*1 that a or an general appearance acceptance service signed the defendant or his shall attorney have the same effect if defendant had been served. properly provides methods whereby defendant may submit voluntarily aof in lieu jurisdiction court service of process. It was not intended to encroach upon the area covered by the rules discussed above.
The orders denying motion quash service and sub- Administrator, stituting the aas party defendant are ac- cordingly reversed.
For reversal —Chief Justice Weirtbaub, and Justices Bublirg, Jacobs, Ebarcis, Pboctor, Hall and Schet- tiro — 7.
For affirmance —Hone. SNYDER, PLAINTIFF-RESPONDENT, MARTIN JAY I. CO., SACHS, REALTY AND ARNOLD ISIDORE SACHS SACHS, AND J. MILTON PARTNERS TRADING AS NEW CO., JERSEY KNITWEAR AND NEW JERSEY KNIT COMPANY, JERSEY, WEAR A CORPORATION OF NEW DEFEND ANTS-APPELLANTS. Argued May 18, 195 9 Decided June 1959. *4 Mr. James P. Beggans the cause for the defendant- argued I. appellant Realty Company Jay (Messrs. Beggans Keale, Mr. attorneys; Robert E. Tarlton on brief).
Mr. W. Connell George the cause for the defendants- argued appellants Sachs, Arnold Isidore Sachs, Sachs Milton J. as New partners Co., Knitwear and New trading Jersey Shaw, Knitwear Jersey Company, corporation (Messrs. Pindar, Connell & McElroy, Mr. Foley, William attorneys; T. on the McElroy brief).
Mr. Bernard Chazen the cause for the argued plaintiff- Schwartz, respondent Theodore (Mr. Mr. Nathan attorney; Baker, counsel; Mr. Bernard Chazen the brief). on
The opinion court wras by delivered The plaintiff was as the result of injured Pkoctok, fall aon at the rear platform of a three-story factory building defendant, owned Newark, by I. Jay Realty Company. defendants, The Sachs, Arnold Isidore and J. Sachs Milton Sachs, partners as the New Co., Knitwear trading Jersey were in the engaged manufacture of sweaters. occupied They, the third floor of the and were one building of several tenants. The New Jersey Knitwear Company, corporate from the entity apart Knitwear was also partnership, named as a defendant. The party individual partners, partner- and the ship entity were corporation considered parties unit and as a will hereinafter be referred as the tenant. Plaintiff an action the owner and brought against tenant to recover for the damages injuries he sustained. When the case was first tried the trial court entered a judg- ment of involuntary dismissal to both defendants statement plaintiff’s opening jury. Appellate *5 308 N. J. Super. trial. 46 reversed ordered a new
Division and J. 316 25 N. denied certification. This court (1957). entire the conclusion retrial, At the upon (1957). in favor dismissal the trial case court entered judgment was that plaintiff defendants on the ground of both that there injury his at the time he sustained trespasser either of by him no owed to was breach duty of law that held a matter defendants. It further as had assumed and that plaintiff contributorily negligent have existed. the risk condition which may of any dangerous defendants, hold- both Division reversed to Appellate to jury. that have been submitted all issues should ing defendants’ 53 N. J. We (1958). granted Super. J. 355 for (1959). certification. petitions Selleck, driver truck Plaintiff was a friend of Prank had been so the defendant tenant. Selleck by employed the accident. or nine months before eight for about employed in New York City 1953 the met On Selleck April plaintiff deliveries. Selleck sug- where the latter had his completed with him factory that ride back to plaintiff gested York on return New they personal and that would then to to the factory for Selleck to necessary go matter. and pick up to in his for the receipts day order turn New Jersey, some merchandise for before delivery Stirling, him. they he finished Plaintiff When accompanied work. p.8 m. it was at about factory premises arrived at his truck at the parked loading plat- dark. Selleck getting men then walked rear of the The two form at the building. the common to the third to the front ascended stairway the defendant tenant. This was first floor occupied visited place time that the had the tenant’s busi- plaintiff several