               IN THE SUPREME COURT OF IOWA
                               No. 07–1586

                            Filed June 5, 2009


VALERIE KOENIG,

      Appellant,

vs.

MARC KOENIG,

      Appellee.


      Appeal from the Iowa District Court for Polk County, Robert B.

Hanson, Judge.



      Plaintiff appeals judgment in negligence suit seeking abandonment

of the common-law classifications for premises liability. REVERSED.



      Marc S. Harding, Des Moines, for appellant.



      Jason T. Madden and Amy R. Teas of Bradshaw, Fowler, Proctor &

Fairgrave, P.C., Des Moines, for appellee.
                                     2

APPEL, Justice.

      The question of whether Iowa should retain the traditional

common-law distinction between an invitee and a licensee in premises

liability cases has sharply divided this court in recent years.     In this

case, we hold that the common-law distinction between an invitee and a

licensee no longer makes sound policy, unnecessarily complicates our

law, and should be abandoned.

      I. Background Facts and Proceedings.

      Valerie Koenig visited the home of her son, Marc Koenig, when he

was ill in order to care for him and help with household chores. After

doing laundry, she fell on a carpet cleaner hose while carrying clothes to

a bedroom.    As a result of the fall, Valerie was injured and required

medical care, including the placement of a plate in her leg.

      Valerie filed a petition alleging that Marc’s negligent conduct

caused her permanent injuries, pain and suffering, loss of function, and

substantial medical costs. Marc generally denied her claim and further

asserted that Valerie was negligent in connection with the occurrence

and that she failed to mitigate her damages.

      At trial, Valerie offered evidence that Marc was aware that the

carpet cleaner hose was broken but did not warn her of the defect.

Valerie further offered evidence that the color of the hose blended in with

the color of the carpet, thereby making it difficult to see, and that one of

two lights in the hallway near where she fell was not working, which

lessened the light available to detect the hazard. Marc offered evidence

that the broken hose was an open and obvious hazard and that Valerie

did not turn on the light which was functioning in the hallway area.

      At the close of trial, Valerie sought a general negligence instruction

rather than the uniform jury instruction on the duty of care owed to a
                                       3

licensee.    The district court found that the law in Iowa on the proper

instruction in a premises liability case was unsettled, declined to give the

general negligence instruction sought by Valerie, and instead used the

uniform jury instruction for licensees.

       The jury returned a verdict in favor of Marc.        After the district

court entered judgment, Valerie filed a motion for a new trial based on

the district court’s failure to use her proposed general negligence

instruction. Although the district court stated that it did not necessarily

disagree with Valerie’s position, it denied the motion. The district court

noted that “Iowa appellate courts have not yet ruled that continued use

of the stock instructions for premises liability cases constitutes error.”

Further, the district court questioned whether Valerie could demonstrate

that prejudice occurred as a result of the use of the uniform instructions.

Valerie filed a timely notice of appeal.

       II. Standard of Review.

       We review challenges to jury instructions for correction of errors at

law.   Boyle v. Alum-Line, Inc., 710 N.W.2d 741, 748 (Iowa 2006).         We

must determine whether the jury instructions presented “are a correct

statement of the applicable law based on the evidence presented.” Le v.

Vaknin, 722 N.W.2d 412, 414 (Iowa 2006).

       “Error in giving or refusing to give” a jury instruction does not

warrant reversal unless it results in prejudice to the complaining party.

Wells v. Enter. Rent-A-Car Midwest, 690 N.W.2d 33, 36 (Iowa 2004).

Prejudice,    however,   is    presumed    and   reversal   required   “when

instructions are conflicting and confusing.” Waits v. United Fire & Cas.

Co., 572 N.W.2d 565, 575 (Iowa 1997); Moser v. Stallings, 387 N.W.2d

599, 605 (Iowa 1986).         Similarly, “[w]hen jury instructions contain a

material misstatement of the law, the trial court has no discretion to
                                    4

deny a motion for a new trial.” Benn v. Thomas, 512 N.W.2d 537, 539

(Iowa 1994); Brown v. Lyon, 258 Iowa 1216, 1222, 142 N.W.2d 536, 539

(1966). An instruction which allocates the burden of proof is a material

instruction. Kaspar v. Schack, 237 N.W.2d 414, 417 (Neb. 1976).

