*1 BERGER, PLAINTIFF-RESPONDENT, SARAH v. SAMUEL SHAPIRO, DEFENDANT-APPELLANT.
Argued April 21, 195 9 Decided June 1959. *4 H. Curtis Meanor Mr. the cause for argued the defendant- an, Blake, appellant & Emory, Lamb (Messrs. Lang attorneys; Meanor, Mr. James J. and Mr. H. Langan Curtis of counsel). - Mr. M. Herman Wilson the cause for the argued respondent. opinion of the court was delivered by J. The Appellate Division reversed
Pkoctoe, dismissing plaintiff’s suit negligence close of all the N. evidence. 52 J. Super. 94 We (1958). certified the defendant’s application. J. 306 (1958). woman, Sarah plaintiff, an from Berger, elderly came Plorida visit her daughter son-in-law, Samuel Sha- piro, defendant, at their home in Cedar Grove, New Jersey. She had been there for staying about two or three weeks prior to the accident which occurred September on 1955. The plaintiff has been from suffering for glaucoma past and her years vision is greatly She impaired. * * * little, testified that while can she “see a enough to get close,” around when amI her vision is all not at clear and that like.” “[ejverything shadowy vision Her at the time of the trial was the same as when the accident occurred. She had at the difficulty trial examining of the photograph scene of the accident.
On the day accident she was alone on the front lawn of the defendant’s sister, house. Her who was also visitor, was inside and her daughter was next with door Mrs. neighbor. decided tо Berger go into the house. She *5 without assistance used the front entrance
had never before was rear entrance where there used the and generally testified: banister. She something up go got I so I to into the house. “I felt wanted my just My go daughter yet. very wasn’t home I seldom alone but myself. thought go I I I will So walked house. sister was So opened door, up slowly, steps, up I X went back and when open, my something foot that would went into was so the door my
empty and broke foot.” аnd I fell down a distance to the of about porch ground, She fell from A feet, her heel and ankle. rose- and a half breaking four to front side of the was porch close the right bush situated her fall. she testified as broken On cross-examination follows: slowly steps right. up I walked and then I all “A. walked way open open door, so I went
when I went my something get door, stepped in and foot went into back to empty; I don’t know what. know; No, A. I didn’t Yоu know what was? Q. don’t I didn’t know.” time she was recalled the stand shown the Later when testified: she steps photographs your hand, hand, you on the door? A. This Did have “Q. get open I back I on door to it. went the door door. had it opened I So I was on this side. the door is on this side. because open door, my stepped foot fell into some- back to the door. X thing empty. and I I didn’t know what it was that was like went down. your you step you hand knob baсk had on the did Q. When open Yes. the door it? A. lawn, Bight you A. the front lawn. did fall? On Q. Where right fell; I I on where fell side I the side fell. on the where to the side.” she said: further cross-examination And on way door, stepped back, right opened I I went down this “I porch.” off the *6 The does not indicate whether the in plaintiff, record con- with the above junction quoted testimony, pointing to the or the photograph physically demonstrating manner in fell. she
Thе porch front of the defendant’s house is reached by four brick The ascending steps. top step connects with a cement porch which defendant estimated be about two and half feet in The front screen door depth. opens from to left the right house). There is (facing guard no or on the side of the railing right porch. There was brick missing from each end of the top step. Shapiro, Mrs. the defendant, wife of the that tеstified she removed the two bricks about two the months before accident and least one month before her mother arrived for her visit. She said she did so she because discovered the bricks were loose and that she informed her husband of what she had done. husband, Her defense, testifying his admitted that his wife had told him about two months before the accident that she had removed the bricks wanted him to replace them. He told her that he intended install iron railings in the spaces created the by was missing bricks. This never done. The plaintiff’s eye condition was known both Mr. and Mrs. Shapiro.
