                             IN THE SUPREME COURT OF MISSISSIPPI

                                          NO. 2001-CA-00802-SCT



SHIRLEY ANNETTE PINNELL
v.
PATSY BATES

DATE OF JUDGMENT:                                5/4/2001
TRIAL JUDGE:                                     HON. R. I. PRICHARD, III
COURT FROM WHICH APPEALED:                       JEFFERSON DAVIS COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                          PHILIP DAVID BRIDGES
ATTORNEYS FOR APPELLEE:                          MATTHEW D. MILLER

                                                 S. ROBERT HAMMOND, JR.
NATURE OF THE CASE:                              CIVIL - PERSONAL INJURY
DISPOSITION:                                     REVERSED AND REMANDED - 09/05/2002
MOTION FOR REHEARING FILED:                      9/19/2002
MANDATE ISSUED:



      EN BANC.

      WALLER, JUSTICE, FOR THE COURT:

¶1. While Patsy Bates was in the process of moving into her new house in Carson, Mississippi, she invited
her friend Shirley Annette Pinnell over to visit. Pinnell arrived between 5:00 and 5:30 p.m., and the two
visited with one another, had tea and coffee, cleaned and unpacked. At approximately 9:00 p.m., Pinnell
exited the front door and fell from the concrete steps onto the concrete porch, breaking a finger and her leg.

¶2. Pinnell filed a complaint against Bates in the Circuit Court of Jefferson Davis County, alleging that Bates
was negligent in failing to warn her of the slippery steps, to provide a hand rail, to provide sufficient lighting,
and to reduce the slipperiness of the steps. Bates filed a motion for summary judgment, alleging that Pinnell
was a licensee rather than an invitee and that Pinnell had shown no evidence of willful and wanton conduct
on the part of Bates. The circuit court granted the motion, finding, as a matter of law, that Pinnell was a
licensee, and that Bates owed no duty to Pinnell as a licensee. On appeal, we refuse to abolish the common
law distinctions between licensee and invitee. However, we find that a jury question was created as to
whether Pinnell was a licensee or an invitee. We therefore reverse and remand the grant of summary
judgment to Bates.

                                                 DISCUSSION
      I. WHETHER THE CIRCUIT COURT ERRED IN GRANTING SUMMARY
      JUDGMENT IN FAVOR OF BATES.

¶3. We decline to accept Pinnell's invitation to abolish the legal distinctions between licensees and invitees.
Eliminating the distinction curtails the right of unbridled use of private property. The concept that "a man's
home is his castle" is the shield of protection for the owner of the humblest one-room shack as well as the
owner of a large estate.

¶4. Homeowners(1) would be exposed to greater liability and would have to shoulder a heavier burden.
Worse still, a jury would have the power to decide whether a homeowner has arranged the living room
furniture or maintained his yard in a reasonable manner, purchased the correct "non-slip" flooring or
contracted with the correct construction crew to repair the home.

¶5. The distinction between a business visitor, heretofore considered an invitee, and a social visitor,
heretofore considered to be a licensee, would be abolished, and the duty owed to a social guest would be
identical to the duty owed to a business invitee. Eliminating homeowners' protection from liability for injuries
sustained by social guests would impose on the homeowners the same standard and duty a commercial
enterprise such as Wal-Mart owes to its customers. However, in reality, there are enormous differences
between businesses and residences:

      Businesses extend invitations to prospective customers, clients, etc., to come to their places of
      business for commercial purposes. Persons so coming are, for the most part, personally unknown to
      those extending the invitation. It is anticipated these invitees will roam freely about the public areas of
      businesses, and a part of the cost of doing business is providing reasonably safe premises. These
      establishments are, ordinarily, professionally designed, built, and equipped. Safety and convenience
      account for much of their sterile uniformity.

      Residences are designed to please the homeowners and meet their needs and wants. A residence
      reflects the homeowners' individuality and is equipped and operated by the homeowners according to
      how they want to live. We live in the age of the do-it-yourselfer. Few homes would meet OSHA's
      standards, and few individuals would desire to live in such a home. Modern businesses do not have
      polished hardwood floors, throw rugs, extension cords, rough flagstone paths, stairways without
      handrails, unsupervised small children, toys on the floor, pets and all the clutter of living - homes do.
      There are good reasons behind the old adage that most accidents occur in the home.

Jones v. Hansen, 867 P.2d 303, 317-18 (Kan. 1994) (McFarland, J., dissenting).