      III. Discussion.

      A. Origin and Rationale of Common-Law Distinctions.              The

premises liability trichotomy, which distinguishes between invitees,

licensees, and trespassers, finds its roots in the English common law.

John Ketchum, Note, Missouri Declines an Invitation to Join the Twentieth

Century:   Preservation of the Licensee-Invitee Distinction in Carter v.

Kinney, 64 UMKC L. Rev. 393, 395 (1995). “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.” Kermarec v. Compagnie Generale

Transatlantique, 358 U.S. 625, 630, 79 S. Ct. 406, 410, 3 L. Ed. 2d 550,

554 (1959).    The trichotomy emerged in an era where land ownership

was paramount and the primary source of power, wealth, and

dominance. Nelson v. Freeland, 507 S.E.2d 882, 887 (N.C. 1998). At the

core of the trichotomy was the presumption that landowners generally

were free to act as they pleased within the confines of their own property.

Robert S. Driscoll, Note, The Law of Premises Liability in America:     Its

Past, Present, and Some Considerations for Its Future, 82 Notre Dame L.

Rev. 881, 893 (2006).

      These common-law classifications arose from reluctance “to leave

the determination of liability to a jury ‘composed mainly of potential land

entrants.’ ”   Michael Sears, Comment, Abrogation of the Traditional

Common Law of Premises Liability, 44 U. Kan. L. Rev. 175, 176 (1995)

(quoting Norman S. Marsh, The History and Comparative Law of Invitees,
                                    5

Licensees and Trespassers, 69 L.Q. Rev. 182, 184 (1953)).              The

distinctions, therefore, were
       created to disgorge the jury of some of its power by either
       allowing the judge to take the case from the jury based on
       legal rulings or by forcing the jury to apply the mechanical
       rules of the trichotomy instead of considering the pertinent
       issue of whether the landowner acted reasonably in
       maintaining his land.
Nelson, 507 S.E.2d at 887.

       The trichotomy emerged in a time of tort law far different from our

own.   When the trichotomy was developing, “the principle that a man

should be held responsible for foreseeable damages” was only reluctantly

recognized in a limited number of cases. Id. Today, the situation has

changed dramatically as the concept of negligence is a predominant

concept in our tort law.

       The emergence of negligence law almost immediately conflicted

with the common-law system. Kathryn E. Eriksen, Comment, Premises

Liability in Texas—Time for a “Reasonable” Change, 17 St. Mary’s L.J.

417, 422 (1986). “Common-law courts, however, decided not to replace

the trichotomy with modern principles of negligence law, as they did in

almost all other tort areas, but rather ‘superimposed the new [negligence]

principles upon the existing framework of entrant categories.’ ” Nelson,

507 S.E.2d at 887–88 (quoting Sears, 44 U. Kan. L. Rev. at 176).

       Modern courts that have retained the trichotomy have largely set

forth the traditional justifications: (1) the continued fear of jury abuse;

(2) the fear that by “substituting the negligence standard of care for the

common-law categories, landowners will be forced to bear” the financial

burden of taking precautions such as maintaining adequate insurance

policies; and (3) the need to promote stability and predictability in the

law. Id. at 888.
                                          6

       B. Trend in Other Jurisdictions. The first American blow to the

trichotomy was hurled by the United States Supreme Court. 1                        In

Kermarec, the Court refused to extend the common-law distinctions to

admiralty law. The Court heavily criticized the doctrine, noting:

       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.”

Kermarec, 358 U.S. at 630–31, 79 S. Ct. at 410, 3 L. Ed. 2d at 554–55

(quoting Kermarec v. Compagnie Generale Transaltlantique, 245 F.2d 175,

180 (2d Cir. 1957) (Clark, C.J., dissenting)).

