IN THE SUPREME COURT OF IOWA

No. 07–1586

Filed June 5, 2009

VALERIE KOENIG,

Appellant,

vs.

MARC KOENIG,

Appellee.

Appeal from the Iowa District Court for Polk County, Robert B. 

Hanson, Judge.

Plaintiff appeals judgment in negligence suit seeking abandonment 

of the common-law classifications for premises liability. REVERSED.

Marc S. Harding, Des Moines, for appellant.

Jason T. Madden and Amy R. Teas of Bradshaw, Fowler, Proctor & 

Fairgrave, P.C., Des Moines, for appellee.
2

APPEL, Justice.

The question of whether Iowa should retain the traditional 

common-law distinction between an invitee and a licensee in premises 

liability cases has sharply divided this court in recent years. In this 

case, we hold that the common-law distinction between an invitee and a 

licensee no longer makes sound policy, unnecessarily complicates our 

law, and should be abandoned. 

I. Background Facts and Proceedings.

Valerie Koenig visited the home of her son, Marc Koenig, when he 

was ill in order to care for him and help with household chores. After 

doing laundry, she fell on a carpet cleaner hose while carrying clothes to 

a bedroom. As a result of the fall, Valerie was injured and required 

medical care, including the placement of a plate in her leg.

Valerie filed a petition alleging that Marc’s negligent conduct 

caused her permanent injuries, pain and suffering, loss of function, and 

substantial medical costs. Marc generally denied her claim and further 

asserted that Valerie was negligent in connection with the occurrence 

and that she failed to mitigate her damages. 

At trial, Valerie offered evidence that Marc was aware that the 

carpet cleaner hose was broken but did not warn her of the defect. 

Valerie further offered evidence that the color of the hose blended in with 

the color of the carpet, thereby making it difficult to see, and that one of 

two lights in the hallway near where she fell was not working, which 

lessened the light available to detect the hazard. Marc offered evidence 

that the broken hose was an open and obvious hazard and that Valerie 

did not turn on the light which was functioning in the hallway area.

At the close of trial, Valerie sought a general negligence instruction 

rather than the uniform jury instruction on the duty of care owed to a 
3

licensee. The district court found that the law in Iowa on the proper 

instruction in a premises liability case was unsettled, declined to give the 

general negligence instruction sought by Valerie, and instead used the 

uniform jury instruction for licensees.

The jury returned a verdict in favor of Marc. After the district 

court entered judgment, Valerie filed a motion for a new trial based on 

the district court’s failure to use her proposed general negligence 

instruction. Although the district court stated that it did not necessarily 

disagree with Valerie’s position, it denied the motion. The district court 

noted that “Iowa appellate courts have not yet ruled that continued use 

of the stock instructions for premises liability cases constitutes error.” 

Further, the district court questioned whether Valerie could demonstrate 

that prejudice occurred as a result of the use of the uniform instructions. 

Valerie filed a timely notice of appeal.

II. Standard of Review.

We review challenges to jury instructions for correction of errors at 

law. Boyle v. Alum-Line, Inc., 710 N.W.2d 741, 748 (Iowa 2006). We 

must determine whether the jury instructions presented “are a correct 

statement of the applicable law based on the evidence presented.” Le v. 

Vaknin, 722 N.W.2d 412, 414 (Iowa 2006). 

“Error in giving or refusing to give” a jury instruction does not 

warrant reversal unless it results in prejudice to the complaining party. 

Wells v. Enter. Rent-A-Car Midwest, 690 N.W.2d 33, 36 (Iowa 2004). 

Prejudice, however, is presumed and reversal required “when 

instructions are conflicting and confusing.” Waits v. United Fire & Cas. 

Co., 572 N.W.2d 565, 575 (Iowa 1997); Moser v. Stallings, 387 N.W.2d 

599, 605 (Iowa 1986). Similarly, “[w]hen jury instructions contain a 

material misstatement of the law, the trial court has no discretion to 
4

deny a motion for a new trial.” Benn v. Thomas, 512 N.W.2d 537, 539 

(Iowa 1994); Brown v. Lyon, 258 Iowa 1216, 1222, 142 N.W.2d 536, 539 

(1966). An instruction which allocates the burden of proof is a material 

instruction. Kaspar v. Schack, 237 N.W.2d 414, 417 (Neb. 1976).

III. Discussion. 

A. Origin and Rationale of Common-Law Distinctions. The 

premises liability trichotomy, which distinguishes between invitees, 

licensees, and trespassers, finds its roots in the English common law. 