The of theory was plaintiff’s case that while the opening front door she fell when stepped she backwards into the space created by brick at missing the extreme right front side of the top and that the step, defendant’s failure to have brick, replaced the having had knowledgе opportunity so, do constituted breach his of of care duty owing to her. At the conclusion of entire case defendant’s attorney moved for of involuntary dismissal on two grounds: was a (1) plaintiff social guest and the only duty her was owing to that of refraining from willful conduct; or wanton was (2) plaintiff guilty con- tributory as a negligence matter The trial law. judge, without on either ruling of these grounds, granted motion for want of evidence proximate cause and said: her testimony evidence from any
“I don’t think there is the removal of this caused space to indicate fell, she she says of her fall. She cause brick into open space.” stepped trial held that new ordering Division Appellate into” that her foot “went testimony
in view of might reasonably infer jury “fell into” something, or left brick space missing was the “something” that the in her fall. was the causal factor and thus condition Division also held from the evidence Appellate a duty find that the defendant owed could violated jury It further held that was not plaintiff. as a matter of contributory law. guilty negligence *7 that he the defendant first contends appeal On this plaintiff. parties did not violate to the Both any duty owing a at the time the social of accident agree such, the of weight of the defendant. As guest great licensee, a classifies hеr as authority notwithstanding have at at the defendant’s home been his may her presence James, Torts, 2 and The Law invitation. express Harper of Prosser, 1955), Torts ed. 27.11, (2d 1476 p. (1956); § Eckert, 22 N. J. 220 Div. 447; Vogel Super. v. (App. p. Torts, 331, a The defines social 1952). Restatement § of a While social is on gratuitous guest as licensee. guest as a of an “invitation” in premises the of another result word, the of that has said that layman’s sense court he is to as of care for his high degree safety not entitled as benefits premises one who on to confer some v. the invitor other than social. Taneian purely Meghrigian, Annotation, 267, 25 A. L. R. 15 N. 275 See also (1954). J. In the latter situation the is re person 2d 598 (1952). or, in terms in law as an invitee garded Restatement, visitor,” 332, a “business and is owed supra, § v. Finnegan care than licensee. In The greater duty of Co., A. Goerke N. J. 59 & it was held (E. 1929), 106 L. was an in the store of the defendant invitee сustomer the defendant owed a duty or business visitor to whom
97 exercise reasonable care maintain the premises in a rea safe See condition. also v. N. sonably Murphy Kelly, 15 J. 608 Bohn v. & Hudson Manhattan (1954); R. (1954). In the case we must present determine what duty defendant as host owed to the plaintiff, his social guest. We an are here concerned with activity being conducted on the host by the time of his premises social guest’s In such prеsence. ease host is under an obligation exercise reasonable care for protection his guest. Martinez, v. Cropanese N. J. Div. Super. (App. Restatement, door, 341. 1955); supra, porch and § steps were in the same condition at the time of the acci dent they as were for about two prior months thereto therefore an existing constituted or static condition of the Martinez, premises. See Cropаnese v. supra; Dunster v. Abbott, 2 Eng. All R. 1573 L. (Ct. App. 1953).
There are decisions this State it has been held that the obligation of a guests host his merely refrain from willfully them. wantonly Sohn injuring Katz, v. & N. J. L. 106 A. (E. Gregory 1934); Loder, 116 N. J. L. 451 Ct. (Sup. 1936). rationale of this doctrine is that the understands guest when he accepts that he is hospitality host as temporarily adopted one he family and expects that host will take the same care him as he does of himself and the other *8 members of his and a family no more. As the consequence, guest must accommodate himself to the conditions of his Morril, host and take the as he finds it. Morril v. property 104 J. & N. L. 557 A. (E. 1928), Southcote v. citing Stan & ley, 247, 1 H. L. N. 25 J. Exch. 339 Lewis v. (1856); Dear, 120 J. 244 & A. N. L. Thus (E. 1938). the host need not undertake improvements to make or alterations to render his home safer for those his accepting hospitality Comeau, than for 578, himself. Comeau v. 285 Mass. 189 588, N. E. 92 L.A. R. 1002 Jud. Ct. (Sup. 1934). However, there an developed quite early the exception to
98 land This a an imposed upon, occupier obliga above rule. dangerous to the concealed con any tion disclose to licensee Prosser, known the to former. premises dition Hill, as 1858 in v. 140 Corby 449. As early supra, p. 556, the land 1209, 4 C. B. N. S. of Eng. possessor Rep. a who sustained when injuries liable to licensee was held had at with stack of slates which he collided nighttime servants on his placed by possessor’s been negligently the licensee of such obstruction. warning road without private case, of land principle Corby possessor of con any an to disclose to licensee obligation is under he condition of the of which has premises cealed dangerous Phil in of cases. many has been reiterated our knowledge, & 307 A. 1893); N. L. Library v. lips (E. Morril, Morril Lordi N. J. L. Spiotta, v. v. supra; Meghrigian, Ct. Taneian v. supra, 584 (Sup. 1946); principle J. at Often the reference to 274. рage that the landowner expressed may to effect language his or licensee. trap maintain for knowingly guest sense, in a the word broad Undoubtedly “trap” employed e., rea the licensee cannot dangerous i. condition which any and expected Harper be observe avoid. sonably Prosser, James, 1473; at 449. supra, p. supra, p. that, This to be a exception appears recognition bemay while the social guest (gratuitous licensee) required them, as the host maintains premises to accept (licensor) possessed he is at least the same knowledge entitled to ex of and should not be host conditions dangerous such the absence to assume risk of conditions pected is not warning. required inspect of host or maintain them in safe defects premises discover or if knows defective any for his but he guest, condition condition, must exercise reasonable care dangerous he elVog of the danger. correct the condition or warn guest Eckert, Annotation, land supra; “Duty possessor R. 2d 525 danger,” 55 L. to warn adult licensees A. James, 1471; see Mistretta supra, (1957); Harper
99 Alessi, N. v. 45 J. 176 Div. Debes Super. 1957); (App. N. v. 48 39 Div. If Morganroth, Super. 1957). (App. is aware condition rea guest dangerous or it, use his sonable faculties would observe the host Leeds, 52 N. J. liable. Pеarlstein Super. (App. Div. 29 N. J. 354 1958), certification denied See (1959). Note, Imre v. J. 438 Riegel Gorp., Paper (1957); “Landowners’ in New The Limitation Liability Jersey: Immunities," Traditional L. Rev. Rutgers (1958).
