, 350-51 (Miss.1992). If reasonable minds can differ on a material fact, summary judgment is
improper. Id. The trial court should also deny summary judgment where full presentation of the
evidence would "result in a triable issue." Great Southern Bank v. Minter, 590 So.2d 129, 135
(Miss.1991).
Presswood v. Cook, 658 So.2d 859, 862 (Miss. 1995). Rule 56(c) of the Mississippi Rules of Civil
Procedure allows entry of summary judgment where there is no genuine issue of material fact and the
moving party is entitled to summary judgment as a matter of law. "[T]he lower court's decision is reversed
only if it appears that triable issues of fact remain when the facts are viewed in the light most favorable to the
nonmoving party." Robinson v. Singing River Hosp. Sys., 732 So.2d 204, 207 (Miss.1999)(citing Box
v. State Farm Mut. Auto. Ins. Co., 692 So.2d 54, 56 (Miss.1997)).
¶5. As concerns the distinction between an invitee and a licensee and the duty owed to each class, this
Court has previously held:
[A]n invitee is a person who goes upon the premises of another in answer to the express or implied
invitation of the owner or occupant for their mutual advantage. A licensee is one who enters upon the
property of another for his own convenience, pleasure or benefit pursuant to the license or implied
permission of the owner... Payne v. Rain Forest Nurseries, Inc., 540 So.2d 35, 37 (Miss.1989)
(citing Hoffman v. Planters Gin Co., 358 So.2d 1008, 1011 (Miss.1978));
Skelton ex rel. Roden v. Twin County Rural Elec. Ass'n, 611 So.2d 931, 936 (Miss. 1992).
A landowner owes a licensee only the duty to refrain from willfully or wantonly injuring the licensee,
unless the landowner engages in active conduct and knows of the licensee's presence. A landowner
owes a business invitee a duty of reasonable care for the invitee's safety. 518 So.2d at 648; compare
Wright v. Caffey, 239 Miss. 470, 477, 123 So.2d 841, 844 (1960) ("invited" social guest is not
invitee); see also Adams v. Fred's Dollars Store of Batesville, 497 So.2d 1097, 1101 (Miss.1986);
Hughes v. Star Homes, Inc., 379 So.2d 301 (Miss.1980).
611 So.2d at 936. Mississippi has, in one instance, recognized that a visitor may be an invitee where he
comes to the home of the occupant, not for a business purpose, but, nevertheless, for the benefit of the
occupant. Minor v. Engineering Servs. Co., 304 So.2d 45 (Miss. 1974). Carrie Minor, while at the
home of her mother, tripped over a surveyor's tape left on the porch of her mother's home by Engineering
Services who were on the premises with the permission of the landlord. The Court found her to be an
invitee entitled to the higher degree of care upon noting that she was there for the purpose of taking her
mother to a doctor's appointment. The Court distinguished Minor from one, a licensee, who crossed ground
where pipe was stored and who entered the premises without any express invitation or any benefit to the
occupant as was the case in Bishop v. Stewart, 234 Miss. 409, 106 So. 2d 899 (1958).
¶6. The comment to the Restatement (Second) of Torts defines an "invitee" as members of the public who
enter property for a purpose connected with the business of the possessor. Restatement (Second) of Torts
§ 332 (1965). The comment further recites that a social guest is not an invitee because "he does not enter
for a purpose directly or indirectly connected with the business dealing with the possessor." Id. The
Restatement also classifies as a licensee the volunteer who comes on the land without being asked to aid in
getting a truck out of mud or to put out a fire. Id. § 332, Comment b.
¶7. In the present case, Hall alleged that she was at the home of the Cagles to perform a service for their
benefit, i.e., to assist them in moving and unpacking. Her stated purpose was for the benefit of the
possessors of the home. Although the Restatement is silent in the case where one enters the premises at the
invitation of the possessor, not for the visitor's own benefit but to render a service to the possessor, our
decision in Minor indicates that such a person is entitled to be classified an invitee and afforded the same
duty of care even though he does not enter upon the property for a business purpose. Hall was present on
the premises at the owners' invitation as opposed to mere permission. See Kurti v. Becker, 733 A.2d
916, 919 (Conn. App. Ct. 1999).
