Cain v. Johnson

OPINION

WEISBERGER, Chief Justice.

This case comes before us on the plaintiffs’ appeal from a summary judgment entered in the Superior Court in favor of the defendants. For the reasons that follow, we affirm.

The facts of this case are not in dispute. At approximately 2 a.m. on August 6,1991, Michael T. Cain (the decedent) and two friends went for a walk along a section of Newport’s Cliff Walk. While walking along an area of the Cliff Walk that winds through Salve Regina University’s (the university) campus, the decedent stepped from the paved walk onto a grassy area on the ocean side of the walk. He fell from the cliff to his death after the ground beneath his feet gave way.

On July 25, 1994, plaintiffs, William G. Cain and Mary H. Cain (plaintiffs or the Cains), filed a wrongful death action individually and on the part of the estate of Michael T. Cain against defendants, the City of Newport (city), the State of Rhode Island (state), and the university. The plaintiffs alleged that defendants’ negligence caused the decedent’s death because defendants failed to properly inspect, maintain, and repair the Cliff Walk. In September 1997, the city moved for summary judgment, arguing that the decedent was a trespasser because the Cliff Walk had closed at 9 p.m. The state and the university joined in the city’s motion. On November 7, 1997, the motion justice granted summary judgment in favor of all defendants, ruling that summary judgment was required based on this Court’s decision in Brindamour v. City of Warwick, 697 A.2d 1075 (R.I.1997) (holding that a landowner owes a trespasser only the duty to refrain from willful and wanton conduct). On November 21, 1997, the motion justice reconsidered the matter, and allowed the summary judgment to stand.

The plaintiffs then appealed the grant of summary judgment. The case was heard on the show cause calendar on March 3, 1999. After argument, the case was placed on the regular calendar with directions to the parties to provide the Court with authorities and guidance on the following issues:

“1. Would the conduct of the defendants or any of them amount to willful and wanton conduct under the facts that were presented to the motion justice in this case?

“2. Would willful and wanton conduct include reckless indifference to the safety of the plaintiffs’ decedent whether or not the defendants were aware of his presence on the premises?

“3. Would the alleged conduct of the defendants or any of them rise to the level of reckless indifference to the safety of the plaintiffs’ decedent in light of the nature of the defective condition which caused him to fall to his death? “4. In the event that it was determined that the defendants or any of them directly or indirectly invited or permitted the plaintiffs’ decedent to use the subject property for recreational purposes, would the duty toward him differ in any respect from that owed to a trespasser? See G.L. § 32-6-1 et seq. and particularly § 32-6-3 and § 32-6-5.

“5. In the circumstances of this case, should the question of whether the defendants’ conduct amounted to willful or wanton acts or ordinary negligence be determined by the court on motion for summary judgment or should it be determined by a trier of fact?”

These issues will be discussed as they are presented, beginning with a short discussion of the Brindamour case on which the motion justice’s ruling was based. Further facts will be supplied as may be necessary to deal with these issues.

Brindamour v. City of Warwick, 697 A.2d 1075 (R.I.1997)

Colleen Marie Brindamour was killed at approximately midnight on a midsummer evening in 1993 when a car in which she was a passenger skidded off a road located within a city-owned park and slammed into a tree head-on. See Brindamour, 697 A.2d at 1076. Brindamour’s mother, Rose Brindamour, filed suit against the City of Warwick, alleging that the city was negligent in failing to maintain the park and its roadways in a safe manner. The park was closed at the time of the accident. See id. We held that because Brindamour was in the park after hours, she was a trespasser, and that the city owed to trespassers only the duty to refrain from wanton or willful conduct. See id. at 1077.

For purposes of this opinion, we shall assume without deciding that all three defendants had the same relationship to the decedent and that there was no distinction among them with respect to the duty owed him. We make this assumption even though counsel for the university has argued vigorously that its duty concerning the Cliff Walk was superseded by the authority exercised over the pathway by the City of Newport and by the state. We also recognize that the state has argued that its duty varied from that of the city. We do not believe that it is necessary in this context to resolve those contentions.

I

Was the decedent a trespasser?

