PREMISES LIABILITY

John P. Knight is a Part- ner in the Boston office of Morrison Mahoney LLP. His practice focuses on general Trespasser Law liability defense. He has extensive trial experience, When Does a Party Qualify as a Trespasser? having served as lead coun- By John P. Knight sel in more than 30 civil jury trials, including many ac- tions involving catastroph- Ronald Leger was a gentleman in his early 70s that the case should be governed by the reck- ic injury and death. The when he entered Smitty’s Sports Club (“Smit- lessness standard applicable to trespassers.4 majority of his trials have ty’s”) in Taunton, Massachusetts on March 11, However, the trial court did not allow the jury resulted in defense verdicts 2010. Immediately upon entering Smitty’s, to consider whether the decedent was a legal or judgments significantly Mr. Leger walked to a door on his left that was trespasser at the time of the accident. The jury lower than any pre-trial labeled “employees only” and proceeded to open found that the defendant was negligent but not settlement offer. the door and step onto the set of stairs located grossly negligent with regard to the condition beyond the door.1 Mr. Leger mistakenly be- of the stairs leading into the basement and the Mr. Knight has defended lieved that this door led to the men’s bathroom. plaintiff was awarded compensatory but not a wide range of individu- The men’s room was located 15 feet beyond the punitive damages.5 als and business entities “employees only” door, and Mr. Leger would against various types of civil have arrived at the men’s room had he contin- It is settled law in Massachusetts that no claims. He has developed ued walking past the “employees only” door. duty of reasonable care is owed to a trespasser. an extensive practice in the Mr. Leger lost his balance and fell down the re- However, it is not always clear whether a party recreational liability setting, maining stairs leading to the basement. As a re- qualifies as a trespasser. The case is presently where he has defended sult of his fall, he sustained injuries that resulted on appeal and the specific issue to be deter- health clubs, skating rinks, in his death two weeks later. His family brought mined is whether a party with permission to gymnastics and cheerlead- a wrongful death lawsuit against Smitty’s.2 be on premises who then goes to a portion of ing facilities, ski resorts and the premises where he is not authorized to be even the Boston Red Sox, At trial, the plaintiff alleged that the de- becomes a trespasser. as well as the transportation fendant was negligent and grossly negligent liability setting, as he has and claimed that Mr. Leger’s death was caused This paper will use theBernier case to an- represented the Massachu- by the unreasonably dangerous condition of alyze the practical application of trespasser setts Bay Transportation the stairs leading into the basement.3 The de- law on the standard of care to demonstrate Authority and Amtrak. fendant intended to take the position that how profoundly that issue can affect the ulti- Mr. Leger was a legal trespasser at the time of mate resolution of a case. Different trespasser Mr. Knight also assists his accident because he fell in the employees scenarios will be considered, including situ- clients in handling other only basement area and the defendant argued ations where a party commits a trespass onto legal disputes and in rec- the property from the beginning to scenarios ommending/implementing 1 Bernier v. Smitty’s Sport Pub, Inc., Bristol Supe- where a party initially has permission to be on measures designed to avoid rior Court, No. 2010-00768-B. them entirely. Mr. Knight is 2 Id. The lawsuit was brought by his daughter, 4 In Massachusetts, a property owner only admitted to the bar of the Nancy Bernier, as administratrix of the estate owes a duty to refrain from willful, wanton and Commonwealth of Massa- of Ronald J. Leger. reckless conduct with regard to trespassers. chusetts and the State of All other parties are owed a duty of reasonable New Hampshire. 3 M.G.L. ch.229 §2, provides that a plaintiff can care. Mounsey v. Ellard, 363 Mass. 693 (1973). recover compensatory damages upon proving Mr. Knight is a graduate that a defendant was negligent, and punitive 5 Bernier v. Smitty’s Sport Pub, Inc., No. 2010- of Georgetown Universi- damages by establishing that the defendant 00768-B. Since the plaintiff was seeking pu- ty (B.A., Cum Laude) and was grossly negligent. The plaintiff sought the nitive damages in addition to compensatory Georgetown University Law recovery of both compensatory and punitive damages, the jury considered whether the con- Center (J.D.). damages. duct at issue was grossly negligent and/or “just” negligent.

