39 A.D.2d 128 | N.Y. App. Div. | 1972
At 9:30 p.m. on an August evening in 1969 plaintiffs Angelo and Theresa Mangione, as invited guests, attended a “ pool splash party ” at the home of the defendants Anthony and Theresa Passero. Shortly after they arrived, the defendants Dimino and Della Fave, also present as invited guests of the Passeros, began to engage in boisterous horseplay attempting to throw Angelo Mangione into the pool while he was fully clothed and resisting. Twice plaintiff eluded them. On the third try, at about 10:00 p.m., defendants Dimino and Della Fave threw the still resisting, fully-clothed plaintiff ‘
These facts have been drawn from the allegations contained in the plaintiffs ’ complaint. Since the case is before us on appeal from Special Term’s denial of the motion of the defendants Passero to dismiss it, we must view these allegations in a light most favorable to the plaintiffs, and their complaint must be given the benefit of every reasonable intendment (Dulberg v. Mock, 1 N Y 2d 54). When so viewed, we conclude that the plaintiffs’ complaint states a cause of action against the Passeros as owners of the pool premises.
A property owner, or one in control or possession of real property, has the duty to control the conduct of those whom he permits to enter upon it which he is required to exercise for the protection of others. This duty arises provided that the owner knows that he can and has the opportunity to control the third-parties’ conduct and is reasonably aware of the necessity for such control (De Ryss v. New York Cent. R. R. Co., 275 N. Y. 85). Section 318 of the Restatement of the Law of Torts (2d ed., 1965) which is entitled “ Duty of Possessor of Land or Chattels to Control Conduct of Licensee ’ ’ states: “ If the actor permits a third person to use land or chattels in his possession otherwise than as a servant, he is, if present, under a duty to exercise reasonable care so to control the conduct of the third person as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk
It may be claimed that our determination will undermine the historic distinctions between invitees, licensees and outsiders to whom differing duties of care are owed by the owners of real property dependent upon the plaintiff’s status. These ancient distinctions between licensees (social guests) and invitees have come under increasing criticism.
We are concerned here solely with the duty of an owner respecting the conduct of licensees on his premises and not with the owner’s duties with respect to the physical conditions existing thereon. The duty imposed on an owner to prevent an unreasonable risk of bodily harm on account of the conduct of licensees present on his property by his invitation must be exercised for the benefit of outsiders, licensees (the status which plaintiffs Angelo and Theresa Mangione occupied) or invitees (De Ryss v. New York Cent. R. R. Co., 275 N. Y. 85, supra). The failure to control where such a duty has been found to exist gives rise to actionable liability (Carmona v. Padilla, 4 A D 2d 181).
Appellants’ remaining contention that plaintiff assumed the risk of being thrown into the pool may not be determined as a matter of law. For the purpose of this motion it presents a question of fact to be passed upon by a jury (Stevens v. Central School Dist. No. 1 of Town of Ramapo, 25 A D 2d 871, affd. 21 N Y 2d 780; McEvoy v. City of New York, 266 App. Div. 445, affd. 292 N. Y. 654).
The order denying defendants-appellants ’ motion to dismiss the plaintiffs ’ complaint should be affirmed.
Marsh, J. P., Wither, Motile and Henry, JJ., concur.
Order unanimously affirmed with costs.
. Be Rosa v. Fordham Univ. (18 A D 2d 1056) also involved an injury to one not present on the defendant’s premises. The court there found a duty imposed on the owner to control the conduct of those on its property for the protection of those outside. However, we do not read this as holding the duty of protection to be limited only to those outside the owner’s property.
See, also, PJI 2:114.
. In Kermarec v. Gompagnie Generate (358 U. S. 625, 630-631) the United States Supreme Court stated their criticism as follows: “ The distinctions which the common law draws between licensee and invitee were inherited from a culture deeply rooted to the land, a culture which traced many of its standards to a heritage of feudalism. In an effort to do justice in an industrialized urban society, with its complex economic and individual relationships, modern common-law courts have found it necessary to formulate increasingly subtle verbal refinements, to create subelassifieations among traditional common-law categories, and to delineate fine gradations in the standards of care which the landowner owes to each. Yet even within a single jurisdiction, the classifications and subclassifications bred by the common law have produced confusion and conflict. As new distinctions have been spawned, older ones have become obscured. Through this semantic morass the common law has moved, unevenly and with hesitation, towards ‘ imposing on owners and occupiers a single duty of reasonable care in all the circumstances ’ ”,
. Sixteen years ago the distinctions were considered to be working well in practice and better left alone (Wilder v. Ayers, 2 A D 2d 354, 356, affd. 3NT 2d 725). We note, however, that the Appellate Division, Second Department, in Sideman v. Guttman (38 A D 2d 420) has recommended that the Court of Appeals abolish the social guest rule.