Mounsey Vs. Ellard Case Study

Discussion

The issue is what duty of care did C.D. Management owe to Richard. Mounsey v. Ellard, held that a landowner owes a duty of reasonable care to all lawful visitors. 363 Mass. 693, 707 (1973). The Court stated “that there is significant difference in the legal status of one who trespasses on another's land as opposed to one who is on the land under some color of right-such as a licensee or invitee.” Id at n.7. Although the general rule for care owed to trespassers is to refrain from willful, wanton, or reckless conduct. Schofield v. Merrill 386 Mass. 244, 245 (1982). Mounsey allowed for the possibility of exceptions when dealing with trespassers, “The possible difference in classes of trespassers is miniscule compared to the

others. These differences can be considered when they arise in future cases.” Mounsey, 363 Mass. at n.7. Subsequent decisions have created two exceptions, first, when the landowner is aware of trapped trespassers. Pridgen v. Boston Housing Authority 364 Mass. 696, 713 (1974). Secondly, an exception was created for foreseeable child trespassers. Soule v. Massachusetts Elec. Co. 378 Mass. 177, 182 (1979); Mass. Gen. Laws ch. 231 § 85Q. These exceptions do not apply to Richard Melville.
If C.D. Management does not owe a duty of reasonable care towards Richard, the next question is did they breach the duty to refrain from willful, wanton, or reckless conduct. To prove such breach the Melvilles would need to prove that the act or lack of such act by C.D. Management was a result of an intentional disregard for a risk that presents a high probability that substantial harm will incur. Sandler v. Commonwealth, 419 Mass. 334, 336 (1995). The facts prove that C.D. Management did not intentionally disregard any risk pertaining to Richard, and therefore did not breach this duty.
Richard is not a lawful visitor under Mounsey v. Ellard, which held, trespassers are ones that enter another’s land without right. 363 Mass. 693, 696 (1973). It was further explained that the duty owed to lawful visitors is one of reasonable care. Id. at 707. Based on our facts Richard was not a lawful visitor, no one invited him into 666 Elm St. nor was he on any official business, therefore the duty owed towards him is not the same duty of care owed towards a lawful visitor.
Richard does not fall under the exception of trapped trespassers. An owner of a building owes a duty of reasonable care to a trespasser only when the owner has knowledge of the trespasser becoming helplessly trapped. Pridgen, 364 Mass. 696, 713 (1974). Joseph Pridgen was a minor who, while riding in an elevator climbed through an escape hatch and got on top of the elevator. His friend pushed a button on the top of the car, which caused the car to descend, during this time Joseph slipped and fell. Id. at 699. Joseph’s mom became aware of Joseph’s predicament and asked that a janitor near the elevator stop the elevator. Id. at 704. Even though he knew to stop the elevator, he refused to do so until instructed by a policeman. Id. The car crushed Joseph and he suffered serious injuries. The facts here showed that someone who could remedy the situation was aware of Joseph’s predicament. The facts in this case are unlike ours, as the owner of 666 Elm St. was not aware that Richard was in any peril and therefore this exception does apply to Richard.
Additionally, Richard does not fall under the foreseeable child trespasser exception.

Massachusetts General Law Chapter 231 Section 85Q says that a landowner may be liable for physical harm suffered by child trespassers on their land, only if all five criteria are met. Condition ‘A’ states, “The place where the condition exists is one upon which the landowner knows or has reason to know that children are likely to trespass.” Mass. Gen. Laws ch. 231 § 85Q. Condition ‘B’ discusses whether or not the landowner knows or has reason to know that an unreasonable risk of death or serious bodily harm will result. Id. Condition ‘C’ focuses on whether or not the child due to their age is not aware of the risk that is present. Id. Condition ‘D’ says compares the burden of eliminating the condition to the level of risk posed to the children. Id. Finally, Condition ‘E’ states that the landowner fails to use reasonable care to eliminate or protect the children. Id. Richard’s case fails on condition ‘A’ as C.D. Management had no reason to foresee that children would trespass in their basement laundry room, as there were only laundry machines in the basement and C.D. Management had no reason to believe that a child would trespass there. C.D. Management could reasonably foresee that someone wanting to do their laundry would trespass in their basement, but Richard Melville was not in their basement to do his laundry. The Soule case created common law about this issue, “There is a

