Mistretta v. Alessi, A--171

• Citation: 131 A.2d 891,45 N.J.Super. 176
• Decision Date: 20 May 1957
• Docket Number: No. A--171,A--171
• Parties: Mary MISTRETTA and Umberto Mistretta, her husband, Plaintiffs-Respondents, v. Nicola ALESSI and Josephine Alessi, his wife, and Carmen Pontillo and Mary Pontillo, his wife, Defendants-Appellants. . Appellate Division
• Court: New Jersey Superior Court – Appellate Division

Page 176

45 N.J.Super. 176

131 A.2d 891

Mary MISTRETTA and Umberto Mistretta, her husband, Plaintiffs-Respondents, v. Nicola ALESSI and Josephine Alessi, his wife, and Carmen

Pontillo and Mary Pontillo, his wife, Defendants-Appellants.

No. A--171.

Superior Court of New Jersey.

Appellate Division.

Argued April 29, 1957.

Decided May 20, 1957.

Seymour Margulies, Jersey City, for plaintiffs-respondents (John J. Pagano, Bayonne, attorney).

Milton A. Dauber, Jersey City, for defendants-appellants (Carpenter, Bennett, Beggans & Morrissey, Jersey City, attorneys; Richard H. Hughes, Jersey City, of counsel).

Before Judges CLAPP, JAYNE and FRANCIS.

The opinion of the court was delivered by

CLAPP, S.J.A.D.

This action was instituted in the Hudson County Court to recover damages for personal injuries. The jury returned a verdict in favor of the plaintiffs Mary Mistretta and her husband, Umberto Mistretta, and against the defendants Nicola Alessi, Josephine his wife, Mary Pontillo, his daughter, and Carmen Pontillo, her husband. Defendants appeal presenting one point, namely, that the court erred in denying their motions for an involuntary dismissal.

Defendants jointly owned the house in Bayonne, N.J., in which they lived. The plaintiff, Mary Mistretta, a sister of the defendant Josephine Alessi, who lived across the street, visited there every day in the week. About 10:30 a.m. on the day of the accident she went to pay her usual call, proceeding along a walk (referred to as an alleyway) that runs beside defendants' house, and entering the house through the cellar door. It had rained the night before, and ice had formed on not only the walk but also the front porch. At 8 o'clock that morning the defendant, Nicola Alessi, had thrown sand on the alleyway and the steps down to the cellar door, as Mary noticed when she came along. However, though he saw that the front porch was icy, he put no sand there because (as he testified) 'I had no more. I had just enough for the alleyway.'

After entering the house Mary went upstairs, as Nicola, who was in the cellar, observed. Twenty minutes or so later, when she was about to leave, Josephine told her 'to go out the front door' which opens on the front porch. Mary was in the habit of using not only the cellar entrance, but also the porch entrance, as a means or ingress and egress. She did, as Josephine suggested, but slipped on the icy porch and injured herself. Nicola at no time had told her that the porch was icy, nor had he said that there was no sand there.

Defendants' argument, shortly stated, is that Mary was a licensee and that defendants' duty therefore was only to refrain from wilful and wanton acts of negligence or at most not to create new and undisclosed dangers without warning her of them. They claim that it could not be said that there were wilful or wanton acts here or new and undisclosed dangers, and therefore the court should have dismissed the case.

In the last 30 years there have been rather striking developments in the law of New Jersey affecting the liability of an occupier of land to licensees and social guests. At the start of this period the occupier was held not to be answerable to licensees and social guests except for wilful or wanton acts. Phillips v. Library Co., 55 N.J.L. 307, 27 A. 478 (E. & A.1893); Sohn v. Katz, 112 N.J.L. 106, 169 A. 838, 90 A.L.R. 880 (E. & A.1933); Gregory v. Loder, 116 N.J.L. 451, 185 A. 360 (Sup.Ct.1936); King v. Patrylow, 15 N.J.Super, 429, 83 A.2d 639 (App.Div.1951).

