Kiernan v. Roman Catholic Church of St. John the Evangelist

• Decision Date: 18 October 1960
• Citation: 205 N.Y.S.2d 706,11 A.D.2d 997
• Parties: Veronica KIERNAN, Plaintiff-Respondent, v. ROMAN CATHOLIC CHURCH OF ST. JOHN THE EVANGELIST, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 706

205 N.Y.S.2d 706

11 A.D.2d 997

Veronica KIERNAN, Plaintiff-Respondent, v. ROMAN CATHOLIC CHURCH OF ST. JOHN THE EVANGELIST, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

Oct. 18, 1960.

Ruseell B. Graves, New York City, of counsel (George J. Conway, New York City, atty.) for defendant-appellant.

John P. Hale, New York City, of counsel (Hale & Edwards, New York City, attys.), for plaintiff-respondent.

Before BREITEL, J. P., and VALENTE, McNALLY, STEVENS and EAGER, JJ.

PER CURIAM.

Judgment reversed, on the law and on the facts, verdict vacated and complaint dismissed, with costs to defendant-appellant. The undisputed proof with respect to the stairway showed no defect and no 'peculiar' danger of which defendant church was obligated to give warning. Consequently, there was no evidence to bring this case within any of the recognized exceptions to the general rule that the owner of a building is under no duty, in the absence of statute, to illuminate an exterior stairway (seeMcCabe v. Mackay, 253 N.Y. 440, 171 N.E. 699; Flanagan v. Rosoff, 260 App.Div. 76, 23 N.Y.S.2d 980). Even though the church had previously provided lighting for the stairs, plaintiff could not claim reliance thereon because she knew before she left the church that the lights were off. The rule which states that an owner has no duty to illuminate exterior ways for the benefit of invitees, or of others, embodies within it the proviso: 'in the absence of defective conditions or conditions of peculiar danger' (mccabe v. mackay, Supra, 253 n.y. at page 442, 171 n.e. at page 700). Hence, it does not advance the analysis to emphasize that the rule has exceptions. In Grant v. United States, 2 Cir., 271 F.2d 651, 655, the rule was precisely thus expressed, the court holding it could not say that unlit stairs descending to an entrance below ground level did not create a 'peculiar hazard, defect or danger'. This is a far cry, indeed, from permitting a jury to find that stairs, of a gray color, in good condition, leading from a church vestibule to the sidewalk, if unlit, constituted a 'peculiar hazard, defect or danger', or that they presented a 'defective condition' or one of 'peculiar danger'. On the contrary, such stairs are most common with respect to churches other than those whose vestibules are at street level. Green v. Church of Immaculate Conception, 248 App.Div. 757, 288 N.Y.S. 769, is quite beside the issue. That case involved an interior vestibule containing a sequence of stairs and a landing. It was on this interior stairway that Miss Green fell and injured herself while sidling over to grasp the available handrail. The rule which applies to exterior stairways and common ways has no application to such a situation, either by its terms or as a matter of policy. Of course, the circumstance that defendant church chose to light the stairway must, as a matter of policy, be deemed immaterial. For otherwise one would penalize with extraordinary liability, that is, liability beyond that imposed by the rule laid down in the cases (McCabe v. Mackay, supra; see, e. g., 25 A.L.R.2d 496, Annotations; Injury to Tenant--Lighting, esp. pp. 500 to 517), an owner who voluntarily does more than is required by the decisional standard of reasonable care. So, too, plaintiff's argument that she relied on previous lighting must fail. When she came to church she noted that the lights were not on, and she noted the same when she left the church, but, nevertheless, did not even use the available handrail to assist her in traversing the stairs to the street. As between her and the church the law says the church was not careless merely because it failed this once to use extraordinary care while she, on the other hand, could have been found by a jury to be careless in not using the handrail when she knew the lights were off.

Judgment reversed, on the law and on the facts, verdict vacated, and complaint dismissed with costs to defendant-appellant.

All concur except EAGER, J., who dissents and votes to affirm in a dissenting opinion.

EAGER, Justice (dissenting).

The evidence presented here would, in my opinion, justify a finding by the trial jury of negligence on part of defendant and freedom of contributory negligence on plaintiff's part. The plaintiff, a 76-year-old woman, was injured as she descended the exterior stairs of defendant church on leaving same at about 9 P.M. on March 19, 1958, after attending Lenten Services therein. Under the evidence, the jury could have found and undoubtedly did find that upon reaching the second step from the bottom, the plaintiff, because of dimness in lighting upon the steps, mistook this second step from bottom for the last step and stepped off in that belief, and fell to the sidewalk, resulting in her injury. It appeared from the testimony of the plaintiff and of the Monsignor in charge of the church that the lighting was poor, and, with the tread of the steps and the sidewalk of the same grayish stone color, it is reasonable to assume that the accident happened as claimed by plaintiff.

Now, it appears that, some long time prior to the accident, the defendant church had installed lights for the purpose of lighting the exterior steps, and that it was the duty of the employees, when the doors of the church were opened for evening services, to turn on the lights. On the night of the accident, however, the particular light lighting the steps where plaintiff fell was not on. The evidence in this connection would support a finding that the particular light had not been turned on by the employee whose duty it was to turn it on or that, if it had been turned on, it was not working, which fact the employee of defendant knew or should have discovered and corrected in the exercise of reasonable care.

Concededly, it is well settled that, at common law, there was no general duty on part of an owner to light common ways and exterior...