Selleck introduced the employees ness. Batten was the Morgan were night. who working foreman and “was of the floor” charge tenant’s acting While Selleck Batten were some evening. loading at the rear of the cartons an elevator building, around,” watched the other and had a employees “browsed *6 bottle of soda. None the of of tenant was partners After present. about minutes called the plaintiff Selleck said, and Batten, “We’re leave.” ready to and the Selleck then plaintiff entered the elevator and descended the load- platform on outside, It now dark ing ground was floor.. and elevator, there was it illuminated although light the immediate area only and the remainder of the L-shaped was platform “pitch black.” Batten carton and picked up a started to walk down the toward the platform truck. He was followed by Selleck who carried a also carton. The then plaintiff picked carton and followed up Selleck. The testified: figure my way Ms [Selleck’s] “I followed aud that I was the had direction, by following figure. hap- I had no of idea what was pening whatsoever. Then, any they turns, you did Q. make from what observed? They may way they walked, they A. have. The I If walked. straight, straight. they turn, walked I walked If made a I made a turn. Then, you? happened fell, what Q. Then I I A. hadn’t taken steps. than more two Then, happened you fell, Q. what when I fell describe it? A. into this recess.” The recess into which fell is about inches and is deep formed an by open between the space platform and is at a building. right angle passage from the leading at point elevator and five or six begins from feet the elevator door. There was rail guard no around recess, there was for a although provision on light the wall it, the adjacent to was not in order light working on the the accident, nor night any at time Selleck’s during On employment. about a month night before accident had fallen Selleck into the and had recess one of requested Sachs, his employers, Arnold to have the At light repaired. time that Sachs called the owner and about complained absence of a but light apparently was done. nothing
No one was at the trial to produced testify for the defend- ant owner. called for only witness the defendant tenant that He testified one Sachs, partners. was Milton bring guests employees he never authorized had any any that he no and that had knowledge into the premises denied He specifically ever done so. had employees the premises any plaintiff’s presence knowledge he testified On cross-examination evening. that the elevator was in factory operation day night, hours a day” “twenty-four used or could be used in the all the tenants building. of the witness the direct examination
In the course else one if he had ever brought asked Selleck, *7 this objection to The defendant tenant’s on the premises. of that course any on the was sustained ground question the upon not be binding on would part conduct Selleck’s had in the affirmative before tenant. The witness answered the at oral interposed, argument the was and objection us that had been counsel informed this court plaintiff’s have testified the matter would Selleck to permitted pursue visited him at defendant had wife and daughter that his premises. tenant’s of dis the judgment Division reversed
The Appellate that it find missal, open jury that was to holding tenant, defendant of an of guest employee the plaintiff, an tenant as such was invitee of was a licensee of the and the owner; the owner owed of duty the that to maintain the in a passageway reasonably reasonable care tenant the held that the safe As to the court condition. foreman, the tenant’s knowledge plaintiff’s presence by of tenant, to his the that Batten, was and imputed employer, any if tenant had the foresee unreasonable ability the to the failure risk harm to from lessor’s “resulting of licensees * ** or maintain the common approaches exit-ways to land, tenant, as other must exercise possessor make the condition to reasonably care to safe or reasonable Super. warn the risk.” 53 at 344. page licensee of contributory It further the issues of and negligence held that have risk should been submitted to the assumption jury.