       After Kermarec, the movement away from the common-law

distinctions received a major boost in 1968 with the California Supreme

Court’s decision in Rowland v. Christian, 443 P.2d 561 (Cal. 1968),

abrogated in part by statute as stated in Calvillo-Silva v. Home Grocery,

968 P.2d 65, 72 (Cal. 1998). In rejecting application of the common-law

formulation, the Rowland court noted,

       [W]e are satisfied that continued adherence to the common
       law distinctions can only lead to injustice or, if we are to
       avoid injustice, further fictions with the resulting complexity
       and confusion. We decline to follow and perpetuate such
       rigid classifications . . . although the plaintiff’s status as a
       trespasser, licensee, or invitee may in the light of the facts

       1The creators of the trichotomy proved to also be its first detractors. England
passed the Occupiers’ Liability Act of 1957 effectively eliminating the distinction
between an invitee and licensee from English law. Driscoll, 82 Notre Dame L. Rev. at
885.
                                    7
      giving rise to such status have some bearing on the question
      of liability, the status is not determinative.

443 P.2d at 568. Following Rowland, numerous courts abandoned the
common-law system.     See Smith v. Arbaugh’s Rest., Inc., 469 F.2d 97,

107 (D.C. Cir. 1972); Webb v. City & Borough of Sitka, 561 P.2d 731, 734

(Alaska 1977), abrogated in part by statute as stated in Univ. of Alaska v.

Shanti, 835 P.2d 1225, 1228 n.5 (Alaska 1992); Mile High Fence Co. v.

Radovich, 489 P.2d 308, 314–15 (Colo. 1971), abrogated by statute as

stated in Bath Excavating & Constr. Co. v. Wills, 847 P.2d 1141, 1145

(Colo. 1993); Pickard v. City & County of Honolulu, 452 P.2d 445, 446

(Haw. 1969); Cates v. Beauregard Elec. Coop., Inc., 328 So. 2d 367, 370–

71 (La. 1976); Limberhand v. Big Ditch Co., 706 P.2d 491, 496 (Mont.

1985); Moody v. Manny’s Auto Repair, 871 P.2d 935, 942 (Nev. 1994),

superseded by statute as stated in Wiley v. Redd, 885 P.2d 592, 595

(Nev. 1994); Ouellette v. Blanchard, 364 A.2d 631, 634 (N.H. 1976);

Basso v. Miller, 352 N.E.2d 868, 872 (N.Y. 1976); Mariorenzi v. Joseph

DiPonte, Inc., 333 A.2d 127, 131–32 (R.I. 1975), overruled in part by

Tantimonico v. Allendale Mut. Ins. Co., 637 A.2d 1056, 1057 (R.I. 1994);

see also 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 (2008).

      After Rowland, however, a second, more moderate trend began to

emerge in the case law. Instead of abandoning the trichotomy entirely,

some courts began to abandon the distinction between invitees and

licensees, while retaining the trespasser classification.    See Wood v.

Camp, 284 So. 2d 691, 695 (Fla. 1973); Jones v. Hansen, 867 P.2d 303,

310 (Kan. 1994); Poulin v. Colby Coll., 402 A.2d 846, 851 n.5 (Me. 1979);

Mounsey v. Ellard, 297 N.E.2d 43, 51–52 & n.7 (Mass. 1973); Peterson v.
                                      8

Balach, 199 N.W.2d 639, 642 (Minn. 1972); Heins v. Webster County,

552 N.W.2d 51, 57 (Neb. 1996); Ford v. Bd. of County Comm’rs, 879 P.2d

766, 770 (N.M. 1994); Nelson, 507 S.E.2d at 892; O’Leary v. Coenen, 251

N.W.2d 746, 751 (N.D. 1977); Hudson v. Gaitan, 675 S.W.2d 699, 703

(Tenn. 1984), overruled in part on other grounds by McIntyre v. Balentine,

833 S.W.2d 52, 54 (Tenn. 1992); Mallet v. Pickens, 522 S.E.2d 436, 446

(W. Va. 1999); Antoniewicz v. Reszcynski, 236 N.W.2d 1, 11 (Wis. 1975);

Clarke v. Beckwith, 858 P.2d 293, 296 (Wyo. 1993).

      Still other states, including Iowa, limited the common-law system

by refusing to apply the doctrine to child entrants. See Cope v. Doe, 464

N.E.2d 1023, 1028 (Ill. 1984); Rosenau v. City of Estherville, 199 N.W.2d

125, 136 (Iowa 1972). Some courts and the Restatement drew another

exception—imposing a duty of reasonable care upon landowners to warn

a “discovered” or “foreseeable” trespasser of any dangerous condition

which is known by the landowner but not by the trespasser.             See 2

Restatement (Second) of Torts § 337 cmt. b (1979); Appling v. Stuck, 164

N.W.2d 810, 814–15 (Iowa 1969); Latimer v. City of Clovis, 495 P.2d 788,

792 (N.M. Ct. App. 1972) (reversing summary judgment because there

was a genuine issue of material fact as to whether decedent was a

discovered or ordinary trespasser).

      Although a bare majority of states have now departed from the

original trichotomy in some fashion, a number of courts have declined to

abandon the common-law system. See McMullan v. Butler, 346 So. 2d

950, 952 (Ala. 1977); Nicoletti v. Westcor, Inc., 639 P.2d 330, 332 (Ariz.

1982); Bailey v. Pennington, 406 A.2d 44, 47–48 (Del. 1979); Mooney v.

Robinson, 471 P.2d 63, 65 (Idaho 1970); Kirschner ex rel. Kirschner v.

Louisville Gas & Elec. Co., 743 S.W.2d 840, 844 (Ky. 1988); Sherman v.

Suburban Trust Co., 384 A.2d 76, 83 (Md. 1978); Little ex rel. Little v. Bell,
                                    9

719 So. 2d 757, 764 (Miss. 1998); Vega ex rel. Muniz v. Piedilato, 713

A.2d 442, 448–49 (N.J. 1998); Sutherland v. Saint Francis Hosp., Inc.,

595 P.2d 780, 782 (Okla. 1979); Di Gildo v. Caponi, 247 N.E.2d 732, 736

(Ohio 1969); Musch v. H-D Elec. Coop., Inc., 460 N.W.2d 149, 156–57

(S.D. 1990); Buchholz v. Steitz, 463 S.W.2d 451, 454 (Tex. Civ. App.

1971); Tjas v. Proctor, 591 P.2d 438, 441 (Utah 1979).

      In total, the jurisdictions are now split, with a majority of states

departing from the common-law classifications in some manner, and a

substantial minority either rejecting abolition or not taking a recent

position.

      C. Prior Iowa Case Law.       Almost four decades ago this court

noted, “The application of rigid common-law rules (which turn the

liability of the land possessor on the status of the person harmed) in the

context of our complex, industrialized and heavily populated society has

come under increasing criticism.” Rosenau, 199 N.W.2d at 135. Despite

this observation, this court has not yet expressly rejected use of the

common-law system in the intervening years.         See id. (“We observe

common-law classifications of injured parties have proliferated in our

own decisions.”); see also Paul v. Luigi’s, Inc., 557 N.W.2d 895, 897 (Iowa

1997) (explaining court’s reluctance to conclusively establish land

possessor’s duty of care on the basis of injured party’s status); Pottebaum

v. Hinds, 347 N.W.2d 642, 645 (Iowa 1984) (same).

      The question of the continued validity of the trichotomy was

squarely raised in Sheets v. Ritt, Ritt & Ritt, Inc., 581 N.W.2d 602 (Iowa

1998). In Sheets, the plaintiff sued the operators of a motel after she

slipped and fell in the shower area of the ladies’ locker room. Sheets,

581 N.W.2d at 603.     Just as in the case at hand, the Sheets plaintiff
                                    10

sought a general jury instruction on negligence as opposed to the

trichotomy approach. Id. at 604.

      In addressing the issue, a plurality of the court recognized its

longstanding disenchantment with the common-law distinctions.           Id.

The plurality then concluded that this court has not previously abrogated

the trichotomy for the pragmatic determination that the plaintiff had not

suffered harm due to the use of the common-law jury instructions. Id. at

606. The plurality noted the dozens of jurisdictions that had abrogated

the common-law formula, either in whole or in part—abolishing the

distinction between invitees and licensees.     Id. at 605.   Finally, the

plurality concluded that although “adoption of comparative fault [did] not

seem to have been the usual catalyst for abandonment of the common-

law distinctions,” the common-law distinctions must now be abandoned

in Iowa.   The plurality reasoned that “assigning duties to owners or

occupiers of land on the basis of the status of a visitor is . . .

unreasonable and unfair.” Id.

      The Sheets decision, however, was only joined by four justices.

Four other justices concurred in result, determining that the plaintiff was

not prejudiced by the use of the common-law instructions, but remaining

unwilling to abandon the traditional classifications. Id. at 607. Justice

Lavorato took no part, leaving the fundamental issue unresolved.

      A year later, this court reasserted its commitment to the common-

law distinctions. In Richardson v. Commodore, Inc., 599 N.W.2d 693, 695

(Iowa 1999), a bar patron sued the operators of the bar after he was

struck by falling plaster while playing pool.   The issue in Richardson,

however, was not the validity of the jury instructions, but rather whether

there was sufficient evidence to impute knowledge of the dangerous

condition—the sagging plaster ceiling—to the defendants.      Richardson,
                                     11

599 N.W.2d at 697.      This court nevertheless took the opportunity in

Richardson to include the following footnote:

      Although a plurality of the court would abrogate any
      distinction based on the status of the plaintiff, see Sheets v.
      Ritt, Ritt & Ritt, Inc., 581 N.W.2d 602, 603 (Iowa 1998), that
      position has not yet gained the approval of a majority of this
      court. Therefore, the status of the plaintiff continues to be a
      relevant consideration in premises liability law.

Id. at 698 n.3.

      This court next addressed the trichotomy in Alexander v. Medical

Associates Clinic, 646 N.W.2d 74 (Iowa 2002). In Alexander, the plaintiff

trespassed into an undeveloped open field next to the defendant’s office

building to retrieve his sister’s dog. Alexander, 646 N.W.2d at 75. The

plaintiff was injured when, walking in darkness, he fell into a ditch and

hurt his knee. Id. The only issue in Alexander was whether Iowa should

abandon the common-law rule of trespasser liability and replace it with a

duty of reasonable care under the circumstances. Id. Canvassing the

case law in other jurisdictions, this court determined that only six states

use a negligence standard to govern trespasser liability, twenty-nine

states declined the opportunity to abrogate the common-law trespasser

standard, “and two state legislatures . . . reinstated the common-law

trespasser rule after it had been abolished by court decision.” Id. at 78.

The Alexander court concluded that an overwhelming number of courts

retained the common-law trespasser rule (1) because the rule retains

validity in modern day life as recognition of the social good of property

ownership/control; and (2) because the “rule is . . . better suited to

achieve a reasonable balance between individual property rights and the

interests of a trespasser.” Id. at 79.

      Due to his recusal in Sheets, then Chief Justice Lavorato had

theretofore been silent on validity of the common-law distinctions. He
                                    12

rectified that omission in Alexander by writing a special concurrence. Id.

at 80 (Lavorato, C.J., specially concurring).    The special concurrence

favored abolition of the common-law distinctions noting that they were

borne of a different time “and in a wholly different legal climate from the

one that exists today.”     Id.   The opinion advocated for the middle

ground—abolishing the distinction between invitees and licensees, while

retaining the common-law rule regarding trespassers. Id. In reaching

this conclusion, the concurrence noted that “inherent in the trichotomy

is the notion that a jury could not be trusted to enter a just verdict.” Id.

at 82. This belief was out of sync with the whole of tort law where juries

are afforded considerable authority and discretion. Id.

      The special concurrence further criticized the trichotomy as

inherently confusing, potentially leading to inequities.    Though not at

issue in this case, the concurrence noted the routine difficulty in

determining an entrant’s status. Id. at 83 (citing Franconia Assocs. v.

Clark, 463 S.E.2d 670 (Va. 1995) (considering whether mall employee

lost status as an invitee by attempting to stop a robber); Lakeview

Assocs., Ltd. v. Maes, 907 P.2d 580 (Colo. 1995) (discussing whether

tenant, who paid rent but happened to not own a car, was invitee or

licensee when she fell while walking across the parking lot of an

apartment complex); Peterson v. Romine, 960 P.2d 1266 (Idaho 1998)

(considering whether plaintiff who parked in downtown parking lot

provided for shoppers, but who shopped at an adjacent but unaffiliated

store, was therefore not a business invitee when she was injured by

stepping into a pothole); and Gladon v. Greater Cleveland Reg’l Transit

Auth., 662 N.E.2d 287 (Ohio 1996) (questioning whether fare-paying

customer of subway system, who was assaulted and thrown by third
                                           13

parties upon exiting train, was still invitee when left lying on tracks and

struck by train)).

       Due to this potential for confusion, the Alexander special

concurrence asserted that abolishing the common-law formulation would

lead to more predictable results. And, contrary to critics, would not leave

the jury utterly standardless. The foreseeability of the visitor’s presence

and the time, manner, place, and surrounding circumstances of his

entry would continue to be relevant factors in determining whether the

landowner acted reasonably.          Id. at 84.    Abolishing the common-law

distinctions does not truly alter the underlying principles of premises

liability.    Id.    It simply prevents, according to the concurrence, an

entrant’s status as being the sole/primary factor.              Id.    Finally, the

concurrence noted that abolishing the distinctions would recognize “that

our   modern        social   mores   and    humanitarian     values    place   more

importance on human life than on property.” Id.

       The premises liability issue returned to this court three years later

in Anderson v. State, 692 N.W.2d 360 (Iowa 2005). Anderson filed suit

against the State after she was injured leaving the University of Northern

Iowa library. Anderson, 692 N.W.2d at 361. Anderson claimed that the

State and its agents were negligent in not closing the library due to a

winter storm. Id. at 363. Once again the plaintiff objected to the use of

the   stock     instruction    and   claimed    that   the   court    should   have

alternatively instructed the jury that the possessor of land must exercise

reasonable care under all the circumstances existing at the time and

place of the injury for the protection of lawful entrants. Id. at 367. The

district court overruled the objection. While this court noted the issue,

the majority opinion did not contain an analysis or exegesis on the

subject. Instead, the court merely noted that it was evenly divided on the
                                     14

jury instruction issue and affirmed the district court on that ground by

operation of law. Id.

      This court last addressed the premises liability issue just three-

and-a-half years ago in Benham v. King, 700 N.W.2d 314 (Iowa 2005).

While visiting his dentist King in 2000, Benham was injured when the

dental chair suddenly collapsed and he fell against a sink and cabinet

located near the chair. Benham, 700 N.W.2d at 316. The case proceeded

to trial, where the district court granted King’s motion for directed verdict

concluding that there was no evidence that King should have known of

the defective condition of the chair which caused it to collapse. Id. at

317. This court determined that directed verdict was proper as Benham

failed to present evidence that King could have discovered the particular

defect that caused the injury through the exercise of reasonable care. Id.

at 320. Therefore, King did not breach his duty of care to Benham, an

invitee. Id. at 321.

      While the court was unanimous as to result, this case once again

produced a lengthy special concurrence.        Id.   (Wiggins, J., specially

concurring). This special concurrence noted that:

      A more logical approach to a premises liability case would be
      to abandon the antiquated common-law dichotomy with its
      contradictory and confusing rules and adopt the modern rule
      requiring a possessor of land to exercise reasonable care
      under all the circumstances existing at the time and place of
      the injury for the protection of invitees and licensees.

Id. at 322.

      D. Adoption of General Negligence Standard for Invitees and

Licensees. Taking into consideration the wealth of case law in our sister

jurisdictions, academic commentary, and the history of the common-law

distinctions, we now conclude that the advantages of abolishing the
                                      15

distinction between invitees and licensees outweigh the value of its

retention.

      The    primary      advantage   of   abolishing   the   invitee-licensee

distinction is to avoid confusion. While there is no issue in this case as

to Valerie’s status, properly categorizing an entrant’s status has proven a

dubious task in other cases. As noted previously, the Alexander special

concurrence is replete with examples of the difficulties appellate courts

have experienced in attempting to fit modern human interaction into

rigid categories developed three centuries ago. Such confusion is likely

to only increase in the future. See generally Matthew D. Lincoln, Note,

Landowners’ Duty to Guests of Invitees and Tenants: Vogt v. Murraywood

Swim & Racquet Club & Goode v. St. Stephens United Methodist

Church, 57 S.C. L. Rev. 387 (2005) (discussing South Carolina’s

difficulty in classifying the duty owed to guests of invitees or tenants vis-

à-vis the landowner).

      Not only does this confusion provide ample grounds for appeal, it

also prevents the development of an easily applicable standard for future

cases. As a result, retention of the common-law system has not fulfilled

its goal of predictability, but rather has “produced confusion and

conflict.” Kermarec, 358 U.S. at 631, 79 S. Ct. at 410, 3 L. Ed. 2d at

555; Peterson, 199 N.W.2d at 643 (stating that “judges have been highly

critical of the common-law straitjacket of highly technical and arbitrary

classifications which have often led to confusion in the law and inequity

in the cases decided”).

      The difficultly in distinguishing between invitees and licensees

underscores another disadvantage of the classification—people do not

alter their behavior based on an entrant’s status as an invitee or
                                   16

licensee.   Many courts have illustrated this distinction’s divorce from

reality. The West Virginia Supreme Court posed this hypothetical:

      “A canvasser who comes on your premises without your
      consent is a trespasser. Once he has your consent, he is a
      licensee. Not until you do business with him is he an
      invitee. Even when you have done business with him, it
      seems rather strange that your duty towards him should be
      different when he comes up to your door from what it is
      when he goes away. Does he change his colour in the middle
      of the conversation? What is the position when you discuss
      business with him and it comes to nothing? No confident
      answer can be given to these questions. Such is the morass
      into which the law has floundered in trying to distinguish
      between licensees and invitees.”

Mallet, 522 S.E.2d at 441 (quoting Mariorenzi, 333 A.2d at 133 n.4). The

fungible and unpredictable nature of the classifications makes it

impossible for landowners to conform their behavior to current

community standards. See also id. at 443 (“If we wish for our law to be

predictable, and we do, then we have a duty to shape it in such a way

that it meshes with the general, reasonable assumptions that people

make in their daily lives.”). It also makes it impossible for entrants to

understand to what level of danger or risk they are being exposed.

      In addition, abandonment of the common-law distinction between

invitees and licensees is consistent with modern notions of tort law and

liability. When this distinction was adopted in the nineteenth century by

American courts, our tort law was replete with special rules and arguably

arbitrary common-law distinctions.      Since that time, these doctrines,

such as contributory negligence, which often yielded inequitable results,

have fallen by the wayside in favor of comparative fault. “The use of a

general standard of reasonable care under all the circumstances . . . will

bring this area of the law into conformity with modern tort principles by

allowing increased jury participation and the use of contemporary
                                    17

standards.”   Sears, 44 U. Kan. L. Rev. at 184–85.        Contrary to courts

that have upheld the trichotomy, there is nothing to fear about jury

involvement. As the North Carolina Supreme Court correctly points out,

this fear fails to take into account both the primacy of juries in other

areas of tort law and the reality that “modern jurors are more likely than

feudal jurors to be landowners themselves. . . .” Nelson, 507 S.E.2d at

888.

       Moreover, both logic and almost forty years of practice suggest that

there is no reason to question a jury’s ability to perform in the area of

premises liability as opposed to any other area of tort law. See Heins,

552 N.W.2d at 57 (“We find no merit in the argument that the duty of

reasonable care is difficult for a fact finder to understand or apply,

because it has been used successfully with regard to invitees and is the

standard used in almost all other tort actions.”). The fear of a runaway,

standardless jury has not been substantiated in the jurisdictions that

have abolished the common-law distinction between invitees and

licensees.    See generally Carl S. Hawkins, Premises Liability After

Repudiation of Status Categories: Allocation of Judge and Jury Functions,

1981 Utah L. Rev. 15 (concluding ordinary negligence principles have

constrained jury discretion in premises liability cases in jurisdictions

that abolished the classification system).

       Finally, abandonment of this common-law distinction recognizes a

higher valuation of public safety over property rights.

       “[T]he traditional rule confers on an occupier of land a
       special privilege to be careless which is quite out of keeping
       with the development of accident law generally and is no
       more justifiable here than it would be in the case of any
       other useful enterprise or activity.”
                                        18

Antoniewicz, 236 N.W.2d at 8–9 (quoting 2 Fowler V. Harper & Fleming

James Jr., The Law of Torts § 27.3, at 1440 (1956)).                This “special

privilege” is fundamentally no longer the public policy of this state. This

court has already implicitly recognized the harshness, rigidity, and

inequity of the common-law scheme by crafting exceptions for children

and known trespassers.         “[M]odern times demand a recognition that

requiring all to exercise reasonable care for the safety of others is the

more humane approach.” Jones, 867 P.2d at 307.

      The common-law distinction between invitees and licensees was

borne of a different time, a product of a different culture, and utilized by

a legal system far removed from today’s realities.

