Clapp, Goldmann and Ewart. The opinion of the court was delivered by Ewart, J.A.D.
[28 NJSuper Page 267] This appeal brings up for review the legal propriety of a summary judgment entered in favor of the defendant and against the plaintiff on May 28, 1953, after a pretrial conference had May 25, 1953. An earlier motion by the defendant for summary judgment, made before the assignment judge December 19, 1952, had been denied. The pretrial conference was presided over by a different judge than the assignment judge who had denied the earlier motion. It has been established that where the only question involved at the pretrial conference is one of law and the parties are afforded a full opportunity to be
heard on the question, the court may grant summary judgment even without a formal motion therefor. Sheild v. Welch , 4 N.J. 563 (1950).
At the pretrial conference the court had before it the complaint, the answer, plaintiff's answers to interrogatories, and the factual statements contained in the memoranda submitted to the court by counsel for the respective parties pursuant to the requirements of R.R. 4:29-3. The facts disclosed by these documents were that on July 8, 1951 the infant plaintiff Patricia Murphy, about six years of age, accompanied her father, Jerry P. Murphy, and her maternal grandmother, Mrs. Marie Moran, to the defendant's place of business at 1100 South Olden Avenue in Hamilton Township, Mercer County, for the purpose of making a final payment on a monument purchased by plaintiff's family from the defendant for erection over the grave of the infant's mother who had recently died. The child was in the custody of her father and grandmother. They entered the premises of the defendant by way of a sidewalk and approached the office of the defendant when they were met on the sidewalk outside of the office doorway where they proceeded to transact their business with the defendant. The infant plaintiff, when last seen before the occurrence of the accident hereafter mentioned, was standing on the sidewalk within a few feet of her father when she was heard to scream and was then seen in the middle of the sidewalk about five feet distant from her father, and lying across the sidewalk was a stone monument in the shape of a cross which had fallen from its base adjacent to the sidewalk onto the infant plaintiff's foot, causing serious and painful injuries, ultimately resulting in the amputation of the plaintiff's large toe on the left foot.
Plaintiff contends that the infant was an invitee to whom the defendant owed a duty of due care, whereas defendant contends that plaintiff was a licensee to whom defendant owed only a duty of refraining from willful acts intended to or liable to cause injury to the plaintiff. Defendant relies heavily upon the case of Fleckenstein v. A. & P. Tea Co. , 91 N.J.L. 145 (E. & A. 1917), whereas the plaintiff relies
principally upon the case of Walec v. Jersey State Electric Co., Inc. , 125 N.J.L. 90 (Sup. Ct. 1940), and other authorities hereinafter cited.
In the Fleckenstein case, supra , the plaintiff, a boy of the age of 12 years, wandered into the defendant's store in company with his friend, another boy of the age of 15 years. The latter intended to make a purchase, but the infant plaintiff had no purpose but to accompany his friend on the latter's business. The infant plaintiff suffered an injury to his eye while watching an employee of the store pry open a box of merchandise, a piece of metal having accidentally struck him in the eye. Under the circumstances mentioned our court of last resort held that the infant plaintiff was a mere licensee who could recover only for an injury caused by a willful act of the defendant, and that he was not an invitee to whom the defendant owed a duty of due care.
In the Walec case, supra , the plaintiff was an infant of the age of five years and entered defendant's store accompanied by her mother and grandmother. In the front part of the store was an opening in the floor giving access down a flight of steps to the cellar. The entrance to the opening was guarded by a collapsible gate, but at the time of the accident the gate had been tied back with a string and held to one side so that it afforded no guard against the opening in the floor. There was neither a light, nor a sign, nor a guard to warn the public of the existence of the opening in the floor excepting a rail alongside of the opening, which rail was partially concealed by a pile of merchandise. In that case the infant fell into the opening and suffered injuries. The trial court thought there was sufficient evidence of negligence, but that proof was lacking as to just how the accident occurred and therefore non-suited the plaintiff. On appeal the Supreme Court reversed the judgment and held that the infant plaintiff was an invitee and that, as such, she was privileged to go to any part of the store reserved to the use of the customers; that the opening in the floor should have been guarded in some fashion; that the facts and circumstances mentioned reasonably justified an inference that the
injury was caused by the defendant's negligence in not protecting the opening; and that the proofs would support a conclusion that the defendant was probably at fault.
Neither the Fleckenstein case, supra , nor the Walec case, supra , have been overruled.
However, the Fleckenstein case has been distinguished on the facts in numerous subsequent cases, including, Gibeson v. Skidmore , 99 N.J.L. 131 (E. & A. 1923); Paiewonsky v. Joffe , 101 N.J.L. 521 (E. & A. 1925); Davidson v. Providence Washington Ins. Co. , 9 N.J. Misc. 1085 (Sup. Ct. 1931); Feingold v. Kresge Co. , 116 N.J.L. 146 (E. & A. 1935); DenBraven v. Meyer Bros. , 1 N.J. 470 (1949); Shimp v. Pennsylvania R.R. Co. , 11 N.J. Super. 88 (App. Div. 1951); and Lewin v. Ohrbach's Inc. , 14 N.J. Super. 193 (App. Div. 1951). In the case last cited the plaintiff, not an infant, accompanied her sister to defendant's store for the purpose of assisting the sister in the purchase of a coat. Plaintiff tripped over a coat-hanger on the floor and fell, suffering injuries. In that case the ...