Dreyer v. Tishman Realty & Const. Co.

• Decision Date: 29 April 1976
• Citation: 52 A.D.2d 76,382 N.Y.S.2d 486
• Parties: April Joan DREYER, Administratrix, etc. of Stephen Mark Dreyer, Deceased, Plaintiff-Respondent-Appellant, v. TISHMAN REALTY AND CONSTRUCTION CO., INC., et al., Defendants-Appellants- Respondents.
• Court: New York Supreme Court — Appellate Division

Page 486

382 N.Y.S.2d 486

52 A.D.2d 76

April Joan DREYER, Administratrix, etc. of Stephen Mark

Dreyer, Deceased, Plaintiff-Respondent-Appellant, v. TISHMAN REALTY AND CONSTRUCTION CO., INC., et al.,

Defendants-Appellants- Respondents.

Supreme Court, Appellate Division, First Department.

April 29, 1976.

Arthur N. Seiff, New York City, of counsel (Julius Gantman, New York City, atty.), for defendants-appellants-respondents.

Harry R. Schwartz, New York City, of counsel (Harry H. Lipsig, P.C., New York City, atty.), for plaintiff-respondent-appellant.

Before KUPFERMAN, J.P., and MURPHY, SILVERMAN, CAPOZZOLI and LANE, JJ.

SILVERMAN, Justice.

These are appeals by defendants from a judgment for plaintiff as reduced by the trial judge, after a general jury verdict for plaintiff, and by both parties from the unfavorable portions of the order reducing the verdict.

The action is for damages for wrongful death and conscious pain and suffering of plaintiff's intestate. This is the second trial in this action. The first trial resulted in a verdict and judgment for plaintiff, which this Court reversed, ordering a new trial. Dreyer v. Tishman Realty & Construction Co., 41 A.D.2d 628(5), 341 N.Y.S.2d 122 (1973). This Court stated:

'The main difficulty, however, is that the charge presented the jury with no proper definition of what standard should apply as to defendants' duty to the unfortunate electrician; the only difference outlined by the court was between a trespasser--the proof was clear that the man was not--and one entering the room with permission. No distinction whatever was made as to the latter class, embracing as it does both invitees and licensees. It is therefore impossible to explain what rationale was availed of by the jury in reaching its decision, and a new trial is required, at which it may be established, under proper instructions, what was the status of the decedent electrician, and what standards of duty on the part of defendants related to that status. Until this question is resolved, it is impossible to resolve the issue of which of three theories of liability presented by the court to the jury for consideration--if any at all--may be considered.'

It was thus established as the law of the case in this Court that (a) the standard of duty on the part of defendants depends on the status of plaintiff's intestate as licensee or invitee; and that (b) a question of fact was presented as to whether plaintiff's intestate was a licensee or an invitee.

On the second trial, the jury in addition to bringing in a general verdict, was required to answer a special interrogatory as to plaintiff's intestate's status; they answered that plaintiff's intestate was a licensee. To the extent that this answer to the interrogatory may be inconsistent with the general verdict, the answer to the interrogatory controls (CPLR 4111(c)).

There is no evidence that defendants violated the limited duties traditionally imposed upon a landowner in favor of a mere licensee. 'Where a person goes upon the premises of another without invitation, but simply as a bare licensee, and the owner of the property, passively, acquiesces in his coming, if an injury is sustained by reason of a mere defect in the premises, the owner is not liable for negligence; for such person has taken all the risk upon himself. . . . Toward mere trespassers or bare licensees the rule is well settled that the only duty owing to them by the owner or occupier of land is to abstain from inflicting intentional, wanton or willful injuries unless he maintains some hidden engine of destruction, such as spring guns or kindred devices, upon his property.' Mendelowitz v. Neisner, 258 N.Y. 181, 184, 179 N.E. 378, 379 (1932), quoted with approval in Carbone v. Mackchil Realty Corp., 296 N.Y. 154, 158--159, 71 N.E.2d 447, 448--449 (1947); and Molnar v. Slattery Constracting Co., 8 A.D.2d 95, 98, 185 N.Y.S.2d 449, 452 (1st Dep't 1959). As in the Carbone case, in this case too, '(t)he record is devoid of proof that at the time of the accident the defendants, by any affirmative act, changed conditions existing at the site . . . or created new perils there.' 296 N.Y. at 159, 71 N.E.2d at 449. See also, Schlaks v. Schlaks, 17 A.D.2d 153, 157, 232 N.Y.S.2d 814, 818 (1st Dep't 1962) as to the limited meaning of 'affirmative act of negligence' in this context.

