HARVARD

LAW REVIEW.

VOL. XXVII.

MARCH, 1914.

No. 5.

MAY

DUTY TO SEEN TRESPASSERS.

1

[AY the seen trespasser recover for injuries alleged to have been negligently inflicted upon him by the active intervention of the landowner? Some authorities say yes, others no. For convenience in discussion the former may be called the Michigan rule, the latter the Massachusetts rule. By the Michigan rule the fact that the trespasser's presence is known has an important relation to the burden of conduct imposed upon the landowner. He is thereafter bound to exercise ordinary care with reference to the intruder. "Where a trespasser is discovered upon the premises by the owner or occupant, he is not beyond the pale of the law, and any negligence resulting in injury will render the person guilty of negligence liable to respond in damages.' By the Massachusetts rule, as usually stated, he is under no such obligation; his sole duty being to abstain from intentional injury. "The conduct which creates a liability to a trespasser in cases of this kind has been referred to in the books in a variety of ways. Plainly it is something more than is necessary to constitute the gross negligence referred to in our statutes and in decisions of this court. The term 'wilful negligence' is not a strictly accurate description of the wrong. But wanton and reckless neg

"2

1 The term "landowner" is used throughout this article to designate one in the possession of land, whether it be as owner of the fee or under a lesser right. It includes all against whose possession the trespass is an offense.

2 Herrick v. Wixom, 121 Mich. 384, 80 N. W. 117, 81 N. W. 333 (1899).

ligence in this class of cases includes something more than ordinary inadvertence. In its essence, it is like a wilful, intentional wrong." 3

The rule of non-liability to unknown and unsuspected trespassers for injuries inflicted upon them has hardly ever been doubted. While the true ground upon which the conclusion rests has not always been stated, yet it seems now to be generally recognized. The defendant is not liable, because he has not been guilty of a breach of any duty owed to the plaintiff. This bald statement of the law's conclusion on the matter is all that is ordinarily needed in that class of cases. It is usually enough to know that a recovery is denied. But when we pass to the more troublesome questions touching the rights of trespassers whose presence is known, it becomes desirable to ascertain the reason why there is no duty to use care toward the unknown but actually present trespasser. Is the reason one equally applicable in both cases? If so, of course one plaintiff should stand no better (or worse) than the other. But if the reason for the rule as to unknown trespassers is found to be the lack of knowledge of the situation, then there is good ground for applying a different rule in cases where the reason for this one does not exist.

It may aid in the subsequent discussion to call to mind some of the elements of negligence as defined in law. The actor is judged by an external standard. "The law works only within the sphere of the senses. If the external phenomena, the manifest acts and omissions, are such as it requires, it is wholly indifferent to the internal phenomena of conscience." 5 Once it was thought this standard varied with varying situations, and degrees of negligence were laboriously if not very practically defined. But we are long past this stage of the law, in theory at least. It is now seen that one standard should apply in all cases. Ordinary care under the circumstances fits every case, and leaves the variation where it belongs. The precaution required is greater or less in proportion to the environment of the actor. If the existence of

3 Bjornquist v. Boston & Albany Railroad Co., 185 Mass. 130, 134, 70 N. E. 53 (1904).

Judge Jeremiah Smith, in 25 HARV. L. REV. 238, 242 et seq.; Garland v. Boston & Maine Railroad, 76 N. H. 556, 86 Atl. 141 (1913).

5 Holmes, Common Law, 110.

circumstances is in doubt, the facts are settled in the usual way. So, too, if the sufficiency of the acts done or omitted to satisfy the standard is questionable, that issue is left to the jury.

Is the rule of ordinary care under the circumstances of universal application, or are there instances where it does not apply? The logical answer is that the rule should have no exceptions. Calling as it does for reasonable conduct, and no more, why should there be any situation in which it is not the true guide to and test of lawful conduct?

It may be said that the unanimous holding that there is no duty to use care toward the unknown trespasser shows that the rule is not universal. But there is no exception here, for the presence of the unknown trespasser is not, either in law or in fact, a circumstance which ought to or could influence the landowner's conduct. Conduct is influenced by the impression made upon the individual by what he knows, or thinks he knows. Sometimes the law says what he ought to know is to be added to his actual information. But neither in fact nor by fiction of law is one charged with knowledge not possessed, and which he is not in any sense in the wrong for not possessing. The presence of the unknown trespasser is not a circumstance as the word is here used.

It is dangerous to strike a stick of dynamite. But if one strikes it reasonably believing it to be a bit of kindling wood, his act is not shown to be wrongful by proving the concealed ingredients of the object dealt with. He was not called upon to act with reference to dynamite."

The stereotyped statement of the rule that as to the unknown trespassers the landowner owes no duty to use care, is likely to mislead. It more than half implies that the situation is one where care could be exercised, if the law demanded it. But their unknown presence is to him the equivalent for their absence. It is nonexistent as to him. It is not related to his acts and therefore cannot control or modify his conduct. How could one use care towards a person or an object whose existence was unknown and unheard of? "A choice which entails a concealed consequence is as to that consequence no choice."