36 Journal of American Law // Fall 2014 property and then trespasses onto an unauthorized section of for a defendant to argue that the case should be governed by a the property. Both intentional and unintentional trespass situ- lower standard.8 However, there are other cases, including cases ations will be considered in order to evaluate whether the sub- involving trespassers, where the applicable standard of care will jective belief of the trespasser should have any bearing upon the be less clear and will be determined by the status of the plaintiff standard of care that is applied to the trespasser. at the time of the accident.

By considering various trespasser situations, this article Trespasser Defined will examine why the Bernier court was not justified in treating an individual who has permission to be on property but then Massachusetts courts define a trespasser as “a person who goes to an unauthorized area differently than someone who enters or remains upon land in the possession of another with- commits an initial trespass onto property. An individual does out a privilege to do so, [a privilege] created by the possessor’s not have permission to be on the property (or specific section consent of otherwise.”9A party who is on land outside of a per- thereof) under either scenario and a party should be considered mitted area, unless otherwise privileged, is a trespasser. Restate- a trespasser regardless of when the trespass takes place. Fur- ment (Second) of Torts, § 169.10 In Mounsey v. Ellard, 363 Mass. ther, courts may wish to consider whether the trespasser knew 693, 695 (1973), the Massachusetts Supreme Judicial Court or should have known of the trespass and apply a recklessness created a distinction between an invitee and a trespasser and standard of care to any party who enters a section of property established that the standard of care which a premises owner with actual or constructive knowledge that they are trespassing. owed to a trespasser was a duty to refrain from willful, wanton or reckless conduct.11 Standard of Care The distinction between a lawful and an unlawful visitor The standard of care in a negligence case is “reasonable care” was reflected in the different standards of care that a premises and a plaintiff has to prove that the defendant failed to exercise owner owed to each class of individual. In Massachusetts, the reasonable care in order to prevail.6 A set of facts that satisfies decision to impose a recklessness standard of care in cases in- the negligence standard may not qualify as sufficiently egre- volving trespassers was driven by the unlawful status of the tres- gious conduct necessary to prevail in a gross negligence or reck- 7 lessness case. As a result, a defendant may face liability under a 8 The simplest example of this would be an automobile ac- negligence theory based upon the same set of facts that would cident that does not involve a fatality, as the plaintiff would not result in liability under a gross negligence or recklessness pursue recovery under a negligence theory and the defendant theory of recovery. Because of this, the standard of care that operator’s conduct would be governed by the standard of rea- governs any particular case may likely determine the outcome sonable care. Rawls v. Progressive N. Ins. Co., 310 Conn. 768, and both plaintiffs and defendants can be expected to lobby to 776 (2014)(stating a defendant’s duty and breach of duty is have the case governed by the standard of care that is most ad- measured by a reasonable care standard). Similarly, a trip and vantageous to their case. fall or slip and fall action against a party who owns or controls the premises at issue would be governed by a negligence stan- dard if there was no dispute that the plaintiff had the right to In a number of cases, there will be no dispute relative to the be on the premises. Hall v. Waltham Post No. 156, Am. Legion controlling standard of care. Many cases will be governed by a Hous. Corp., 1998 Mass. App. Div. 276, 277 (1998) (stating de- negligence standard and in such cases, there will be no grounds fendant was obligated to maintain its premises in a reasonably safe condition and to warn the patron of dangers of which 6 Leavitt v. Brockton Hosp., Inc., 454 Mass. 37, 39 (2009) (hold- they were unaware but which were known, or should have ing that the plaintiff must prove that the hospital breached its been known, to the defendant). See also Am. Multi-Cinema, duty of reasonable care to prevail on his negligence claims). See Inc. v. Brown, 285 Ga. 442, 447 (2009)(finding that an “owner/ also State Farm Fire & Cas. v. Aquila Inc., 718 N.W.2d 879, 887 occupier of land owes persons invited to enter the premises (Minn. 2006) (finding that plaintiffs failed to present a prima a duty of ordinary care to have the premises in a reasonably facie case of negligence when they could not establish that de- safe condition and not to expose the invitees to unreasonable fendants breached a duty of reasonable care). risk”).

