Sideman v. Guttman

• Decision Date: 27 March 1972
• Citation: 38 A.D.2d 420,330 N.Y.S.2d 263
• Parties: Nancy SIDEMAN et al., Appellants, v. Howard GUTTMAN et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 263

330 N.Y.S.2d 263

38 A.D.2d 420

Nancy SIDEMAN et al., Appellants, v. Howard GUTTMAN et al., Respondents.

Supreme Court, Appellate Division, Second Department.

March 27, 1972.

Abrams & Martin, New York City (Henry H. Abrams and Alan Jay Martin, New York City, of counsel), for appellants.

Emile Z. Berman and A. Harold Frost, New York City (Sheila L. Birnbaum and Harold L. Schwab, New York City, of counsel), for respondents.

Before LATHAM, Acting P.J., and SHAPIRO, GULOTTA, BRENNAN and BENJAMIN, JJ.

SHAPIRO, Justice.

Plaintiff, Mrs. Sideman, was a guest in the home of the defendants, her daughter and son-in-law. She stepped on a throw rug in their apartment which slid from under her and 'flew away', causing her to sustain injuries. The trial court dismissed the complaint at the end of the plaintiffs' case upon a jury trial of the issues of liability only, holding that the plaintiffs had failed to prove the existence of a dangerous condition known to the defendants and unknown to Mrs. Sideman.

Under the present law of premises liability a social guest is treated as a licensee, takes the premises as he finds them and is entitled to no greater protection than that owing to a member of the owner's family (Krause v. Alper, 4 N.Y.2d 518, 176 N.Y.S.2d 349, 151 N.E.2d 895; Golding v. Mauss, 33 A.D.2d 64, 305 N.Y.S.2d 1, revd. 27 N.Y.2d 580, 313 N.Y.S.2d 399, 261 N.E.2d 399; Levine v. Barfus, 28 A.D.2d 896, 282 N.Y.S.2d 23; Dragon v. Adams, 18 A.D.2d 1120, 288 N.Y.S.2d 1010; Schlaks v. Schlaks,17 A.D.2d 153, 232 N.Y.S.2d 814, mot. for lv. to app. den. 13 N.Y.2d 593, 240 N.Y.S.2d 1025, 190 N.E.2d 905; 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, 180 N.E.2d 257; Traub v. Liekefet, 2 A.D.2d 22, 152 N.Y.S.2d 971, affd. 4 N.Y.2d 747, 171 N.Y.S.2d 865, 148 N.E.2d 912). The duty which the owner of premises owes to a social guest is twofold: (1) he must abstain from inflicting intentional, wanton or wilful injuries; and (2) he must exercise reasonable care to disclose any danger known to him but not likely to be discovered by the guest (Krause v. Alper, Supra; Dragon v. Adams, Supra; Schlaks v. Schlaks, Supra).

Mrs. Sideman admitted visiting her daughter 'a few days or a week' prior to the accident and the evidence showed that the floor over which the throw rug lay was waxed two weeks prior to the accident. It was also established that Mrs. Sideman knew of the existence of the rug, that it was not fastened to the floor in any way and that she welked over it shortly before the happening of the accident.

These facts distinguish the case at bar from Golding v. Mauss (supra), which is relied upon by the appellants as controlling here. In Golding, the plaintiff slipped on a waxed floor in the home of the defendants, her then future in-laws. After a jury trial, a verdict was rendered in her favor and the Appellate Term affirmed the ensuing judgment, but the Appellate Division, First Department, reversed the Appellate Term's determination and the judgment and dismissed the complaint, on the law. The dissenting opinion at the Appellate Division (for affirmance) pointed out that the plaintiff had been to the defendants' home about a month prior to the accident and could not, therefore, have known of the existence of the dangerous condition. It was, however, known by the defendants who had tried unsuccessfully to have it remedied. They never informed the plaintiff of the dangerous condition. The Court of Appeals reversed and remitted the case to the Appellate Division for consideration of the questions of fact, on the grounds set forth in the dissenting opinion at the Appellate Division. That case has no application here, for there the defendants recognized the existence of a dangerous condition of which the plaintiff was unaware and which they had tried unsuccessfully to remedy. Here, however, there is no proof that the defendants knew the rug created a Dangerous condition, that they realized it might entail an unreasonable risk or that they had reason to believe that Mrs. Sideman would not discover the existence of the 'condition' (Schlaks v. Schlaks, 17 A.D.2d 153, 157, 232 N.Y.S.2d 814, 818, Supra; Higgins v. Mason, 255 N.Y. 104, 110, 174 N.E. 77, 79). It therefore cannot be said that under the social guest rule as presently applied by the Court of Appeals the trial court was wrong in dismissing the complaint.

