Home ESTELLE MULROONEY vs. JULIAN POPKO & another. [Note 1]

19 Mass. App. Ct. 917

December 7, 1984

Patricia A. Bobba for the plaintiff.

Paul S. Weinberg for the defendants.

The trial judge took the unusual step of directing a verdict for the defendants at the close of the plaintiff's case (rather than relying on the judgment n.o.v. device, see Mass.R.Civ.P. 50(b), 365 Mass. 814 [1974]; Soares v. Lakeville Baseball Camp, Inc., 369 Mass. 974 [1974]) because he thought Schofield v. Merrill, 386 Mass. 244 (1982) (4-3 decision), was clearly controlling against the plaintiff. We agree that it controls. The plaintiff drove her car into the defendants' scrubby lot which, as indicated by a posted sign, they had reserved for parking by tenants of a nearby house, also owned by them. In leaving her car, the plaintiff -- not a tenant -- tripped and fell because of an accumulation of snow and ice on the spot.

Page 918

By the systematics of the Schofield case the plaintiff was to be classified as a "trespasser" to whom (except in two acknowledged situations, neither of which was here applicable [Note 2]) no duty of due care was owed by the landowners; the duty owed was merely to refrain from wilful, wanton, or reckless conduct, and the plaintiff had charged no more than negligence. Argument is offered that the plaintiff ought to be able to claim as a kind of third-party beneficiary of the defendants' duty of care toward their tenants, but we think the Schofield case does not admit of this. The case of Monterosso v. Gaudette, 8 Mass. App. Ct. 93 , 100-101 (1979), suggests as a "middle ground" that due care may be owed to one who is given reason by the landowner to believe that he could enter if he wished. If it be assumed that this formulation can survive the Schofield case, later decided, the plaintiff still is not helped, since she was not given such a reason.

Judgment affirmed.


[Note 1] Mary T. Popko, his wife.

[Note 2] See Pridgen v. Boston Housing Authy., 364 Mass. 696 (1974) (the "trapped trespasser" case); Soule v. Massachusetts Elec. Co., 378 Mass. 177 (1979) (the "child trespasser" case; and see G. L. c. 231, Section 85Q). The question of the treatment of trespassers, or of trespassers in various situations, was raised as early as Mounsey v. Ellard, 363 Mass. 693 , 696, 707 n.7, 717 (1973), and has taken the course of decision described in the opinions in the Schofield case.