7

• "Relatively to a given human being, anything is accident which he could not fairly have been expected to contemplate as possible and therefore to avoid." Holmes, Common Law, 94. 7 Holmes, Common Law, 94.

If it be urged that the landowner should proceed with caution upon a vague general theory of always looking ahead, how much is he to take heed to his ways? The duty is to use care proportionate to the reasonable apprehension of danger to others. Where there is no reason to apprehend any danger, because no persons are or are likely to be present, one factor is lacking, and the amount of care required is reduced to zero. But when this factor is present, it inevitably follows that a result expressed in positive terms will be reached. Toward known circumstances one can and should act reasonably. It is impossible to act toward unknown facts.

So far as the unknown trespasser is concerned there is no exception to the rule of ordinary care, and we come to the case of the known trespasser with a rule as yet unimpaired. If the Massachusetts rule as to the seen trespasser is the correct one, then it is true that the rule of ordinary care is not universal, and a time comes when one may lawfully fail to use such care toward a person whose presence is clearly understood. So long as the actor stops short of inflicting an intentional injury, he is not a wrongdoer before the law. No satisfactory reason for thus infringing upon the rule of reasonable conduct has been given. The one most frequently advanced is that the plaintiff cannot by his own wrong (i. e. his trespass) impose a duty toward him upon the innocent landowner. The plaintiff's wrong may be, and frequently is, a sufficient answer to his claim to recover; but this is because of his fault, not the defendant's freedom from fault.

Why, then, is not the Massachusetts rule well enough in its results? If it is true that the plaintiff's wrong had a part in causing his injury, why should he recover from one who at the most was only a joint tortfeasor with him? There can be but one logical answer to this. When they are joint wrongdoers neither should recover from the other. But cases frequently arise where that is not the situation, cases where the wrong of one is the mere

8 It would appear, however, that this is not the reason in Massachusetts, for the doctrine that the landowner is liable only for what is called reckless or wanton conduct is applied in suits brought by licensees, the same as in the case of a trespasser. West v. Poor, 196 Mass. 183, 81 N. E. 960 (1907); Jones v. New York, New Haven & Hartford Railroad Co., 211 Mass. 521, 98 N. E. 607 (1912); Heinlein v. Boston & Providence Railroad Co., 147 Mass. 136, 16 N. E. 698 (1888).

9

• Assuming, of course, that the doctrine of comparative negligence is not to be considered.

8

occasion for, while that of the other is the active cause of, the injury. It is not the purpose of this article to discuss the scope of the "last clear chance" doctrine. It is enough to say that even those jurisdictions where the doctrine has been denied,1o recognize that there must be some limit to legal causation short of the remote effects of a long past and completed transaction. It is this phase of the subject which courts following the Massachusetts rule have failed to sufficiently consider. It is undoubtedly true that a trespass is a continuing wrong; but unless it is of worse degree (in law) than negligence, there seems to be no valid reason for denying the application of the last clear chance doctrine. The principle applies when the plaintiff's fault consists of a positively illegal act, the same as when his fault is only one of omission."

It is sometimes said that the Michigan rule places the trespasser upon a par with those who are present as of right. But this is not true if the rule is limited as it should be. The fact that the trespasser is a wrongdoer is neither overlooked nor condoned. He is at once told that he must show that at the time of the injury right conduct on his part would not, while like conduct on the defendant's part would, prevent the mishap. For example, the trespasser walking along a single track railroad can at any time get off the right of way. He can cease from his sinning long after the negligent engineer can stop the oncoming train. In such a case there can be no recovery.12 But if he is walking over a long trestle the situation may be reversed. The engineer may be able to take the steps necessary to avoid trouble long after it has be

10 Pennsylvania Company v. Sinclair, 62 Ind. 301 (1878).

11 Black v. New York, New Haven & Hartford Railroad Co., 193 Mass. 448, 79 N. E. 797 (1907). But while a last clear chance theory is here applied in the case of a trespasser, it is still insisted that even when the plaintiff's wrong has become a mere condition, the duty to use ordinary care under the circumstances is not owed to him. Although it is held that his wrong has ceased to be a cause of the injury, it is still treated as an excuse for lack of ordinary care on the part of the defendant toward a known situation. The fact that the plaintiff is a trespasser is counted against him in double measure. First it relieves the defendant from any obligation to use ordinary care; and beyond that, the plaintiff must show that it has ceased to be a cause and has become merely a condition of the infliction of injury upon him. The injustice of this rule is recognized in a degree by the earlier cases which hold that in actions for wanton wrongs contributory negligence is not a defense. Aiken v. Holyoke Street Railway Co., 184 Mass. 269, 68 N. E. 238 (1903).

12 Batchelder v. Boston & Maine Railroad, 72 N. H. 528, 57 Atl. 926 (1904).