John Ketchum, Note, Missouri Declines an Invitation to Join the Twentieth 

Century: Preservation of the Licensee-Invitee Distinction in Carter v. 

Kinney, 64 UMKC L. Rev. 393, 395 (1995). “The distinctions which the 

common law draws between licensee and invitee were inherited from a 

culture deeply rooted to the land, a culture which traced many of its 

standards to a heritage of feudalism.” Kermarec v. Compagnie Generale 

Transatlantique, 358 U.S. 625, 630, 79 S. Ct. 406, 410, 3 L. Ed. 2d 550, 

554 (1959). The trichotomy emerged in an era where land ownership 

was paramount and the primary source of power, wealth, and 

dominance. Nelson v. Freeland, 507 S.E.2d 882, 887 (N.C. 1998). At the 

core of the trichotomy was the presumption that landowners generally 

were free to act as they pleased within the confines of their own property. 

Robert S. Driscoll, Note, The Law of Premises Liability in America: Its 

Past, Present, and Some Considerations for Its Future, 82 Notre Dame L. 

Rev. 881, 893 (2006). 

These common-law classifications arose from reluctance “to leave 

the determination of liability to a jury ‘composed mainly of potential land 

entrants.’ ” Michael Sears, Comment, Abrogation of the Traditional 

Common Law of Premises Liability, 44 U. Kan. L. Rev. 175, 176 (1995) 

(quoting Norman S. Marsh, The History and Comparative Law of Invitees, 
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Licensees and Trespassers, 69 L.Q. Rev. 182, 184 (1953)). The

distinctions, therefore, were 

created to disgorge the jury of some of its power by either 

allowing the judge to take the case from the jury based on 

legal rulings or by forcing the jury to apply the mechanical 

rules of the trichotomy instead of considering the pertinent 

issue of whether the landowner acted reasonably in 

maintaining his land. 

Nelson, 507 S.E.2d at 887. 

The trichotomy emerged in a time of tort law far different from our 

own. When the trichotomy was developing, “the principle that a man 

should be held responsible for foreseeable damages” was only reluctantly 

recognized in a limited number of cases. Id. Today, the situation has 

changed dramatically as the concept of negligence is a predominant 

concept in our tort law. 

The emergence of negligence law almost immediately conflicted 

with the common-law system. Kathryn E. Eriksen, Comment, Premises 

Liability in Texas—Time for a “Reasonable” Change, 17 St. Mary’s L.J. 

417, 422 (1986). “Common-law courts, however, decided not to replace 

the trichotomy with modern principles of negligence law, as they did in 

almost all other tort areas, but rather ‘superimposed the new [negligence] 

principles upon the existing framework of entrant categories.’ ” Nelson, 

507 S.E.2d at 887–88 (quoting Sears, 44 U. Kan. L. Rev. at 176). 

Modern courts that have retained the trichotomy have largely set 

forth the traditional justifications: (1) the continued fear of jury abuse; 

(2) the fear that by “substituting the negligence standard of care for the 

common-law categories, landowners will be forced to bear” the financial 

burden of taking precautions such as maintaining adequate insurance 

policies; and (3) the need to promote stability and predictability in the 

law. Id. at 888.
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B. Trend in Other Jurisdictions. The first American blow to the 

trichotomy was hurled by the United States Supreme Court.1

In an effort to do justice in an industrialized urban society, 

with its complex economic and individual relationships, 

modern common-law courts have found it necessary to 

formulate increasingly subtle verbal refinements, to create 

subclassifications among traditional common-law categories, 

and to delineate fine gradations in the standards of care 

which the landowner owes to each. Yet even within a single 

jurisdiction, the classifications and subclassifications bred 

by the common law have produced confusion and conflict. 

As new distinctions have been spawned, older ones have 

become obscured. Through this semantic morass the 

common law has moved, unevenly and with hesitation, 

towards “imposing on owners and occupiers a single duty of 

reasonable care in all the circumstances.”

 In 

Kermarec, the Court refused to extend the common-law distinctions to 

admiralty law. The Court heavily criticized the doctrine, noting:

Kermarec, 358 U.S. at 630–31, 79 S. Ct. at 410, 3 L. Ed. 2d at 554–55 

(quoting Kermarec v. Compagnie Generale Transaltlantique, 245 F.2d 175, 

180 (2d Cir. 1957) (Clark, C.J., dissenting)).