The exception to a on relating dangerous condition which is known premises to the host and which he has reason believe his be guest cannot observe expected Restatement, and avoid has been encompassed supra, 342. We believe that in the hоme host-guest relationship § this section the law of this represents State: possessor subject liability bodily “A of laud is for harm caused gratuitous if, licensees natural or artificial condition thereon only if, but he (a) knows of the condition and an realizes it involves un- they risk to reasonable them and has reason to believe that will risk, not discover the condition or realize the permits (b) land, invites or them to or enter remain with- exercising out reasonable care (i) reasonably safe, to make the condition or (ii) to warn them of the condition and the risk involved therein.” there forth principles set are to the applicable however, present Defendant, case. contends that the absence brick from the does not top step as a qualify con cealed because an danger open was and obvious condi “[i]t tion and it shоuld be remembered that this accident occurred in the But it daylight.” can be said that reasonably condition one which the plaintiff would be expected to observe and avoid? The defendant knew of de ficient Her eyesight. caused her to infirmity move perpetual twilight and therefore the could conclude jury the defendant should have known that the defective condition of the step was not one which the would ex- be *10 Furthermore, have found observe. could
peeted jury at time anticipated that should have that some defendant at his the plaintiff her home during relatively long stay enter the house alone the front door. would was no “evi- The defendant further contends that there risk, that he realized the held much any dence condition an one.” The knew of the less unreasonable defendant in the and it missing top jury brick was for step a man would realize determine whether or not reasonable a not the de- it created hazard. whether inquiry a fendant realized the held risk but whether any condition it. reasonable man would be of cognizant occupier actually “If an of a of Ms knows state affairs on land danger, wMeh man would should not reasonable realize was he escape responsibilities plea he be allowed to from his on the that not was a reasonable man and did realize it.” Hаwkins v. not Purley Council, (1954), Coulsdon L. R. Urban District 2 W. supra, page 122, Meghrigian, cited in Taneian v. 15 N. J. 277.
Defendant did not prove that the argues plaintiff adequate lack of an 'a of of condition. Lack warning of the condition an essential element or notice was warning Thus, the burden of recovery. of plaintiff’s right defendant was on her to show the failure proof Trust v. Peoples-Piitsburgh such Valles give warning. Co., 1940). Whether 339 Pa. 2d Ct. 33, A. 19 (Sup. of the condition not the dеfendant warned plaintiff or known was not within his but was as knowledge peculiarly Therefore, does fall plaintiff. well case rule that a plain class to which the is applied within the but the defendant prove may require tiff need not a negative of his means of superior the fact because prove knowledge. 2486; Canada ed. Wigmore, (3d 1940), Evidence § cf. Co., Ale, 28 N. F & A Distributing Inc. v. Dry Ginger However, 444, implicit plaintiff’s it 453 (1958). of the defect to the priоr she did not know testimony be could drawn therefrom properly An inference accident. Moreover, had been defendant’s given. warning no motion fox did not judgment include this If it ground. had included, been the trial to serve the interest judge, justice, all likelihood would have given an opportunity further present on the proof point.