Initially, plaintiffs argue that Brindam-our does not apply, and that there is a genuine issue of material fact about whether the decedent was a trespasser at the time of the accident. Pursuant to Newport City Ordinance § 12.32.010(C), the Cliff Walk is “closed for public use between nine p.m. and six a.m. of the following day, daily, and no person shall go upon such public areas during the hours of closing * * * except that the Cliff Walk shall remain open for the purpose of access to the water for fishing.” The plaintiffs argue that in Brindamour, it was an uncontested fact that the plaintiff was a trespasser. The plaintiffs argue, however, that in the instant case, the decedent had no way of knowing that the walk closed at a particular time every night. The plaintiffs argue that despite the fact that a city ordinance prohibits people from being on the walk after hours, unless for the purpose of fishing, only two signs posted on either end of the walk notify people of the hours that the walk is open to the public. The plaintiffs argue that such notice is insufficient, as there are numerous other unrestricted entrance points along the walk, which stretches approximately 18,000 feet along the Atlantic Ocean.

However, we recently rejected a similar argument in Bennett v. Napolitano, 746 A.2d 138 (R.I.2000). In Bennett, we held that an individual who, in violation of a city ordinance, entered a park after closing was a trespasser. Id. at 141. There, the plaintiff, Donald Bennett (Bennett), was walking his dogs at about 2 a.m., along a path in Roger Williams Park in Providence that he had used for about ten years, when a tree limb fell on him. Bennett filed suit against the City of Providence, alleging that the city was negligent in maintaining the park. The city filed a motion for summary judgment, arguing that Bennett was a trespasser because he was in the park after it had closed and that therefore the city owed him only the duty to refrain from willful and wanton conduct. The motion justice granted the motion and entered judgment accordingly. See id. at 140.

On appeal, Bennett argued that he had the implied consent of the city to use the park after hours because he had done so for a period of ten years and because he had been observed on numerous occasions by park rangers and Providence police officers, who had never asked him to leave. See id. We rejected plaintiffs argument. We noted that the park was closed from 9 p.m. to 7 a.m. pursuant to city ordinance, and that an “individual who enters a city park after closing is a trespasser.” Bennett, 746 A.2d at 141. We held that local police and park rangers did not have the authority to waive the provisions of that ordinance by affirmatively or impliedly inviting people into the park after closing. To conclude otherwise would be equivalent to holding that a “landowner who does not aggressively exclude a trespasser thereby assumes an enhanced duty of care towards the trespasser or that a driver who regularly exceeds the authorized highway speed limit while observed by law enforcement officials can claim an implied permission to speed.” Id. at 142.

A strict adherence to this Court’s decision in Bennett leads one to conclude that the decedent was a trespasser even though the Cliff Walk was not so intensively posted as to notify all possible visitors of the hours of operation. The holding in Bennett suggests that the existence of a city ordinance closing a park establishes as a fact that any person in the park after hours is a trespasser, even if the person is completely unaware of the ordinance. Brindamour and Bennett both clearly establish that a person in a park after it has closed is a trespasser. Because the decedent was on the Cliff Walk at about 2 a.m., he was a trespasser as a matter of law. We shall now turn to the questions raised by the Court.

II

The willful and wanton standard

The first and the second questions posed by the Court are interrelated, and, therefore, will be discussed together. These questions ask whether defendants’ conduct rises to the level of willful and wanton conduct (question 1), and whether the duty to refrain from willful and wanton conduct arises before or after the trespasser is discovered (question 2).

Under Rhode Island law, it is well settled that a landowner owes a trespasser no duty except to refrain from willful or wanton conduct. See Bennett, 746 A.2d at 142; Brindamour, 697 A.2d at 1077; Tantimonico v. Allendale Mutual Insurance Co., 637 A.2d 1056, 1061 (R.I.1994). It is also well settled that such a duty arises only after a trespasser is discovered in a position of danger. See Wolf v. National Railroad Passenger Corp., 697 A.2d 1082, 1086 (R.I.1997); Zoubra v. New York, New Haven and Hartford Railroad Co., 89 R.I. 41, 44, 150 A.2d 648, 644-45 (1959); New England Pretzel Co. v. Palmer, 75 R.I. 387, 394, 67 A.2d 39, 43 (1949).