After Kermarec, the movement away from the common-law 

distinctions received a major boost in 1968 with the California Supreme 

Court’s decision in Rowland v. Christian, 443 P.2d 561 (Cal. 1968), 

abrogated in part by statute as stated in Calvillo-Silva v. Home Grocery, 

968 P.2d 65, 72 (Cal. 1998). In rejecting application of the common-law 

formulation, the Rowland court noted,

[W]e are satisfied that continued adherence to the common 

law distinctions can only lead to injustice or, if we are to 

avoid injustice, further fictions with the resulting complexity 

and confusion. We decline to follow and perpetuate such 

rigid classifications . . . although the plaintiff’s status as a 

trespasser, licensee, or invitee may in the light of the facts 

 1The creators of the trichotomy proved to also be its first detractors. England 

passed the Occupiers’ Liability Act of 1957 effectively eliminating the distinction 

between an invitee and licensee from English law. Driscoll, 82 Notre Dame L. Rev. at 

885. 
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giving rise to such status have some bearing on the question 

of liability, the status is not determinative.

443 P.2d at 568. Following Rowland, numerous courts abandoned the 

common-law system. See Smith v. Arbaugh’s Rest., Inc., 469 F.2d 97, 

107 (D.C. Cir. 1972); Webb v. City & Borough of Sitka, 561 P.2d 731, 734 

(Alaska 1977), abrogated in part by statute as stated in Univ. of Alaska v. 

Shanti, 835 P.2d 1225, 1228 n.5 (Alaska 1992); Mile High Fence Co. v. 

Radovich, 489 P.2d 308, 314–15 (Colo. 1971), abrogated by statute as 

stated in Bath Excavating & Constr. Co. v. Wills, 847 P.2d 1141, 1145

(Colo. 1993); Pickard v. City & County of Honolulu, 452 P.2d 445, 446 

(Haw. 1969); Cates v. Beauregard Elec. Coop., Inc., 328 So. 2d 367, 370–

71 (La. 1976); Limberhand v. Big Ditch Co., 706 P.2d 491, 496 (Mont. 

1985); Moody v. Manny’s Auto Repair, 871 P.2d 935, 942 (Nev. 1994), 

superseded by statute as stated in Wiley v. Redd, 885 P.2d 592, 595 

(Nev. 1994); Ouellette v. Blanchard, 364 A.2d 631, 634 (N.H. 1976); 

Basso v. Miller, 352 N.E.2d 868, 872 (N.Y. 1976); Mariorenzi v. Joseph 

DiPonte, Inc., 333 A.2d 127, 131–32 (R.I. 1975), overruled in part by 

Tantimonico v. Allendale Mut. Ins. Co., 637 A.2d 1056, 1057 (R.I. 1994); 

see also Vitauts M. Gulbis, Annotation, Modern Status of Rules 

Conditioning Landowner’s Liability Upon Status of Injured Party as Invitee, 

Licensee, or Trespasser, 22 A.L.R.4th 294 (2008).

After Rowland, however, a second, more moderate trend began to 

emerge in the case law. Instead of abandoning the trichotomy entirely, 

some courts began to abandon the distinction between invitees and 

licensees, while retaining the trespasser classification. See Wood v. 

Camp, 284 So. 2d 691, 695 (Fla. 1973); Jones v. Hansen, 867 P.2d 303, 

310 (Kan. 1994); Poulin v. Colby Coll., 402 A.2d 846, 851 n.5 (Me. 1979); 

Mounsey v. Ellard, 297 N.E.2d 43, 51–52 & n.7 (Mass. 1973); Peterson v. 
8

Balach, 199 N.W.2d 639, 642 (Minn. 1972); Heins v. Webster County, 

552 N.W.2d 51, 57 (Neb. 1996); Ford v. Bd. of County Comm’rs, 879 P.2d 

766, 770 (N.M. 1994); Nelson, 507 S.E.2d at 892; O’Leary v. Coenen, 251 

N.W.2d 746, 751 (N.D. 1977); Hudson v. Gaitan, 675 S.W.2d 699, 703 

(Tenn. 1984), overruled in part on other grounds by McIntyre v. Balentine, 

833 S.W.2d 52, 54 (Tenn. 1992); Mallet v. Pickens, 522 S.E.2d 436, 446 

(W. Va. 1999); Antoniewicz v. Reszcynski, 236 N.W.2d 1, 11 (Wis. 1975); 

Clarke v. Beckwith, 858 P.2d 293, 296 (Wyo. 1993). 

