On certified appeal from the Appellate Division of the Superior Court.
For reversal -- Justices Heher, Wachenfeld, Jacobs and Brennan. For affirmance -- Chief Justice Vanderbilt, and Justices Oliphant and Burling. The opinion of the court was delivered by Heher, J. Burling, J. (dissenting). Chief Justice Vanderbilt and Justice Oliphant authorize me to state that they concur in the views expressed herein.
[15 NJ Page 269] On February 26, 1950 plaintiff suffered injury as the result of a fall on a common stairway of a four-story apartment house situate at 301 52nd Street, in West New York, New Jersey, owned and operated by defendants. The building housed 14 families. The defendant Najarian and his family occupied a third-floor apartment, to which access was had by two flights of stairs. The stairway from the first to the second floor was in two sections, connected by a landing. The mishap occurred shortly before midnight as the plaintiff was descending the first section of the stairway leading from the second to the first floor, after a social evening with the Najarians. The fall is attributed primarily to the culpable failure of lighting facilities installed by defendants. [15 NJ Page 270] Plaintiff and her daughter Beatrice arrived at the apartment house between 7:30 and 8:00 P.M. There was lighting on the first and third floors, but none on the second floor, as they ascended the stairway; and this was the case as they descended the stairs after leaving the Najarian apartment, the plaintiff preceding her daughter. Plaintiff had frequently visited the Najarians, and was familiar with the locus. She testified that on the second step down from the second floor she "fell," although she was then "holding on to the banister"; her "feet slided," "slipped"; when they ascended the stairway, the first and third floors were "in light, second floor dark"; on the descent, the third-floor light "is on," the second floor light "is out," it was "all dark," she "couldn't see." Beatrice said that on ascending the stairway she observed that the "fluorescent fixture * * * was out," and "with the light off," she could not "see" her way and made "use of the handrail alongside of the staircase," and on the way down from the second floor, she "could not see the stairway." And when they entered the Najarian apartment, she remarked to the defendant Najarian that "the second floor landing light was out, the second floor light"; and he replied that "he would have it attended to and he would take care of it." Najarian, she said, was "in and out" of the apartment "all evening"; "there were occasions when perhaps he went out for a moment or two." Her mother said she heard the conversation. Najarian did not "remember a conversation of that sort"; he denied the second floor was without light, but he acknowledged that when he descended the stairway between 8:30 and 9:30 P.M., after plaintiffs' arrival, the second floor light was "flickering on and off," as had been the case for at least two days previously; he did nothing when he first noticed the "flickering" two days before because "it wasn't necessary, there was plenty of illumination"; he would "change it if it got worse," and this he, himself, did "a few days later" by placing a new bulb in the one-light fixture. By "flickering," he meant "continuous flickering on and off -- not on and off, it doesn't go off at all; it flickers; it just gets dull and bright." It
was his "custom to have the lights burning on all of the floors all night." As he bade his guests good-night at his apartment door, he did not have a view of the second floor, and so he could not know whether the second floor light was "flickering or whether it was on or whether it was off."
The trial judge directed a verdict for defendants at the close of the case; and the judgment thereon was affirmed by the Appellate Division. 27 N.J. Super. 177 (1953). The ground of the affirmance was that plaintiff, as a social guest of the Najarians, was but a licensee and, "therefore, bound to take the property as she found it," and defendants were under a duty merely "to give notice of unforeseen dangers such as traps and to abstain from wilful and wanton acts of negligence."
The case is here by certification on plaintiff's motion. 14 N.J. 12.
The question is one of duty, and duty is measured by the relation between the parties.
The defendants had common ownership and possession of the apartment house; and it is urged that the "social guest" doctrine "should not be applied nor extended" to "a resident co-owner of a multiple family dwelling with regard to the common stairways and halls under the custody and control of the owners."
This involves an inquiry not free of complexity. Lord Buckmaster speaks of the varying duty underlying the liability in tort of the owner or occupier to those who make use of his lands: "being lowest to the trespasser; next to a licensee, and greatest to a person whose position owing to the deficiencies of the English language is described by lawyers as an 'invitee,' meaning persons invited to the premises by the owner or occupier for purposes of business or of material interest." Fairman v. Perpetual Investment Society (1923), A.C. 74, 80. There, the defendants owned a block of flats which they let to various tenants, the defendants retaining possession and control of the common staircase
giving access to the flats. The plaintiff, who lodged with her sister in a flat on an upper floor, of which her sister's husband was a tenant, while descending the stairs, caught her heel in an irregular depression caused by wear, and fell and was injured. And the holding was that there was no contractual relation between her and the landlord, but she was nevertheless, as between herself and the landlord, entitled to use the staircase to gain access to premises which he had demised to a tenant with an implied right of use by the tenant and all persons lawfully resorting to the tenant's premises, and as such user was the invitee of the tenant, and, in consequence, the licensee of the landlord, and thus the landlord's only duty to the plaintiff was not to expose her to a concealed danger or trap. The case distinguishes between liability arising from a contractual obligation, between landlord and tenant, ordinarily giving rise to no rights in favor of strangers to the contract, and liability in tort for the redress of a breach or violation of duty or the infringement of a right recognized by the law, a "wrong unconnected with contract," to take the definition of Chitty. Vide Jaggard on Torts, 2. Compare La Freda v. Woodward, 125 N.J.L. 489 (E. & A. 1940). In an earlier English case, recovery was denied to an employee of a tenant in an office building, who was injured in a fall on an unlit staircase. The letting agreements had no provision with regard to the lighting of the staircase; and the holding was that there was no duty toward the plaintiff imposed upon the defendant to light the staircase. Huggett v. Miers , 2 K.B. 278.
