Krause v. Alper

• Decision Date: 25 June 1958
• Citation: 151 N.E.2d 895,176 N.Y.S.2d 349,4 N.Y.2d 518
• Parties: , 151 N.E.2d 895 Samuel KRAUSE, by His Guardian ad Litem, David Krause, Plaintiff, and David Krause, Respondent, v. Samuel ALPER et al., Appellants.
• Court: New York Court of Appeals Court of Appeals

Page 349

176 N.Y.S.2d 349

4 N.Y.2d 518, 151 N.E.2d 895

Samuel KRAUSE, by His Guardian ad Litem, David Krause Plaintiff, and David Krause, Respondent, v. Samuel ALPER et al., Appellants.

Court of Appeals of New York.

June 25, 1958.

William F. McNulty, New York City, for appellants.

Abraham Jame and George N. Kanoff, New York City, for respondent.

BURKE, Judge.

The infant plaintiff in this action, a boy then of 11 years of age, suffered personal injuries when he tripped over a wooden garage doorstop and fell while playing basketball with the defendant's son and two other boys, in the rear of the driveway of the premises owned and occupied by the defendants.

The young son of the defendants had invited the three boys to join him in a game of basketball in the defendants' backyard, where the defendants had caused a basketball hoop and backstop to be affixed to the front portion of the sloping roof of their garage. A similar invitation to play basketball had been extended to and was accepted by the infant son of the plaintiff-respondent about six months before the accident. On the day of the accident the boys had been playing basketball for about an hour before the infant plaintiff was injured when he stumbled over the wooden doorstop which had been installed in the driveway prior to the purchase of the property by the defendants over three years before the occurrence of the accident.

Since the basketball area in the driveway was open, visible and both the basket and the wooden doorstop were in plain view, the trial court recognized that there was 'no entrapment' or 'hidden pitfall'.

For injuries suffered by the infant and for loss of services and medical expenses incurred by his father, the infant plaintiff and his father, the respondent here, won awards from the jury. The verdict in favor of the infant was set aside and a judgment upon the verdict for the father was entered separately. That judgment has been affirmed by the Appellate Division, Second Department, two Justices dissenting.

Repeated decisions of this court have approved the principle of law that a social guest is viewed in the eyes of the law not as an invitee but as a licensee despite the fact that such person was on the premises pursuant to an invitation from one in possession (Higgins v. Mason, 255 N.Y. 104, 174 N.E. 77; 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; Traub v. Liekefet, 2 A.D.2d 22, 152 N.Y.S.2d 971, affirmed 4 N.Y.2d 747, 171 N.Y.S.2d 865, (see, also, Comeau v. Comeau, 285 Mass, 578, 581, 582, 189 N.E. 588, 92 A.L.R. 1002; Prosser on Torts (2d ed., 1955), § 77, pp. 445, 446, 447; Restatement, Torts, § 331, comment a, subd. 3).

That rule has been applied in circumstances, where, as in the present case, the social guests were infants (Klein v. Ramapo Park, 253 App.Div. 824, 1 N.Y.S.2d 321; Droge v. Czarniechi, 285 App.Div. 1052, 139 N.Y.S.2d 314, affirmed 2 N.Y.2d 897, 161 N.Y.S.2d 149). In other words, a social guest, having the status of a licensee, must take the premises as he finds them, and he is entitled to no greater protection than the members of the family.

The defendant, therefore, owed the infant 'only the duty to exercise reasonable care to disclose * * *...