¶8. Hall has alleged and proved sufficient facts to make a prima facie showing that she was an invitee rather
than a licensee such that her complaint should not have been dismissed on motion for summary judgment.
CONCLUSION
¶9. For these reasons, the judgments of the Court of Appeals and the Lauderdale County Circuit Court are
reversed, and this case is remanded to the Lauderdale County Circuit Court for further proceedings
consistent with this opinion.
¶10. REVERSED AND REMANDED.
PRATHER, C.J., PITTMAN AND BANKS, P.JJ., AND WALLER, J., CONCUR. McRAE,
J., CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY BANKS, P.J.
SMITH, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY COBB, J.
DIAZ, J., NOT PARTICIPATING.
McRAE, JUSTICE, CONCURRING:
¶11. Betty Hall should not be considered an invitee or a licensee in the present case. Instead, the Court
should require the jury to utilize a "reasonable person" standard to decide the liability on the part of the
landowner. Therefore, I concur with this Court's majority in that this case should be reversed and remanded
to the lower court for further proceedings. However, as to the reasoning behind this reversal, I disagree.
This Court should abolish the invitee/licensee classifications for determining liability and replace them with a
"reasonable person in like circumstances" standard. This Court years ago created the different burdens for
licensees and invitees in conflict with our comparative negligence statute. Approximately twenty-four states
have abolished the licensee/invitee classifications. There is no need to extend this "reasonable person"
standard to the classification of trespassers.
¶12. There is a modern trend away from the invitee/licensee/trespasser classifications in premises liability
law to a "reasonable person in like circumstances" standard. The trend is moving away from placing the
plaintiff in one of the three above categories and basing the owner/occupier's duty on what a reasonable
person in like circumstances would do. This standard means that the owner/occupier should make the
premises reasonably safe or warn the person on the premises if he is unable to make the premises safe.
¶13. Previewing this trend among states, the United States Supreme Court did away with the distinction
between invitees, licensees, and trespassers in maritime cases. Kermarec v. Compagnie Generale
Transatlantique, 358 U.S. 625, 79 S. Ct. 406, 3 L.Ed.2d 550 (1959). In Kermarec, the Supreme Court
did away with the distinction used to determine landowner liability and replaced it with a "duty of exercising
reasonable care under the circumstances of each case." Id. at 631-32.
¶14. The Court in Kermarec discussed the root of the common law distinctions and stated these distinctions
no longer are useful in today's modern society stating:
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 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. 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 circumstances.
Id. at 630-31. See Skelton ex rel. Roden v. Twin County Rural Elec. Ass'n, 611 So. 2d 931, 940
(Miss. 1992) (Banks, J., dissenting).
¶15. Following Kermarec, the trend among states developed to abolish the distinction between invitees,
licensees and trespassers. Although the principles in Kermarec applied to maritime cases, many cases have
utilized the reasoning in Kermarec as it applies to other fact situations. See Nelson v. Freeland, 349 N.C.
615, 621-22, 507 S.E.2d 882, 886-87 (1998).
¶16. Exemplifying a strong trend, Nelson stated ten jurisdictions have abolished these common law
classifications completely, while fourteen jurisdictions have repudiated the invitee/licensee classifications, but
maintained the limited-duty rule for trespassers. Therefore, nearly half of the states in this country and the
District of Columbia have abolished or limited these common law distinctions in favor of a reasonableness
standard.
