Berger v. Shapiro

• Decision Date: 01 June 1959
• Docket Number: No. A--101,A--101
• Citation: 152 A.2d 20,30 N.J. 89
• Parties: Sarah BERGER, Plaintiff-Respondent, v. Samuel SHAPIRO, Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 89

30 N.J. 89

152 A.2d 20

Sarah BERGER, Plaintiff-Respondent, v. Samuel SHAPIRO, Defendant-Appellant.

No. A--101.

Supreme Court of New Jersey.

Argued April 21, 1959.

Decided June 1, 1959.

H. Curtis Meanor, Jersey City, for defendant-appellant (Emory, Langan, Lamb & Blake, Jersey City, attorneys; James J. Langan and H. Curtis Meanor, Jersey City, of counsel).

Herman M. Wilson, Newark, for plaintiff-respondent.

The opinion of the court was delivered by

PROCTOR, J.

The Appellate Division reversed a judgment dismissing plaintiff's negligence suit at the close of all the evidence. 52 N.J.Super. 94, 144 A.2d 900 (1958). We certified upon the defendant's application. 28 N.J. 306, 146 A.2d 144 (1958).

The plaintiff, Sarah Berger, an elderly woman, came from Florida to visit her daughter and son-in-law, Samuel Shapiro, the defendant, at their home in Cedar Grove, New Jersey. She had been staying there for about two or three weeks prior to the accident which occurred on September 13, 1955. The plaintiff has been suffering from glaucoma for the past 13 years and her vision is greatly impaired. She testified that while she can 'see a little, * * * enough to get around when I am close,' her vision is not at all clear and that '(e)verything is shadowy like.' Her vision at the time of the trial was the same as when the accident occurred. She had difficulty at the trial in examining a photograph of the scene of the accident.

On the day of the accident she was alone on the front lawn of the defendant's house. Her sister, who was also a visitor, was inside and her daughter was next door with a neighbor. Mrs. Berger decided to go into the house. She had never before used the front entrance without assistance and generally used the rear entrance where there was a banister. She testified:

'I felt I wanted something so I got up to go into the house. I very seldom go alone but my daughter wasn't home just yet. My sister was in the house. So I thought I will go myself. So I walked up slowly, up the steps, and when I opened the door, I went back so the door would open, and my foot went into something that was empty and I fell down and broke my foot.'

She fell from the porch to the ground, a distance of about four and a half feet, breaking her heel and ankle. A rosebush situated close to the right front side of the porch was broken by her fall. On cross-examination she testified as follows:

'A. I walked up the steps all right. I walked slowly and then when I went to open the door, so I went this way to open the door, stepped back to get in and my foot went into something that was empty; I don't know what.

'Q. You don't know what that was? A. No, I didn't know; at that time I didn't know.'

Later when she was recalled to the stand and shown the photographs of the steps she testified:

'Q. Did you have your hand, which hand, on the door? A. This door. I had it on the door to open it. I went back to get the door because the door is on this side. So I was on this side. I opened the door. I stepped back to open the door, my foot fell into something that was like empty. I didn't know what it was and I went down.

'Q. When you did step back you had your hand on the knob of the door to open it? A. Yes.

'Q. Where did you fall? A. On the lawn, the front lawn. Right on the side where I fell; on the side where I fell. I fell right to the side.'

And on further cross-examination she said:

'I opened the door, I stepped back, I went down this way right off the porch.'

The record does not indicate whether the plaintiff, in conjunction with the above quoted testimony, is pointing to the photograph or physically demonstrating the manner in which she fell.

The front porch of the defendant's house is reached by ascending four brick steps. The top step connects with a cement porch which defendant estimated to be about two and a half feet in depth. The front screen door opens from right to left (facing the house). There is no guard or railing on the right side of the porch. There was a brick missing from each end of the top step. Mrs. Shapiro, the wife of the defendant, testified that she removed the two bricks about two months before the accident and at least one month before her mother arrived for her visit. She said she did so because she discovered the bricks were loose and that she informed her husband of what she had done. Her husband, testifying in his defense, admitted that his wife had told him about two months before the accident that she had removed the bricks and wanted him to replace them. He told her that he intended to install iron railings in the spaces created by the missing bricks. This was never done. The plaintiff's eye condition was known to both Mr. and Mrs. Shapiro.

The theory of plaintiff's case was that while opening the front door she fell when she stepped backwards into the space created by the missing brick at the extreme right front side of the top step, and that the defendant's failure to have replaced the brick, having had knowledge and opportunity to do so, constituted a breach of his duty of care owing to her.

At the conclusion of the entire case defendant's attorney moved for a judgment of involuntary dismissal on two grounds: (1) that the plaintiff was a social guest and the only duty owing to her was that of refraining from willful or wanton conduct; (2) the plaintiff was guilty of contributory negligence as a matter of law. The trial judge, without ruling on either of these grounds, granted the motion for want of evidence of proximate cause and said 'I don't think there is any evidence from her testimony to indicate that this space caused by the removal of the brick was the cause of her fall. She says she fell, she stepped into open space.'

The Appellate Division in ordering a new trial held that n view of plaintiff's testimony that her foot 'went into' or 'fell into' something, the jury might reasonably infer that the 'something' was the space left by the missing brick and thus this condition was the causal factor in her fall. The Appellate Division also held that from the evidence the jury could find that the defendant violated a duty owed to the plaintiff. It further held that plaintiff was not guilty of contributory negligence as a matter of law.

On this appeal the defendant first contends that he did not violate any duty owing to the plaintiff. Both parties agree that at the time of the accident plaintiff was a social guest of the defendant. As such, the great weight of authority classifies her as a licensee, notwithstanding that her presence at the defendant's home may have been at his express invitation. 2 Harper and James, The Law of Torts, § 27.11, p. 1476 (1956); Prosser, Torts (2d ed. 1955), p. 447; Vogel v. Eckert, 22 N.J.Super. 220, 91 A.2d 633 (App.Div.1952). The Restatement of Torts, § 331, defines a social guest as a gratuitous licensee. While a social guest is on the premises of another as a result of an 'invitation' in the layman's sense of that word, this court has said that he is not entitled to as high a degree of care for his safety as one who is on the premises to confer some benefits upon the invitor other than purely social. Taneian v. Meghrigian, 15 N.J. 267, 275, 104 A.2d 689 (1954). See also Annotation, 25 A.L.R.2d 598 (1952). In the latter situation the person is regarded in the law as an invitee or, in the terms of the Restatement, supra, § 332, a 'business visitor,' and is owed a greater duty of care than a licensee. In Finnegan v. The Goerke Co., 106 N.J.L. 59, 147 A. 442 (E. & A. 1929), it was held that a customer in the store of the defendant was an invitee or business visitor to whom the defendant owed a duty to exercise reasonable care to maintain the premises in a reasonably safe condition. See also Murphy v. Kelly, 15 N.J. 608, 105 A.2d 841, 44 A.L.R.2d 1316 (1954); Bohn v. Hudson & Manhattan R. Co., 16 N.J. 180, 185, 108 A.2d 5 (1954).

In the present case we must determine what duty the defendant as host owed to the plaintiff, his social guest. We are not here concerned with an activity being conducted on the premises by the host at the time of his social guest's presence. In such case the host is under an obligation to exercise reasonable care for the protection of his guest. Cropanese v. Martinez, 35 N.J.Super. 118, 113 A.2d 433 (App.Div.1955); Restatement, supra, § 341. The door, porch and steps were in the same condition at the time of the accident as they were for about two months prior thereto and therefore constituted an existing or static condition of the premises. See Cropanese v. Martinez, supra; Dunster v. Abbott, 2 All Eng.L.R. 1573 (Ct.App.1953).

There are decisions in this State in which it has been held that the obligation of a host to his guests is merely to refrain from willfully and wantonly injuring them. Sohn v. Katz, 112 N.J.L. 106, 169 A. 838, 90 A.L.R. 880 (E. & A. 1934); Gregory v. Loder, 116 N.J.L. 451, 185 A. 360 (Sup.Ct.1936). The rationale of this doctrine is that the guest understands when he accepts the hospitality of the host that he is temporarily adopted as one of the family and he expects that the host will take the same care of him as he does of himself and the other members of his family and no more. As a consequence, the guest must accommodate himself to the conditions of his host and take the property as he finds it. Morril v. Morril, 104 N.J.L. 557, 142 A. 337, 60 A.L.R. 102 (E. & A. 1928), citing Southcote v. Stanley, 1 H. & N. 247, 25 L.J.Exch. 339 (1856); Lewis v. Dear, 120 N.J.L. 244, 198 A. 887 (E. & A. 1938). Thus the host need not undertake to make improvements or alterations to render his home safer for those accepting his hospitality than for himself. Comeau v. Comeau, 285 Mass. 578, 189 N.E. 588, 92 A.L.R. 1002 (Sup.Jud.Ct.1934). However, there developed quite early an exception to the above rule. This imposed upon a land occupier an obligation to disclose to the licensee any concealed dangerous...