Murphy v. Kelly, No. A--149

CourtUnited States State Supreme Court (New Jersey)
Writing for the CourtWACHENFELD; OLIPHANT
Citation105 A.2d 841,15 N.J. 608,44 A.L.R.2d 1316
Docket NumberNo. A--149
Decision Date14 June 1954
Parties, 44 A.L.R.2d 1316 MURPHY v. KELLY.

Page 608

15 N.J. 608
105 A.2d 841, 44 A.L.R.2d 1316
MURPHY

v.
KELLY.
No. A--149.
Supreme Court of New Jersey.
Argued May 24, 1954.
Decided June 14, 1954.

Page 609

[105 A.2d 842] Lester C. Leonard, Trenton, argued the cause for appellant.

Harry A. Walsh, Jersey City, argued the cause for respondent (Thorn Lord, Trenton, Attorney).

The opinion of the court was delivered by

WACHENFELD, J.

We granted certification to the Appellate Division to review its reversal of an order entered, following the pretrial conference, for summary judgment in favor of the defendant. The sole issue presented is whether or not the infant plaintiff was an invitee in the light of the pleadings, the interrogatories and answers thereto, and the facts alleged in the pretrial memorandum submitted in accordance with R.R. 4:29--3. The Law Division held the defendant's invitation did not extend to the infant, and, as there was no question as to any material fact, the inquiry posed became one of law, which was decided adversely to the plaintiff.

The issue of invitation was initially projected in the complaint, where it was alleged that Patricia Murphy, age six, 'was lawfully upon the premises of the defendant as an invitee in company with her father,' who likewise is referred to as an invitee. Damages were sought for personal injuries to Patricia as a result of the defendant's negligence. The defendant entered a general denial and asserted the affirmative defenses of contributory negligence and assumption of risk.

The facts alleged are that on July 8, 1951 Jerry P. Murphy, father and guardian Ad litem of the infant plaintiff, went to the defendant's place of business at 1100 South Olden Avenue in Hamilton Township. His daughter and her maternal grandmother accompanied him. The purpose of the visit was to make a final payment on a monument purchased for the grave of the infant's mother, who had recently died.

They entered the defendant's premises by way of the sidewalk leading to the office and were met by the defendant outside of the office doorway, where they transacted their business.

Page 610

The infant was standing on the sidewalk a few feet away when they heard a scream. Turning, they saw her approximately in the middle of the sidewalk some five feet away. Between them and lying across the sidewalk a stone monument in the shape of a cross had fallen from its base immediately adjacent to the sidewalk and Patricia suffered injuries to her left foot, which was badly injured, finally resulting in amputation of the large toe.

On the basis of these facts, the Appellate Division, 28 N.J.Super. 266, 100 A.2d 558, reversed the trial court and concluded the infant plaintiff was not, as a matter of law, a licensee but was rather an invitee, relying upon Walec v. Jersey State Electric Co., 125 N.J.L. 90, 13 A.2d 301...

To continue reading

Request your trial
15 practice notes
  • Taylor v. New Jersey Highway Authority, No. A--29
    • United States
    • United States State Supreme Court (New Jersey)
    • November 5, 1956
    ...of Garfield, 22 N.J. 84, 123 A.2d 531 (1956). Cf. Harris v. Mentes-Williams Co., Inc., 11 N.J. 559, 95 A.2d 388 (1953); Murphy v. Kelly, 15 N.J. 608, 105 A.2d 841, 44 A.L.R.2d 1316 Almost 75 years ago the court, in Heaven v. Pender, (1883) 11 Q.B. 503, 509, expressed the broad principle of ......
  • Yanhko v. Fane
    • United States
    • United States State Supreme Court (New Jersey)
    • July 7, 1976
    ...and also on the assurances of reasonable safety which the landowner impliedly extends to them when they enter his store. Murphy v. Kelly, 15 N.J. 608, 105 A.2d 841 (1954); Page 543 Lewin v. Ohrbach's, Inc., 14 N.J.Super. 193, 82 A.2d 4 (App.Div.1951); Krackomberger v. Vornado, Inc., 119 N.J......
  • Lokar v. Church of the Sacred Heart, Mount Ephraim, No. A--131
    • United States
    • United States State Supreme Court (New Jersey)
    • June 24, 1957
    ...law doctrines which fail to meet modern social and moral concepts. See State v. Culver, supra (per Vanderbilt, C.J.); Murphy v. Kelly, 15 N.J. 608, 612, 105 A.2d 841, 44 A.L.R.2d 1316 (1954) (per Wachenfeld, J.); Saco v. Hall, 1 N.J. 377, 383, 63 A.2d 887 (1949) (per Oliphant, J.). Cf. Stof......
  • Collopy v. Newark Eye and Ear Infirmary, No. A--86
    • United States
    • United States State Supreme Court (New Jersey)
    • April 28, 1958
    ...A.2d at page 3; Taylor v. New Jersey Highway Authority, supra, 22 N.J., at page 463, 126 A.2d at page 317; Murphy v. [141 A.2d 287] Kelly, 15 N.J. 608 (1954); Taneian v. Meghrigian, 15 N.J. 267, 104 A.2d 689 (1954); Harris v. Mentes-Williams Co., Inc., 11 N.J. 559, 95 A.2d 388 (1953); Stoff......
  • Request a trial to view additional results
15 cases
  • Taylor v. New Jersey Highway Authority, No. A--29
    • United States
    • United States State Supreme Court (New Jersey)
    • November 5, 1956
    ...of Garfield, 22 N.J. 84, 123 A.2d 531 (1956). Cf. Harris v. Mentes-Williams Co., Inc., 11 N.J. 559, 95 A.2d 388 (1953); Murphy v. Kelly, 15 N.J. 608, 105 A.2d 841, 44 A.L.R.2d 1316 Almost 75 years ago the court, in Heaven v. Pender, (1883) 11 Q.B. 503, 509, expressed the broad principle of ......
  • Yanhko v. Fane
    • United States
    • United States State Supreme Court (New Jersey)
    • July 7, 1976
    ...and also on the assurances of reasonable safety which the landowner impliedly extends to them when they enter his store. Murphy v. Kelly, 15 N.J. 608, 105 A.2d 841 (1954); Page 543 Lewin v. Ohrbach's, Inc., 14 N.J.Super. 193, 82 A.2d 4 (App.Div.1951); Krackomberger v. Vornado, Inc., 119 N.J......
  • Lokar v. Church of the Sacred Heart, Mount Ephraim, No. A--131
    • United States
    • United States State Supreme Court (New Jersey)
    • June 24, 1957
    ...law doctrines which fail to meet modern social and moral concepts. See State v. Culver, supra (per Vanderbilt, C.J.); Murphy v. Kelly, 15 N.J. 608, 612, 105 A.2d 841, 44 A.L.R.2d 1316 (1954) (per Wachenfeld, J.); Saco v. Hall, 1 N.J. 377, 383, 63 A.2d 887 (1949) (per Oliphant, J.). Cf. Stof......
  • Collopy v. Newark Eye and Ear Infirmary, No. A--86
    • United States
    • United States State Supreme Court (New Jersey)
    • April 28, 1958
    ...A.2d at page 3; Taylor v. New Jersey Highway Authority, supra, 22 N.J., at page 463, 126 A.2d at page 317; Murphy v. [141 A.2d 287] Kelly, 15 N.J. 608 (1954); Taneian v. Meghrigian, 15 N.J. 267, 104 A.2d 689 (1954); Harris v. Mentes-Williams Co., Inc., 11 N.J. 559, 95 A.2d 388 (1953); Stoff......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT