Opinion
No. 25744
April 28, 2004
Appeal from the Circuit Court of Mississippi County, Honorable David A. Dolan, Judge.
Albert C. Lowes, Attorney for Appellants.
Fred H. Thornton, III, Attorney for Respondent.
Before Shrum, Parrish, and Bates JJ.
This is a premises liability case in which Plaintiff (admittedly a trespasser) was injured when he rode a four-wheeler into a wire cable that Defendants had stretched across a passageway through their farm. The passageway was in a wooded area of the farm; it was part of the property through which vehicles and equipment could be moved to reach the tillable portion of the farm.
A jury awarded Plaintiff damages. Defendants appeal, urging inter alia, that Plaintiff did not make a submissble case because (1) his cause of action is grounded on a Restatement provision that Missouri courts have never approved and (2) the Restatement provision in question is contrary to long-standing Missouri law. Finding merit in this argument, this court reverses.
DUTY OWED TRESPASSERS: MISSOURI RULE AND RESTATEMENT VIEW
Plaintiff does not dispute he was trespassing on Defendant's land when he hit the cable. Moreover, he acknowledges the general rule in Missouri is that a possessor of land is not liable for harm caused to a trespasser by failure to put land in a reasonably safe condition. See Seward v. Terminal R.R. Assn , 854 S.W.2d 426, 428 (Mo.banc 1993); McVicar v. W.R. Arthur Co. , 312 S.W.2d 805, 812 (Mo. 1958); Kelly v. Benas , 267 Mo. 1, 116 S.W. 557, 599 (1909).
Even so, Plaintiff's position is that his case falls within a clearly defined exception to the general rule of "no duty" to trespassers. Plaintiff's claimed exception to the "no duty" rule is found in RESTATEMENT (SECOND) OF TORTS § 335 (1965), as follows:
"A possessor of land who knows, or from facts within his knowledge should know, that trespassers constantly intrude upon a limited area of the land, is subject to liability for bodily harm caused to them by an artificial condition on the land, if
"(a) the condition
"(i) Is one which the possessor has created or maintains and
"(ii) Is, to his knowledge, likely to cause death or serious bodily harm to such trespassers and
"(iii) Is of such a nature that he has reason to believe that such trespassers will not discover it, and
"(b) the possessor has failed to exercise reasonable care to warn such trespassers of the condition and the risk involved."
FACTS
Burke Dodson ("Dodson") and his wife owned a 420-acre tract commonly known as the "Greenfield" farm. They farmed this land until 1994, whereon they rented it to Defendants.
Defendants were still renting Greenfield on October 7, 2000, when Plaintiff rode a four-wheeler onto the south side of the farm. Upon entering the farm, Plaintiff was riding on a passageway through a wooded area and was headed toward an open field area when he struck a wire cable strung across the passageway.
Dodson had initially cabled the passageway in an effort, albeit an unsuccessful one, to keep people from trespassing on Greenfield. After Defendants rented Greenfield in 1994, the "constant" trespasser problem on the farm continued. To curtail trespasses on their fields and crop land, Defendants cabled the passageway at a wooded location north of the south property line of Greenfield, but before reaching open fields. The cable was stretched between large trees that stood on each side of the passageway.
Because Defendants realized "somebody was going to get clotheslined by the wire cable," they put signs and other warning devices on the cable. Defendants also testified that, although they were "always hanging something" on the cable to warn of its presence, they had problems "keeping warning signs" in place since people "shot up" or otherwise "tore" up the cable warnings.
Plaintiff and three other people with him at the time of the accident testified there was nothing on the cable to warn of its presence on the accident date. Plaintiff estimated his speed at fifteen to twenty miles per hour at impact. He testified he "never saw the cable coming."
A jury returned a verdict for Plaintiff and against Defendants, set Plaintiff's damages at $100,000, and assessed fifty percent of the fault to Plaintiff and fifty percent to Defendants. This appeal by Defendants followed.