7 Gross negligence has been defined as “an act or omission re- 9 Gage v. Westfield, 26 Mass. App. Ct. 681, 695 n. 8 (1988) (quot- specting legal duty of an aggravated character as distinguished ing Restatement 2d of Torts, § 329 (1965)). from a mere failure to exercise ordinary care…it falls short of being such reckless disregard of probable consequences as is 10 Leffler v. Sharp, 891 So.2d 152, 156 (Miss. 2004) (defining equivalent to a wilful and intentional.” Zavras v. Capeway Rov- a trespasser as one who enters upon another’s premises with- ers Motorcycle Club, 44 Mass. App. Ct. 17, 20 n.4 (1997). Willful, out license, invitation, or other right); See also Monsivais v. wanton and reckless conduct has been defined as “intentional Winzenried, 508 N.W.2d 620 (Wis. 1993) (defining trespasser conduct, by way of either commission or of omission where as a person who enters or remains upon a piece of land in the there is a duty to act, which conduct involves a high degree of possession of another without a privilege to so created by the likelihood that substantial harm will result to another.” Man- possessor’s consent or otherwise). ning v. Nobile, 411 Mass. 382, 387 (1991); Commonwealth v. Catalina, 407 Mass. 779. 789 (1990). 11 Id. at 695-696.

Fall 2014 // Journal of American Law 37 passer. A trespasser could not maintain an action based upon a claim of negligence because “the owner of the land is not bound The door leading into the basement was closed and the “em- to protect or provide safeguards for wrongdoers; as a result, a ployees only” sign was plainly visible and the only sign on the premises owner only owes trespassers a duty to refrain from door. Customers were not permitted to go into the basement willful, wanton or reckless conduct.12 13 area that was accessed through this door as the defendant had food and liquor supplies, an office and safe in the basement. Other jurisdictions have articulated a different rationale for There was no evidence of anyone, other than an employee of applying a lower standard of care to trespassers. “The trespasser Smitty’s, ever attempting to enter the basement through this … is not denied the right to recover because his entry upon door before Mr. Leger.17 the defendant’s premises is wrongful, but because his presence is not to be anticipated and the occupier owes him no duty to There was no formal “landing” leading to the basement take precautions toward safety of his premises.”14 “The general stairs from the “employee only” door, and employees access- rule is not based on the wrongful nature of the trespasser’s con- ing these stairs would need to step down anywhere from 13 duct but on the landowner’s inability to foresee the trespasser’s to 38 inches. The door leading into the basement was typi- presence and guard against injury.”15 Although the rationale for cally locked, but at the time of the accident the door was not applying a different standard of care varies by jurisdiction, the locked. The plaintiff’s case was predicated upon the claim that end result is the same: the standard of care for a trespasser is a Mr. Leger fell because the stairs were unreasonably dangerous. recklessness standard and a trespasser will have a much more The plaintiff argued that someone like Mr. Leger, who was not difficult time recovering than a plaintiff who needs to prove familiar with the stairs, would potentially fall because of the only that the defendant was negligent. steep drop. Moreover, because the stairs were so dangerous, the plaintiff argued that the defendant should have ensured that the Bernier v. Smitty’s door to the stairs was locked and/or should have had additional TheBernier case illustrates how important the controlling stan- signage on the door to ensure it would not be used by anyone dard of care can be in the ultimate case disposition. As will be other than an employee.18 discussed, the underlying facts in Bernier led a jury to conclude that the defendant had been negligent, but the limitations of Trespasser Issue Presented the trial court’s instructions did not allow the jury to determine whether the same conduct rose to the level of gross negligence The defense of the case focused on the argument that or recklessness. The difference in the legal status of the decedent Mr. Leger was a legal trespasser at the time of the accident, be- likely meant the difference between the recovery of wrongful cause employees of the defendant were the only ones allowed death damages and a defense verdict and it is for that reason to use this door and enter the basement. It was undisputed that that the distinction was so important. Mr. Leger had the right to be on the premises and there was no