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Murphy v. Kelly

Decided: June 14, 1954.


On appeal from Superior Court, Appellate Division, whose opinion is reported in 28 N.J. Super. 266.

For affirmance -- Chief Justice Vanderbilt and Justices Heher, Oliphant, Wachenfeld, Burling and Brennan. For reversal -- None. The opinion of the court was delivered by Wachenfeld, J. Oliphant, J., concurring in result.


We granted certification to the Appellate Division to review its reversal of an order entered, following the pretrial conference, for summary judgment in favor of the defendant. The sole issue presented is whether or not the infant plaintiff was an invitee in the light of the pleadings, the interrogatories and answers thereto, and the facts alleged in the pretrial memorandum submitted in accordance with R.R. 4:29-3. The Law Division held the defendant's invitation did not extend to the infant, and, as there was no question as to any material fact, the inquiry posed became one of law, which was decided adversely to the plaintiff.

The issue of invitation was initially projected in the complaint, where it was alleged that Patricia Murphy, age six, "was lawfully upon the premises of the defendant as an invitee in company with her father," who likewise is referred to as an invitee. Damages were sought for personal injuries to Patricia as a result of the defendant's negligence. The defendant entered a general denial and asserted the affirmative defenses of contributory negligence and assumption of risk.

The facts alleged are that on July 8, 1951 Jerry P. Murphy, father and guardian ad litem of the infant plaintiff, went to the defendant's place of business at 1100 South Olden Avenue in Hamilton Township. His daughter and her maternal grandmother accompanied him. The purpose of the visit was to make a final payment on a monument purchased for the grave of the infant's mother, who had recently died.

They entered the defendant's premises by way of the sidewalk leading to the office and were met by the defendant outside of the office doorway, where they transacted their business.

The infant was standing on the sidewalk a few feet away when they heard a scream. Turning, they saw her approximately in the middle of the sidewalk some five feet away. Between them and lying across the sidewalk a stone monument in the shape of a cross had fallen from its base immediately adjacent to the sidewalk and Patricia suffered injuries to her left foot, which was badly injured, finally resulting in amputation of the large toe.

On the basis of these facts, the Appellate Division, 28 N.J. Super. 266, reversed the trial court and concluded the infant plaintiff was not, as a matter of law, a licensee but was rather an invitee, relying upon Walec v. Jersey State Electric Co., 125 N.J.L. 90 (Sup. Ct. 1940). It arrayed and assayed many cases in other jurisdictions, including Dunbar v. Ferrera Bros., 306 Mass. 90, 27 N.E. 2 d 675 (Sup. Jud. Ct. 1940); Belcher v. John M. Smyth Co., 243 Ill. app. 65 (App. Ct. 1926); Kremer v. Vim Co., 306 Ill. App. 476, 28 N.E. 2 d 811 (App. Ct. 1940); Custer v. Atlantic & Pacific Tea Co., 43 A. 2 d 716 (Mun. Ct. App., D.C. 1945); Weinberg v. Hartman, 6 Terry 9, 65 A. 2 d 805 (Del. Super. Ct. 1949), and graphically illustrated their applicability to the issues presented here. It likewise found apropos the doctrine enunciated in the Restatement of Torts, § 332(d), and 65 C.J.S., Negligence, § 43(4)(f), of which more hereafter.

The appellant does not cite or discuss any of the authorities marshalled in the comprehensive opinion of the Appellate Division, but rather naively suggests that our judicial ingenuity will find a way leading to what he considers the "right" result, which, of course, is opposite to the one determined by the Appellate Division. The principal thought interposed is that the conclusion arrived at conflicts with the principle enunciated in Fleckenstein v. Great Atlantic & Pacific Tea Co., 91 N.J.L. 145 (E. & A. 1917).

There the plaintiff, 12 years of age, accompanied a 15 year old friend into the defendant's store. The friend intended to purchase and did so, but Fleckenstein, who had

no such thought, merely accompanied his companion. While the friend was transacting his business, the infant plaintiff was injured by a fragment of metal flying from a box off of which one of the defendant's employees was attempting to pry the lid. A nonsuit was granted and on appeal the court held the infant plaintiff was a mere licensee, saying: "Merchants invite the public to enter their stores to buy wares. It cannot ...

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