Still other states, including Iowa, limited the common-law system 

by refusing to apply the doctrine to child entrants. See Cope v. Doe, 464 

N.E.2d 1023, 1028 (Ill. 1984); Rosenau v. City of Estherville, 199 N.W.2d 

125, 136 (Iowa 1972). Some courts and the Restatement drew another 

exception—imposing a duty of reasonable care upon landowners to warn 

a “discovered” or “foreseeable” trespasser of any dangerous condition 

which is known by the landowner but not by the trespasser. See 2 

Restatement (Second) of Torts § 337 cmt. b (1979); Appling v. Stuck, 164 

N.W.2d 810, 814–15 (Iowa 1969); Latimer v. City of Clovis, 495 P.2d 788, 

792 (N.M. Ct. App. 1972) (reversing summary judgment because there 

was a genuine issue of material fact as to whether decedent was a 

discovered or ordinary trespasser). 

Although a bare majority of states have now departed from the 

original trichotomy in some fashion, a number of courts have declined to 

abandon the common-law system. See McMullan v. Butler, 346 So. 2d 

950, 952 (Ala. 1977); Nicoletti v. Westcor, Inc., 639 P.2d 330, 332 (Ariz. 

1982); Bailey v. Pennington, 406 A.2d 44, 47–48 (Del. 1979); Mooney v. 

Robinson, 471 P.2d 63, 65 (Idaho 1970); Kirschner ex rel. Kirschner v. 

Louisville Gas & Elec. Co., 743 S.W.2d 840, 844 (Ky. 1988); Sherman v. 

Suburban Trust Co., 384 A.2d 76, 83 (Md. 1978); Little ex rel. Little v. Bell, 
9

719 So. 2d 757, 764 (Miss. 1998); Vega ex rel. Muniz v. Piedilato, 713 

A.2d 442, 448–49 (N.J. 1998); Sutherland v. Saint Francis Hosp., Inc., 

595 P.2d 780, 782 (Okla. 1979); Di Gildo v. Caponi, 247 N.E.2d 732, 736 

(Ohio 1969); Musch v. H-D Elec. Coop., Inc., 460 N.W.2d 149, 156–57 

(S.D. 1990); Buchholz v. Steitz, 463 S.W.2d 451, 454 (Tex. Civ. App. 

1971); Tjas v. Proctor, 591 P.2d 438, 441 (Utah 1979). 

In total, the jurisdictions are now split, with a majority of states 

departing from the common-law classifications in some manner, and a 

substantial minority either rejecting abolition or not taking a recent 

position.

C. Prior Iowa Case Law. Almost four decades ago this court 

noted, “The application of rigid common-law rules (which turn the 

liability of the land possessor on the status of the person harmed) in the 

context of our complex, industrialized and heavily populated society has 

come under increasing criticism.” Rosenau, 199 N.W.2d at 135. Despite 

this observation, this court has not yet expressly rejected use of the 

common-law system in the intervening years. See id. (“We observe 

common-law classifications of injured parties have proliferated in our 

own decisions.”); see also Paul v. Luigi’s, Inc., 557 N.W.2d 895, 897 (Iowa 

1997) (explaining court’s reluctance to conclusively establish land 

possessor’s duty of care on the basis of injured party’s status); Pottebaum 

v. Hinds, 347 N.W.2d 642, 645 (Iowa 1984) (same). 

The question of the continued validity of the trichotomy was 

squarely raised in Sheets v. Ritt, Ritt & Ritt, Inc., 581 N.W.2d 602 (Iowa 

1998). In Sheets, the plaintiff sued the operators of a motel after she 

slipped and fell in the shower area of the ladies’ locker room. Sheets, 

581 N.W.2d at 603. Just as in the case at hand, the Sheets plaintiff 
10

sought a general jury instruction on negligence as opposed to the 

trichotomy approach. Id. at 604. 

In addressing the issue, a plurality of the court recognized its 

longstanding disenchantment with the common-law distinctions. Id. 

The plurality then concluded that this court has not previously abrogated 

the trichotomy for the pragmatic determination that the plaintiff had not 

suffered harm due to the use of the common-law jury instructions. Id. at 

606. The plurality noted the dozens of jurisdictions that had abrogated

the common-law formula, either in whole or in part—abolishing the 

distinction between invitees and licensees. Id. at 605. Finally, the 

plurality concluded that although “adoption of comparative fault [did] not 

seem to have been the usual catalyst for abandonment of the commonlaw distinctions,” the common-law distinctions must now be abandoned 

in Iowa. The plurality reasoned that “assigning duties to owners or 

occupiers of land on the basis of the status of a visitor is . . .

unreasonable and unfair.” Id. 