allegation that he was a trespasser from the time he entered Employee’s Only Basement the premises until he stood before the door leading into the basement.19 The legal issue presented was whether Mr. Leger’s Before March 11, 2010, Ronald Leger had been to Smitty’s on multiple occasions, and he had previously used the bath- undisputed that he was never a “customer” in the sense of hav- room there. He had consumed approximately three “nips” of ing been served anything while at Smitty’s. It was not clear from alcohol before arriving at Smitty’s during the late morning of the evidence whether he intended to get any food or drink after March 11 and he immediately walked to the “employees only” using the bathroom or whether he only went to Smitty’s to use door after entering Smitty’s through the rear door. Despite the the bathroom. fact that he had previously used the men’s room and arguably, should have known where it was, he mistakenly believed that 17 Id. The men’s room door was marked with a single sign the “employees only” door led to the bathroom.16 that read “Gentlemen” and the door into the men’s room was opened by pulling out, while the door into the basement was 12 Id. at 695, 696. opened by pushing inward. Upon opening the door into the basement one would see shelving with supplies and stairs lead- 13 Two narrow exceptions exist by which a landowner owes ing into the basement, while the toilet was immediately visible reasonable care to a trespasser: (1) in the case of an adult tres- upon entering the men’s room. Despite all of this, and despite passer who is in immediate peril with no avenue of escape; and previously having used the men’s room, Mr. Leger proceeded (2) a reasonably foreseeable child trespasser. See Pridgen v. Bos- into the basement and failed to recognize that he was not enter- ton Haus. Auth., 364 Mass. 696 (1974); Soule v. Massachusetts ing the men’s bathroom. Elec. Co., 378 Mass. 177 (1979); G. L Ch. 231 § 85(q). 18 Id. The defendant typically did lock the door, but it was in- 14 Foster v LaPlante, 244 A.2d 803 804 (Me. 1968). advertently left unlocked on the day in question. The plaintiff offered expert testimony that the defendant could have installed 15 Seward v. Terminal R. R. Ass’n of St. Louis, 854 S.W.2d 426, a lock that would have locked the door automatically for just a 428 (Mo. 1993). few hundred dollars. 16 Bernier v. Smitty’s Sport Pub, Inc., No. 2010-00768-B. Mr. Leger was not served any food or drink that day, and it was 19 Id. Although Mr. Leger entered Smitty’s through the rear

38 Journal of American Law // Fall 2014 status changed from a legal customer to a trespasser when he passer, the jury never considered this potentially case-disposi- entered the “employees only” basement area and fell. This issue tive issue. required the consideration of whether an individual who ini- tially has permission to be on the property becomes a trespasser Classes of Trespassers upon entering a portion of the property where the party is not authorized to be. 20 For the purposes of this article, it is helpful to think of three “classes” of trespassers: intentional trespassers who know they The defendant was not permitted to even pursue the defense are trespassing; mistaken trespassers who should have known that Mr. Leger was a trespasser at trial because the trial court that they were trespassing; and mistaken trespassers who had judge was reluctant to reconsider an earlier judge’s conclusion no reason to know that they were trespassing. Whether the tres- that a party who initially had permission to be on the premis- pass occurs upon the initial entry onto the property or when the es does not become a trespasser when they exceed the scope party enters an unauthorized section of the property, the party of their permissive use of the property.21 The fact that the jury committing the trespass would fall within one of these three came back with a finding of negligence but no gross negligence categories. made the court ruling prohibiting the jury from even consider- ing the trespasser issue particularly significant. The gross negli- In Bernier, the court found an important distinction be- gence standard is higher than a willful, wanton and recklessness tween a party whose initial entry onto property was improper standard.22 As a result, the finding that the defendant was not and a party who initially had permission to be on property who grossly negligent necessarily meant that the plaintiff would not then went to an unauthorized area. Since a trespasser is, by defi- have satisfied the recklessness standard, and there would most nition, a party who enters the land of another without a right to likely have been a defense