Hirschman v. Hirschman

• Decision Date: 03 December 1957
• Parties: Lillian HIRSCHMAN and Samuel Hirschman, Plaintiffs-Respondents, v. Aaron HIRSCHMAN, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 153

168 N.Y.S.2d 153

4 A.D.2d 630

Lillian HIRSCHMAN and Samuel Hirschman, Plaintiffs-Respondents, v. Aaron HIRSCHMAN, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

Dec. 3, 1957.

John Nielsen, New York City, of counsel (John P. Smith, New York City, atty.), for appellant.

Ralph A. Matalon, New York City, of counsel (Matalon & Schachter, New York City, attys.), for respondents.

Before PECK, P. J., and BREITEL, BOTEIN, RABIN and VALENTE, JJ.

BREITEL, Justice.

Defendant appeals, in a personal injury negligence action, from a verdict and judgment in favor of plaintiffs after a jury trial in the Municipal Court. The judgment was unanimously affirmed, without opinion, in the Appellate Term, and this Court granted leave to appeal.

Plaintiff wife sustained relatively minor injuries in a fall from an exterior stairway of a private dwelling located in the City of Yonkers, New York. She and her husband were visiting the husband's brother, defendant in this case, whose home the private house was. The stairway consisted of two flights of six and eight steps, respectively, separated by a short landing or platform. The accident occurred at night and the only illumination was a small light on the house porch. Plaintiffs had visited this home some twenty to twenty-one times during the seven years that their relative occupied it. During those visits the stairway was used by plaintiffs. The use sometimes occurred at night and at other times during the daytime. There evidently had never before been any untoward event.

The gravamen of the case is the alleged maintenance of a dangerous condition, tantamount to a trap, in that the handrail for the stairway did not extend down past the last step but, indeed, extended only to the next to the last step. Apart from this, no defect or other dangerous condition of construction or maintenance of the stairway is charged. Plaintiff wife fell when she reached the very last step, without being able, as she said, to see it and by her having assumed that the railing continued.

It is not disputed in this case that plaintiff wife, as a social guest, was a licensee to whom there was owed only the duty to maintain the premises free from traps, hidden dangers, or wanton and reckless conduct to which licensee may be exposed, unless the latter is first warned. It is well established that a licensee, such as a social guest, takes the premises as he finds them; and he is entitled to no greater protection than a member of the occupant's household. See Wilder v. Ayers, 2 A.D.2d 354, 156 N.Y.S.2d 85, affirmed 3 N.Y.2d 725, 163 N.Y.S.2d 966.

The trial court properly charged the jury that plaintiff wife was a licensee. In this connection, it also charged that plaintiffs contended that defendant had maintained a trap, but it went on to say that if this be so, then defendant owed a duty of ordinary care with respect to the condition of the handrail and the light. These statements are not consistent. If there was a duty of ordinary care, the concept of a trap is irrelevant. If, on the other hand, as to a licensee (to whom, as has been said, a duty of ordinary care does not exist) there was a trap, then there would remain only a duty to warn, as distinguished from the obligation expressed in the duty of ordinary care. This, in fact, is one of the salient differences between the duties owed by an occupant to a licensee as distinguished from those owed to an invitee. To this charge defendant properly took exception. Hence, at the very least, a new trial would be required.

However,...