Dorfman v. Aronowitz
| Decision Date | 27 June 1961 |
| Parties | Esther DORFMAN, Plaintiff, v. Lillian ARONOWITZ and Sam Aronowitz, Defendants. |
| Court | New York Supreme Court |
Rothbard & Schulman, Brooklyn (Louis Rothbard and Ralph Stout, Brooklyn, of counsel), for plaintiff.
Evans, Orr, Gourlay & Pacelli, New York City, (Walter G. Evans, and William F. Laffan, Jr., New York City, of counsel), for defendants.
This is an action for damages for personal injuries. The cause was tried without a jury. Findings of facts and conclusions of law were duly waived. It was stipulated that, if the plaintiff were entitled to recover, her damages amounted to $6,000. The only issue tried before me, therefore, was the liability of the defendants for the accident involved in this suit--that is, the negligence of the defendants on the one hand and the contributory negligence of the plaintiff on the other.
The plaintiff is the mother of the defendant Lillian Aronowitz and was the mother-in-law of the defendant Sam Aronowitz (who died during the trial of this action). It appears that the defendants had brought the plaintiff to their home on October 24, 1957. She was then 80 years of age and was to convalesce following her recent confinement in a hospital for about five months. This was the plaintiff's first visit to her daughter's home. The residence is a one-story and basement private dwelling. On the evening of the 26th and in the very early morning of the 27th of October, the defendants were away from their abode. On their return, they entered by way of the basement, and, as the weather was cold, they turned up the heat there, and left open the door leading from the basement to the living quarters so as to permit the heat to circulate upstairs where the bedrooms were located. Because of a pillar, the door when opened could not rest flat against the wall, but obstructed the hallway so that the electric switch there was obscured by the door and so that a space of only about 17 inches of the normal three feet of width of the hallway was available to a person walking through the hall. The defendants extinguished the basement light, went into the plaintiff's bedroom, bade her 'Goodnight', put out the lights in her bedroom and in the hallway, and retired.
In order to reach the bathroom from her bedroom, the plaintiff had to walk along the hallway and pass this open door. She had walked along this hallway and had used the bathroom on other occasions without mishap; never before had the hallway door leading to the basement been left open. On the night in question, the plaintiff--spurred by old age or illness or routine or a combination of all--was awakened, and was impelled to leave her bedroom to go to the bathroom to urinate. She did not put on any lights. As she was walking to the bathroom, she came in contact with the open door and fell down the steps to the basement. She sues for the resulting personal injuries.
The plaintiff was concededly a social guest. As such, she was a licensee--not a business guest or invitee--and she took the premises as she found them (Hirschman v. Hirschman, 4 A.D.2d 630, 168 N.Y.S.2d 153). In general, the host's duty to a social guest is 'not to cause injury by gross negligence, recklessness or wanton and wilful misconduct', 'not to set a trap or pitfall', 'not to injure, by active or affirmative negligence'--'to warn against or remove defects which the [host] knows [or should reasonably anticipate] are likely to cause harm', 'and which he has reason to believe the guest is not likely to discover' (25 A.L.R.2d 598, 602; James, Tort Liability of Occupiers of Land: Duties Owed to Licensees and Invitees, 63 Yale L.J. 605, 606).
The question is a close one. It may be that it can be said that the defendants could not reasonably have anticipated that the plaintiff would proceed entirely in the dark when going from her bedroom along the hallway en route to the bathroom. But it is my view that the defendants here did create a dangerous condition, known to them but not to the plaintiff, and that, in the exercise of reasonable caution under the circumstances, they should have realized that such condition involved an unreasonable risk.
In Waters v. Collins, 5 A.D.2d 358, at page 360, 171 N.Y.S.2d 1020, at page 1021, 'there was', as the court said, 'evidence from which the jury could find that defendant opened the door in question after plaintiff's arrival and failed to fasten the hook.' The...
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di Suvero v. Gem Window Cleaning Co.
...708, affd. 277 App.Div. 1157, 101 N.Y.S.2d 1020, where decedent swam in the off-limits portion of a picnic lake; Dorfman v. Aronowitz, 30 Misc.2d 871, 219 N.Y.S.2d 294, where plaintiff heedlessly walked along in the I agree with the plaintiff's contention that, in the circumstances of this ......