Knox v. Goodman, A--170

• Decision Date: 18 June 1957
• Docket Number: No. A--170,A--170
• Citation: 133 A.2d 50,45 N.J.Super. 428
• Parties: Helen Marie KNOX, an infant, by her guardian ad litem, Matthew Knox, and Matthew Knox in his own right, Plaintiffs-Respondents, v. Julian GOODMAN, t/a Lori Shoe Store, Defendant-Appellant, and R. G. Corporation and Westfield Avenue Realty Company, jointly, severally and in the alternative, Defendants. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 428

45 N.J.Super. 428

133 A.2d 50

Helen Marie KNOX, an infant, by her guardian ad litem, Matthew Knox, and Matthew Knox in his own right, Plaintiffs-Respondents, v. Julian GOODMAN, t/a Lori Shoe Store, Defendant-Appellant, and R. G. Corporation and Westfield Avenue Realty Company, jointly, severally and in the alternative, Defendants.

No. A--170.

Superior Court of New Jersey.

Appellate Division.

Argued May 27, 1957.

Decided June 18, 1957.

Donald R. Taggart, Camden, for appellant (Charles A. Cohen, Camden, on the brief).

Joseph Tomaselli, Camden, for respondents (Peter J. Coruzzi, Camden, attorney).

Before Judges GOLDMANN, FREUND and CONFORD.

The opinion of the court was delivered by

FREUND, J.A.D.

The essential question in this action is the liability of a lessee in possession of premises for his failure to remedy a defective stairway condition, which failure caused injuries to a neighbor's child of tender years who came upon the property on its own initiative to call the lessee's child to play.

The Knox and Goodman families were next door neighbors, and their children playmates. The defendant, Julian Goodman, was the lessee under a written lease for a term of three years, of the entire premises at 2625 Westfield Avenue in the City of Camden, a two-story building. He operated a retail shoe store on the first floor and lived with his wife and daughter, Susan, about seven years of age, in an apartment over the store. The Knox family, consisting of husband, wife and two small girls, Helen Marie, about three years of age, and Mary Jane, about seven, occupied the adjoining second-floor apartment at 2627 Westfield Avenue, attached to and physically part of the same structure which includes 2625 Westfield Avenue. In the rear of the attached building is a yard, from which entrance to the Knox and Goodman apartments is provided by an open wooden stairway which has 13 steps to a landing, and from there, to the right, a flight of steps leading to defendant's apartment and, to the left, a flight of steps to plaintiff's apartment. This stairway provides the only means of access to plaintiff's apartment, but defendant's living quarters can also be reached from a stairway in the front of the building.

Mary Jane Knox and Susan Goodman often played together in the back yard and, on occasion, in the Goodman apartment, although the testimony as to the number of these occasions in the apartment is conflicting. At times they were joined by the younger Knox child, Helen, the plaintiff, who, according to Mary Jane's testimony, had on different occasions used both the front and rear stairways to reach the Goodman apartment. On July 15, 1955, while the Knox children were playing in the yard, the three-year-old Helen ascended the back stairway to the Goodman apartment to ask Susan to come out to play with them. Receiving no response, she began to retrace her steps, and on the third step above the landing turned her ankle and fell under the handrail at the edge of the stairway to the ground about 20 feet below, sustaining the injuries for which recovery is sought by this action.

The testimony discloses that the stairway had been built for the owner of the property some years before defendant entered into possession, and that defendant has made no changes. Thus, it was in the same condition on the date of the accident as it had been when he took possession. Expert witnesses on behalf of plaintiff testified that the stairway was of substandard construction in that there were no balustrades between the steps and handrail, leaving an opening of about 31 inches, nor was there an intermediate handrail between the steps and the existing handrail. The steps were considered so unsafe by the defendant himself that he forbade his daughter to use them. He candidly testified on cross-examination that 'My daughter Susan is forbidden to use those stairs' because the back stairs were 'very high'; about 'twenty-five or thirty feet off the ground.' He further testified as follows:

'Q. Do you feel those steps were a safe place for your daughter to go in and out of the apartment? * * * A. Well, I considered those steps not safe for my daughter to go in and out of the apartment, as we didn't let her go in and out. * * *

'Q. Do you think they would be safe for any other child? A. If they weren't safe for my daughter they weren't safe for another child.

'Q. Do you think they would be safe for any other child? * * * A. Well, I don't think it would be safe for another child.'

Neither the defendant nor his wife, who had seen the children play in the yard on other occasions, cautioned the Knox children or forbade them to use the steps.