However, early in this era it was said that in connection with a licensee or social guest the occupier must take reasonable care to avoid 'active wrongdoing'--that is, to avoid creating any condition upon the premises which could reasonably be regarded as a dangerous instrumentality. Morril v. Morril, 104 N.J.L. 557, 561, 142 A. 337, 60 A.L.R. 102 (E. & A.1928); Taneian v. Meghrigian, 15 N.J. 267, 274, 276, 104 A.2d 689 (1954); but see the careful opinion in King v. Patrylow, supra, 15 N.J.Super at page 435, 83 A.2d 639. This principle was embodied in the court's charge here. It has been looked upon as an extension of the rule that the occupier must not set a trap for a licensee. Cf. Tahan v. Wagaraw Holding Co., 28 N.J.Super. 436, 444, 101 A.2d 38 (App.Div.1953). Thus in Lordi v. Spiotta, 133 N.J.L. 581, 586, 45 A.2d 491 (Sup.Ct.1946), where the occupier had failed to shut a gas heater off entirely and gas had leaked, it was held that he was guilty of 'active negligence,' viz., creating a trap, when he asked plaintiff to light the heater. However, in the very interesting opinion in Cropanese v. Martinez, 35 N.J.Super. 118, 113 A.2d 433 (App.Div.1955), the whole subject was clarified; in connection with activities, as distinguished from the condition of premises or the failure to maintain them, the occupier is simply under a duty to exercise reasonable care in the circumstances. Harper and James, Torts, § 27.10 (1956); Prosser, Torts (2d ed.), 448; Restatement, Torts, §§ 341, 342. In that connection then, the standard is the same whether we are dealing with licensees or invitees. Similarly, in that connection, the law rejects the artificiality of the old formularization which lumped into one class the licensee who had casual permission to enter upon vacant land and in fact did enter thereon some one day in the year, and the social guest for whom the landowner had much natural solicitude and who, as here, visited the landowner's home every day in the week.

In this respect the law has reached the point referred to by the Supreme Court in Taylor v. New Jersey Highway Authority, 22 N.J. 454, 463, 126 A.2d 313, 317 (1956), in what should be taken as a highly significant passage:

'In modern times the (traditional immunities of owners and possessors of land) have rightly, though gradually, been giving way to the overriding social view that where there is foreseeability of substantial harm landowners, as well as other members of society, should generally be subjected to a reasonable duty of care to avoid it.'

However, as indicated in Cropanese v. Martinez, supra, when the courts come to deal with licensees, a distinction is drawn between activities conducted on the premises by the occupier and natural or artificial conditions thereon. Restatement, Torts, §§ 341, 342. The rule with respect to conditions was stated in Taneian v. Meghrigian, 15 N.J. 267, 274, 104 A.2d 689 (1954), thus, namely, that the occupier must 'give warning (to the licensee) of any concealed danger known to the occupier.' By this it is not meant that the occupier's liability is to be confined solely to dangers which he has intentionally or actively concealed. Prosser, supra, 449. The rule is broader in scope and may be stated thus: if the occupier knows of some artificial or natural condition on the premises and, in the exercise of reasonable foresight, should realize that it involves an unreasonable risk to a licensee, then he is under a duty to take reasonable care to make the condition safe or to give a warning of its presence and of the extent of the risk involved. Harper and James, supra, 1472; Restatement, Torts, § 342; Prosser, supra, 445, 448, 449; Laube v. Stevenson, 137 Conn. 469, 78 A.2d 693, 696, 25 A.L.R.2d 592 (Sup.Ct.Err.1951); cf. Lynch v. McDermott, 111 N.J.L. 216, 168 A. 192 (Sup.Ct.1933). The cited authorities further say that the occupier is not placed under such a duty if he could reasonably assume that the licensee is aware of or by a reasonable use of his faculties would discover the condition and realize the extent of the risk. Restatement, Torts, § 342e. However, in our view this merely calls for a consideration of particular matters which are satisfactorily dealt with by the general standard, namely, whether (as above stated) the occupier should realize that a condition known to him involves an unreasonable risk to a licensee.

The distinction taken between conditions and...