¶17. The case that sparked this trend was California's seminal case of Rowland v. Christian, 69 Cal. 2d
108, 70 Cal. Rptr. 97, 443 P.2d 561 (1968). The dissenting opinion in Skelton also relied upon this case,
stating that Rowland seemed to capture the essence of the problem of classifying land entrants as invitees,
licensees, and trespassers. The Skelton dissent quoted Rowland as follows:
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 of whether the landowner has a duty
of care, is contrary to our 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.
Skelton, 611 So. 2d at 940 (Banks, J., dissenting) (quoting Rowland, 443 P.2d at 568).
¶18. For the ten jurisdictions which have completely abolished the classifications, see the following cases:
Smith v. Arbaugh's Restaurant, Inc., 469 F.2d 97 (D.C. Cir. 1972) cert. denied, 412 U.S. 939,
93 S. Ct. 2774, 37 L.Ed.2d 399 (1973); Webb v. City and Borough of Sitka, 561 P.2d 731(Alaska 1977); Pickard v. City and County of Honolulu, 51 Haw. 134, 452 P.2d 445 (1969);
Keller v. Mols, 129 Ill. App. 3d 208, 84 Ill. Dec. 411, 472 N.E.2d 161 (Ill. App. Ct. 1984)
(abolishing with respect to children only); Sheets v. Ritt, Ritt & Ritt, Inc., 581 N.W.2d 602 (Iowa
1998); Cates v. Beauregard Elec. Co-op., Inc., 328 So.2d 367 (La.1976), cert. denied, 429
U.S. 833, 97 S. Ct. 97, 50 L.Ed.2d 98 (1976); Limberhand v. Big Ditch Co., 218 Mont. 132,
706 P.2d 491 (1985); Moody v. Manny's Auto Repair, 110 Nev. 320, 871 P.2d 935 (1994);
Ouellette v. Blanchard, 116 N.H. 552, 364 A.2d 631 (1976); Basso v. Miller, 40 N.Y.2d 233,
352 N.E.2d 868, 386 N.Y.S.2d 564.
Nelson, 349 N.C. at 622.
¶19. For the fourteen jurisdictions which have abolished the invitee/licensee classification while maintaining
the trespasser distinction, see the following cases:
Wood v. Camp, 284 So.2d 691 (Fla. 1973); Jones v. Hansen, 254 Kan. 499, 867 P.2d 303(1994); Poulin v. Colby College, 402 A.2d 846 (Me. 1979); Baltimore Gas & Elec. Co. v.
Flippo, 348 Md. 680, 705 A.2d 1144 (1998); Mounsey v. Ellard, 363 Mass. 693, 297 N.E.2d
43 (1973); Peterson v. Balach, 294 Minn. 161, 199 N.W.2d 639 (1972); Heins v. Webster
County, 250 Neb. 750, 552 N.W.2d 51(1996); Ford v. Board of County Comm'rs of the
County of Dona Ana, 118 N.M. 134, 879 P.2d 766 (1994); O'Leary v. Coenen, 251 N.W.2d
746 (N.D. 1977); Ragnone v. Portland Sch. Dist. No. 1J, 291 Or. 617, 633 P.2d 1287 (1981);
Tantimonico v. Allendale Mut. Ins. Co., 637 A.2d 1056 (R.I.1994); Hudson v. Gaitan, 675
S.W.2d 699 (Tenn. 1984); Antoniewicz v. Reszcynski, 70 Wis.2d 836, 236 N.W.2d 1 (1975);
Clarke v. Beckwith, 858 P.2d 293 (Wyo.1993).
Id. at 622-23.
¶20. Part of the reason for the departure from the common law classifications is that courts were often
making certain exceptions and subclassifications in these categories that would allow the distinction "to
better congeal with our present-day policy of balancing land-ownership rights with the right of entrants to
receive adequate protection from harm." Nelson, 349 N.C. 619 (citing Kermarec, 358 U.S. at 630-31).
Essentially, the strict standards of invitee, licensee and trespasser have been altered by the introduction of
exceptions in order to make the classifications applicable in modern-day society.