      Life in these United States is no longer as simple as in the
      frontier days of broad expanses and sparsely settled lands.
      Inexorably our people, gregarious in nature, have magnetized
      to limited and congested areas. With social change must
      come change in the law, for as President Woodrow Wilson
      observed, “The first duty of the law is to keep sound the
      society it serves.”

Wood, 284 So. 2d at 696.

      “When the reasons for the rule disappear, the rule ought to

disappear.”    Alexander, 646 N.W.2d at 84 (Lavorato, C.J., specially
concurring); see also Funk v. United States, 290 U.S. 371, 383, 54 S. Ct.

212, 216, 78 L. Ed. 369, 376 (1933) (“It has been said so often as to have

become axiomatic that the common law is not immutable but flexible,

and by its own principles adapts itself to varying conditions.”). As the

reasons supporting the common-law distinction between invitees and

licensees no longer exist, we now abandon the distinction. 2




      2The  continued validity of the common-law approach to trespassers has not
been raised in this appeal. We thus express no opinion on the continued validity of
common-law doctrines involving trespassers.
                                      19

      In place of the common-law formulation, we adopt the multifactor

approach advanced by the Nebraska Supreme Court and adopted by the

Sheets court.

      “We impose upon owners and occupiers only the duty to
      exercise reasonable care in the maintenance of their
      premises for the protection of lawful visitors. Among the
      factors to be considered in evaluating whether a landowner
      or occupier has exercised reasonable care for the protection
      of lawful visitors will be: (1) the foreseeability or possibility of
      harm; (2) the purpose for which the entrant entered the
      premises; (3) the time, manner, and circumstances under
      which the entrant entered the premises; (4) the use to which
      the premises are put or are expected to be put; (5) the
      reasonableness of the inspection, repair, or warning; (6) the
      opportunity and ease of repair or correction or giving of the
      warning; and (7) the burden on the land occupier and/or
      community in terms of inconvenience or cost in providing
      adequate protection.”

Sheets, 581 N.W.2d at 606 (quoting Heins, 552 N.W.2d at 57).

      This multifactored approach will ensure that the interests of land

owners and injured parties are properly balanced. It further allows the

jury to take into consideration common sense notions of reasonable care

in assessing liability. By adopting this test, we eliminate an arcane and

difficult-to-understand distinction from our law and make it simpler and

more easily understood.

      As a result of our holding abandoning the distinction between

invitees and licensees in premises liability cases, it follows that the

instruction given by the district court in this case was erroneous.

      Further, unlike in Sheets, we find the error in the instruction to be

material, requiring reversal. With respect to subparagraph 3, Instruction

No. 10 improperly shifted the burden of proof from the defendant to the

plaintiff by requiring the plaintiff to prove that she “did not know or have

reason to know of the condition and the risk involved.”               Such an

instruction is a holdover from the bygone era of contributory negligence,
                                       20

and directly contradictory to the defendant’s requested instruction on

comparative fault. An instruction that improperly states the burden of

proof is a material error demanding reversal. See Kaspar, 237 N.W.2d at

417 (finding instructions that deal with the burden of proof to be “at the

core of and central to the proper disposition and consideration by the

jury” so as to merit a finding of categorical error).

      On remand, the district court should develop a more direct, simple

instruction consistent with our adoption of the multipronged test to

guide the jury in its deliberations.

      IV. Conclusion.

      The district court’s ruling on the motion for new trial is reversed,

the judgment vacated, and the matter remanded for a new trial using a

general negligence instruction to define the scope of duty owed by the

defendant in this case.

      REVERSED.

      All justices concur except Streit, J., who concurs specially.
                                    21

                                                    Koenig, #19/07–1586

STREIT, Justice (specially concurring).

      The majority takes a much-needed step away from the premises

liability trichotomy, but needlessly leaves standing one leg of a three-

legged stool. This wobbly paradigm should also be given a gentle nudge

over the cliff.   We should completely abolish the classification system,

saving no remnant. Alexander v. Med. Assocs. Clinic, 646 N.W.2d 74, 86

(Iowa 2002) (Streit, J., concurring specially); Rowland v. Christian, 443

P.2d 561, 568–69 (Cal. 1968), abrogated in part by statute as stated in

Calvillo-Silva v. Home Grocery, 968 P.2d 65, 72 (Cal. 1998).