verdict on all claims if Mr. Leger had do so, it should not matter whether the party was at all times a been determined to have been a trespasser. trespasser on the property or whether the party “only” became a trespasser at some point after lawfully being on the property. At trial, the defendant argued that it would have been ap- Under either scenario, the party did not have the right to be on propriate for the judge to conclude as a matter of law that Mr. the property (or relevant section of the property), and the tim- Leger was a trespasser where the basement area was off limits ing of the trespass should not be dispositive in determining the for customers and where this was made clear by the “employees applicable standard of care. only” sign on the basement door. At a minimum, the defen- dant argued that the issue of whether Mr. Leger was a trespasser While there is no meaningful distinction between a party should have been resolved by the jury. Because the judge did who trespasses upon the property from the beginning and one not even allow the defendant to argue that Mr. Leger was a tres- who improperly enters a section of the property without the right to do so, the distinction between an intentional and a mis- door, entrance through this door was permitted, and the de- taken trespass may be significant. For the reasons that follow, an fendant conceded that he was not a trespasser before he entered appropriate focus for courts in all cases involving a party enter- the basement area. ing an unauthorized section of property should be whether the party knew or should have known that they were committing a 20 See Whelan v. Van Natta, 382 S.W.2d 205 (Ky. 1964) (hold- trespass when they entered the unauthorized section. Applying ing that customer entering store to make a purchase had status changed from invitee to licensee when he entered storage room a recklessness standard of care in all such trespass cases provides to look for a box for his own use); DeGrave v. Engle, 328 Mich. a fair approach to the property owner and the injured plaintiff. 565 (1950); Campbell v. Hoffman, 51 Tenn. App. 672 (1963) (finding that plaintiff visiting dentist who found main door Intentional Trespass locked and attempted to enter other door used for living quar- ters was not invitee, and defendant owed no duty other than to In some cases, the plaintiff is indisputably a trespasser and refrain from willful or wanton conduct). there is no dispute that the case is governed by a recklessness standard. For example, some cases involve an intentional tres- 21 Bernier v. Smitty’s Sport Pub, Inc., No. 2010-00768-B. The de- pass by a party who has actual knowledge that he is trespass- fendant had moved for summary judgment on the grounds that ing.23 Where a party brings a lawsuit as a result of an accident Mr. Leger was a trespasser, but its motion was denied when the judge who decided the summary judgment motion cited to case law from over 100 years ago to support the proposition that a 23 Schofield v. Merrill, 386 Mass. 244, 245 (1982) (stating that party does not become a trespasser if they initially had permis- plaintiff who was injured when jumping into an abandoned sion to be on the property and then went to a section of the quarry that he knew he was not invited to be on was a trespass- property where they were not authorized. For various reasons, er entitled to no greater duty of care from the landowner than it was the defendant’s position that the cases relied upon by the that he refrain from wilful, wanton or reckless disregard for the court did not stand for that proposition. trespasser’s safety). See also Sears, Roebuck & Co. v. McLaim, et al., 167 F.2d 130 (5th Cir. 1948) (arguing plaintiff, a former em- 22 Board of County Comm’rs v. Liberty Group, 965 F.2d 879 ployee of Sears, by entering through the back of the store and (1992) (acknowledging mistake by Liberty Group in requesting passing a sign that said “Employees Only”, chose, of her own an instruction on gross negligence and not the more stringent volition to invade a part of the premises reserved for employees recklessness standard). and became, according to law, a trespasser.); Champagne v. T&J

