| N.Y. App. Div. | Nov 2, 1959
In an action to recover damages for personal injuries, the appeal is from a judgment entered on a dismissal of the complaint at the close of appellant’s case, on the ground that appellant was at best a mere licensee on the premises. Respondent was engaged in laying blacktop on a parking lot owned by a third person. Appellant was injured when he fell on the parking lot while running from an explosion. The explosion occurred in a pot in which a fire was being tended by respondent's employee in connection with that work. Judgment affirmed, with costs. No opinion. Wenzel, Acting P. J., Beldoek, Murphy and Hallinan, JJ., concur; Kleinfeld, J., dissents and votes to reverse the judgment and to grant a new trial, with the following memorandum: Under all the circumstances a question of fact was presented as to respondent’s negligence. The distinction between a licensee and an invitee is so nebulous and unreal that it must be discarded. The only issue is whether there was negligence under all the prevailing circumstances. (Cf. Kermarec v. Compagnie Generale, 358 U.S. 625" date_filed="1959-02-24" court="SCOTUS" case_name="Kermarec v. Compagnie Generale Transatlantique">358 U. S. 625, 630, 631, and cases there cited.)