There are cases in the Scottish courts holding that where the landlord retains possession and control of a common staircase, his duty to the public is to keep it reasonably safe. Kennedy v. Shotts Iron Co., 1913 S.C. 1143; Grant v. John Fleming & Co., 1914 S.C. 228. As to this, Lord Buckmaster, in the Fairman case, said:
"Whether such a duty is one that it might be reasonable to impose upon landlords is not a matter which this House has to consider. The question is -- does such a duty exist? It may well arise by the implied obligation between the landlord and tenant giving the tenant
rights if the obligation be broken, but as between the landlord and the persons who use the staircase for business purposes or because of a material interest no such contractual obligation can be established."
The duty to be sought, he continued, must be found outside contract. And this duty "does not involve a guarantee as to the safety of premises nor obligation to keep them in repair," but concerns "a danger which is not obvious to a person lawfully using the premises, either on business or having a material interest in their use, and exercising ordinary care and possessing ordinary powers of observation," and "then the landlord is responsible for any accident that may occur," and the "degree of danger, and the extent to which it is concealed, may vary from case to case, and its ultimate determination is a question of fact for which a jury is an appropriate tribunal." In a word, the lodger in that case used the staircase, not under contract with the landlord, but rather with his permission, as the invitee of the tenant and the licensee of the landlord.
In a case decided by the English Court of Appeal just a few months ago, the owner of a house requisitioned by the Coulsdon and Purley Urban District Council under authority from the Ministry of Health, for the relief of persons inadequately housed, was, by agreement with the Council, allowed to enter into occupation of the upper floor. A friend came to visit her when she became ill, arriving a half-hour before dark; the visitor, in leaving, lost her footing on broken steps of an unlighted porchway. She was held to be a licensee; and the injury was found actionable as the consequence of the defective condition of the steps, which, combined with the insufficiency of light, amounted to a concealed and unusual danger. Hawkins v. Coulsdon and Purley Urban District Council (1954), 2 W.L.R. 122.
In New Jersey, it is settled law that one who "by invitation, express or implied, induces persons to come upon his premises," as distinguished from an entry by mere license or sufferance, owes to the invitee the duty to exercise "ordinary care to render the premises reasonably safe" for the [15 NJ Page 274] intended use, and to abstain from any act that would make the use dangerous. This on the ground that "the person injured did not act merely on motives of his own, to which no act or sign of the owner or occupier contributed, but that he entered the premises because he was led by the acts or conduct of the owner or occupier to believe that the premises were intended to be used in the manner in which he used them, and that such use was not only acquiesced in, but was in accordance with the intention or design for which the way or place was adapted and prepared or allowed to be used"; the proof in this regard "must be found in the circumstances of the particular case," and if there be evidence tending to show inducement or invitation, "it becomes a question of fact for the jury whether the conditions exist under which a legal duty is imposed upon the owner of the premises to exercise care for the plaintiff's safety." Phillips v. Library Co., 55 N.J.L. 307 (E. & A. 1893). Citing the English case of Corby v. Hill (1858), 4 C.B. (n.s.) 556, Justice Depue suggested a distinction between "mere negligence to keep the premises in repair and acts of misfeasance, such as placing obstructions or dangerous pitfalls in a way which persons have been permitted to use with the consent of the owner or on his implied invitation." But one who comes upon the land under a bare license or by sufferance must take the premises as they are; the occupier is not duty bound to render the premises safe for the use of the licensee, but merely to give warning of any concealed danger known to the occupier, and to abstain from "creating any condition upon the premises which to one of ordinary prudence and foresight could be reasonably held to be a dangerous instrumentality for harm." Morril v. Morril, 104 N.J.L. 557 (E. & A. 1928). There, the court of last resort ruled that a "social guest" of the occupier is a bare licensee who is entitled only to the "same care" that his host "takes of himself, and the other members of his family, and no more" -- citing the English case of Southcote v. Stanley, 1 H. & N. 247; 25 L.J. Exch. 339 (1856). The duty of abstention from "any active wrongdoing" proceeds on the hypothesis
there deemed well founded that he "who is receiving the gratuitous favors of another has no such relation to him * * * as to create a duty to make safer or better than it happens to be the place where hospitality is tendered; the licensee must take the premises as he finds them. At most he can claim only that the licensor shall abstain from entrapping him; shall not create new and undisclosed courses of danger without warning him of the change of situation." Again, the doctrine of the ...