Fall 2014 // Journal of American Law 39 that the party sustains after a knowing, intentional trespass, it and others whose mistaken trespass occurs under circumstanc- would be hard to argue that it is unfair to require the plaintiff to es where the party should have known they were trespassing. satisfy a recklessness standard. Since it might be unfairly harsh to subject a party who commits a mistaken trespass to a recklessness standard, the “fairest” ap- In the same way that a party may commit an initial trespass proach, both with regard to the property owner and the mis- onto property with actual knowledge that a trespass is being taken trespasser, would be to consider whether the trespasser committed, there will be situations where a party enters a sec- should have known that he would be trespassing. Where a party tion of property with knowledge that the section of the property commits a trespass and then sustains an injury under circum- is off limits. That was not the case inBernier , as Mr. Leger mis- stances where the individual had reason to know that he was takenly failed to realize that he could not enter the basement trespassing, it is fair to both the plaintiff and the defendant to area. However, there could be a case where someone enters apply a recklessness standard. the basement area of Smitty’s for nefarious purposes such as to steal money or liquor, knowing that they have no right to enter The Bernier case represents a clear example of a mistaken the basement. The application of a recklessness standard in all trespass under circumstances where the plaintiff should have cases involving an intentional trespass to property (regardless known that he was trespassing. Even if there was a no “employ- of whether an initial trespass or a trespass to an unauthorized ees only” sign on the door leading to the basement, Mr. Leger section of property) is both fair and appropriate. would have had no reason to believe that this door was leading into the men’s room. He had been to Smitty’s before and had Mistaken Trespass used the men’s room, and the men’s room was clearly marked “gentlemen”. Under these circumstances, he would have had no Other cases may involve a mistaken trespass.24 When a par- reason to believe that the “employees only” door led into the ty commits an initial trespass onto property without realizing men’s room, or that the door otherwise led into an area that was that he is trespassing, the party is nevertheless considered a open to the public, even if the sign had not been on the door. trespasser despite the fact that the conduct of the party does not However, there was a sign on the door that made it perfect- amount to an intentional trespass that would arguably make a ly clear that Mr. Leger had no right to go into this area of the recklessness standard more appropriate. In Bernier, it was un- premises. By putting an “employees only” sign on the door, the disputed that Mr. Leger entered the employees only basement defendant had every reason to believe that customers such as area under the mistaken belief that he was entering the men’s Mr. Leger would not enter this area. bathroom. Nevertheless, the Bernier court could have treated Mr. Leger as a trespasser when he entered the basement area The defendant did not want any customers in the basement even though he did not realize that he had no right to do so, area, because various supplies of the defendant, including food, because it was undisputed that he did not have the right to enter beer and liquor, as well as the defendant’s safe, were stored in that area. the basement. Additionally, as was tragically borne out by the instant case, anyone who was not familiar with the stairs and For those jurisdictions that employ a recklessness standard the step down that was required from the “employees only” for a trespasser because the property owner does not have a rea- door onto the stairs might have difficulty with the stairs. Al- sonable expectation that individuals will be trespassing upon though it was not the motivating reason behind the policy pro- the property, it would make no difference if the trespass was hibiting customers from accessing the basement through this mistaken or intentional. However, to the extent that a reckless- door, the defendant helped to insure that customers would not ness standard is a form of punishment for the party committing be injured by this potentially dangerous condition by prohibit- the trespass, the application of this standard may not seem as ing customers from entering the basement.25 “fair” in the setting of a mistaken trespass. It was undisputed that Mr. Leger did not have the right to go Within the category of individuals who commit a trespass into the basement and it was similarly undisputed that the de- by mistake, there are those whose mistake may be warranted fendant had taken measures to make this known to customers by posting an “employees only” sign on the door. Although his motives in entering this door were benign (he intended to use Realty, 44 Conn.L.Rptr. 403 (2007) (acknowledging plaintiff ex- the bathroom), and even though he believed he had the right to ceeded scope of her invitee status and became an intentional trespasser when she entered an area that was clearly marked “employees only” and fell down a flight of stairs.). 