DISCUSSION AND DECISION
Defendants' initial and dispositive argument for reversal relies on the general rule "that a possessor of land is not liable for harm caused to a trespasser by failure to put land in a reasonably safe condition." Seward , 854 S.W.2d at 428[5] (citing McVicar , 312 S.W.2d at 812). They argue that since the RESTATEMENT (SECOND) OF TORTS § 335 espouses a theory of recovery for trespassers against possessors of land that has never been adopted by any Missouri court, the general "no duty" rule governs and reversal is mandated. This court agrees.
Historically, the rule in Missouri has been that possessors ordinarily owe no duty to trespassers for conditions on their land which cause injuries to the uninvited. For instance, the Supreme Court of Missouri declared in Kelly , 116 S.W. at 559:
"[T]he landowner or occupant owes no duty to trespassers or volunteers, going upon his land for their own purpose, to maintain it in any particular condition for their benefit. . . . Staub v. Soderer , 53 Mo. 38. . . . [T]respassers take the premises for better or for worse, as they find them, assuming the risk of injury from their condition, the owner being liable only for concealed spring guns, or other hidden traps intentionally put out to injure them, or any form of wilful illegal force used towards them."
The no liability to trespasser rule is not based on the idea that trespassers are bad people who deserve bad things to happen to them; rather, the rule comes from the recognition that possessors of property are entitled to assume that members of the public will not interfere with those parts of the property as to which there is no implied invitation. Cochran v. Burger King Corp. , 937 S.W.2d 358, 365 (Mo.App. 1996). "The intrusion by the trespasser is not to be anticipated, as a matter of law." Id. at 365.
The traditional no duty rule as stated in Kelly , 116 S.W. at 559, is still the law in Missouri when, as here, a trespasser is injured by conditions of the land As recently as 1993, an injured trespasser urged the Supreme Court of Missouri to change that rule by adding RESTATEMENT (SECOND) OF TORTS § 335 as an exception to the no duty rule. Seward , 854 S.W.2d 426. As it had historically done, however, the Court declined that invitation. 854 S.W.2d at 429. In doing so, the Seward court first noted that "no Missouri case has held that a landowner is liable to an adult trespasser for a condition on land" Id. at 429. It then reversed a judgment for the plaintiff by finding that even if it approved the section 335 Restatement provision (which it declined to do), the plaintiff's evidence failed to establish an essential element of a section 335 cause of action, namely, Seward failed to prove that the defendant had some notice that persons constantly intruded upon the particular part of defendant's property where Seward sustained injury. Id. at 429-30.
The disinclination of the Supreme Court of Missouri to affirmatively move away from the traditional rule of no liability when a trespasser's injuries are caused by a land condition (as opposed to a possessor's "activities") is one of long standing. To illustrate, in Blavatt v. Union Elec. Light Power Co. , 71 S.W.2d 736 (Mo. 1934), a trespasser on defendant's property received a fatal electrical shock when he climbed a wall surrounding defendant's substation. There was evidence that for at least a year and a half before the fatal accident, neighborhood boys played handball by hitting the ball against the brick wall surrounding the substation. On this occasion, the handball game involved five participants, with the fifth stationed atop the brick wall. The fifth person's job was to retrieve any ball errantly hit over the wall. The deceased was electrocuted while serving as the retriever. Although the plaintiffs "leaned heavily" on section 205 of the Restatement of Torts, Tentative Draft 4 (predecessor to section 335 at issue here) as an exception to the traditional no liability rule, the court refused to either adopt or reject that view. Id. at 738. Instead, it resolved the case by finding there was "a complete lack of evidence . . . to show that defendant knew or should have known that the boys were in the habit of entering the inclosure to retrieve the handball when it went over the wall." Id. at 738-39.