311 argues On this owner that the appeal plaintiff’s legal its was status on that of and that its premises trespasser him was to refrain from duty to acts only willfully injurious; that it was under no there duty light to that premises; was evidence of defective or no construction maintenance platform and that aware plaintiff was condition. The tenant there no that argues evidence the plaintiff was its licensee or that it breached any duty to him. Both the tenant owner owing urge “guilty contributory negligence as a of risk matter law.” The assumption plaintiff urges that the defendants’ him was duty to exercise to “reasonable under care the circumstances.” He contends this duty should determined regard without “unrelated criteria with the status of dealing one who comes James, Torts, 27.1, premises,” Harper 2 Law citing § 1432 p. Campagnie Kermarec Generate (1956). Cf. 625, U. S. Transatlantique, S. Ct. L. Ed. 2d law. (1959), involving admiralty In this state we have adhered the his consistently torically based view of the law common owed duty an land occupier of to third persons thereon is coming determined according the status of such third person, e., invitee, Indeed, or i. licensee trespasser. ascertain *8 is ment that status an essential preliminary appli cation of the particular standard of care be to exercised by the land See v. occupier. Taneian 267, 15 N. J. Meghrigian, 273-274 Imre 438, v. 24 N. (1954); Riegel Paper Corp., J. 443-446 v. 30 J. 89 (1957); Berger Shapiro, N. (1959); Restatement, see also Torts 329 et These common seq. §§ law are classifications sufficiently flexible to fulfill the pur poses system our in legal serving the needs of present day society. example, compare Eor Fleckenstein v. Great Co., & Pac. 91 & Atl. Tea N. L. 145 A. J. with (E. 1917) v. 15 N. J. 608 Murphy Kelly, see v. Taylor (1954); N. J. 22 Highway Authority, 454, 464 We (1956). believe that adherence to the traditional is classifications of predictability lends reasonable degree in that it a
desirable in also aid These classifications area of the law. to this judge functions between of trial distribution proper only disputed questions latter determines wherein jury, into inquiry the initial We therefore proceed of fact. the time defendant at as each status plaintiff’s his sustained place injury. he invitees, licensees between distinction 581, N. J. L. in was stated Lordi trespassers Spiotta, invitation, first come by Ct. thus: “The 1946) (Sup. are in those who not the second are express implied; or are the third neither suffered; is presence vited but whose Restatement, Torts also invited nor suffered.” See §§ of another premises one enter Accordingly, may et seq. regarded and be invitation, without or express implied, was either if his presence rather than trespasser, licensee possessor or expressly impliedly permitted premises. whether possessor customs often determine
Prevailing They land have a third come thereon. willing person one to assume such that it is reasonable for may entirely otherwise. will be unless is told presence his tolerated Restatement, See comment supra, Though (d). § tenant did Selleek or expressly defendant not authorize at there any guests other to have employee factory, to have their evidence that were forbidden employees no such premises. were guests signs posted informing No Moreover, an to admit them. visitors of unwillingness Batten, the tenant’s foreman who was of the floor charge in a person was the to execute evening, position his have had toward such policj'" employer may excluding He took no action that would indicate to the persons. plain tiff presence or Selleek any disapproval plaintiff’s the factory. at his
We believe that an visiting employee place where hazardous is not con emplojnnent, activity being visited, ducted in the area does not go beyond generally
313
custom,
modes of behavior or
and in the
accepted
absence
disapproval
of
of
any prior expression
by
employer
not a
one
trespasser
visitor is
but
whose
suf
presence
fered
therefore is lawfully
and
Such
upon
premises.
falls within the class termed
Restatement
person
by
330,
Torts as a
331.
Menard
gratuitous licensee.
See
§§
Cashman,
v.
94
H.
tions tenants, to several in his building own retaining control the for use passageways the common of the tenants them, those occasion to visit he is having under duty care exercise reasonable to have the passageways reasonably safe for such v. use. Shemin 117 N. J. L. Steinberg, Protos, Roth Ct. v. (Sup. 1937); N. J. L. 502 (Sup. Restatement, Torts, Annotation, 360; Ct. 1938); “Lia § halls, bility personal landlord injuries due to for defective tenants,” and the like stairways, use for of different L. R. A. 220 (1935). In the Roth case, it supra, was said: possession stairway “Defendant [landlord] had control of the question. apart Entirely obligation, from contractual this imposed upon duty exercising fact her reasonable care to stairway reasonably by occupants maintain fit for use of the premises having present.” others lawful occasion to be page N. J. L. at 504. v.