25 Bernier v. Smitty’s Sport Pub, Inc., No. 2010-00768-B. At trial, the defendant conceded that the step leading into the basement 24 McNally v. Goodenough, et al., 5 Wis.2d 293, 301 (1958) would potentially present a tripping hazard for someone who (deciding plaintiff became a trespasser as a matter of law when was not familiar with the step. However, no employee of the he “deviated from the direct path”…the fact he was only in the defendant had ever fallen on the stairs, and the defendant main- basement by mistake is irrelevant). See also Baltimore Gas & tained that the step was not a tripping hazard for those (unlike Elec. Co v. Flippo, 348 Md. 680, 690-91 (1998)(stating an action Mr. Leger) who were familiar with negotiating the step. Because for trespass to real property may be maintained whether the the defendant put the “employes only” sign on the door it had defendant committed the trespass unwittingly or wilfully and no reason to expect that anyone but an employee who was fa- wantonly). miliar with negotiating the step would be using the stairs.

40 Journal of American Law // Fall 2014 enter this area, there was no legitimate basis for this belief. In not trespassing in the common hallway) but suffered injuries short, he ignored the clear notice that he had no right to be in when she entered a section of the property where she was not this area and his mistaken belief that he had the right to enter authorized to be. TheMonterosso court did not simply conclude this area was a function of his failure to pay attention. that the plaintiff was not a trespasser because her presence on the property as a whole was permitted, but instead considered The court ultimately gave no consideration to the fact that the factual circumstances surrounding the plaintiff’s entry into Mr. Leger was not authorized to be in the basement where he the unauthorized area to determine whether she had “reason had his fall. The court similarly gave no consideration to the fact to believe” that she could enter the landing area where she was that the defendant had made this clear by posting the “employ- injured.26 ees only” sign on the door. The dispositive issue for the court was the fact that Mr. Leger initially had permission to be on In Mulrooney v. Popko, 19 Mass. App. Ct. 917 (1984), the the premises and the court concluded that Mr. Leger was not court reaffirmed the proposition that was suggested in Monter- a trespasser despite the fact that he was not authorized to be in osso that a person is a trespasser when they are on someone’s the basement where he had his fall because he was legally on the property without consent and the entrant had notice that no premises in the first instance. consent existed. In its decision, the court of appeals specifically cited to Monterosso as suggesting a “middle ground” scenario Implications of Bernier Treatment of Trespasser in which a duty of reasonable care would be owed to someone who enters an unauthorized area if the party is given reason by A consideration of the implications of the Bernier court’s the landowner to believe that he could enter the unauthorized focus on whether the initial entry onto the property was per- area.27 TheMonterosso court held that the facts did not support mitted will demonstrate why that approach is not the appro- the conclusion that the plaintiff had been given reason to know priate one. If the only relevant inquiry is whether a party ini- that she could not enter the landing area. However, the clear im- tially had the right to be on the property, then a party would plication of the fact that the court was even considering wheth- not be a trespasser even if subsequently entering a section of er the plaintiff should have known that she had no right to en- the property that is off limits under any circumstance, whether ter that area, as reflected by the specific reference to a “middle intentional or mistaken, regardless of whether the entry is driv- ground” approach in Mulrooney, was that it is appropriate to en by innocent or improper motives. Under this approach, Mr. consider whether the party knew or should have known that Leger would not be a trespasser because he entered Smitty’s as they were committing a trespass. a customer even if he subsequently entered the basement and stole liquor or money, even if the basement door was locked Other jurisdictions have treated this issue in a similar man- and he had to pick the lock to gain entrance to the basement. ner as the Monterosso court, which suggests that the issue was It is hard to imagine that anyone