Pearlstein v. Leeds, A--373

• Decision Date: 12 November 1958
• Docket Number: No. A--373,A--373
• Citation: 145 A.2d 650,52 N.J.Super. 450
• Parties: Esther PEARLSTEIN, Plaintiff-Appellant, v. Sherwood LEEDS and Goldye Leeds, Defendants-Respondents. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 450

52 N.J.Super. 450

145 A.2d 650

Esther PEARLSTEIN, Plaintiff-Appellant, v. Sherwood LEEDS and Goldye Leeds, Defendants-Respondents.

No. A--373.

Superior Court of New Jersey.

Appellate Division.

Argued Sept. 17, 1958.

Decided Nov. 12, 1958.

Alfred Brenner, Bayonne, for plaintiff-appellant.

Richard H. Hughes, Jersey City, for defendants-respondents (Carpenter, Bennett, Beggans & Morrissey, Jersey City, attorneys; James P. Beggans, Jersey City, of counsel).

Before Judges PRICE, SCHETTINO and HALL.

The opinion of the court was delivered by

HALL, J.A.D.

Plaintiff appeals from a judgment for defendants entered in the Law Division on their motion at the close of the whole case. The suit seeks recovery for personal injuries sustained as a result of a fall on a waxed staircase in defendants' home while plaintiff was visiting there. She was fully aware of the condition. The questions presented involve aspects of the familiar problem of the duty owed by the occupier of real property to persons on the premises.

We summarize the evidence in the light most favorable to plaintiff, for on such a motion all which supports her case must be accepted as true and she must have the benefit of all legitimate inferences which may be drawn therefrom. Melone v. Jersey Central Power & Light Co., 18 N.J. 163, 170, 113 A.2d 13 (1955).

Defendants had invited 20 or so of their close relatives to a family lawn party to be held on a Sunday afternoon at their home in Franklin Township, near New Brunswick, the particular occasion being to celebrate the birthdays of two of their children. Mrs. Leeds asked plaintiff, an unmarried cousin, who was invited to the party, to come from her home in Bayonne in advance to assist in the preparations. She arrived on Saturday afternoon, went shopping with Mrs. Leeds, and that evening made cole slaw and potato salad for the next day's event.

Mrs. Leeds was occupied that evening in the very natural housewifely task of cleaning the house so that it would 'look very nice by the time my company arrived.' Included in this was waxing and polishing the floors and stairs. The house was of the split-level type having several sets of stairs. That with which we are concerned comprised six or seven steps and led from the living room to the bedrooms, occupied by the family and Miss Pearlstein, and one of the two bathrooms. The wax was applied to each step by pouring a bit in the center and then spreading it around and rubbing it in with a cloth. There is no suggestion that the steps were slippery that evening as a result.

The next morning, not being quite satisfied, Mrs. Leeds went over the steps again with a cloth, but without applying more wax. As she put it: 'Feeling it would make the shine a little bit higher, I just glossed them up.' They were used by the family without comment or mishap until shortly before the guests arrived in mid-afternoon, when plaintiff, having had occasion to go to the bedroom area, on her descent found the stairs slippery from the high polish. She reported to Mrs. Leeds that 'the steps were very slippery and it's dangerous for people to walk up and down,' and told her to do something about it. Plaintiff testified that Mrs. Leeds replied that she would 'try to get some of it off.' The latter does not recall her reply, but, in any event, the relatives started to arrive very shortly and nothing was done. Late in the afternoon, after the party was over, plaintiff went up to the bedroom section again. She noticed on her way up that they were just as slippery as they had been in mid-afternoon when she reported the condition to the hostess. On her subsequent descent while holding on to the bannister, she slipped and fell and sustained the injuries for which damages are sought. The only other evidence on the issue of liability was the testimony of another guest, a Mrs. Cohen (Mrs. Leeds' sister and plaintiff's cousin), that she noticed, on trips up or down the stairway during the party, that the steps were 'highly polished or waxed' and 'slippery.'

The trial court granted the motion for judgment primarily on the basis that plaintiff was a social guest and so a mere licensee, the alleged dangerous condition was known to her, and therefore defendants violated no duty owed to her. Plaintiff principally urges to us that she was actually an invitee rather than a social guest and, even if she was no more than a licensee, recent decisions of our courts in the field of liability of land occupiers have in effect removed all distinction between a licensee and an invitee concerning duty, imposing a uniform general standard of reasonable care under the circumstances to make the premises reasonably safe wherever there is foreseeable risk of harm. It is claimed a jury question was presented as to defendants' compliance with that standard and the granting of the motion for judgment was therefore error.