In Wolf, 697 A.2d at 1084, a young boy suffered fatal injuries when he was struck by a train as he was attempting to cross a trestle that spanned an inlet of the Narragansett Bay. The plaintiff, Warren Wolf, the administrator of the young boy’s estate, filed a wrongful-death action against the railroad and its engineer, alleging negligent design and maintenance of the railroad trestle and its surrounding areas. The railroad moved for summary judgment, arguing that the boy was a trespasser, and accordingly, the railroad owed him only a duty to refrain from willful and wanton injury. See id. at 1084-85. A Superior Court justice granted the railroad’s motion and entered a final judgment in its favor. See id. at 1085. We affirmed the judgment, holding that because the boy was a trespasser, the railroad owed him no duty except to refrain from willful or wanton injury after his trespass was discovered. See id. at 1086. Accordingly, the duty to refrain from willful and wanton conduct did not arise until the boy was discovered by the railroad engineer; by that time, however, “there was simply not enough time for the train to stop and thereby prevent this catastrophe.” Id.

The plaintiffs argue, however, that the holding of the cases above should not be extended to the case at bar. Rather, plaintiffs urge the Court to accept the rule set forth in the Restatement (Second) Torts, § 334 (1965), which provides as follows:

“A possessor of land who knows, or from facts within his knowledge should know, that trespassers constantly intrude upon a limited area thereof, is subject to liability for bodily harm there caused to them by his failure to carry on an activity involving a risk of death or, serious bodily harm with reasonable care for their safety.”

Under plaintiffs’ definition, the decedent’s status as a discovered trespasser, versus an undiscovered trespasser, would be irrelevant.

Section 334 of the Restatement is analogous to the “beaten path exception” available under the common law. “The defendant in such instances is liable to a trespasser injured while using a limited area containing an unreasonable risk of harm.” Mariorenzi v. Joseph DiPonte, Inc., 114 R.I. 294, 302 n. 2, 333 A.2d 127, 131 n. 2 (1975). This theory, which turns on a landowner’s knowledge of the use of his land by trespassers, however, has not been accepted by this Court. In Mariorenzi, this Court eliminated the distinction that the common law drew among invitees, licensees, and trespassers. Id. at 307, 333 A.2d at 133. Nineteen years later, we rejected the holding of Mariorenzi and restored the distinction between invitees and trespassers. See Tantimmico, 637 A.2d at 1061. Save for the aberration of Mariorenzi, this Court has steadfastly held that a landowner owes a trespasser no duty until he or she is actually discovered in a position of peril. See Wolf, 697 A.2d at 1086; Zoubra, 89 R.I. at 44, 150 A.2d at 644-45; Previte v. Wanskuck Co., 80 R.I. 1, 3, 90 A.2d 769, 770 (1952); New England Pretzel Co., 75 R.I. at 394, 67 A.2d at 43.

For example, in Zoubra, the plaintiff alleged that “her presence on [the railroad] tracks in the exercise of due care on her part raised a duty on [the railroad’s] part not to willfully or wantonly injure her if it ‘knew or in the exercise of reasonable care would have known’ of her presence.” Zoubra, 89 R.I. at 45, 150 A.2d at 645. The majority held, however, in sustaining the trial court, which found the declaration insufficient as a matter of law, that the law does not impose upon a landowner any duty toward a trespasser unless it has first discovered him or her in a position of peril, even though there was an allegation that the defendant knew or should have known of the presence of people on the crossing. We held that a landowner is “ ‘under no duty to keep a lookout for trespassers. Their probable presence on the tracks is not such a circumstance which the law requires a railroad to anticipate and reasonably guard against.’ ” Id. at 45—46, 150 A.2d at 645; see also Wolf, 697 A.2d at 1086.

The plaintiffs also argue that the holdings of the cases cited above are specific to railroad trespassers, and that they do not apply to the instant case. This argument, however, cannot be accepted. We are not persuaded that this Court should promulgate special rules for different types of landowners. Such fragmentation of duties would create chaos in the attempted application of rules wherein consistency is essential.

Furthermore, although the above cases relate specifically to railroad properties, support for extending the proposition beyond railroad cases exists in G.L.1956 § 32-6-5 and in previous decisions of this Court. Section 32-6-5, a provision of the Public Use of Private Lands statute, provides in pertinent part as follows:

“(a) Nothing in this chapter limits in any way any liability which, but for this chapter, otherwise exists:

“(1) For the willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity after discovering the user’s peril * * (Emphasis added.)

Under Rhode Island statutory law, a landowner owes no duty to a trespasser unless the trespasser first is discovered in a position of peril. Even though this statute may not apply to the public entities involved in the case at bar, it represents a considered policy adopted by our legislature and applies to all types of recreational property.

