Levine v. Barfus
| Decision Date | 10 July 1967 |
| Citation | 28 A.D.2d 896,282 N.Y.S.2d 23 |
| Parties | Fannie LEVINE et al., Appellants, v. Louis BARFUS et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Before BRENNAN, Acting P.J., and HOPKINS, BENJAMIN, MUNDER and NOLAN, JJ.
MEMORANDUM BY THE COURT.
Order of the Appellate Term, Second Judicial Department, dated July 30, 1965, which reversed a judgment of the District Court, Nassau County, First District, entered December 4, 1964, in plaintiff's favor on a jury verdict, and which dismissed the complaint, affirmed, with costs.
At the time of the plaintiff wife's accident she was a social guest and licensee. A social guest must take the premises as she finds them and she is entitled to no greater protection than the members of the family of the owners of the premises (Plotz v. Greene, 13 A.D.2d 807, 215 N.Y.S.2d 813, affd. 10 N.Y.2d 991, 224 N.Y.S.2d 675; Krause v. Alper, 4 N.Y.2d 518, 176 N.Y.S.2d 349, 151 N.E.2d 895; 38 Amer. Jur., Negligence, § 117). The owners are liable for injuries sustained by the social guest as a result of a defective condition of the premises only if the proximate cause of the injury was in the nature of a trap or of an affirmative act of negligence (Roth v. Prudential Life Ins. Co., 266 App.Div. 872, 42 N.Y.S.2d 592; Gross v. Lewis, 5 N.Y.2d 884, 182 N.Y.S.2d 830, 156 N.E.2d 459) or if they knew of a concealed dangerous defect not likely to be discovered by the licensee and they failed to use reasonable care to make the premises safe or to warn her of the condition and of the risk involved (Krause v. Alper, supra; Higgins v. Mason, 225 N.Y. 104, 109, 174 N.E. 77, 79; Wilder v. Ayers, 2 A.D.2d 354, 156 N.Y.S.2d 85, affd. 3 N.Y.2d 725, 163 N.Y.S.2d 966, 143 N.E.2d 514).
In our opinion, the plaintiff's fall was not caused by a trap or an affirmative act of negligence or by a hidden, dangerous defect not likely to be discovered by the social guest which would impose liability upon the defendants for the injuries sustained by this licensee (cf. Hirschman v. Hirschman, 4 A.D.2d 630, 168 N.Y.S.2d 153; Wilder v. Ayers, supra; Gross v. Lewis, supra; Plotz v. Greene, supra; Fauci v. Milano, 15 A.D.2d 939, 225 N.Y.S.2d 888, affd. 12 N.Y.2d 926, 238 N.Y.S.2d 313, 188 N.E.2d 525).
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