In sustaining the dismissal of the complaint perforce the authorities above cited, I think I should point out that the judge-made rule that a social guest is a licensee who must take the premises as he finds them and is entitled to no greater protection than that owing to a member of the owner's family has no basis in logic and should no longer be accorded any legal validity.

The doctrine that social guests are to be regarded as licensees was first formulated in 1856 in England in Southcote v. Stanley (1 Hurl. & N. 247 (156 Eng.Rep. 1195)). The case involved a suit against a hotel owner who had invited the plaintiff as a visitor. When the plaintiff was leaving the hotel he was injured by a large piece of glass which fell from a door. The court held that the plaintiff had no cause of action against his host since he, as a social guest, was a mere licensee and his host had no obligation to make the place safe for him. Pollock, C.B., equated the visitor with a servant, saying that he was in the same position as any member of the establishment who must take his chances with the rest. Another member of the court, Bramwell, B., thought the occupier could only be liable for acts of commission as opposed to acts of omission and that, since the declaration (complaint) stated only a want of care by the defendant, the action was not maintainable. The doctrine there enunciated, although since much criticized, has persisted to this day as the applicable law in the majority of American jurisdictions, including New York, although in the country of its origin it has been repudiated by statute (Occupiers' Liability Act (1957), 5 & 6 Eliz. 2, ch. 31).

The explanation usually given for the anomaly of classifying social guests as mere licensees is that the guest is expected to take the premises as the possessor himself uses them and is not entitled to expect that precautions will be taken for his safety in a better manner than the possessor takes for his own safety or that of members of his family (see Restatement, Torts (2d), § 330, comment H; Prosser, Law of Torts (2d ed.), pp. 447--448).

Both of the authorities last mentioned, however, note the reason given for the rule with tongue in cheek. Thus, the Restatement says (p. 175), 'This has not gone without criticism, and an undercurrent of dissent, based upon the contention that it is not in accord with modern social custom and understanding when a guest is invited.'

Professor Prosser says (p. 448): 'There has been some undercurrent of dissent, as to whether this is really in accord with present social customs.' In the fourth edition of his Law of Torts (1971; p. 379) he reports, 'There has, however, been quite a vigorous undercurrent of dissent, as to whether this is really in accord with present social customs, under which it is contended that the guest, invited and even urged to come, rightfully expects more than mere inactivity for his safety.' Prosser also wryly comments in his fourth edition (p. 378) that the decisions which hold that a social guest, however cordially he may have been invited and urged to home, is not in law an invitee and is nothing more than a licensee made 'a distinction which has puzzled generations of law students, and even some lawyers.'

So far as my research discloses, every commentator who has discussed this question of the classification of social guests as mere licensees for purposes of determining the level of care owed such guests by the host And has expressed an opinion of his own has strongly criticized the rule. (See McCleary, The Liability of a Possessor of Land in Missouri to Persons Injured While on the Land, 1 Mo.L.Rev. 45 (1936); Harper, Laube v. Stevenson: A Discussion, 25 Conn.Bar J. 123 (1951); Prosser, Business Visitors and Invitees, 26 Minn.L.Rev. 573, 612 (1942); Comment, The Outmoded Distinction Between Licensees and Invitees, 22 Mo.L.Rev. 186 (1957); Note, Torts-Duty of Occupier to Social Guests, 19 La.L.Rev. 906 (1959); Comment, Status of the Social Guest: A New Look, 7 Wm. & Mary L.Rev. 313 (1966); Comment, Negligence-Land Occupiers' Liability for Injuries to Lawful Entrants-Trend Toward Reasonable Care in All Instances, 4 Vill.L.Rev. 256 (1958--59); Long, Land Occupant's Liability to Invitees, Licensees and Trespassers, 31 Tenn.L.Rev. 485 (1963--64); Comment, 44 N.Y.U.L.Rev. 426 (1969); Comment, 9 Santa Clara Lawyer 179 (1968--69); Comment, 18 Kan.L.Rev. 161 (1969--70); Comment, 14 S.D.L.Rev. 332 (1969); Comment, 15 N.Y.L.F. 933, 940--941 (1969)).

In the McCleary article (Supra, p. 58) the author says:

'It is customary for possessors to prepare as carefully, if not more carefully, for social guests as for business guests; Furthermore, the social guest has reasons to believe that his host will either make conditions on the premises safe or at least warn of hidden dangers. In this century there is no reason for the courts to take the position that a social guest should not sue his host.'

The writer of the comment in the William & Mary Law Review (Supra, p. 320) states:

'The traditional view that the social guest is a licensee as a matter of law must be discarded and the guest should be given the same legal status as an invitee. Social intercourse affects almost every individual in our society and some assurance should be given these individuals that they will be protected from the host's negligent act.'

In Pollock on Torts (14th ed., p. 422) the author aptly states that, although invitation is a word applied in common speech to the host-guest relationship, a guest...