This Court also has specifically applied the holding of the railroad cases outside of the railroad context. See Tantimonico, 637 A.2d at 1057; Previte, 80 R.I. at 3, 90 A.2d at 770. In Previte, for exam-pie, a wrongful-death action brought by the parents of a young boy who drowned in a pond in Providence, this Court held that “no duty is owed a trespasser by a landowner except to refrain from injuring him wantonly or wilfully after discovering his peril. * * * [W]e see no legal duty imposed on defendant to anticipate the presence of plaintiffs’ son as a trespasser on its property.” Id. at 3-4, 90 A.2d at 770.¹ Based on the foregoing authorities, it is clear that a landowner does not owe a trespasser any duty until after the trespasser is discovered in a position of peril. Once the trespasser is discovered, the landowner owes the trespasser a duty to refrain from willfully or wantonly injuring the trespasser. Because the decedent in the instant case never was discovered in a position of peril, we need not consider whether defendants’ conduct rose to the level of willful and wanton conduct. The defendants did not owe the decedent any duty.

Ill

The nature of the defective condition of the land

The third question posed by the Court asks whether liability arises in light of the nature of the defective condition of the land. The plaintiffs argue that the overall condition that led to the decedent’s death was the paved nature of the Cliff Walk. Therefore, plaintiffs argue that even though the precise area of the ground from which the decedent fell was a “natural condition” of the land, the paved nature of the walk rendered it an artificial condition, thereby imposing liability pursuant to the Restatement (Second) Torts § 337, which provides:

“A possessor of land who maintains on the land an artificial condition which involves a risk of death or serious bodily harm tó persons coming in contact with it, is subject to liability for bodily harm caused to trespassers by his failure to exercise reasonable care to warn them of the condition if

“(a) the possessor knows or has reason to know of their presence in dangerous proximity to the condition, and

“(b) the condition is of such a nature that-he has reason to believe that the trespasser will not discover it or realize the risk involved.”

The plaintiffs’ argument vsdth respect to this provision, however, must fail for two reasons — (1) because the precise area from which the decedent fell was a natural condition for which defendants could not be held liable, even if this Court were to adopt the foregoing rule, which we have hitherto declined to do, and (2) even if it were considered an artificial condition, it was a condition of such a nature that a trespasser would discover or realize the risk involved.

The area from which the decedent fell is just northeast of McCauley Hall, the university’s former library. In a police report following the accident, the Newport police described the area as follows:

“I noticed there was a patch of mud measuring approx. 5' square with numerous sneaker and footprints embedded in the mud, a cement slab which rose approx. 8" above the mud, approx. 10" wide on the top surface and then de[s]cended the cliff approx. 6'. The slab appeared to be approx. 7' in length. To the immediate right (south) of the slab there was a hole in the grass which measured approx. 8" square which appeared to be due to erosion which may have also been a factor in this incident. Judging from where the bloodstain on the rock below where the victim landed, it is possible the victim stepped in to this small hole which would have placed him in the logical trajectory to land where the bloodstain appeared.”

The report was accompanied by photographs of the cliff, taken from both the top of the cliff and from the water. Those photographs clearly show a muddy area of earth distinct from the paved path. Further investigation revealed that there had been heavy rains during the preceding weekend that had made the area muddy and slippery.

The area from which the decedent fell is clearly a natural condition of the land. With respect to the duty of care owed by a landowner for natural conditions on the land, we have held that

“the possessor of land owed a trespasser ‘no duty to discover, remedy, or warn of dangerous natural conditions. Perhaps if the possessor sees a trespasser about to encounter extreme danger from such a source, which is known to the possessor and perceptibly not known to the trespasser, there may be a duty to warn (as by shouting). That is about as far as the bystander’s duty to a highway traveler would traditionally go, if indeed it would go that far.’ ” Tantimonico, 637 A.2d at 1057 (quoting 4 Harper, James & Gray, The Law of Torts § 27.3 at 139 (2d ed.1986)).

Upon leaving the paved portion of the path, the decedent in the instant case had to walk an additional five feet or so to reach the edge of the cliff. It is from this edge of the cliff where the decedent fell. That area was clearly a natural condition of the land, and liability for it could not be imposed upon defendants, even pursuant to § 337 of the Restatement (Second) Torts.