¶21. To understand the adherence to this classification system as well as the departure from it, it is helpful to
know a little about the history of these classifications. The distinctions between invitee, licensee, and
trespasser have their roots in nineteenth-century England. Nelson, 349 N.C. at 623 (citing John Ketchum,
Missouri Declines an Invitation to Join the Twentieth Century: Preservation of the Invitee-Licensee
Distinction in Carter v. Kinney, 64 UMKC L. Rev. 393, 394 (1995)). These distinctions were created in
part to restrict the jury's power because juries were comprised mostly of land entrants, who would likely
attempt to burden the landowner with liability and restrain his power. Nelson, 349 N.C. at 623 (citing
Michael Sears, Abrogation of the Traditional Common Law of Premise Liability, 44 U. Kan. L. Rev.
175, 176 (1995)). Another explanation for the creation of this "trichotomy" is that these principles were
created before principles of negligence were established in tort law. The framework for the negligence duty
of care was first defined in the 1883 case of Heaven v. Pender, 11 Q.B.D. 503 (1883), which was
decided more than forty years after the creation of these classifications. Nelson, 349 N.C. at 623 n.3
(citing Ketchum, Missouri Declines, 64 UMKC L. Rev. at 397).
¶22. One can easily understand the reasoning behind the creation of these classifications for land entrants.
However, that reasoning has long past and is no longer applicable to modern society.
¶23. Three primary reasons cited for adherence to the reasoning of the classification system are fear of jury
abuse, prevention of high-cost insurance to property owners, and predictability of the law. For the first
reason, fear of jury abuse, proponents argue plaintiff-oriented juries, like the feudal juries, are likely to
impose unreasonable burdens upon defendant-landowners. Nelson, 349 N.C. at 624 (citing Ouellette v.
Blanchard, 116 N.H. 522, 560, 364 A.2d 631, 636 (1976) (Grimes, J., dissenting)). This argument fails
to recognize that juries have been applying negligence principles for years in tort cases. In addition, there is
far greater variety among the persons selected as jurors today. In fact, society today places many
landholders on the jury itself, eliminating the need to protect landowners from the unrestrained power of the
jury to place unfair burdens upon defendant-landowners. Nelson, 349 N.C. at 624-25 (citing Smith v.
Arbaugh's Restaurant, Inc., 469 F.2d 97, 106-07 (D.C. Cir. 1972)).
¶24. The continued adherence to the common law system of classifications undermines the jury function, by
forcing the jury to focus on the entrant's status rather than on the liability of the landowner. Little v. Bell,
719 So. 2d 757, 767 (Miss. 1998) (McRae, J., dissenting). The classifications are inefficient because "by
preventing the jury from applying changing community standards to a landowner's duties, the common law
rules give the landowner a special privilege to be careless. Furthermore, battles over an entrant's status
often result in judicial waste, as this Court has often disagreed with trial court classifications, remanding
decisions to the trial courts under revised distinctions." Id.
¶25. Although these classifications may serve some purpose in determining liability on the part of the
entrant, Skelton, 611 So. 2d at 940 (citing e.g., Basso, 386 N.Y.S.2d at 568, 352 N.E.2d at 872), the
circumstances surrounding the person's entry onto the land are not dispositive on the issue of liability. Id.
(citing Rowland, 70 Cal.Rptr. at 104, 443 P.2d at 568).
¶26. A second reason for not departing from the common law classifications is to prevent landowners from
carrying the costs of expensive insurance policies to protect any entrants on their land. See, e.g., Adams v.
Fred's Dollar, 497 So. 2d 1097, 1100 (Miss. 1986) ("[a] landowner need not make it impossible for
persons to trespass before he may treat intruders as trespassers. To hold otherwise would be to come
dangerously close to requiring that an owner be an insurer of the safety of those who unlawfully enter his
property."); see also Nelson 349 N.C. at 625 (citing Mariorenzi v. Joseph DiPonte, Inc., 114 R.I.