The Sheets decision, however, was only joined by four justices. 

Four other justices concurred in result, determining that the plaintiff was 

not prejudiced by the use of the common-law instructions, but remaining 

unwilling to abandon the traditional classifications. Id. at 607. Justice 

Lavorato took no part, leaving the fundamental issue unresolved. 

A year later, this court reasserted its commitment to the commonlaw distinctions. In Richardson v. Commodore, Inc., 599 N.W.2d 693, 695 

(Iowa 1999), a bar patron sued the operators of the bar after he was 

struck by falling plaster while playing pool. The issue in Richardson, 

however, was not the validity of the jury instructions, but rather whether 

there was sufficient evidence to impute knowledge of the dangerous 

condition—the sagging plaster ceiling—to the defendants. Richardson, 
11

599 N.W.2d at 697. This court nevertheless took the opportunity in 

Richardson to include the following footnote:

Although a plurality of the court would abrogate any 

distinction based on the status of the plaintiff, see Sheets v. 

Ritt, Ritt & Ritt, Inc., 581 N.W.2d 602, 603 (Iowa 1998), that 

position has not yet gained the approval of a majority of this 

court. Therefore, the status of the plaintiff continues to be a 

relevant consideration in premises liability law.

Id. at 698 n.3. 

This court next addressed the trichotomy in Alexander v. Medical 

Associates Clinic, 646 N.W.2d 74 (Iowa 2002). In Alexander, the plaintiff 

trespassed into an undeveloped open field next to the defendant’s office 

building to retrieve his sister’s dog. Alexander, 646 N.W.2d at 75. The 

plaintiff was injured when, walking in darkness, he fell into a ditch and 

hurt his knee. Id. The only issue in Alexander was whether Iowa should 

abandon the common-law rule of trespasser liability and replace it with a 

duty of reasonable care under the circumstances. Id. Canvassing the 

case law in other jurisdictions, this court determined that only six states 

use a negligence standard to govern trespasser liability, twenty-nine 

states declined the opportunity to abrogate the common-law trespasser 

standard, “and two state legislatures . . . reinstated the common-law 

trespasser rule after it had been abolished by court decision.” Id. at 78. 

The Alexander court concluded that an overwhelming number of courts 

retained the common-law trespasser rule (1) because the rule retains 

validity in modern day life as recognition of the social good of property 

ownership/control; and (2) because the “rule is . . . better suited to 

achieve a reasonable balance between individual property rights and the 

interests of a trespasser.” Id. at 79. 

Due to his recusal in Sheets, then Chief Justice Lavorato had 

theretofore been silent on validity of the common-law distinctions. He 
12

rectified that omission in Alexander by writing a special concurrence. Id.

at 80 (Lavorato, C.J., specially concurring). The special concurrence

favored abolition of the common-law distinctions noting that they were 

borne of a different time “and in a wholly different legal climate from the 

one that exists today.” Id. The opinion advocated for the middle 

ground—abolishing the distinction between invitees and licensees, while 

retaining the common-law rule regarding trespassers. Id. In reaching 

this conclusion, the concurrence noted that “inherent in the trichotomy 

is the notion that a jury could not be trusted to enter a just verdict.” Id.

at 82. This belief was out of sync with the whole of tort law where juries 

are afforded considerable authority and discretion. Id.

The special concurrence further criticized the trichotomy as 

inherently confusing, potentially leading to inequities. Though not at 

issue in this case, the concurrence noted the routine difficulty in 

determining an entrant’s status. Id. at 83 (citing Franconia Assocs. v. 

Clark, 463 S.E.2d 670 (Va. 1995) (considering whether mall employee 

lost status as an invitee by attempting to stop a robber); Lakeview 

Assocs., Ltd. v. Maes, 907 P.2d 580 (Colo. 1995) (discussing whether 

tenant, who paid rent but happened to not own a car, was invitee or 

licensee when she fell while walking across the parking lot of an 

apartment complex); Peterson v. Romine, 960 P.2d 1266 (Idaho 1998) 

(considering whether plaintiff who parked in downtown parking lot 

provided for shoppers, but who shopped at an adjacent but unaffiliated 

store, was therefore not a business invitee when she was injured by 

stepping into a pothole); and Gladon v. Greater Cleveland Reg’l Transit 

Auth., 662 N.E.2d 287 (Ohio 1996) (questioning whether fare-paying 

customer of subway system, who was assaulted and thrown by third 
13

parties upon exiting train, was still invitee when left lying on tracks and 

struck by train)). 