¶6. There is no compelling reason to change our time-honored law on premises liability now. The
distinctions between licensee and invitee have been developed over many years and are grounded in reality.

¶7. There appears to be little change in the number of states that have chosen to abolish the common law
distinctions between invitees and licensees since our review made in the case of Little v. Bell, 719 So. 2d
757, 762 (Miss. 1998). This lack of meaningful change confirms a reversal of "the trend" of states to
abandon the distinctions between invitees and licensees discussed by Professor Keeton in 1984:

      [The failure of more states to join the "trend" of abolishing the distinctions] 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
      towards invitations to jettison years of developed jurisprudence in favor of beguiling legal panacea.

W. P. Keeton, Prosser and Keeton on the Law of Torts § 64 (5th ed. 1984).

¶8. As of 2001, it appears that the states are at best evenly divided on whether to continue to recognize the
common law distinctions.(2) However, of those abolishing the distinctions, some states such as Louisiana still
look to the traditional status distinctions in deciding cases. See, e.g., Boycher v. Livingston Parish Sch.
Bd., 716 So. 2d 187, 191 n.3 (La. 1998) ("Although the common law classifications of invitee-licensee-
trespasser are not determinative of liability, . . the plaintiff's status has a bearing on the question of liability.")

¶9. Since 1982, the following states have expressly rejected the abrogation of the traditional classifications:
Alabama (federal court applying Alabama law) (1984); Arkansas (1988); Colorado (1991); Connecticut
(1992); Florida (1982); Georgia (1997); Idaho (1987); Indiana (1982); Maryland (1984)(3); Michigan
(1999); Mississippi (2000); Missouri (1993); New Jersey (federal court applying New Jersey law) (1999);
Ohio (1988); Oklahoma (1985); Oregon (2000); Pennsylvania (1989); Texas (1985); and Washington
(1986). See Vitauts M. Gulbis, Annotation, Modern Status of Rules Conditioning Landowner's Liability
Upon Status of Injured Party as Invitee, Licensee, or Trespasser, 22 A.L.R.4th 294 (Supp. 2001).(4)

¶10. The following states not mentioned in the Annotation have retained the traditional common law
distinctions: Arizona (Woodty v. Weston's Lamplighter Motels, 830 P.2d 477, 480 (Ariz. 1992) ("In
Arizona, the particular duty of care owed by a landowner to an entrant on his or her land is determined by
the entrant's status as an invitee, licensee or trespasser."); Delaware (Kovach v. Brandywine Innkeepers
Ltd. P'ship, 2000 WL 703343 (Del. Super. Ct. 2000) ("In determining a given plaintiff's status, Delaware
Courts utilize the classifications set forth in Restatement (Second) of Torts (1965) [: possessors,
trespassers, licensees, or invitees]."); South Carolina (Sims v. Giles, 541 S.E.2d 857, 861 (S.C. 2001)
("South Carolina recognizes four general classifications of persons who come on premises: adult
trespassers, invitees, licensees and children. Different standards of care apply depending [on the status of
the entrant]."); South Dakota (Musch v. H-D Elec. Coop., Inc., 460 N.W.2d 149, 151 (S.D. 1990)
("South Dakota recognize[s] the traditional common law categories for those who enter onto land and are
injured: trespasser, licensee and invitee."); Virginia (Franconia Assocs. v. Clark, 463 S.E.2d 670, 672-
73 (Va. 1995) (Delineating different duties to invitees, licensees and trespassers); and Vermont (Buzzell v.
Jones, 556 A.2d 106, 108 (Vt. 1989) (Delineating different duties to invitees, licensees and trespassers).(5)

¶11. The Little Court agreed with the Missouri Supreme Court's finding that time-honored precedent has
served us well in balancing the interests of possessors of land with those who enter thereon:

      The contours of the legal relationship that result[ ] 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.

Carter v. Kinney, 896 S.W.2d 926, 930 (Mo. 1995).

¶12. Furthermore, the legislative branch should be addressing this issue rather than the judicial branch. The
legislative branch sets public policy and the judicial branch interprets tests the constitutionality of the public
policy enactment. Abolishing the distinctions between invitees and licensees is a matter which involves a
balancing, or a rebalancing, of the respective rights and duties of those who own, lease or occupy land or
home, and of the rights and duties of those who enter on such land or home and are injured. The legislative
process insures the widest possible input of individuals or groups affected or concerned in the establishment
of an appropriate public policy on issues of public concern.