294, 308, 333 A.2d 127, 134 (1975) (Joslin, J., dissenting)).
¶27. However, many cases that have done away with the invitee/licensee classifications, yet maintained the
trespasser classification, have stated that this abolition does not force the landowner to become an absolute
insurer against all injuries that may occur on his property. For examples of this contention, see the following:
Jones v. Hansen, 254 Kan. 499, 510, 867 P.2d 303, 311 (1994) ("a proprietor or operator of a
trade or business is not an absolute insurer of the safety of the customers"); Poulin v. Colby
College, 402 A.2d 846, 851 (Me. 1979) ("[t]his does not require an owner or occupier to insure the
safety of his lawful visitors"); Heins v. Webster County, 250 Neb. 750, 761, 552 N.W.2d 51, 57
(1996) ("[o]ur holding does not mean that owners and occupiers of land are now insurers of their
premises"); O'Leary v. Coenen, 251 N.W.2d 746, 752 (N.D. 1977) ("[w]e do not now hold that
land occupiers are now insurers of their premises"). Rather, they require landowners only to exercise
reasonable care in the maintenance of their premises. See Heins v. Webster County, 250 Neb. at
760, 552 N.W.2d at 56.
Nelson, 349 N.C. at 625.
¶28. A third argument for adhering to the classification system is that, without it, the law would be less
predictable. In many cases, however, these distinctions only allow for more unpredictability. For example,
in many situations, the status of the land entrant can change from that of a trespasser to an invitee, who has
permission to be on the land for the mutual benefit of the landowner and the entrant, to that of a licensee,
who has permission to be on the land when the business portion of the visit has ended and the entrant is
now a social guest of the landowner.
¶29. Predictability is not the hallmark result of the classification system because in many cases, courts have
allowed exceptions to and broad readings of the different classifications. Mississippi case law involving
invitees, licensees, and trespassers is riddled with exceptions to the strict readings of the classifications.
These cases often have to be decided on a case-by-case basis, and this does not often promote
predictability. See, e.g., Little v. Bell, 719 So.2d at 764 (distinctions between active and passive
negligence in determining the status); Spears v. Mississippi Power & Light Co., 562 So. 2d 107, 108
(Miss. 1990) (considered standard of care owed to an invitee of a business owner when the power
company had an easement and right of way across the parking lot of the business owner); Clark v. Moore
Mem'l United Methodist Church, 538 So. 2d 760, 764 (Miss. 1989) (church member considered an
invitee when she slipped and fell at church); Hoffman v. Planters Gin Co., 358 So. 2d 1008, 1013
(Miss. 1978) (higher degree of care, reasonable standard, afforded to licensee when caused by active
negligence); Wright v. Caffey, 239 Miss. 470, 473, 123 So. 2d 841, 842 (1960) (considered whether
status changes from invitee to licensee when defendant's mother injured herself while stepping in a bowl of
dog food and was thereafter confined to bed rest); Dry v. Ford, 238 Miss. 98, 102, 117 So. 2d 456, 458
(1960) (a person can lose the status of invitee when his actions go beyond the bounds of the invitation).
¶30. Despite the above exceptions and clarifications, Mississippi refuses to eliminate these common law
classifications and still adheres to the variant degrees of liability for an invitee, licensee, or trespasser. This
adherence is particularly strange considering Mississippi's adoption of comparative negligence close to the
turn of the century.
¶31. Mississippi led the country in the early part of this century as the first state to adopt a pure comparative
negligence standard. Tharp v. Bunge Corp., 641 So. 2d 20, 23 (Miss. 1994) (citing Miss. Code Ann.