The present action is predicated upon the theory that the child was an invitee and that the defendant failed to provide a safe handrail for those using the stairway, but permitted a condition to exist which, in the exercise of reasonable foresight, he should have realized involved danger to the infant plaintiff. The owner of the property and its primary lessee, from whom the defendant Goodman sublet, were made parties defendant, but were discharged on motion at the conclusion of the submission of plaintiff's evidence, and the case went to the jury against Goodman alone. The jury awarded a verdict for $12,000 in favor of the infant plaintiff and $3,000 for her father. The court denied defendant's motion for a new trial, and defendant appeals.

On this appeal defendant denies plaintiff's contention that the child was an 'invitee' at the express or implied invitation of defendant, and asserts that even from the most favorable view she was but a 'social visitor' or 'guest licensee.' The trial court submitted the question of status to the jury, charging that if they found the child was an invitee it was defendant's duty to keep the stairway in a reasonably safe condition for her use; but if they found her to have been a mere licensee, then the only duty which defendant owed her was to refrain from wilful or wanton acts. By its verdict the jury apparently concluded that the child was an 'invitee' and not a 'licensee.' We believe that the submission of the infant plaintiff's status to the jury was erroneous. Such an issue is properly for a jury when the facts or inferences to be drawn from the facts are in dispute. Augustine v. Haas, 121 N.J.L. 58, 1 A.2d 387 (E. & A. 1938); Hudson v. Gas Consumers Ass'n, 123 N.J.L. 252, 8 A.2d 337 (E. & A. 1939). When, however, neither the facts nor inferences present such a dispute, the question is for the court. Cosgrave v. Malstrom, 127 N.J.L. 505, 23 A.2d 288 (Sup.Ct.1941); Cowan v. Kaminow, 128 N.J.L. 398, 26 A.2d 258 (E. & A. 1942). Here there was no evidence of an express invitation by the defendant or any member of his family and, from the relationship of the parties, the conduct of the children on previous occasions, the attitude of the defendant toward the infant plaintiff, the legal status of the child was that of a social visitor or guest--that is to say, she was impliedly welcome to come upon the premises to play or visit with defendant's child as a playmate. In conventional terms, she was a licensee. It is upon such a status that defendant's duty must be considered, although, as will be seen, the definition by the trial court of the nature of the duty owing her was, under the particular circumstances, no more severe than that called for by our most recent cases.

Defendant contends that if the infant plaintiff be regarded a social visitor, it could not have been demanded of him that he change his home or the entrance to it to make them safe for her use, relying on the cases which hold that a social visitor to a private house is a licensee and must take the property as he finds it, and that the duty of the host is but to refrain from wilful and wanton injury. Morril v. Morril, 104 N.J.L. 557, 142 A. 337, 60 A.L.R. 102 (E. & A.1928); Gregory v. Loder, 116 N.J.L. 451, 185 A. 360 (Sup.Ct.1936); Lewis v. Dear, 120 N.J.L. 244, 198 A. 887 (E. & A.1938); Cosgrave v. Malstrom, supra; Vogel v. Eckert, 22 N.J.Super. 220, 91 A.2d 633 (App.Div.1952); Tahan v. Wagaraw Holding Co., 28 N.J.Super. 436, 101 A.2d 38 (App.Div.1953); 2 Harper and James, Torts (1956), § 27.12, p. 1478; Prosser, Torts (2d ed. 1955), § 77, p. 447; Annotation: 'Injury to Social Guest,' 25 A.L.R.2d 598. This limited degree of liability to licensees at an early date related to the static condition of premises and to acts of omission as distinguished from active wrongdoing. Today, however, the distinction between negligent acts of omission and commission is rapidly vanishing as a measure of liability of occupiers of land to licensees. Taneian v. Meghrigian, 15 N.J. 267, 104 A.2d 689 (1954); Taylor v. New Jersey Highway Authority, 22 N.J. 454, 126 A.2d 313 (1956); Cropanese v. Martinez, 35 N.J.Super. 118, 113 A.2d 433 (App.Div.1955); Hawkins v. Coulson and Purley Urban District Council (1954), 1 Q.B. 319; Marsh, 'The History and Comparative Law of Invitees, Licensees and Trespassers,' 69 Law Q.Rev. 182 (1953). In the Taneian case Justice Heher made an historical survey of the doctrine and quoted at length, 15 N.J. at page 276, 104 A.2d at page 693, from the opinion of Justice Denning in the Hawkins case, as follows:

'It always was an illogical distinction. Many acts of commission can be regarded as acts of omission and Vice versa. It all depends on how you look at it. * * * It seems to me that the real significance of an act of commission is that it means that the occupier must have...