Cesario v. Chiapparine

• Decision Date: 25 May 1964
• Citation: 21 A.D.2d 272,250 N.Y.S.2d 584
• Parties: Vincenza CESARIO and William Cesario, Appellants, v. Angela CHIAPPARINE and Emelia Cesario, Respondents, and Louis Cesario, Defendant.
• Court: New York Supreme Court — Appellate Division

Page 584

250 N.Y.S.2d 584

21 A.D.2d 272

Vincenza CESARIO and William Cesario, Appellants, v. Angela CHIAPPARINE and Emelia Cesario, Respondents, and Louis Cesario, Defendant.

Supreme Court, Appellate Division, Second Department.

May 25, 1964.

Solomon Z. Ferziger, Brooklyn (Bernard Meyerson, Brooklyn, of counsel), for appellants.

George J. Conway, New York City (Lillian A. Cuff, Garden City, of counsel), for respondent Chiapparine.

Allen M. Taylor, New York City (William C. Mattison, Brooklyn, of counsel), for respondent Emelia Cesario.

Before UGHETTA, Acting P. J., and KLEINFELD, CHRIST, BRENNAN and HOPKINS, JJ.

HOPKINS, Justice.

Plaintiffs William Cesario and Vincenza Cesario are husband and wife. On December 7, 1958 the oil burner in their home failed, and they went to stay temporarily at the home of William's mother, the defendant Emelia Cesario, located at 2406 85th Street, Brooklyn. The house next door, 2402 85th Street, was owned by the defendant Angela Chiapparine, having been purchased in 1944 and occupied by her until the date of the accident in which Vincenza was injured.

Between the two houses there was a concrete alleyway approximately eight feet wide. The defendant Cesario owned two feet of the alleyway extending from the side of her house. The defendant Chiapparine owned the remaining five feet ¹ of the alleyway. At the end of the alleyway there was a garage owned by defendant Cesario.

The deed of purchase of the Chiapparine property contained the following easement in favor of the Cesario property:

'Subject to an easement or right of way in favor of the owner of the premises immediately adjoining on the southeast of the most southeasterly five feet of the premises herein described for the use and purpose of ingress and egree for pleasure automobiles to and from a garage built partly on the premises here as [sic] described and partly on the premises on the southeast.'

A side entrance from the Cesario house opened to the alleyway. On the Chiapparine house, between the street and the side entrance to the Cesario house, there was a drainpipe which collected water from the roof and discharged it upon the alleyway. About four feet from the end of the pipe, and in the center of the alleyway, was a small sewer which was designed to drain off the surface water.

When William and Vincenza arrived at the Cesario house on December 7, 1958, Vincenza entered by its front or street door without incident. William drove his automobile into the garage at the rear of the alleyway. He came into the Cesario house through the side entrance, and, in Vincenza's presence, complained to his mother (the defendant Cesario) that in the alleyway ice had formed extending from the drainpipe on the Chiapparine house to the Cesario property. His mother replied that she had wanted to put salt on the ice, but that the defendant Chiapparine did not want her to do so because the concrete would be injured.

Later in the day Vincenza left the Cesario house for an automobile ride, using the front entrance for her departure and return. On the morning of December 8, Vincenza left the house and did not return until after 3:00 P.M., again using the front entrance. In the evening, at about 8:30 or 9:00 P.M., she went out of the house by the front entrance, walking to her automobile parked in the street in front of the Chiapparine house and the alleyway. A light snow was falling. She met her brother-in-law who lived in the Cesario house, and returned with him. They entered the alleyway, Vincenza walking on the side nearest the Chiapparine house. She slipped and fell on her back. At the place where she had fallen there was a patch of ice about a quarter of an inch thick and extending about two and one-half feet from the drainpipe. At the side entrance of the Cesario house into the alleyway there was a light which was said to be illuminated.

Upon the trial William testified that he had seen ice in the alleyway prior to his wife's fall, and had told the defendant Chiapparine about the condition on previous occasions, but that 'she just shrugged her shoulders.' Weather reports indicated that rain had fallen between December 3 and December 5, and that on December 6, 7 and 8, the average temperatures were below the freezing point.

Vincenza sued the defendants Angela Chiapparine and Emelia Cesario for damages resulting from her injuries due to her fall, claiming that their negligence in failing to maintain the alleyway free from ice was the cause of her fall. William sued derivatively for the loss of his wife's services and for medical expenses incurred on her behalf. Both actions were dismissed at the end of the case. The Trial Court found that Vincenza was a licensee, and it held that she was bound by the limitations of the rule of law applicable to licensees. In addition, the court held that she was contributorily negligent as a matter of law.