§11-7-17 (1972)). Miss. Code Ann. § 11-7-17 reads, "all questions of negligence and contributory
negligence shall be for the jury to determine." In Tharp, this Court abolished the "open and obvious"
defense and applied the comparative negligence statute of the state instead, stating, "if a dangerous
condition is obvious to a plaintiff, then surely it is obvious to the defendant as well. The defendant,
accordingly, should alleviate the danger." Id. at 25. The ruling in Tharp on comparative negligence is that
the plaintiff must find some negligence on the part of the defendant before the plaintiff's claim can be
considered by a jury. If there is no negligence on the part of the defendant, then there is no cause of action
for the plaintiff. Id. at 23 (citing Mississippi Butane Gas Sys., Inc. v. Welch, 208 Miss. 637, 648, 45
So. 2d 262, 264-65 (1950); see New Orleans & Northeastern R.R. v. Lee, 205 So. 2d 923, 924
(Miss. 1968)). The defendant- landowner is in a better position than any plaintiff entrant to discover the
unsafe conditions on the land and to repair them to the best of his ability. There is no need for the open and
obvious defense because comparative negligence absolves this concept by placing fault on the plaintiff, as
well as the defendant, if the case calls for it.
¶32. This state's comparative negligence rule should also be applied to invitee and licensee classifications of
premises liability law in the form of a reasonable person standard. There is no need to apply a
reasonableness standard to the classification of entrants that are trespassers. Applying a reasonable
standard would be more consistent with the expectation of society today and with the negligence law of this
State. Holding the landowner to the standard of a reasonable person in like circumstances would better
allocate fault between the defendant-landowner and the plaintiff-entrant.
¶33. People do not structure their lives upon these archaic classifications. The relationship between an
owner/occupier and the people he allows onto his land does not revolve around these stringent
classifications. In the flexible and unstructured world of human relations, the duty of care owed to a land
entrant should not be predicated upon these outdated distinctions.
¶34. In addition, if these distinctions are applied, they are not applied stringently, and they are ever-
changing. For example, a salesperson could trespass upon a person's land until he gets to the front door of
the house, where he introduces himself. After the owner/occupier gives his permission to the salesperson to
be on his land and conduct business for the mutual benefit of the landowner and the entrant, then the status
of the salesperson has been elevated to that of an invitee. This would be the best time for the entrant to
sustain injuries. After some discussion, the salesperson and the landowner discover they were born in the
same town, up north, and now the two engage in social conversation about what high school they attended
and any common acquaintances. Now, the trespasser has been elevated to the position of an licensee. See,
e.g., Nelson, 349 N.C. at 627.
¶35. Surely the above example is not out of the ordinary, yet the analysis of the status of the land entrant is
disingenuous. In the minds of the two individuals, these distinctions and classifications mean nothing while
they are interacting with each other. However, the notion that they are to conduct their behavior as a
reasonable person would under like circumstances, meaning a reasonable person would warn the
salesperson about a faulty step on his way out or about a hidden hole in the steep of the ground. However,
the landowner would not warn the salesperson about these conditions as he was approaching the house
because the owner had no notice of this person's approach and had no duty to warn him of these conditions
at this time.
¶36. If people are ordinarily held to conduct their lives in the manner of a reasonable person in almost all
other areas of tort liability, why should we continue to impose upon them these archaic distinctions in the
matter of premise liability? One could argue these distinctions are put into place because landowners with
large and continuous expanses of land cannot reasonably know who is on their land at any given time, and
therefore, these landowners should be allowed to restrict their duty of care to certain individuals. This
argument may have some merit when applied to trespassers, but the time of feudal estates and large
expanses of unchartered territory has largely past. In today's world, landowners have better control over
their land and the permission they give for people to enter upon their land. A trespasser is a trespasser, but
a landowner has the ability to permit certain persons onto his land. This same landowner should be required
to keep his premises safe for all those he allows onto his land or to provide ample warnings otherwise. He
should not be allowed to escape liability by classifying the person as a licensee or an invitee. As Rowland
stated, a man's life or limb should not differ based on whether he is on the property for business or for a
social visit. The landowner should be held to the same standard of care, to act as a reasonable person
would.