common law duty of reasonable care by a landowner or occupier to prevent harm to foreseeable child trespassers.” Soule, 378 Mass. 177, 182 (1979). In Soule, an eight-year-old was electrocuted when he climbed an electric company’s tower. Hunters and people seeking recreation commonly used this tower, in addition to it being frequented by children. Id. at 179. These facts are not similar to ours, since C.D. Management had no reason to believe that children were trespassing in the laundry room. Since C.D. Management could not foresee Richard trespassing, neither the statute nor Soule applies; therefore they do not owe him a duty of reasonable care under this exception.
The Melvilles may argue for the creation of a new exception that applies to their son.

They may want business held liable for foreseeable third party criminal attacks on trespassers. To prove their point they may look at the dissent written by Justice Liacos in Schofield v. Merrill, 386 Mass. 244 (1982). An adult trespasser wanted to recover for damages he suffered on the defendant’s property. He jumped into a quarry filled with water and injured himself; there were no warning signs near this quarry. Id. at 245. The court denied the plaintiff’s request, reiterating that the foreseeable trespasser exception only applies to children, not adults. Id. at 254. Justice Liacos’ dissent said that extending the common law to include foreseeable adult trespassers would be a natural-and-limited extension of legislative policy. Id. at 255. The Melvilles may point to that line and say that their extension would be natural and limited. The Massachusetts Court dealt with this issue saying parties are only held liable if the injury was foreseeable. Whittaker v. Saraceno, 418 Mass. 196, 200-201(1994), McKinney-Vareschi v. Paley, 42 Mass.App.Ct. 953, 954 (1997). In Whittaker, a court barred a tenant from recovery because the criminal act was not foreseeable. The facts in this case are very similar to ours. An unknown third party approached a woman, blindfolded her, brought her to an underground parking garage, and raped her. Id. at 197. There previously had been evidence of theft

of vehicles and malicious damage to vehicles in this area before. Id. at 200. The plaintiff argued that since there had been crimes in this area before that the landlord should be liable for not providing reasonable care. Id. at 198. In the opinion the Court held, since no physical acts occurred in the area where the plaintiff was attacked the attack could not be foreseeable by the defendant. Id. at 200. These facts mimic ours, while C.D. Management had knowledge that someone matching the description of Richard’s attacker was in the area, there had been no previous attacks on people and therefore this Richard’s injury was not foreseeable.
Even if Richard’s injury was foreseeable C.D. Management would still not be liable as landowners are only liable in negligence when the landowner’s conduct causes injuries sustained by those who were legally on their property. Mullins v. Pine Manor College, 389 Mass. 47 (1983). The court held a college liable for injuries that a student suffered while on school grounds. This is different than our case, because a student is a lawful visitor to their own school’s grounds, where Richard was not a lawful visitor to 666 Elm St.
C.D. Management did not breach the duty to refrain from willful, wanton, or reckless conduct. The definition of willful, wanton, or reckless conduct is, intentional conduct either through commission or omission, where there is a duty to act, which conduct involves a high degree of likelihood that substantial harm may result. Manning v. Noble, 411 Mass. 382, 387 (1991). The Court also set forth two characteristics of willful, wanton, and reckless conduct that distinguish it from negligence. First, that the defendant knowingly or intentionally disregarded an unreasonable risk. Id. Second, that the risk entailed a high degree of probability that substantial harm will result. Id. The facts in our case show that C.D. Management did not know or intentionally disregard an unreasonable risk. While they knew someone had been in the area of their basement, they did not know that there was a risk of someone being attacked. In addition, generally someone being coerced to go into a basement to look for a cat does not entail a high degree of probability that substantial harm will result. Furthermore, rarely can willful, wanton, or reckless conduct be asserted when there is no intent to injure. Mikaelian v. Palaza, 300 Mass. 354, 356 (1938). Our facts show that C.D. Management did not intent to injury Richard. Using the description of willful, wanton, and reckless conduct set forth by prior decisions, C.D. Management did not breach that duty.
Conclusion

In conclusion, C.D. Management does not owe Richard a duty of reasonable care. Additionally, C.D. Management did not breach their duty to refrain from willful, wanton, or reckless conduct.