See N. J. Taylor Highway In Taneian Authority, supra. this court said: Meghrigian, supra, right tenant, though “[T]hose who enter in the even under permissible license, premises his mere make use of for which * * * ways provided. the common and facilities are land- obligation lord’s ‘is that reasonable care and skill have been exer- reasonably premises cised to render fit for the uses which he ” pages has invited others to make them.’ 15 N. at 277-278. Thus, court in Taneian concluded “that one be an may and a mere tenant; invitee of landlord licensee *10 licensee to a gratuitous liable as such may landlord be the liability.” under no be the tenant would though of the tenant for such that the explanation has suggested Dean Prosser common has out the the landlord held a is that conclusion for the as and provided the premises open of passageways visits customary all usual and for coming use of one a has ways that extent made such to his tenants and to Prosser, Invitees” Visitors and "Business public place. as Restate- 573, And the 26 Minn. 601 (1942). L. Rev. a business interest indicates, the lessor “has ment Torts of his lessee whom by any person in these facilities the use of visit of the admit, of whether irrespective choose to may business purpose a his or the lessee’s person for own such a other guest gratuitous as mere or or whether comes social 332, the pres- tenant.” comment On licensee of the (h). § and a of the tenant ent the licensee record of the common in the use therefore an invitee of the owner of there is evidence Unless on the retrial passageway. was such that plaintiff the court should prohibition, charge a licensee and invitee. the for the determine whether jury on the presence
was within that class of whose persons the anticipated by have reasonably should been platform Prosser, On the Torts ed. 471-73. 1955), owner. (2d hand, find by way one could exit jury they elevator and the even were located passageway, though in a the rear of the have been convenient means building, may from the floors and therefore route which egress upper would used might reasonably anticipate owner as a a tenant’s when persons employee leaving such guest Co., Dock Railroad Hussey building. Long Cf. L. & The N. J. A. consider in (E. 1924). jury might respect this absence of the use of this sign limiting area to employees business visitors of the tenants hand, On the other could find that building. jury of the elevator and location platform, purpose for which were were as they designed, such not to include reasons, for other than business persons reception therefore would presence person plaintiff’s class Torts, Restatement, not be reasonably anticipated. § Cf. comment (d). jury might conclude common in the front of the was the stairway proper building only means egress which the owner could reasonably anticipate would be used in the by persons The reso plaintiff’s class. lution of this issue in requires weighing conflicting ferences which be drawn may from the evidence and such *11 falls within the province of the DeRiemo v. Morris jury. town N. 28 J. 231 Airport Corp., (1958).