Defendant next contends there evi no dence a causal showing connection between defеndant’s and the In negligence injury. passing involuntary dismissal we must evi view the dence in its most favorable to the Melone plaintiff. light & Jersey Central Power Light N. J. *11 Our examination of the (1955). and the testimony photo in evidence graphs leads us to conclude that the Appellate Division determined correctly this issue should have been submitted to the jury. the Considering plaintiff’s position on the porch relation the to of the vicinity brick, which was at the front missing corner the right steр, with the top together shallowness the porch, find jury could it was that she reasonably probable into the stepped created the cavity by brick. missing She was in the door, act of the which her opening opened from to left. her She had left on the right hand door and as she it toward her she opened necessarily stepped backwards when her “foot into went that was The something empty.” jury could conclude that this backward brought movement her to the foot filled the space formerly by brick. missing of the rosebush breaking by fall and its plaintiff’s near location front corner of the right and porch steps supports fall was probability due caused brick. It cavity is also missing that defendant did not lack of causation significant urge as 4:51-1, See R. R. ground support his motion. that a requires motion for shall state specifically therefor. grounds Defendant further contends that evi expert “[n]o dence was forth to show either that brought missing brick created a c'ondition or that its did dangerous removal to the conform standards of appropriate construction.” need not
However, think expert we it that an obvious of a condition called inform a to the nature jury be as See top porch. caused brick in the step missing Inc., 631, 53 A. Halprin, Cackowski v. Jack A. Conn. H. B. Thomas Ct. Err. 1947); 2d (Sup. cf. Shafer Co., 1958). J. 24-25 Div. Suрer. 19, (App. Defendant contends that finally This a matter of law. as contributory negligence guilty of plain that in premise contention is based on light condition, notably her tiff’s years physical advanced front un vision, steps mount the attempt her impaired route was available when a safe alternate reasonably aided safety. for her own was an unreasonable disregard was the rear en alternate route which defendant refers to plain with a banister and which trance which was equipped As rule those tiff testified she used. normally general are must who know that their faculties persons impaired would in the themselves the reasonable man light conduct as H. & R. Electric Jersey Bullelli v. City, of such disability. Harper 59 N. L. 302 Ct. (Sup. 1896); Ry. James, that many 16.7. It common knowledge supra, § their vision have mastered impaired with persons greatly move unaided. Plain where about handicap point they with her condition for present eye tiff has been suffering *12 her to move about ability 13 There was evidence of years. from Florida for herself. came alone She bjr apparently her later attend trial. the visit to daughter with entrance fact had never used the front The that she before of the factors to many without assistance was one merely court has her conduct. This evaluating be considеred ordinarily is contributory said that negligence repeatedly in order to a justify and that as jury, judgment for the contributory negligence matter of law on that ground, as fact or as appear must plaintiff conclusively inference that would be drawn and exclusive necessary v. Morristown men. DeRienzo Airport all reasonable Norton, 16 231, (1958); Battaglia 28 N. J. Corp., J. 171, (1954); Gudnestad v. Coal Dock Seaboard 15 N. J. Moreover, order bar (1954). as a mаtter of law it recovery must be estab conclusively lished that such proximately contributed negligence plaintiff’s injury. 412, 413, Paolercio v. 2 N. J. Wright, The evidence in (1949). lead present case does not us to such a conclusion. Whether the failed exercise care reasonable for her own safety and whether such failure proximately contributed to her were questions injury for the to resolve. jury of the judgment Appellate Division affirmed. with the (dissenting). My disagreement major-
Hall, ity’s conclusion of affirmance is based on the holding there was sufficient evidence from could jury properly find that plaintiff’s fall was caused into the by stepping created removal cavity of the at the corner brick In porch. the trial my opinion was eminently judge correct in defendant’s for granting motion end of the entire case for lack of of that adequate prоof vital element. evidence on the only question plaintiff’s own
testimony, fully in the quoted majority in which opinion, she said in identical practically words on each of the three times she matter, was asked about the her foot “went into” an unknown that was “something empty.” Significant to me is that did she not or say even intimate that her foot touched This it seems would have had anything. have to which happened, as she would have testified hаd it occurred, if she in fact had into the stepped relatively small space missing wide, standard brick (2%" and 8" deep What she said long). and what she did 3%" say is me consistent with physically only having stepped off itself at completely porch the corner. The rosebush, broken suggested by as majority supporting probability located theory, so it would have been under either damaged hypothesis. *13 can, therefore, probability see no inference of
I reasonable cavity. the causеd into the accident was stepping from me can gain It the best very plaintiff appears There inference possibility. the is a of speculative proofs only the of and I as much just possibility, suggest is from inference, the fall resulted reasonably probable There space. clear the porch off of brick stepping As to the jury. not to take the case enough consequently v. National case Callahan this court said leading 150, 4 N. J. : Lead (1950) possi- repeatedly of a courts have decided that the existence “Our injuries responsibility bility in- for a is of a defendant’s evidence, it is incumbent sufficient. In the absence of direct responsi- only prove possible such not the existence of justify bility, as would but existence of such circumstances wrongful injury act a de- was caused inference that to a cause with and would exclude the idea that it was due fendant certainty proof unconnected. While defendant was justify required, such an inference must be as the evidence * * possibility probability distinguished ®.” from the mere as Hillel A factual situation found very closely analogous Renner, 130 A. 2d Super. son v. (Super. Pa. was entitled Ct. the court held defendant 1957), where I would reason I here. urge direction for the same and reinstate Division Appellate reverse that of trial court. Justices For Justice Weintbatjb, affirmance —Chief
BuKLiire, Jacobs, Ebancis, Pboctob Schettino —6. Hall —1. For reversal—Justice