Due to this potential for confusion, the Alexander special 

concurrence asserted that abolishing the common-law formulation would 

lead to more predictable results. And, contrary to critics, would not leave 

the jury utterly standardless. The foreseeability of the visitor’s presence 

and the time, manner, place, and surrounding circumstances of his 

entry would continue to be relevant factors in determining whether the 

landowner acted reasonably. Id. at 84. Abolishing the common-law 

distinctions does not truly alter the underlying principles of premises

liability. Id. It simply prevents, according to the concurrence, an 

entrant’s status as being the sole/primary factor. Id. Finally, the 

concurrence noted that abolishing the distinctions would recognize “that 

our modern social mores and humanitarian values place more 

importance on human life than on property.” Id.

The premises liability issue returned to this court three years later 

in Anderson v. State, 692 N.W.2d 360 (Iowa 2005). Anderson filed suit 

against the State after she was injured leaving the University of Northern 

Iowa library. Anderson, 692 N.W.2d at 361. Anderson claimed that the 

State and its agents were negligent in not closing the library due to a 

winter storm. Id. at 363. Once again the plaintiff objected to the use of 

the stock instruction and claimed that the court should have 

alternatively instructed the jury that the possessor of land must exercise 

reasonable care under all the circumstances existing at the time and 

place of the injury for the protection of lawful entrants. Id. at 367. The 

district court overruled the objection. While this court noted the issue, 

the majority opinion did not contain an analysis or exegesis on the 

subject. Instead, the court merely noted that it was evenly divided on the 
14

jury instruction issue and affirmed the district court on that ground by 

operation of law. Id. 

This court last addressed the premises liability issue just threeand-a-half years ago in Benham v. King, 700 N.W.2d 314 (Iowa 2005). 

While visiting his dentist King in 2000, Benham was injured when the 

dental chair suddenly collapsed and he fell against a sink and cabinet 

located near the chair. Benham, 700 N.W.2d at 316. The case proceeded 

to trial, where the district court granted King’s motion for directed verdict

concluding that there was no evidence that King should have known of 

the defective condition of the chair which caused it to collapse. Id. at 

317. This court determined that directed verdict was proper as Benham 

failed to present evidence that King could have discovered the particular 

defect that caused the injury through the exercise of reasonable care. Id.

at 320. Therefore, King did not breach his duty of care to Benham, an 

invitee. Id. at 321. 

While the court was unanimous as to result, this case once again 

produced a lengthy special concurrence. Id. (Wiggins, J., specially 

concurring). This special concurrence noted that: 

A more logical approach to a premises liability case would be 

to abandon the antiquated common-law dichotomy with its 

contradictory and confusing rules and adopt the modern rule

requiring a possessor of land to exercise reasonable care 

under all the circumstances existing at the time and place of 

the injury for the protection of invitees and licensees.

Id. at 322.

D. Adoption of General Negligence Standard for Invitees and 

Licensees. Taking into consideration the wealth of case law in our sister 

jurisdictions, academic commentary, and the history of the common-law

distinctions, we now conclude that the advantages of abolishing the 
15

distinction between invitees and licensees outweigh the value of its 

retention. 

The primary advantage of abolishing the invitee-licensee 

distinction is to avoid confusion. While there is no issue in this case as 

to Valerie’s status, properly categorizing an entrant’s status has proven a 

dubious task in other cases. As noted previously, the Alexander special 

concurrence is replete with examples of the difficulties appellate courts 

have experienced in attempting to fit modern human interaction into 

rigid categories developed three centuries ago. Such confusion is likely 

to only increase in the future. See generally Matthew D. Lincoln, Note, 

Landowners’ Duty to Guests of Invitees and Tenants: Vogt v. Murraywood 

Swim & Racquet Club & Goode v. St. Stephens United Methodist 

Church, 57 S.C. L. Rev. 387 (2005) (discussing South Carolina’s 

difficulty in classifying the duty owed to guests of invitees or tenants visà-vis the landowner). 

