Hirsch v. Hade
| Decision Date | 04 August 1969 |
| Citation | 60 Misc.2d 782,304 N.Y.S.2d 40 |
| Parties | Leland HIRSCH, Plaintiff, v. Hyman J. HADE, Defendant. |
| Court | New York City Court |
Murray Alber, New York City, by Marilyn P. Hoppenfeld, for plaintiff.
Louis J. Castellano, Jr., Valley Stream, by Richard Hartig, Garden City, for defendant.
In this action tried by the Court without a jury, the question to be considered is whether the plaintiff, a social guest within the defendant's premises has an actionable cause.
Briefly stated, the facts are these:
The plaintiff was a social guest in defendant's one-family dwelling. While exiting from the dwelling in the company of the defendant's son, the plaintiff sustained an injury when his 'toe got stuck in the curl' of a corner of a throw rug located at the front entranceway within the said premises. The throw rug measured approximately four feet by four feet, with one of its corners 'ripped, and curled' approximately four inches off the floor. Plaintiff contends that his foot was caught by that portion of the rug that was 'ripped an curled' and that as a consequence, he was thrown forward causing his arm to strike and shatter a glass pane. As a result of the injury and the profuse bleeding that followed, it was necessary for plaintiff to receive emergency treatment at a local hospital where twelve sutures were required to close the lacerated wound. There remains a residual scar at the site of the injury.
Plaintiff now urges that it was the defective rug that was the proximate cause of the accident and that the said rug was a danger to the plaintiff and constituted a trap. Plaintiff urges further that the subject defect was known by the defendant for several years and that in fact the defendant 'used to straighten it up'; that as such the defendant should have given sufficient warning to the plaintiff of the existence of the defect.
Defendant in resisting plaintiff's claim, urges, that notwithstanding the condition of the rug and the knowledge of said condition, the status of the plaintiff was that of a social guest and bare licensee. Defendant alleges further that the subject condition, if in fact it was defective in the first instance, was not one that by its nature could be described as a trap or a hidden defect. In addition, defendant urges that the plaintiff knew or should have known of the existence of the subject rug and its defect, if any; that as such the plaintiff's action should fail, by reason of his own negligence having contributed to the subject incident, in addition to the other defenses raised.
The law to be applied by the Court is by no means novel--except perhaps its application to the facts in the case at bar. There are probably few areas of case law in which so much has been written, textbook-wise, and decision-wise as in that body of law that concerns itself with the duty owing from the owner of premises to trespassers, licensees and invitees. The law is quite clear on this subject. Its application, however, may not be as readily apparent.
Even the fledgling law school student learns early in his course on Torts the traditional plateaus of liability as they relate to the legal status of persons who are injured upon premises belonging to others: That the duty owing to a trespasser is to refrain from inflicting intentional, wanton, or wilful injury, or to abstain from the use of 'spring guns', 'ensnaring devices', etc. (Carbone v. Mackchil Realty Corporation, 296 N.Y. 154, 71 N.E.2d 447; Lo Casto v. Long Island R.R. Co., 6 N.Y.2d 470, 475, 190 N.Y.S.2d 366, 369, 160 N.E.2d 846, 848); that a bare licensee takes the premises as he finds them, the duty owing being to refrain from affirmative acts of negligence and to give warning to any known hidden dangers or traps; (Wilder v. Ayers, 2 A.D.2d 354, 156 N.Y.S.2d 85 (1st Dept. 1956), aff'd 3 N.Y.2d 725, 163 N.Y.S.2d 966, 143 N.E.2d 514, citing Restatement, Torts, Section 331 (342); Prosser, Torts (2d Ed.) Sections 77 et seq.); that the invitee is entitled to enjoy the premises in a reasonably safe condition. (Tryon v. Chalmars, 205 App.Div. 816, 200 N.Y.S. 362, appeal dism'd 240 N.Y. 580, 148 N.E. 713 (1925).) The often repeated principles of law set forth are as common as the law from whose name they have evolved and survived these many hundreds of years.
The classical common law distinctions as they relate to the duty owing to trespassers, licensees and invitees, However, must be translated, not to computerized fact patterns, but rather to everyday occurrences. Although the established and accepted common law doctrines as they relate to this area have remained almost without change these many centuries, their application must be sensitive to today's living. That is, the 'trap' doctrine or 'hidden danger' theory which evolved through the geography of large estates, farms, and freeholds, as related to social guests must be applied to a society that now finds itself in daily contact with one and two-family modest dwellings. Thus, the principles that have been imbedded in the granite of common law must assume a form shape and design that compliment our modern age. It follows, therefore, that the centuries-old criteria that have heretofore applied to such items as the loose rock next to the outside well, or to the broken floorboard of the squire's stables must be revisited in a manner that more closely resembles our present way of life. It appears that these attitudes and immunities enjoyed by landowners as they relate to licensees (and social guests) 'stem originally from feudalism and the feeling of sanctity about land ownership.' James, Inroads on Old Tort concepts, 14 NACCA LJ 226, 229 (1954). In this context Mr. Justice Jacobs, speaking for the majority of the highest court in New Jersey in Taylor v. New Jersey Highway Authority, 22 N.J. 454, 463, 126 A.2d 313, 317--318, 62 A.L.R.2d 1211 stated:
Viewed in this posture, does not the 'curled up rug in the entranceway of a one-family house' constitute as much of a 'trap' today as did the broken floorboard in the squire's stables centuries ago? Although the law does not change, its application should be responsive to a society that does.
Since our concern in the instant matter is addressed to the status of a social guest (interchangeably described as a licensee), one of the landmark cases on the subject should be cited. In Wilder v. Ayers (supra), the Court stated (2 A.D.2d 354, pages 355--356, 156 N.Y.S.2d 85, page 88):
(See also Gross v. Lewis, 5 N.Y.2d 884, 182 N.Y.S.2d 830, 156 N.E.2d 459; Kreger v. Ladd, 30 Misc.2d 736, 216 N.Y.S.2d 866; Krause v. Alper, 4 N.Y.2d 518, 176 N.Y.S.2d 349, 151 N.E.2d 895; Passer v. Schimmel, 6...
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