¶37. Accordingly, I concur in the reversal and remand of this case, but I would abolish the distinction
between invitee and licensee.
BANKS, P.J., JOINS THIS OPINION.
SMITH, JUSTICE, DISSENTING:
¶38. In my view, the majority errs in concluding that an issue of material fact exists regarding the question of
whether Betty Hall was a licensee or invitee. The trial court correctly granted the defendants' motion for
summary judgment and the Court of Appeals properly affirmed. Therefore, I respectfully dissent.
¶39. The degree and extent of any duty owed by a defendant to a plaintiff depends upon the relationship
between the parties. Skelton ex rel. Roden v. Twin County Rural Elec. Ass'n, 611 So.2d 931, 936
(Miss. 1992). Where the injury in question was sustained due to an alleged condition or defect involving
real property, the duty owing to the plaintiff depends upon his status on the subject property. Mississippi's
distinction between licensees and invitees has recently been reaffirmed by this Court. See Little v. Bell,
719 So.2d 757 (Miss. 1998).
¶40. As the majority correctly states, an invitee is an individual who goes upon the premises of another in
answer to the express or implied invitation of the owner of occupant for their mutual advantage. Id. (citing
Hoffman v. Planters Gin Co., 358 So.2d 1008, 1011 (Miss. 1978)). Invitees and business patrons are
owed a duty of reasonable care by the owner and occupiers of real property. Caruso v. Picayune Pizza
Hut, Inc. 598 So.2d 770, 773 (Miss. 1992). On the other hand, a licensee is a person who enters upon
the property of another for his own convenience, pleasure or benefit pursuant to the license or implied
permission of the owner. Little, 719 So. 2d at 760 (citing Hoffman 358 So.2d at 1011). A licensee is
owed only a duty to refrain from wanton and willful injury. Little, 719 So.2d at 760.
¶41. In Mississippi, social guests have long been considered licensees. See Wright v. Caffey, 239 Miss.
470, 123 So. 2d 841, 844 (1960). Unlike a business invitee, "A social guest on the host's premises or in his
home must take the premises as he finds them, with no greater right than a mere licensee with respect to the
host's liability for injuries to the guest." Id. at 843. More specifically, "[t]he guest assumes the ordinary risks
which are attached to the premises. . . [A] host merely offers his premises for the enjoyment of his guests
with the same security which the host and members of his family who reside with have." Little, 719 So.2d
at 761 (quoting Raney v. Jennnings, 248 Miss. 140, 147-48, 158 So.2d 715, 718 (1963)).
¶42. The majority holds that a genuine issue of material fact exists in this matter. However, this holding is
unsupported by the evidence presented to the Circuit Court of Lauderdale County and the Court of
Appeals and was rightfully rejected by these courts. Hall's own testimony, as given in her deposition, clearly
establishes that she was on the property merely as a licensee, when she testified as follows:
Q. Now the day that ya'll went over there, you went over there as a friend helping her, right?
A. Right, uh huh.
Q. And she didn't pay you anything for helping here?
A. Oh, no.
Q. She never indicated that she would, right?
A. No.
¶43. Furthermore, both Betty Hall and Cagle testified that a friendship existed between the two families
which predated the accident by several years. Hall testified that she arrived at the Cagles' home at
approximately 9:00 a.m. to help Beverly Cagle unpack boxes and arrange furniture. In this instance, there
was no mutual advantage resulting from Hall's visit to the Cagle residence. Hall simply went to the Cagle
home to help a friend. She had no hope or anticipation of personal gain at the time she went. Hall was,
therefore, a mere licensee, and the trial court and Court of Appeals were correct in ruling as such.