¶13. If the judiciary takes it upon itself to abolish the distinctions, an opportunity for public participation in
the decision-reaching process would not be provided and the Court would be making a ruling which is
based only on the briefs submitted by the parties. The result reached by the majority would determine the
public policy and affects the rights and duties of very nearly all of the citizens of our state. See generally
Antoniewicz v. Reszcynski, 236 N.W.2d 1, 12-18 (Wis. 1975) (Hansen, J., dissenting).

¶14. Applying the licensee/invitee distinction to the case at bar, we find that a factual dispute exists as to the
licensee/invitee status of Pinnell. In Hall v. Cagle, 773 So. 2d 928 (Miss. 2000), Hall alleged she was at
the Cagles' home to assist with moving and unpacking, a service which she performed for Cagle's benefit.
While the occasion here of Pinnell's visit may have been social, Pinnell helped out with some housework and
"put[ting] some things away" because Bates was having back trouble.

¶15. We have held that a visitor may be an invitee where he comes to the home of the occupant, not for
business purposes, but, nevertheless, for the occupant's benefit. Id. at 929 (citing Minor v. Eng'g Serv.
Co., 304 So. 2d 45, 48 (Miss. 1974)).

¶16. While the facts in the case sub judice are not precisely "on all fours" with the facts in Hall or Minor,
Pinnell, once on the premises, performed services for Bates's benefit, and a jury question was created as to
the issue of whether she was an invitee or a licensee.

                                                CONCLUSION

¶17. Because a jury question exists as to whether Pinnell was an invitee or a licensee, the Jefferson Davis
Circuit Court's judgment is reversed, and this matter is remanded for further proceedings in accordance
with this opinion.

¶18. REVERSED AND REMANDED.

      PITTMAN, C.J., SMITH, P.J., COBB, EASLEY AND CARLSON, JJ., CONCUR.
      McRAE, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY DIAZ
      AND GRAVES, JJ.

      McRAE, PRESIDING JUSTICE, DISSENTING:

¶19. Why do we consider the status of Pinnell as she was leaving Bates's home when these two ladies were
enjoying one another's friendship and fellowship and were helping each other? Why go through the legal
maze to make the distinction and determine the standard when a reasonable person in like circumstances
standard would suffice?

¶20. One can only wonder why there is an issue of whether Pinnell was an invitee or licensee. Pinnell was in
the homeowner's home for approximately four hours visiting Bates. She was leaving the premises when she
fell and broke her finger and leg on the concrete porch. The standard should be were those steps in the
proper condition under like or similar circumstances of a reasonable person, not whether if she was invited
to the premises or whether the homeowner should have known the steps were in bad condition and only to
warn the person who is visiting them. The issue is not a jury question of whether she was a licensee or
invitee. The issue in determining negligence should simply be was there reasonable care under the
circumstances just as in any other negligence case.

¶21. The majority states that :

      If the judiciary takes it upon itself to abolish the distinctions, an opportunity for public participation in
      the decision-reaching process would not be provided and the Court would be making a ruling which is
      based only on the briefs submitted by the parties. The result reached by the majority would determine
      the public policy and affects the rights and duties of very nearly all of the citizens of our state. See
      generally Antoniewicz v. Reszcynski, 236 N.W.2d 1, 12-18 (Wis. 1975) (Hansen, J., dissenting).

¶22. However, the majority fails to recognize that it was this Court, without the input of its citizens, which
created the archaic fiction of licensee and invitee. This Court, in its process of developing its common law in
this State, created this archaic fiction years ago in which it set up the licensee and invitee standards which
have only caused confusion and complicated the primary issue of negligence. For a trial court to instruct a
jury on the "issue of licensee or invitee" before it can reach the issue of negligence and how these standards
apply in these circumstances does nothing for our legal system. This Court's fiction creates a morass. It is
time to resolve premises liability cases in a more modern and just fashion as has been done by practically
the majority of the states that have abolished this same old feudalistic archaic fiction. We should admit our
errors and correct them. Now is the time.

¶23. Pinnell should not be classified as either an invitee or a licensee in this case. It is evident that with the
passage of time the feudal status classifications have caused much confusion throughout the legal community,
especially in light of our comparative negligence standard. The circuit court has asked for clarification on the
issue, but the majority does not oblige. Instead, the confusion continues. I disagree with the majority likening
commercial enterprises to homeowners. Therefore, I would abolish the archaic classifications this Court
created and adopt the reasonable person in like circumstances standard which we apply in any other
negligence case. For these reasons, I dissent.