Defendant owner further that contends there is no evidence on negligence its in that part there was no aof from showing deviation accepted standards in the con struction platform. that only contends the proof of its was the failure negligence a provide and that light darkness itself is not a dangerous It relies condition. Co., v. Olive Triggiani Oil 1 Soap Super. 55 (App. Div. see 1948); related case in 12 N. J. Super. (App. Div. In 1951). that ease an of a employee tenant was a fall injured by on an in unlighted common a stairway factory building. The was stairway itself not ha deemed zardous. In the absolving landlord from the court liability held that in the of a in absence the defect itself stairway the was landlord under no duty to a provide unless light he had assumed the obligation or was to do so required In by statute. the present case, however, it was open to the find jury to that there awas structural situation which an presented exceptionally hazardous condition to one who could not observe it. This is from wholly apart any question of departure from standards of construction. The statement in v. Hedges Housing Authority Atlantic 21 N. J. City, 167, 170 Super. Div. is (App. 1952), apropos: passageway “[Ilf so is or constructed maintained as to be dangerous, chargeable and the landlord is with notice of the con- dition, provide light danger may readily must so that seen, provide safeguard. Higgins County or he must another (Sup. 1939). Perhaps Ass’n, N. J. Ct. Seat B. & L. L. negligently provide who fails it that a landlord were better stated may dark, passageway from in himself safe absolve that liability by lighting passageway that its use becomes safe.” so recess case, In in view of location present and the absence in elevator and platform, its relation to the that recess, we rail around the believe any guard owner was negligent conclude that defendant could jury had scene after it notice at the failing provide light of its absence. that
The does conclusion evidence not support contributory a matter of law the guilty he disregarded he assumed the risk or that or that negligence two men who an peril. following obvious He familiar was not platform. venturing were with whether in these circumstances a on his The question own. have them from would followed reasonably prudent person Benton v. jury. the elevator is one See for plainly A., Y. M. C. 27 N. J. 71 (1958). was correct Division
We- conclude Appellate the defendant owner claim plaintiff’s holding against have the jury. should been submitted to *12 with
A different is problem presented respect have concluded to claim the tenant. We plaintiff’s against the a of guest that on the record present above As a tenant’s such premises. Selleck was licensee on the the which the tenant owed duty it has been held that only from Fitz willfully injurious. him was to abstain acts Co., 61 N. J. L. 378 v. Glass Mfg. Cumberland patrick Ass’n, O’Neill v. and Loan 1898); Building Ct. Gem (Sup. 9 Willins v. 1931); Ludwig, N. J. Misc. 1084 Ct. (Sup. & A. It is that J. L. 208 not 1947). suggested 136 (F. A willful conduct. recognized the tenant of guilty a rule that where there is known to is exception general which premises occupier on could condition dangerous licensee would not observe and that his reasonably anticipate make the he must or condition avoid, warning either give
317 reasonably safe. See v. un Berger Shapiro, supra. is that disputed condition was in a alleged dangerous common under the passageway exclusive control of the owner. The tenant had no to authority the condition remedy Prosser, Torts, was under no consequently duty do so. As 471. to that of the part exception a requiring warning to be we think that where has been given, rented building tenants, and to several the landlord has retained over control the common there is passageways, no tenant duty upon a to warn his of condition guest employee any might exist beyond that of the part the tenant premises occupied by which he has over no control. v. See Sydor Warpack, 73 138, Ill. N. E. App. 2d Ct. (App. 1947). of this can practicability readily limitation be seen when consider, we for example, the situation in a office large To building. impose tenant for liability injuries social guests his other secretary or because employee has warn tenant failed to them of a hole in floor of the seems to us to an lobby unreasonable extension of rule exception the tenant’s general limiting duty Torts, care. Comment Restatement (a), § there indicates be certain may circumstances wherein a tenant become to his might subject liability gratuitous if he licensees fails to warn them of the in danger involved approaches. However, common using specific no example we have been find im given unable to authority such a duty upon tenant under the facts here posing The cases relied presented. upon by Appellate Division action, first this 46 N. opinion at Super, page 329, Hunt, namely, 2d, Bass 151 Kan. 100 P. Co., Ct. and Cannon 1940) Kresge v. S. S. (Sup. 233 Mo. 173, 116 W. 2d 559 1938), S. are App. App. (Ct. factually deal They injuries with sustained inappropriate. busi parts ness invitees tenants on over premises which the tenants exercised a measure of control.
