Kreger v. Ladd

• Decision Date: 26 May 1961
• Citation: 30 Misc.2d 736,216 N.Y.S.2d 866
• Parties: Rose KREGER and Ben Kreger, Plaintiffs, v. Lillian LADD and Martin Ladd, Defendants.
• Court: New York Supreme Court

Page 866

216 N.Y.S.2d 866

30 Misc.2d 736

Rose KREGER and Ben Kreger, Plaintiffs, v. Lillian LADD and Martin Ladd, Defendants.

Supreme Court, Special Term, Nassau County, Part I.

May 26, 1961.

Morris U. Greenberg, New York City, for plaintiffs.

O'Hagan, Reilly & Beasley, Mineola, Henry J. O'Hagan, Mineola, of counsel, for defendants.

WILLIAM R. BRENNAN, Jr., Justice.

Both sides in this negligence action move for summary judgment. The defendants, husband and wife, own a one-family house in Valley Stream. The female plaintiff was a visitor to this home on January 16, 1958 at about three o'clock in the afternoon. As she was leaving the premises, within the hour, she was caused to fall and sustain injuries. It is her contention that a defective metal stripping on the exit door caused her to catch her foot and that she was thereby precipitated to the floor of the foyer sustaining, among other injuries, a fractured toe.

The defendant asserts that the female plaintiff was a social visitor and that no business of any kind or nature was associated with the visit. This is admitted by the injured plaintiff who testified on her examination before trial that Mrs. Ladd was a friend of hers and that this was in fact a social visit. The bald statement now made by plaintiff's attorney that said plaintiff does not concede that she was a social visitor is not only not a denial of the fact, but is directly contradicted by his client's testimony.

The female defendant in the course of examination before trial testified that the stripping kept coming loose and that she kept fixing it and that it had been that way for a few months. In more specific detail she testified that about a month prior to the accident she had gotten herself caught in the stripping and had ripped her stockings and 'That's how I came to notice it was loose and I tried fixing it myself.'

The rules of law applicable to the facts in this case have recently been concisely recited in Krause v. Alper, 4 N.Y.2d 518, at page 520, 176 N.Y.S.2d 349, at page 351:

'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).

'* * *. 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.'

See, also, Wilder v. Ayers, 2 A.D.2d 354, 156 N.Y.S.2d 85, 88, affirmed 3 N.Y.2d 725, 163 N.Y.S.2d 966, where the court pointed out that:

'To a licensee the owner owes no greater duty than to avoid the maintenance of traps, hidden dangers, or wanton and reckless conduct to which the licensee may be exposed, unless the latter is first warned.'

The Appellate Division there also pointed out, 2 A.D.2d at page 356, 156 N.Y.S.2d at page 88, that

'It has frequently been said that a licensee, such as a social guest, takes the premises as he finds them and that he is entitled to no greater protection than a member of the owner's household.'

Consequently, the only duty owed by the defendants to the plaintiff herein was a duty to exercise reasonable care to disclose dangerous defects known to the defendants and not likely to be discovered by the plaintiff. Bernal v. Baptist Fresh Air Home Soc., 275 App.Div. 88, 96, 87 N.Y.S.2d 458, 464, affirmed 300 N.Y. 486, 88 N.E.2d 720, cited and quoted in Krause, supra, 4 N.Y.2d at page 521, 176 N.Y.S.2d at page 351.

The extent to which the foregoing doctrines are carried is exemplified by Gross v. Lewis, 5 N.Y.2d 884, 182 N.Y.S.2d 830. In that case, a guest, leaving the premises through the entrance door, walked along a stone porch which led to five steps going down to a sidewalk. As she came to the third step, her right foot caught in a drainpipe against the wall, causing her to lose her balance and fall . The drainpipe led from the top of the...