Hessek v. McMahon

CourtUnited States State Supreme Court (New York)
Writing for the CourtSTODDART
Citation208 Misc. 1014,146 N.Y.S.2d 563
Decision Date26 October 1955
PartiesMark HESSEK v. Elizabeth McMAHON.

Page 563

146 N.Y.S.2d 563
208 Misc. 1014
Mark HESSEK
v.
Elizabeth McMAHON.
Supreme Court, Trial Term, Queens County, Part II.
Oct. 26, 1955.

Page 564

Samuel G. Rabinor, Jamaica, for plaintiff.

Galli & Locker, New York City, for defendant.

STODDART, Justice.

In this negligence action, tried by the Court without a jury, the defendant did not testify but rested on the plaintiff's case.

[208 Misc. 1015] The plaintiff is the son-in-law of the defendant. He his wife and son moved into the one-family residence owned by the defendant and the latter lived with them. The plaintiff in his memorandum (p. 2) states that he moved in because 'the defendant was very old and needed help around the house both physically and financially.' The plaintiff testified that he gave his wife $65 a week to pay for food, the utilities (gas, electric, and coal) and that on occasion he made minor repairs. The plaintiff moved into the premises in August 1953 and he was allegedly injured on January 1, 1954 when his foot caught in the linoleum near the front door. The linoleum was torn to the plaintiff's knowledge when he moved into the premises. He knew that no one had fixed it and he asked no one to repair it. Instead a rubber mat was thrown over the defect. At some indefinite time on the day of the accident and by whom it is not disclosed, the rubber mat was removed.

Under the circumstances of this case, I do not believe the plaintiff has established his right to a recovery. In the first place, the plaintiff knew that the defendant needed assistance in caring for the house. He knew or should have known that if the defective linoleum was to be repaired, either he or his wife would have to tack it down or to pay for its repair by someone else.

It is contended by the plaintiff that he had the status of a business visitor or invitee, whereas the defendant urges that the plaintiff was a social guest.

Page 565

The plaintiff cites the Restatement of Law of Torts, Volume 2, Section 332, as authority for his contention that he was an invitee. That section contains the statement that a member of a family who pays rent or other consideration for his lodging is not a social guest but rather an invitee to whom ordinary care is owed. No New York case in support of that statement is cited. Even if it be assumed that in some situations a member of a family may be entitled to the care due an invitee, the facts here do not warrant such holding. The plaintiff and his family were...

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