In contrast with Seward and Blavatt are cases involving Restatement provisions other than section 335 in which the Supreme Court of Missouri approved Restatement views of possessor liability for land conditions, but then concluded from the evidence that the plaintiffs did not make a submissible case. One such case is Harris v. Niehaus , 857 S.W.2d 222 (Mo.banc 1993), decided approximately thirty days after Seward. There, the Court quoted with approval RESTATEMENT (SECOND) OF TORTS § 343 as correctly declaring the standard of care owed by a possessor of land to an invitee, but then concluded that plaintiff's evidence did not establish an essential element of a section 343 cause of action. Specifically, the court ruled plaintiff failed to prove that the dangerous condition on the premises was not open and obvious to anyone on the premises. Id. at 225-28. The Harris decision raises this question: If the Seward court did not intend to leave intact the traditional rule of no duty to trespassers to maintain property in a reasonably safe condition, why did it not adopt the section 335 rule (as the Harris court did for section 343), but find that Seward had failed to prove an essential element of his case (which was the approach taken by Harris in the section 343 analysis)?
The case of Wells v. Goforth , 443 S.W.2d 155, 158 (Mo.banc 1969) reveals a decisional process akin to that used in Harris. In Wells , the Supreme Court of Missouri expressly adopted the RESTATEMENT (FIRST) OF TORTS § 342, which set forth the duty a possessor of land owes to a gratuitous licensee, but rejected the Restatement (Second) versions of section 342. In effect, the Court clearly and unequivocally adopted the rule that a possessor's liability to a gratuitous licensee is predicated upon the proof of the possessor's actual knowledge of the existence of a dangerous condition and actual realization of the risk to which such licensees are exposed, and it rejected the notion expressed by the Restatement (Second) version of section 342 that such licensee could prevail by proving that a possessor should have known of the danger and should have realized the risk. The Wells court then reversed a judgment for the plaintiff, concluding that the plaintiff had failed to prove the "actual knowledge" element as required by the RESTATEMENT (FIRST) OF TORTS § 342. As with Harris , the Wells opinion raises this question: If the Seward court did not intend to leave the traditional no duty rule stand for trespassers injured by conditions of the land, why did it not adopt the section 335 Restatement (Second) rule, but reverse for want of proof of an essential element?
The Wells decision also illustrates that the Supreme Court of Missouri does not necesssarily approve a principle of law simply because it is part of the RESTATEMENT (SECOND) OF TORTS. 443 S.W.2d 158.
We believe the answer is clear. By its repeated refusal to embrace section 335 when given the opportunity to do so, the Supreme Court of Missouri has implicitly left in place the traditional rule, i.e., a possessor of land is not liable to an adult trespasser for a condition on land See Kelly , 116 S.W. at 559.
We find confirmation for this view in Politte v. Union Elec. Co. , 899 S.W.2d 590 (Mo.App. 1995). There, an admitted trespasser was injured while climbing the defendant's high voltage tower. The trial court directed a verdict for the defendant. Id. at 591. In affirming the trial court, the Politte court observed that plaintiff sustained injury because of the "condition of the premises not from affirmative activities conducted thereon;" accordingly, "[u]nder traditional law defendant owed no duty to plaintiff to make the premises safe, whether defendant had knowledge of frequent trespassing or not." Id. at 592. As to Seward , the Politte opinion reads: "We do not interpret Seward as rejecting the traditional rule." Id. As earlier indicated, this court shares that view.
Despite that pronouncement, the Politte court, in what it described as "an abundance of caution," addressed plaintiff's contention that section 335 governed his case. Id at 592-93. After doing so, the court found that even if section 335 applied (a premise the Politte court questioned), the evidence outlined by plaintiff via opening statement clearly showed he could not prove several essential elements of a section 335 cause of action. Id. at 593.
Plaintiff would have this court adopt the RESTATEMENT (SECOND) OF TORTS § 335 and consider the evidence in the light of the standard of care suggested there. To do this, we would have to ignore the Supreme Court of Missouri's long standing rule that possessors of land do not owe a duty to adult trespassers to maintain their land in any particular condition for the benefit of such trespassers. This we cannot do. We hold that under the current status of Missouri law, Plaintiff cannot recover based on the evidence presented; accordingly, the judgment must be reversed.
Having reached this result, no purpose would be served in reviewing the other contentions of the parties. For the reasons stated above, the judgment is reversed.