Mistretta v. Alessi, No. A--171

• Court: New Jersey Superior Court – Appellate Division
• Citation: 131 A.2d 891,45 N.J.Super. 176
• Decision Date: 20 May 1957
• 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
• Docket Number: No. A--171

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.

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[131 A.2d 892] 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

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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

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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 [131 A.2d 893] 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...