Berns v. Doan

¶1Plaintiff-appellant Megan Berns’ automobile collided with defendant-appellee Debra Doan’s automobile on Doan’s driveway. Upon finding the public highway blocked by a fallen tree, Berns attempted to use Doan’s driveway to turn around. At the very time Berns pulled into the driveway, Doan was backing out of her driveway. The two vehicles collided and allegedly Berns and her daughter, Kylee were injured. Berns brought suit in Superior Court to recover for those alleged injuries. The trial judge granted Doan summary judgment, finding no genuine issue of material fact in dispute because Berns trespassed on Doan’s real property at the time of the accident, and because the premises guest statute, 25 Del. C. § 1501 bars trespassers’ actions against private landowners for “injuries or damages” based on simple negligence.

¶2In Berns’ first appeal, we held that Berns trespassed upon Doan’s land and the premises guest statute barred her from recovering for any injuries caused by *508Doan’s alleged ordinary negligence.1 Berns moved for reargument and we granted her motion to consider whether the common law principles in Campbell v. Race2 compelled a conclusion that Berns was a public invitee on Doan’s land, rather than a trespasser, and, therefore, the premises guest statute would not apply.3 We conclude that, because it was not “inevitably” necessary for Berns to enter Doan’s real property, Berns and Kylee were trespassers whose claims the premises guest statute bars. Accordingly, we affirm the Superior Court’s grant of summary judgment to the defendant.

¶3FACT AND PROCEDURAL BACKGROUND

¶4On Friday November 14, 2003, Berns attempted to drive her daughter to the Whatcoat Church in Camden, Delaware so that she could perform excerpts of her role as Clara in the Central Delaware Dance Academy’s performance of the Nutcracker ballet for the church preschool class. As Berns neared the church, she came upon a fallen tree that blocked the roadway. At first, Berns planned to use Doan’s driveway to turn around. Having at least partially pulled into Doan’s driveway, Berns decided it would be easier to turn her Gladiator van around in a vacant lot across the street. Berns contends that, as she checked for traffic to be able to back her van up and, thereafter, use the vacant lot to turn around, Doan reversed her automobile into the front of Berns’ van. Berns and Kylee allegedly suffered injuries resulting from the collision. Following the collision, Berns left her van on Doan’s property and walked Kylee the rest of the way to the nearby church.

¶5Berns filed a complaint in Superior Court alleging that Doan negligently caused the collision that resulted in her and Kylee’s alleged injuries. Applying 25 Del. C. § 1501,4 the trial judge determined that Berns, as a trespasser, could not recover for any injuries allegedly suffered while on Doan’s property even if Doan’s negligence proximately caused those injuries. The trial judge granted Doan’s motion for summary judgment.

¶6In Berns I, we held: (1) 21 Del. C. § 2118(a)(2), which requires insurance coverage to operate a motor vehicle, does not provide an exception to the premises guest statute simply because an accident on private land involves an automobile; (2) Berns did not enter Doan’s property out of necessity because other drivers used a vacant lot across the street to turn around; and, (3) because Berns did not present to the trial judge an argument that Kylee or Berns did not physically enter, and thus *509were injured, on Doan’s property, we would not consider the argument on appeal.5 Berns requested reargument, claiming that we misapprehended the gravamen of Campbell and misapplied the common law’s determination of Berns and Kylee’s status at the time of the collision.6 We granted Berns’ motion and held en Banc oral arguments on August 27, 2008. We again affirm.

¶7DISCUSSION

¶8Berns argues that, where the common law rule in Campbell is properly understood and applied,7 she and Kylee are converted from trespassers to business invitees on Doan’s property and, therefore, the premises guest statute cannot bar her and Kylee’s claims. Berns argues that the blockage of the public highway by the fallen tree created a necessity that granted her free passage over adjacent, private lands as though she were still on a public highway. Berns claims we erred by concluding that the availability of the vacant, yet private, lot across the street altered in any way her option to use Doan’s driveway arising from necessity. She asserts that once a public highway is obstructed, a traveler may freely continue her journey as an invitee on any adjacent, private land; i.e., may freely select any available alternative.

¶9In Campbell, the Supreme Judicial Court of Massachusetts adopted the “well settled” English rule that “where a highway becomes obstructed and impassable from temporary causes, a traveller has a right to go extra viam upon adjoining lands, without being guilty of trespass.”8 This right is based upon the general principle that “[highways are ... for the public service, and if the usual tract is impassable, it is for the general good that people should be entitled to pass in another line.”9 “[W]here the public convenience and necessity come in conflict with private right, the latter must yield to the former.”10 The use of the adjoining land must be “temporary and unavoidable,” where “the only escape is, by turning out of the usually travelled way, and seeking an outlet over the fields adjoining the highway.”11