Even if the area was considered an artificial condition of the land, plaintiffs’ argument must fail because the conditions of § 337 cannot be met. Specifically, a visitor to the Cliff Walk certainly should be aware of and appreciate the risks that exist along the edge of a cliff that rises approximately sixty to seventy feet from the ocean. The top of the portion of the Cliff Walk from which the decedent fell is approximately fifty-three feet from the rock on which he was fatally struck. The rock itself is five feet from the water’s edge. The plaintiffs argue in the instant case that the decedent, as well as other visitors, would not be aware of the risk because the Cliff Walk is open during parts of the year when it would be dark, and, specifically, because it was dark when the decedent visited the cliff. This fact, however, should increase one’s awareness of the risks associated with the cliff. Indeed, any visitor along the walk in the dark should be that much more cautious, given the height of the cliff and the inability to see adequately where one is stepping.

Accordingly, no liability arises because of the defective condition of the land.

IV

G.L.1956 chapter 6 of title 32

The fourth question posed by the Court concerns the effect of chapter 6 of title 32, particularly § 32-6-3 and § 32-6-5, on the duty owed to the decedent. Chapter 6 of title 32 sets forth liability limitations for the public use of private lands. Section 32-6-3, entitled “Liability of Landowner,” provides that:

“Except as specifically recognized by or provided in § 32-6-5, an owner of land who either directly or indirectly invites or permits without charge any person to use that property for recreational purposes does not thereby.

“(1) Extend any assurance that the premises are safe for any purpose;

“(2) Confer upon that person the legal status of an invitee or licensee to whom a duty of care is owed; nor

“(3) Assume responsibility for or incur liability for any injury to any person or property caused by an act of [sic] omission of that person.”

Section 32-6-5 provides in pertinent part “(a) Nothing in this chapter limits in any way any liability which, but for this chapter, otherwise exists: (1) For the willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity after discovering' the user’s peril * * *.”

The plaintiffs and the state have taken the position that the above provisions do not apply in the instant case because the statute is designed to encourage private properly owners to allow the public to use their land for recreational purposes. The plaintiffs argue that even though § 32-6-2 has been amended to include the state and municipalities as “owners,” the statute in force at the time of the accident did not include such entities. The city argues that the statute was applicable to the state and municipalities before the 1996 amendment pursuant to this Court’s holding in O’Brien v. State, 555 A.2d 334, 338-39 (R.I.1989) (state and/or municipality responsible as a private landowner in certain circumstances).

Regardless of whether the statute is applicable, the duty owed to decedent under the statute would not change in this case. Even under the statute, a landowner owes no duty to a trespasser unless the trespasser is first discovered in a position of peril. See § 32-6-5. Section 32-6-5 provides that liability still exists “(1) [f]or the willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity after discovering the user’s peril * * (Emphasis added.) Therefore, as has been stated, no duty would arise toward the decedent until he had been discovered in a position of peril. It is undisputed that he had not been discovered. ' This rule is simply a'legislative codification of the common law that is enunciated in our cases.

V

Was summary judgment appropriate?

The final question posed by the Court is whether summary judgment was appropriate in the instant case, or whether the issue of willful and wanton conduct should have been determined by the trier of fact.

Summary judgment is appropriate if upon “examination of all the pleadings, affidavits, admissions, answers to interrogatories, and other materials viewed in the light most favorable to the party opposing the motion reveals no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” Sullivan v. Town of Coventry, 707 A.2d 257, 259 (R.I.1998). In the instant case, it is clear that a landowner owes a trespasser no duty except to refrain from willful and wanton conduct after the trespasser has been discovered in a position of peril. Absolutely no evidence has been presented to suggest that the defendants or any of them were aware of the decedent’s position of peril. Accordingly, summary judgment was properly entered.

CONCLUSION

For the foregoing reasons, we conclude that the decedent was an undiscovered trespasser to whom the defendants owed no duty. Accordingly, we deny and dismiss the plaintiffs’ appeal and affirm the judgment of the Superior Court, to which the papers in the case may be remanded.

1 . The holding in Previte v. Wanskuck Co., 80 R.I. 1, 90 A.2d 769 (1952), as it related to an infant trespasser was overruled by this Court's decision in Haddad v. First National Stores, Inc., 109 R.I. 59, 64-65, 280 A.2d 93, 96-97 (1971), in which we adopted the attractive nuisance doctrine. Nevertheless, the Court in Previte faithfully expounded the common law rule concerning all trespassers.