¶44. In opposition to defendants' motion for summary judgment, Hall filed an affidavit in which she directly
contradicted her earlier testimony by stating, "On the day of my fall I was going to the Cagle's trailer to
work, not to socialize. In exchange for helping Beverly Cagle out I had my hair cut, styled and/or permed
on more than one occasion prior to my fall as well after my fall." A party cannot manufacture disputed
material facts where none exist. Russell v. Harrison, 736 F.2d 283, 287 (5th Cir. 1984). A movant
cannot defeat a motion for summary judgment by submitting an affidavit which directly contradicts, without
explanation, his previous testimony. Foldes v. Hancock Bank, 554 So.2d 319, 321 (Miss. 1989). Betty
Hall's deposition testimony clearly shows that she was present at the Cagles' home as a friend. There was a
total absence of any allegation that there was a quid pro quo arrangement until Hall submitted her affidavit.
Clearly, this is an attempt by Hall to create a genuine issue of material fact where non exists.
¶45. Pursuant to Hall's status as a licensee, Cagle only owed the duty to refrain from willfully, and wantonly
injuring the licensee, unless Cagle engaged in active contacts and knew of the licensee's presence. See
Lucas v. Buddy Jones Ford-Lincoln-Mercury, Inc., 518 So.2d 646, 648 (1988). Willful and wanton
conduct exceeds "mere inadvertence or lack of attention" characteristic of ordinary negligence, & means
that the possessor consciously disregards a known, serious danger. Dry v. Ford, 238 Miss. 98, 102, 117
So.2d 456, 458 (1960). Such conduct is an extreme departure from the standard of care. See id.Therefore, the possessor of land owes a licensee no duty to maintain land in a safe condition but only to "to
disclose to the licensee any concealed, dangerous condition on the premises of which the owner has
knowledge, and to exercise reasonable care to see that the licensee is aware of the danger." Marlon Inv.
Co. v. Conner, 246 Miss. 343, 353, 149 So.2d 312, 316 (1963).
¶46. There is no evidence that Cagle breached any legal duty owed to Hall. In fact, Hall testified that she
absolutely did not think the Cagles meant to hurt her. Hall's testimony establishes that she knew the steps to
the Cagle's mobile home were "unlevel." Hall testified that she had used this particular set of steps on one
previous occasion about a week before the accident. She further testified that she was informed by an
employee of Bill Johnson D/B/A Johnson Mobile Homes on that occasion to be careful because the steps
were not the right set for the defendant's mobile home. Significantly, Hall testified that on the day of the
incident she noticed that the steps were unstable, yet she still used them to enter the Cagle house. She
further stated that on the day of the incident, Beverly Cagle tried to stop her from falling and, as a result, fell
herself. Perhaps most important is the testimony that Hall was present during conversations between Martha
and Shannon Mann and Beverly Cagle in which the fact that the steps were not the proper steps and that
anyone using the steps has to be careful was discussed. Finally, Shannon Mann testified that, prior to her
fall, Hall was warned to be careful and was reminded that steps were shaky.
¶47. Additionally, it should be noted that the majority erroneously relies on Minor v. Engineering Servs.
Co., 304 So.2d 45 (Miss. 1974). The Minor decision was one which was limited to the facts and
circumstances of that case. Id. at 48. In Minor, the plaintiff who was at her mother's home was injured
when she tripped over a surveyor's tape. The tape had been placed on the porch of the home without any
warning. Id. at 46. In Minor, neither the occupier of the land, nor the visitor who was injured, had
knowledge of or warning of the location of the tape. Id. In contrast, in the instant case, it is undisputed that
Hall knew of the condition of the steps prior to the day of the incident. She was even warned about the
steps by an employee of Bill Johnson and by other individuals who where visiting the Cagle home on that
same day. Minor is clearly distinguishable from this case.
¶48. In my view, the trial court was correct in granting summary judgment in favor of the defendants. There
is no issue of material fact in dispute, and summary judgment should be granted as a matter of law.
Therefore, I respectfully dissent.
COBB, J., JOINS THIS OPINION.