The trial judge further held that plaintiff was barred from recovery as a matter of law because she deliberately subjected herself to a known hazard and risk, and that the mere making of a walking surface slippery from the use of wax, in the course of a usual and customary act of cleaning and polishing, if applied as here according to normal and generally accepted standards, cannot give rise Ipso facto to any inference of negligence. As we view the case, these additional grounds of decision below, on the basis of which plaintiff also contends for reversal, are not of controlling importance.

First to be considered is the question of the duty owed to plaintiff under the present state of our law, assuming her to be a social guest. It must be kept in mind that we are dealing with a situation where she was completely cognizant of the alleged hazard and risk, thereby adding an additional element to the factual situations found in recent decisions in the field.

We are convinced that there is no basis for plaintiff's contentions that the duty presently owed to a gratuitous licensee in New Jersey is the same as the obligation to an invitee or business visitor, or that the duty owed to either simply amounts to a general standard of reasonable care under the circumstances. Although we know of no recent decision of our Supreme Court expressly dealing with licensees, including social guests, in the connotation with which we are here concerned, several very recent opinions of the Appellate Division make it abundantly clear that while our law in dealing with this relationship has very definitely advanced from the former limited duty of refraining from wilfully injurious actions and warning of hidden traps (Fleckenstein v. Great Atlantic and Pacific Tea Co., 91 N.J.L. 145, 102 A. 700, L.R.A.1918C, 179 (E. & A. 1917); Lordi v. Spiotta, 133 N.J.L. 581, 45 A.2d 491 (Sup.Ct.1946)), it has come only to and is identical with the view expressed in the Restatement, Torts (1934) both with respect to activities (section 341) and natural or artificial conditions (section 342) on the premises. See 'Landowners' Liability in New Jersey: The Limitation of Traditional Immunities,' 12 Rutgers L.Rev. 599, 608--610 (1958). The duty owed to a licensee in New Jersey today is best expressed by quotation of these sections.

Section 341, entitled 'Activities Dangerous to Licensees,' reads:

'A possessor of land is subject to liability to licensees, whether business visitors or gratuitous licensees, for bodily harm caused to them by his failure to carry on his activities with reasonable care for their safety, unless the licensees know or from facts known to them, should know of the possessor's activities and of the risk involved therein.'

Section 342, captioned 'Dangerous Conditions Known to Possessor,' reads 'A possessor of land is subject to liability for bodily harm caused to gratuitous licensees by a natural or artificial condition thereon if, but only if, he

'(a) knows of the condition and realizes that it involves an unreasonable risk to them and has reason to believe that they will not discover the condition or realize the risk, and

'(b) invites or permits them to enter or remain upon the land, without exercising reasonable care

'(i) to make the condition reasonably safe, or

'(ii) to warn them of the condition and the risk involved therein.'

The recent decisions of this court just referred to, all of which involved social guests, comprise the leading case of Mistretta v. Alessi, 45 N.J.Super. 176, 131 A.2d 891 (App.Div.1957), and the subsequent cases following the principles there laid down: Knox v. Goodman, 45 N.J.Super. 428, 133 A.2d 50 (App.Div.1957); Debes v. Morganroth, 48 N.J.Super. 39, 136 A.2d 896 (App.Div.1957); Berger v. Shapiro, 52 N.J.Super. 94, 144 A.2d 900 (App.Div.1958). In each the court approached the problem by determining the status of the plaintiff and then applying the rule of the Restatement, either by express reference thereto or by inference, to determine liability. While in none of them was the court concerned with the plaintiff's knowledge or awareness of the activity or condition and appreciation of the risk, as uncontradictedly exists here, the soundness of precluding liability to a gratuitous licensee by reason of the existence of such knowledge or appreciation, as the Restatement expressly states, cannot well be questioned. (It is to be noted that in this connotation we are not involved with an affirmative defense of assumption of risk or contributory negligence but rather with an absence of a necessary element of the occupier's duty and breach thereof). Our view is in accord with that expressed by the Supreme Court, by way of dictum, in Taneian v. Meghrigian, 15 N.J. 267, 275, 104 A.2d 689 (1954), and Imre v. Riegel Paper Corp., 24 N.J. 438, 445, 132 A.2d 505 (1957), that there is no liability to a gratuitous licensee where he is aware of the peril.

We therefore hold that there was, as a matter of law, no breach of duty here by defendants to plainti...