We deal with the issue of contributory negligence first, for if Vincenza was negligent as a matter of law, we need not pursue the question of her status. As the case comes before us, we must on behalf of the plaintiffs 'assume the establishment by adequate evidence of every issue upon which they rely concerning which there is some evidence, and the motion to dismiss should not have been granted in the trial court unless upon any issue there can be said to be in support thereof no evidence and no substantial inferences' (African Metals Corp. v. Bullowa, 288 N.Y. 78, 81, 41 N.E.2d 466, 467; cf. Meil v. Syracuse Constructors, 19 A.D.2d 10, 12, 240 N.Y.S.2d 403, 405).

In our opinion, the facts in this record do not fairly impel only the conclusion of Vincenza's contributory negligence as a matter of law (cf. Nelson v. Nygren, 259 N.Y. 71, 76, 181 N.E. 52, 54). Her knowledge of the danger and the presence of an alternate route via the front door were circumstances from which the jury might draw the finding of negligence on her part. But again the jury might not (cf. Palmer v. Dearing, 93 N.Y. 7, 10; Evans v. City of Utica, 69 N.Y. 166, 169-170; Twogood v. Mayor, etc., of N.Y., 102 N.Y. 216, 6 N.E. 275; Bacher v. Bacher, 265 App.Div. 1011, 39 N.Y.S.2d 358; Leshinsky v. Cohen, 262 App.Div. 775, 27 N.Y.S.2d 865; Nimons v. Montgomery Ward & Co., 275 App.Div. 983, 90 N.Y.S.2d 409). We conclude that reasonable minds might differ whether Vincenza exercised the degree of care required under the circumstances, and that the issue of contributory negligence must be decided by the jury (Wheeler v. Orciuoli, 18 A.D.2d 1039, 238 N.Y.S.2d 722; Hanson v. Bloomingdale Bros., 13 A.D.2d 1007, 216 N.Y.S.2d 722).

Whether plaintiffs established facts from which the jury might find that the defendants were negligent presents a question more difficult of solution. Despite remonstrances that 'such an approach is unrealistic, arbitrary, and inelastic' (Fernandez v. Consolidated Fisheries, 98 Cal.App.2d 91, 96, 219 P.2d 73, 76), nevertheless, with respect to the liability of an occupier of land to one injured as a result of a condition encountered thereon, we are committed to a determination which is dependent on the legal status of the injured person. True it is that '[i]n modern times the immunities have rightly, though gradually, been giving way to the overriding social view that where there is foreseeability of substantial harm landowners, as well as other members of society, should generally be subjected to a reasonable duty of care to avoid it' (Taylor v. New Jersey Highway Auth., 22 N.J. 454, 463, 126 A.2d 313, 317, 62 A.L.R.2d 1211; cf. Simmel v. New Jersey Coop. Co., 47 N.J.Super. 509, 136 A.2d 301, revd. on other grounds, 28 N.J. 1, 143 A.2d 521). But thus far in our law the content of the duty owed by the landowner varies as the status of the injured party varies from trespasser, to licensee, to business invitee. In drawing these distinctions, the courts have categorized a social invitee as a licensee, though 'a verbal paradox' may thereby seem to be engendered (Wilder v. Ayers, 2 A.D.2d 354, 356, 156 N.Y.S.2d 85, 88, affd. 3 N.Y.2d 725, 163 N.Y.S.2d 966, 143 N.E.2d 514; Kirkup v. Kirkup, 279 App.Div. 803, 109 N.Y.S.2d 364; Sheingold v. Behrens, 275 App.Div 671, 686, 86 N.Y.S.2d 188). To date, the tendency to broaden the landowner's liability by treating licensee and business invitee alike has failed (cf. Wolfson v. Chelist, 284 S.W.2d 447 [Mo.]), except in England where by statute the landowner is bound to use a common duty of reasonable care towards both the licensee and the invitee (Occupiers' Liability Act, 5 & 6 Eliz. 2, c. 31 (1957) eff. Jan. 1, 1958). ²

Vincenza and her husband, as visitors of the defendant Cesario, had the status of social guests, or licensees, in their relation to that defendant. As a social guest, Vincenza took the premises as she found them; and the defendant Cesario owed no greater duty then to avoid the maintenance of traps, hidden dangers, or wanton or reckless conduct, unless Vincenza was warned of their existence (Wilder v. Ayers, supra, 2 A.D.2d 354, 355-356, 156 N.Y.S.2d 85, 87-88, affd. 3 N.Y.2d 725, 163 N.Y.S.2d 966, 143 N.E.2d 514). The facts in the record demonstrate that the ice which formed in the alleyway was not the result of any affirmative act by the defendant Cesario, and its presence could hardly take on the character of a trap. There is no evidence to indicate that the defendant Cesario knew that snow had begun to fall, or that the ice was covered with snow. We think that within the scope of the duty owed to a licensee, no liability rested on the defendant Cesario; and the Trial Court was correct in dismissing the complaint as to her, unless there was a breach of duty arising out of her relations with the defendant Chiapparine with respect to the easement over the alleyway. We shall advert below to such relations and to the duties arising therefrom.

The case against the defendant Chiapparine must be viewed in a different aspect. As guest of the...