could make the case that Mr. properly analyzed. In Egede-Nissen v. Crystal Mountain, Inc., 93 Leger would not have been a trespasser in such a circumstance, Wash.2d 127 (1980), the plaintiff was lawfully upon the prem- yet that would be the case if the Bernier court’s approach that ises for a picnic but then boarded a chairlift that he was not au- focused exclusively on the status of the individual when they thorized to board. The court noted that the status of the plain- entered the property was adopted. tiff changed from an invitee to a trespasser when the plaintiff unreasonably strayed beyond the area of invitation to a place A scenario such as this, where a party commits an inten- where the defendant had not led the plaintiff to reasonably be- tional trespass for improper purposes (stealing supplies) after lieve the area was open to her. initially entering the premises lawfully, is an obvious case where the party should be considered a trespasser, despite the fact that Similarly, a plaintiff who was lawfully on the premises of a the initial entry onto the premises was lawful. Yet there could be restaurant, who then went onto the roof was considered a tres- numerous other scenarios where the entry onto the unautho- passer because he had exceeded the bounds of his invitation.28 rized section of the property is mistaken and/or innocent, and In finding that the plaintiff had become a trespasser by exceed- it may be less “fair” to label such an individual a trespasser than ing the bounds of his invitation, the court considered it signif- in the case of an intentional trespass with improper motives. icant that he had entered a section of the property without any enticement, allurement or inducement by the defendant.29 Mistaken Trespass with Constructive Knowledge: Reck- lessness Standard 26 Id. at 99-100.

Although Massachusetts has not squarely addressed how to approach a case where a party strays to an unauthorized sec- 27 Mulrooney, 19 Mass App. Ct. 917, 918, citing Monterosso, 8 tion of property, the fairest approach was suggested in Mon- Mass. App. Ct. 93, 100-101. terosso v. Gaudette, Inc., 8 Mass. App. Ct. 93 (1979). In Mon- terosso, the court considered how to treat a plaintiff who fell after she stepped from a common hallway to a landing area of 28 Leffler v. Sharp, 891 So.2d 152 (Miss. 2004). a store that was closed. As was the case in Bernier, the plaintiff 29 See also Monsivais v. Winzenfried, 508 N.W.2d 620(Wis. in Monterosso had permission to be on the property (she was 1993)(holding that an invitee becomes a trespasser when en-

Fall 2014 // Journal of American Law 41 Conclusion The approach that was suggested inMonterosso and Mulrooney, and that has been adopted by certain other jurisdictions, rep- resents the most sensible approach to a fact pattern similar to the one presented in Bernier. If a party enters a section of prop- erty where he is not authorized after initially being lawfully on the property under circumstances where the party would have had no reason to know this, it would be understandable not to treat the party as a trespasser. If the basement door had no sign or other indicator that it lead to an unauthorized area and if Mr. Leger had no reason to know that he should not enter this area, the application of a negligence standard would be fair to all parties concerned.

However, when courts are presented with a fact pattern in which the plaintiff should have known that he was not autho- rized to enter a particular section of the property, the party should be considered a trespasser. The facts in Bernier present a clear cut scenario in which Mr. Leger should have known that he was entering an unauthorized area and he would have known this had he been paying attention. By ignoring the fact that Mr. Leger entered an unauthorized area under circum- stances where he was completely unjustified in doing so and by concluding that he was not a trespasser simply because his initial entry on the premises was lawful, the Bernier court failed to strike a fair and appropriate balance between the rights of the property owner and the party entering the property.

tering portions of the property not maintained for the use of tenants when the party is not invited, expressly or by impli- cation, to enter such areas); Knapp v. Connecticut Theatrical Corp., 122 Conn. 413, 414 (1937)(finding that a person is not an invitee “when the invitee is using a portion of the premises to which the invitation has not been extended either expressly or impliedly, and which the owner would not reasonably ex- pect the invitee to use in connection with the conduct of the business on the premises”).

42 Journal of American Law // Fall 2014