Not only does this confusion provide ample grounds for appeal, it 

also prevents the development of an easily applicable standard for future 

cases. As a result, retention of the common-law system has not fulfilled 

its goal of predictability, but rather has “produced confusion and 

conflict.” Kermarec, 358 U.S. at 631, 79 S. Ct. at 410, 3 L. Ed. 2d at 

555; Peterson, 199 N.W.2d at 643 (stating that “judges have been highly 

critical of the common-law straitjacket of highly technical and arbitrary 

classifications which have often led to confusion in the law and inequity 

in the cases decided”). 

The difficultly in distinguishing between invitees and licensees

underscores another disadvantage of the classification—people do not 

alter their behavior based on an entrant’s status as an invitee or 
16

licensee. Many courts have illustrated this distinction’s divorce from 

reality. The West Virginia Supreme Court posed this hypothetical:

“A canvasser who comes on your premises without your 

consent is a trespasser. Once he has your consent, he is a 

licensee. Not until you do business with him is he an 

invitee. Even when you have done business with him, it 

seems rather strange that your duty towards him should be 

different when he comes up to your door from what it is 

when he goes away. Does he change his colour in the middle 

of the conversation? What is the position when you discuss 

business with him and it comes to nothing? No confident 

answer can be given to these questions. Such is the morass 

into which the law has floundered in trying to distinguish 

between licensees and invitees.”

Mallet, 522 S.E.2d at 441 (quoting Mariorenzi, 333 A.2d at 133 n.4). The 

fungible and unpredictable nature of the classifications makes it 

impossible for landowners to conform their behavior to current 

community standards. See also id. at 443 (“If we wish for our law to be 

predictable, and we do, then we have a duty to shape it in such a way 

that it meshes with the general, reasonable assumptions that people 

make in their daily lives.”). It also makes it impossible for entrants to 

understand to what level of danger or risk they are being exposed.

In addition, abandonment of the common-law distinction between 

invitees and licensees is consistent with modern notions of tort law and 

liability. When this distinction was adopted in the nineteenth century by 

American courts, our tort law was replete with special rules and arguably 

arbitrary common-law distinctions. Since that time, these doctrines, 

such as contributory negligence, which often yielded inequitable results, 

have fallen by the wayside in favor of comparative fault. “The use of a 

general standard of reasonable care under all the circumstances . . . will 

bring this area of the law into conformity with modern tort principles by 

allowing increased jury participation and the use of contemporary 
17

standards.” Sears, 44 U. Kan. L. Rev. at 184–85. Contrary to courts 

that have upheld the trichotomy, there is nothing to fear about jury 

involvement. As the North Carolina Supreme Court correctly points out, 

this fear fails to take into account both the primacy of juries in other 

areas of tort law and the reality that “modern jurors are more likely than 

feudal jurors to be landowners themselves. . . .” Nelson, 507 S.E.2d at 

888. 

Moreover, both logic and almost forty years of practice suggest that 

there is no reason to question a jury’s ability to perform in the area of 

premises liability as opposed to any other area of tort law. See Heins, 

552 N.W.2d at 57 (“We find no merit in the argument that the duty of 

reasonable care is difficult for a fact finder to understand or apply, 

because it has been used successfully with regard to invitees and is the 

standard used in almost all other tort actions.”). The fear of a runaway, 

standardless jury has not been substantiated in the jurisdictions that 

have abolished the common-law distinction between invitees and 

licensees. See generally Carl S. Hawkins, Premises Liability After 

Repudiation of Status Categories: Allocation of Judge and Jury Functions, 

1981 Utah L. Rev. 15 (concluding ordinary negligence principles have 

constrained jury discretion in premises liability cases in jurisdictions 

that abolished the classification system). 

Finally, abandonment of this common-law distinction recognizes a 

higher valuation of public safety over property rights. 

“[T]he traditional rule confers on an occupier of land a 

special privilege to be careless which is quite out of keeping 

with the development of accident law generally and is no 

more justifiable here than it would be in the case of any 

other useful enterprise or activity.” 
18

Antoniewicz, 236 N.W.2d at 8–9 (quoting 2 Fowler V. Harper & Fleming 

James Jr., The Law of Torts § 27.3, at 1440 (1956)). This “special 

privilege” is fundamentally no longer the public policy of this state. This 

court has already implicitly recognized the harshness, rigidity, and 

inequity of the common-law scheme by crafting exceptions for children

and known trespassers. “[M]odern times demand a recognition that 

requiring all to exercise reasonable care for the safety of others is the 

more humane approach.” Jones, 867 P.2d at 307.