¶24. While the same standard would apply in any negligence situation, we must not forget that there are
varying degrees of reasonableness. The standard that should be carried over into premises liability is that
landowners, and businesses, should act as "reasonable persons in like circumstances." What is reasonable
for a homeowner is certainly different from what is expected of a business such as a Wal-Mart. "Like
circumstances" is the key. Wal-Mart's circumstances, are certainly distinct from those of a homeowner. The
majority's explanation of the differences between a business and a residence taken from Jones v. Hansen,
supra, says it all. Further, Black's Law Dictionary defines reasonable as "[f]air, proper, or moderate under
the circumstances" and states that "[t]he reasonable person acts sensibly, does things without serious
delay, and takes proper but not excessive precautions." Black's Law Dictionary 1018 (Abridged 7th ed.
2000) (emphasis added). Implementing the reasonable person in like circumstances standard would not
abrogate protections or create heavier burdens for the homeowner as the majority suggests. While the
standard is the same and the application will be the same, the circumstances in negligence cases are seldom
the same, especially when comparing a business to a residence. There is no longer a need for class
distinctions for a jury to determine what is reasonable in a given situation.

¶25. We require people to behave as reasonably prudent people in almost every other area of tort law. It
makes sense to require the same conduct in premises liability. The United States Supreme Court has
spoken to this very issue in admiralty which is analogous to our premises liability cases. See Kermarec v.
Compagnie Generale Transatlantique, 358 U.S. 625, 79 S.Ct. 406, 3 L.Ed. 2d 550 (1959). The
Court very succinctly noted the problem with the archaic distinctions.

      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 the circumstances.

Id. at 630-31.(6)

¶26. In line with Kermarec, over half of the states have either completely abolished the common law
distinctions or have at least abolished the invitee/licensee classifications and maintained the common law
trespasser distinction. However, the majority states that there has been little change in the number of states
to abolish the common law distinctions and that there is a "reversal of the trend." I suppose that changes in
the laws of over half of the states is not indicia of the movement.

¶27. Some of the states that have abolished the classifications altogether are as follows: Webb v. City and
Borough of Sitka, 561 P.2d 731 (Alaska 1977) (superseded in part by statute as explained in Alaska v.
Shanti, 835 P.2d 1225, 1227 (Alaska 1992)); Rowland v. Christian, 443 P.2d 561 (Cal. 1968)
(superseded in part by statute as explained in Calvillo-Silva v. Home Grocery, 968 P.2d 65, 71-72 (Cal.
1998)); Pickard v. City and County of Honolulu, 452 P.2d 445 (Haw. 1969); Keller by Keller v.
Mols, 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); Limberhand v. Big Ditch Co., 706 P.2d 491 (Mont. 1985); Moody v. Manny's Auto
Repair, 871 P.2d 935 (Nev. 1994); Ouellette v. Blanchard, 364 A.2d 631 (N.H. 1976); Basso v.
Miller, 352 N.E.2d 868 (N.Y. 1976); Nelson v. Freeland, 507 S.E.2d 882, 866-67 (N.C. 1998).

¶28. Some of the states abrogating the licensee/invitee distinction and/or implementing the reasonableness
standard while maintaining the trespasser classification are: Smith v. Arbaugh's Rest., Inc., 469 F.2d 97
(D.C. Cir. 1972); Wood v. Camp, 284 So.2d 691, 696 (Fla. 1973) ("eliminat[ing] the distinction between
commercial (business or public) visitors and social guests upon the premises, applying to both the single
standard of reasonable care under the circumstances"); Jones v. Hansen, 867 P.2d 303 (Kan. 1994);
Poulin v. Colby College, 402 A.2d 846 (Me.1979); Mounsey v. Ellard, 297 N.E.2d 43 (Mass. 1973);
Peterson v. Balach, 199 N.W.2d 639 (Minn. 1972); Heins v. Webster County, 552 N.W.2d 51 (Neb.
1996); Ford v. Board of County Comm'rs of the County of Dona Ana, 879 P.2d 766 (N.M. 1994);
O'Leary v. Coenen, 251 N.W.2d 746 (N.D.1977); Tantimonico v. Allendale Mut. Ins. Co., 637
A.2d 1056 (R.I.1994); Hudson v. Gaitan, 675 S.W.2d 699 (Tenn.1984); Mallett v. Pickens, 522
S.E.2d 436 (W.Va. 1999); Antoniewicz v. Reszcynski, 236 N.W.2d 1 (Wis. 1975); Clarke v.
Beckwith, 858 P.2d 293 (Wyo.1993).