Moreover, the tenant of the were not partners actually and had personal no present knowledge plaintiff’s intended invitee not customer or a business The was a plaintiff visit. the time of evidence that at and there was no of theirs any was performing or Batten either Selleck occurrence Re in relation See plaintiff. for the tenant to service Co., 83 statement, 242; Water Hall v. Passaic Agency, § Ostrum, 1912); & Lippman J. L. A. (E. testimony N. J. 14 The plaintiff’s (1956). Neither relationship. not alter this a carton does carrying him them. Batten Indeep, asked to help Batten nor Selleck attempted was unaware his assistance. in not trial erred permitting well be that the court may objection testify defendant tenant’s
Selleck upon him had visited daughter his wife occasions prior testi- The of this factory. purpose at defendant tenant’s that would tend indicate course of conduct was to mony tenant. However, of the show that licensee that even in our conclusion light the error was harmless licensee, there was no was the tenant’s though the tenant. to him duty breach owed any action Division in plaintiff’s of the Appellate judgment affirmed, and its I. Jay Realty Company judgment against Sachs, Sachs, Aaron Isidore in action plaintiff’s against New Knit- Sachs, as the Jersey Milton partners trading J. Co., Knitwear Jersey Company, corpora- and the New wear court in favor trial tion, judgment is reversed and defendants is reinstated. of these in A-120 (dissenting concurring Burling, I vote reverse the A-121). judgment result Division, both as to the defendant Court, Appellate Superior and as to the owner, I. Jay Realty Company (A-120), tenants, Sachs, Arnold Isidore Sachs and J. Mil- defendants the New Sachs, trading Jersey Co., Knitwear ton partners of New Co., corporation New Knitwear Jersey Jersey (A-121). I find the owner do not appeal
With respect from which an record inference might evidence in the *14 drawn that was with ex- plaintiff upon the premises or pressed implied acquiescence In the of the tenants. absence of specific upon the I would not proof question assume a custom that general of guests employees per- are mitted visit to with them at the establishment employer’s —at least not in a such plant involved manufacturing in the instant case. The leads to the conclusion foregoing was not plaintiff a licensee tres- of the tenants but a And if that passer. so, then the was not owed the duty of care reasonable and the owner was entitled to of judgment dismissal.
With respect tenants, appeal as I have indi- cated, plaintiff’s status was that of a and not a trespasser licensee. case, In this a mature was involved and person not owed the duty was conditions having dangerous made safe reasonably or warned of such conditions. being
In my analysis problem what duties are owed to a licensee of a tenant for conditions existent in common which are controlled passageways the owner is by not reached. But the matter is one and I importance add therefore that while I do not accept initial majority’s premise a licensee of the am tenants, I in accord with expressed views in opinion as to the duties under tenants the circumstances of case if this that premise be adopted. JJ. Schettino, (dissenting
Jacobs part). to us that the seems circumstances outlined here by Justice Pjroctok and in the Appellate Division Ereund Judge N. J. 336, (see Super. 340—342 (1958)) presented jury not only issues as to landlord’s responsibility because failure of the or negligent landlord its agents light the rear means of but also as egress tenant’s responsi- bility because failure of negligent the tenant or its warn who plaintiff, agents on its lawfully premises and was rear properly means of using egress with along the tenant’s foreman and its acting employee, that there was “a readily find) could jury the majority acknowledges
(as hazard exceptionally situation which an presented structural Restate it.” See could not observe condition to one who ous A. ment, D., S. J. 360, Clapp, Torts comment (1934); (a) § Co., N. J. 328-330 Super. Jay Realty v. I. Snyder would, as did the we Div. 1957). Accordingly, (App. *15 trial Division, against a new award Appellate and the tenant. both the landlord The I. Co.: Jay Realty For and Justices Weintraub, Justice affirmance —Chief Francis, Proctor, Hall Sci-iettino —6.
Jacobs, Burling
For reversal—Justice —1.
The Aaron Sachs case: in result. J., concurring
Burling, and Justices Justice Weintraub, For reversal —Chief Francis, and Hall —5. Burling, Proctor and Sci-iettino —2. For affirmance —Justices Jacobs DeLUCA, PLAIN- R. AND RAYMOND SWEDE CHESTER NEWS, TIFFS-APPELLANTS, DAILY v. THE PASSAIC JERSEY, OF NEW THE STATE A OF CORPORATION ANOTHER, DEFENDANT-RESPOND- WITH IMPLEADED ENT. July 2, Argued 1959. 195 9 Decided June