Plaintiff's intestate went into a switchboard rom where there were open power switches whose dangers are obvious to any person living in our modern electrified society and particularly so to an apprentice electrician with two years' experience. He went there to get a 50 foot metal electrical snake. The danger from the snake coming into contact with the open high voltage switches was obvious. There was, apparently improperly, some combustible material (cartons, etc.) in the switchboard room, perhaps at some disputed distance from the switches; such danger as this combustible material contributed was again open and obvious. Defendant did not by its affirmative act change the conditions existing or create new perils therein. Carbone v. Mackchil, supra. 'A licensee takes the property as he finds it with a duty upon the owner to refrain from any affirmative act of negligence and from inflicting any willful or wanton injury.' Molnar v. Slattery Contracting Co., 8 A.D.2d 95, 98, 185 N.Y.S.2d 449, 453 (1st Dep't 1959). Accordingly, the complaint must be dismissed.

Judgment, Supreme Court, New York County, entered April 11, 1975 should be reversed on the law on defendants' appeal and the complaint dismissed. In view of the foregoing disposition, the appeals by plaintiff and defendants from the order entered June 3, 1975 (which denied defendants' motion to dismiss plaintiff's causes of action but which granted a new trial as to damages on the conscious pain and suffering action only, unless plaintiff accepts $5,000 thereon) should be dismissed as moot. Neither party shall recover costs on appeal, from the other.

Judgment, Supreme Court, New York County, entered on April 11, 1975, reversed, on the law, without costs and without disbursements, the judgment vacated and the complaint dismissed.

Cross-appeals from order, Supreme Court, New York County, entered on June 3, 1975, unanimously dismissed as moot, without costs and without disbursements.

All concur, except CAPOZZOLI, J., who dissents in an Opinion as to Appeal No. 2036.

CAPOZZOLI, Justice (dissenting):

I dissent and vote to affirm. This case presents fair questions of fact and, in two different trials, both juries have found for the plaintiff. Implicit in those findings was an adjudication that the defendant failed to exercise the standard of care which one maintaining a dangerous agency, such as electricity, is expected by law to exercise and, further, that it should have reasonably foreseen the likelihood of serious danger to anyone near the open, exposed switches which were completely uncovered and unprotected.

In N.Y.Jur., Electricity, Gas and Steam, vol. 19, § 70, we find the following:

'* * * Aptly stated by the authorities, where peril lurks to the actual or constructive knowledge of the person who maintains an electric line or other electrical apparatus, that person, as the creator of a dangerous agency, is bound to provide safeguards. Unusual precautions must be taken against extraordinary dangers, but where mere potentiality of injury exists, only such foresight as appears to be commensurate with its reasonable probable occurrence need be employed. * * *'.

The evidence in this case discloses that Strand Electric Company did a great deal of work in defendant's building for both the tenants and the defendants during three years prior to the accident. Mr. Testa, the foreman, under whom the decedent worked, testified that an arrangement had been made with the building management whereby the employees of Strand were permitted to keep materials and tools in this switchboard room. This room was always locked and only the defendants' building manager LaManna, and thirteen of defendants' employees each had a key to the switchboard room. In order to enter this room the decedent would be let in by one of these defendants' employees. The evidence further showed that there were open power switches, with copper plates mounted directly on to the board and open to the air. There were no housings on these switches, although available, nor were there railings or barriers in front of the switchboard. In addition there is also testimony that there were cardboard cartons, wooden boxes and other combustible material stored all over this room. Mr. Testa testified that the cardboard cartons were four or five feet from the open switches.

I am of the opinion that the important question which is presented in this case is one of foreseeability of an accident as the one which befell the decedent. The clear neglect of these defendants and their failure to exercise reasonable care in the maintenance of the room, with its deadly open switches, should be sufficient to hold them liable for this accident. The law should discourage the type of carelessness and negligence which two injuries found in this case. By giving effect to the verdict of the jury the law would encourage proper maintenance of dangerous instrumentalities as the one involved in this case. To allow these defendants to escape liability because of the questionable technicalities would be to encourage future carelessness.

It is clearly established that one of the requirements to impose liability on a person for its negligence, is that the risk of injury or damage must have been reasonably foreseen. Certainly, in this case, it should have been reasonably foreseeable to these defendants that the maintenance of these open switches, and the combustible materials in the same room, raised the likelihood of injury to one within that room. Time and again it has been said that the risk reasonably to be foreseen defines the...