¶29. Like the incoming tide, the evolution of the law cannot be denied.(7)

¶30. Moreover, the majority forgets that this Court, not the Legislature, adopted these distinctions years
ago. In fact, the Legislature has continually declined to address this subject. If these distinctions were
created by statute, then it would be for the Legislature to address. However, these distinctions were created
by this Court as a tool for interpreting and applying our negligence principles. Through our inherent powers,
we created these classifications which no longer serve their intended purpose. Through our inherent powers,
we can abolish them. Therefore, I would reverse the grant of summary judgment on the licensee basis and
remand with instruction that the case be tried before a jury applying the reasonable person in like
circumstances standard.

¶31. Accordingly, I dissent.

      DIAZ AND GRAVES, JJ., JOIN THIS OPINION.

1. For purposes of this analysis, the term "homeowner" includes all possessors of land, including those who
occupy, lease or own land.

2. Although Presiding Justice McRae's dissent characterizes the District of Columbia's treatment of
premises liability as having "abolished the classifications altogether," a closer look shows that the District of
Columbia actually has adopted a "hybrid" standard. The case cited to support that characterization,
Smith v. Arbaugh's Rest., 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), has no precedential value. See, e.g., Foshee v. Consol. Rail Corp., 849
F.2d 657, 660 (D.C. Cir. 1988) (Wald, C.J., dissenting) (Smith is not binding on the newly reorganized
District of Columbia Court of Appeals) (A landowner is responsible only for intentional, wanton or willful
injury to trespassers, but the District of Columbia has adopted a "reasonable under the circumstances"
standard for invitee and licensee plaintiffs.).

3. Presiding Justice McRae's dissent, citing Baltimore Gas & Elec. Co. v. Flippo, 705 A.2d 1144 (Md.
1998), lists Maryland as a state which has "abrogat[ed] the licensee/invitee distinction and implement[ed]
the reasonableness standard while maintaining the trespasser classification." However, in that case, the
Maryland court states as follows:

      With regard to premises liability, this Court has "long recognized that a possessor of property owes a
      certain duty to a person who comes in contact with the property. The extent of this duty depends
      upon the person's status while on the property." Historically, in Maryland, four classifications have
      been recognized: invitee, licensee by invitation, bare licensee, and trespasser. An invitee is a person
      "on the property for a purpose related to the possessor's business." The possessor owes an invitee a
      duty of ordinary care to keep the possessor's property safe. A licensee by invitation is a social guest
     to whom the "possessor owes a duty to exercise reasonable care to warn the guest of dangerous
     conditions that are known to the possessor but not easily discoverable." A bare licensee is a person
     on the property with permission, but for his or her own purposes; the possessor owes no duty except
     to refrain from willfully or wantonly injuring the licensee and from creating "'new and undisclosed
     sources of danger without warning the licensee.'" "Finally, a trespasser is one who intentionally and
     without consent or privilege enters another's property." As for a trespasser, even one of tender years,
     no duty is owed except that the possessor may not willfully or wantonly injure or entrap the
     trespasser.

705 A.2d at 688-89 (citations omitted).

4. The Annotation also listed Illinois, Kansas, Kentucky, Minnesota, Montana, North Carolina and West
Virginia as having expressly rejected the abrogation of the traditional classifications, but independent
research has shown to the contrary.

5. The following states have adapted some variant of reasonable care in the circumstances to a lawful visitor
on property: Alaska, California, Hawaii, Illinois, Iowa, Kansas, Kentucky, Louisiana, Maine,
Massachusetts, Minnesota, Montana, Nebraska, Nevada, New Hampshire, New Mexico, New York,
North Carolina, North Dakota, Rhode Island, Tennessee, Utah, Wisconsin, West Virginia and Wyoming.

6. See also Hall v. Cagle, 773 So.2d 931 (McRae, J., concurring) (citing Skelton ex rel. Roden v.
Twin County Rural Elec. Ass'n, 611 So.2d 931, 940 (Miss. 1992) (Banks, J., dissenting)).

7. The invitee and licensee distinctions are rooted in the common law. For a comprehensive discussion on
the history and basis of the distinctions, see Hall v. Cagle, 773 So.2d 928 (Miss. 2000) (McRae, J.,
concurring) (citations omitted).
