Debes v. Morganroth, No. A--670

• Court: New Jersey Superior Court – Appellate Division
• Writing for the Court: JAYNE
• Citation: 136 A.2d 896,48 N.J.Super. 39
• Parties: Gertrude DEBES and Peter Debes, Plaintiffs-Appellants, v. Frances MORGANROTH, Defendant-Respondent. . Appellate Division
• Decision Date: 11 December 1957
• Docket Number: No. A--670

Page 39

48 N.J.Super. 39 136 A.2d 896 Gertrude DEBES and Peter Debes, Plaintiffs-Appellants,
v.
Frances MORGANROTH, Defendant-Respondent. No. A--670. Superior Court of New Jersey.
Appellate Division. Argued Dec. 2, 1957.
Decided Dec. 11, 1957.

Page 40

[136 A.2d 897] Charles L. Morgan, West Long Branch, for appellants (Milton Kosene, Fair Haven, attorney).

Robert L. Clifford, Newark, for respondent (Mead, Gleeson, Hansen & Pantages, Newark, attorneys).

Before Judges CLAPP, JAYNE and SCHETTINO.

Page 41

The opinion of the court was delivered by

JAYNE, J.A.D.

Judicial precedents do not change; the courts displace them with new ones. The former are not destroyed, but are transplanted and forever viewed in the background of the legal vineyard. Frequently their application in a given case, as here, continues to be invoked by counsel. It is the recent transformation in our decisional law of the duty of care exacted of the occupier of premises for the safety of licensees and social guests that penetrates our consideration of the present case. Vide, Taneian v. Meghrigian, 15 N.J. 267, 271, 104 A.2d 689 (1954); Taylor v. New Jersey Highway Authority, 22 N.J. 454, 462, 126 A.2d 313 (1956); Mistretta v. Alessi, 45 N.J.Super. 176, 131 A.2d 891 (App.Div.1957); Knox v. Goodman, 45 N.J.Super. 428, 133 A.2d 50 (App.Div.1957).

In this instance we are concerned with the propriety of the involuntary dismissal of a cause of action within that category.

It was the defendant's one-story cottage at Lake Stockholm in Sussex County into which the plaintiff Mrs. Debes was admitted as a social guest on the afternoon of November 6, 1954 and where, during her friendly visit, she encountered the unfortunate mishap which ultimately occasioned the institution of the present action at law.

The cottage had been acquired by the defendant some years prior to the mishap for summer occupancy. It comprised a cellar and on the first floor a kitchen, dinette, living room, a small area five by seven feet in dimensions described as a foyer, two bedrooms, and a bathroom.

The foyer seems to be in the nature of a hall affording passage from the living room in the front to the bedrooms in the rear of the house. Proceeding from the living room toward the bedrooms, three doors are localized in the left wall of the foyer, the first supplying access to the bathroom, the second to a bedroom, and the third to the cellar stairway. Another door observable[136 A.2d 898] to the right provides entrance to the other bedroom.

The plaintiffs and the defendant and her husband had resolved with others to dine elsewhere that evening. The

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defendant retired alone to her bedroom in preparation for the event but, womanlike, she soon audibly summoned Mrs. Debes to elicit from the latter her preferences in the selections of the defendant's proposed attire.

Graciously responding to the defendant's behest, Mrs. Debes entered the foyer on her way toward the bedrooms situate, as she knew, in the rear of the cottage. The doors in the foyer were all closed. Alas, she opened the third door on the left and fell down the stairway to the concrete floor of the cellar.

The occurrence of the accident with consequential bodily injuries to Mrs. Debes and incidental losses to her husband is not a subject of dispute. The controversial point presents the inquiry whether the evidence adduced on behalf of the plaintiffs supported in a Prima facie degree the alleged tortious responsibility of the defendant.

The solution of the point necessitates a consideration of several additional factual characteristics of particular pertinency and material significance to which we shall now allude. The evidence...