¶10“Such a right is not to be exercised from convenience merely ... it is to be confined to those cases of inevitable necessity or unavoidable accident, arising from sudden and recent causes which have occasioned temporary and impassable obstructions in the highway.”12 The otherwise obstructed traveler must pass “as near to the original way as possible.”13 In fact, under com*510mon law, a traveler could make a gap in a private land owner’s hedges to avoid going any farther into the owner’s private grounds than is absolutely necessary.14

¶11The North Carolina Supreme Court explained the Campbell requirement of “inevitable necessity or unavoidable accident”:

When a traveler has notice of the existence of the obstruction, and can reach his destination with his vehicle by another route, which is more circuitous, but not unreasonably long, he will not be permitted, merely for the sake of convenience, to pass, without incurring liability in a civil action, by the more direct way over the land of an abutting proprietor.15 [emphasis supplied]

¶12To be clear, one who can avoid intruding upon private property by taking a more circuitous and not unreasonably long route but chooses not to, is liable for trespass.16

¶13We review a trial judge’s grant of summary judgment de novo.17We must determine “whether the record shows that there is no genuine, material issue of fact and the moving party is entitled to judgment as a matter of law.”18

¶14Berns argument that she and Kylee were public invitees at the time of the collision fails in several respects. Berns erroneously claims that, when applying the premises guest statute, a traveler forced to go extra viam because of an obstructed public highway suddenly morphs from a trespasser into a public invitee. As stated in Campbell “where a highway becomes obstructed and impassable from temporary causes, a traveller has a right to go extra viam upon adjoining lands, without being guilty of trespass.” 19 No common law case supports Berns’ attempt to convert the common law shield from liability for trespassing into a sword that drastically changes the relationship between land owners and random travelers on public roads. Although a land owner’s property rights may be “[s]ubject to the right of mere passage, the owner of the soil is still absolute master.”20

¶15Even if the common law right to go extra viam changes the classification of a traveler, who would otherwise be a trespasser, that traveler would be a licensee, not a public invitee. The Restatement (Second) of Torts defines public invitees as “those who enter as members of the public for a purpose for which the land is held open to the public.”21 Though an invitation “does not in itself establish the status of an invitee, it is essential to it.”22 “[A]n invitation is conduct which justified others in believing that the possessor desires them to enter the land,” as opposed to permission which is “conduct justifying others in believing that the possessor is *511willing that they shall enter if they desire to do so.”23

¶16There is no evidence in the record that Doan invited Berns and Kylee onto her property, overtly or through conduct demonstrating that Doan desired them to enter the land. At most, the common law right to go extra viam would have given Berns permission to enter Doan’s property. “Mere permission, as distinguished from invitation, is sufficient to make the visitor a licensee ... but it does not make him an invitee.”24 Because licensees are considered “guests without payment,”25 the premises guest statute would bar Berns’ claim26

¶17Apart from whether the common law right to go extra viam transforms a trespasser into a mere licensee or even into a public invitee,27 we find that Berns did not enter Doan’s property out of necessity and, therefore, had no right to go extra viam. To determine whether Berns had the right to be on Doan’s property at the time of the collision, the essential question is whether it was necessary for Berns to enter Doan’s private driveway on account of the fallen tree.28 The trial judge determined that it was not necessary, and we agreed.29 In Berns I, we refrained from addressing whether Delaware recognizes “a common law rule of necessity.”30 Allowing that Delaware follows the common law rule of Campbell and the cases described above, we hold that it was not inevitably necessary that Berns enter Doan’s driveway.

¶18Berns did not use Doan’s driveway out of “inevitable necessity or unavoidable accident,” as required by Campbell.31Berns could have performed a three-point turn32 within the bounds of the public highway and, then, continued to the church via a more circuitous route.33 Given that Berns walked Kylee the rest of the way to the church, taking an alternate route clearly would not have taken an unreasonable amount of time.34

¶19Even if Berns could not have completed a three-point turn within the public highway, she could have used the vacant lot to turn around, not Doan’s driveway.

¶20*512A common theme among the cases recognizing a common law right to go extra viam is the recognition that, if a traveler must enter private property to bypass an obstruction, she must do so in a manner that limits the infringement of property rights.35 Travelers must go “as near to the original way as possible,” even to point where they must create a gap in the property owner’s hedges to avoid infringing upon his property rights any more than absolutely necessary.36 The risk of substantially interfering with Doan’s enjoyment of her property was more likely than the risk posed by using an uninhabited lot. Accordingly, Berns should have either completed a three-point turn within the highway or used the vacant lot to turn around, rather than entering the driveway to Doan’s residence. Requiring Berns to choose the path with the least risk of infringing upon a residential property holder’s rights is wholly consistent with the legislature’s intent in enacting the premises guest statute to protect private residential property holders.

¶21Because Berns did not enter Doan’s property out of inevitable necessity, she was a trespasser at the time of her collision with Doan’s vehicle. Therefore, 25 Del C. § 1501 precludes Berns and Kylee from recovering for any injuries caused by Doan’s alleged ordinary negligence.

¶22CONCLUSION

¶23For the foregoing reasons, the judgment of the Superior Court is affirmed.