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Walton v. Norphlett

OPINION FILED DECEMBER 22, 1977.

LILLIAN WALTON, PLAINTIFF-APPELLANT,

v.

ESTELLE NORPHLETT, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. DANIEL P. COMAN, Judge, presiding.

MR. PRESIDING JUSTICE DIERINGER DELIVERED THE OPINION OF THE COURT:

This is an appeal from the circuit court of Cook County. The trial court granted defendant's motion for summary judgment. The plaintiff appeals.

The sole issue presented for review is whether this court should overturn over 100 years of well-settled Illinois law and rule a homeowner owes a duty to a licensee who enters upon his property, said duty being to make the property safe.

The facts of the case are undisputed. The defendant, Estelle Norphlett, invited the plaintiff, Lillian Walton, to her home for dinner. The plaintiff, while leaving the home of the defendant, slipped on a portion of the concrete stairs which was broken, fell and injured herself.

• 1-3 The plaintiff argues it is time for the courts> of Illinois to make a homeowner liable for acts of ordinary negligence. The plaintiff concedes the law in Illinois now makes the occupier of land liable only for willful and wanton negligence to one who enters upon his land, as a licensee. While this court finds itself in sympathy with this contention of the plaintiff, it is not for this court to reverse the many cases and opinions of the Illinois Supreme Court. The cases cited by the defendant, Sims v. Sneed (1969), 118 Ill. App.2d 294, Belden Manufacturing Co. v. Chicago Threaded Fasteners, Inc. (1967), 84 Ill. App.2d 336, correctly point out the duty of the Appellate Court of Illinois is not to modify rules of law enunciated by our supreme court, but to follow them. What the plaintiff asks this court to do is not within the power of this court.

As both sides correctly state in their briefs, the law in Illinois is the occupier of land is only liable for willful and wanton misconduct towards a licensee. Both sides agree there was no willful and wanton misconduct in the instant case. Following the rule of law long established in Illinois and recently enunciated again by the supreme court in Washington v. Atlantic Richfield Co. (1976), 66 Ill.2d 103, we must affirm the decision of the trial court.

Accordingly, for the reasons contained herein, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

JOHNSON, J., concurs.

Mr. JUSTICE LINN, specially concurring.

I must agree with the decision reached by the majority. It is in conformance with traditional negligence principles governing the duty of an owner or occupier to persons coming onto the land. There is, however, merit in the plaintiff's challenge that the time has come for the courts> to reevaluate the application of the arbitrary categories of trespasser, licensee and invitee, to determine the liability of a landowner for injuries to persons who have entered upon the land.

The rules regarding the liability of a possessor of land are a departure from the fundamental rule that a person is liable for his own carelessness. It has been suggested that the special privileges and immunities accorded the occupier of land arose from the social and economic importance that land ownership has held in English and American history. (2 Harper and James, The Law of Torts § 27.1, at 1432 (1956).) Formulated during the 19th century, the traditional approach categorizes persons entering the land as trespassers, licensees and invitees, and graduates accordingly the duties owed by the land occupier. Sweeny v. Old Colony & Newport R.R. Co. (1865), 92 Mass. (10 Allen) 368.

The common law distinctions among trespasser, licensee and invitee have become unworkable in a modern industrialized society where individual and economic relationships are no longer based on feudalistic notions. Thus, the landowner's immunities have begun to give way to the overriding social view that where there is foreseeability of substantial harm, a landowner, as well as other members of society, should be subjected to a reasonable duty of care to avoid it.

In an effort to obtain justice within the framework of the rigid three-category approach, modern courts> have carved out of the common law classifications, a series of exceptions and exceptions to the exceptions. It has been suggested that the confused state of the law is not due to the difficulty in applying the original common law rules, "but is due to the attempts to apply just rules in our modern society within the ancient terminology." (Rowland v. Christian (1968), 69 Cal.2d 108, 117, 443 P.2d 561, 567, 70 Cal.Rptr. 97, 103.) Members of our own supreme court have noted that the law of Illinois has not escaped this confusion. ...


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