The common-law distinction between invitees and licensees was

borne of a different time, a product of a different culture, and utilized by 

a legal system far removed from today’s realities. 

Life in these United States is no longer as simple as in the 

frontier days of broad expanses and sparsely settled lands. 

Inexorably our people, gregarious in nature, have magnetized 

to limited and congested areas. With social change must 

come change in the law, for as President Woodrow Wilson 

observed, “The first duty of the law is to keep sound the 

society it serves.”

Wood, 284 So. 2d at 696. 

“When the reasons for the rule disappear, the rule ought to 

disappear.” Alexander, 646 N.W.2d at 84 (Lavorato, C.J., specially 

concurring); see also Funk v. United States, 290 U.S. 371, 383, 54 S. Ct. 

212, 216, 78 L. Ed. 369, 376 (1933) (“It has been said so often as to have 

become axiomatic that the common law is not immutable but flexible, 

and by its own principles adapts itself to varying conditions.”). As the 

reasons supporting the common-law distinction between invitees and 

licensees no longer exist, we now abandon the distinction.2

 2The continued validity of the common-law approach to trespassers has not 

been raised in this appeal. We thus express no opinion on the continued validity of 

common-law doctrines involving trespassers.
19

In place of the common-law formulation, we adopt the multifactor 

approach advanced by the Nebraska Supreme Court and adopted by the 

Sheets court.

“We impose upon owners and occupiers only the duty to 

exercise reasonable care in the maintenance of their 

premises for the protection of lawful visitors. Among the 

factors to be considered in evaluating whether a landowner 

or occupier has exercised reasonable care for the protection 

of lawful visitors will be: (1) the foreseeability or possibility of 

harm; (2) the purpose for which the entrant entered the 

premises; (3) the time, manner, and circumstances under 

which the entrant entered the premises; (4) the use to which 

the premises are put or are expected to be put; (5) the 

reasonableness of the inspection, repair, or warning; (6) the 

opportunity and ease of repair or correction or giving of the 

warning; and (7) the burden on the land occupier and/or 

community in terms of inconvenience or cost in providing 

adequate protection.”

Sheets, 581 N.W.2d at 606 (quoting Heins, 552 N.W.2d at 57). 

This multifactored approach will ensure that the interests of land 

owners and injured parties are properly balanced. It further allows the 

jury to take into consideration common sense notions of reasonable care 

in assessing liability. By adopting this test, we eliminate an arcane and 

difficult-to-understand distinction from our law and make it simpler and 

more easily understood. 

As a result of our holding abandoning the distinction between 

invitees and licensees in premises liability cases, it follows that the 

instruction given by the district court in this case was erroneous. 

Further, unlike in Sheets, we find the error in the instruction to be

material, requiring reversal. With respect to subparagraph 3, Instruction 

No. 10 improperly shifted the burden of proof from the defendant to the 

plaintiff by requiring the plaintiff to prove that she “did not know or have 

reason to know of the condition and the risk involved.” Such an 

instruction is a holdover from the bygone era of contributory negligence, 
20

and directly contradictory to the defendant’s requested instruction on 

comparative fault. An instruction that improperly states the burden of 

proof is a material error demanding reversal. See Kaspar, 237 N.W.2d at 

417 (finding instructions that deal with the burden of proof to be “at the 

core of and central to the proper disposition and consideration by the 

jury” so as to merit a finding of categorical error). 

On remand, the district court should develop a more direct, simple 

instruction consistent with our adoption of the multipronged test to 

guide the jury in its deliberations.

IV. Conclusion.

The district court’s ruling on the motion for new trial is reversed, 

the judgment vacated, and the matter remanded for a new trial using a 

general negligence instruction to define the scope of duty owed by the 

defendant in this case. 

REVERSED.

All justices concur except Streit, J., who concurs specially.
21

Koenig, #19/07–1586

STREIT, Justice (specially concurring).

The majority takes a much-needed step away from the premises 

liability trichotomy, but needlessly leaves standing one leg of a threelegged stool. This wobbly paradigm should also be given a gentle nudge 

over the cliff. We should completely abolish the classification system, 

saving no remnant. Alexander v. Med. Assocs. Clinic, 646 N.W.2d 74, 86 

(Iowa 2002) (Streit, J., concurring specially); Rowland v. Christian, 443 

P.2d 561, 568–69 (Cal. 1968), abrogated in part by statute as stated in 

Calvillo-Silva v. Home Grocery, 968 P.2d 65, 72 (Cal. 1998).