Clapp, Jayne and Hughes. The opinion of the court was delivered by Clapp, S.j.a.d.
This action, to recover damages for personal injuries, was dismissed on the attorney's opening statement to the court and jury upon the ground that the statement did not disclose a cause of action. Plaintiff appeals.
These circumstances did however appear on the opening. The defendants were respectively the owner of a factory building and the tenants whose factory was located on the third floor of the premises. One night plaintiff went to the tenants' premises with his friend, Frank Sellick, a truck-driver employed by them. He apparently went there in the latter's truck, intending to stay on the premises with Sellick until Sellick had finished his work and then to go on with him upon a personal matter. Tenants' foreman, "who was there," told plaintiff to sit down and have a coke or just wait until Sellick got through. On other occasions Sellick
had brought people to the premises, and though the tenants knew of this, nothing had been said.
Sellick and another employee proceeded to load an elevator with cartons, and he then invited the plaintiff to go down with them on the elevator. The elevator shaft passed "through a driveway and a [loading] platform in the back," a part of the premises owned and apparently controlled by the landlord. When the elevator reached the platform, Sellick picked up a carton, and plaintiff did likewise, following the two employees as they walked off the elevator to load a truck (whether it was Sellick's truck does not appear); plaintiff's purpose was to help them load the truck. One leaving the elevator had to proceed along this platform, skirting a "trench" or opening, three feet deep, with no guard rail around it. On the night we are speaking of, it was somewhat dark. A socket or apparatus for an electric light bulb had been placed over the door, but it was rusted and "decayed," and for months there had been no light in the area. Plaintiff fell into the trench, while carrying the carton, thereby sustaining the injuries for which he brings this action.
The landlord knew that the tenants' factory was in operation sometimes 24 hours a day and that people "were using this place" (that is, apparently, the platform referred to); it "was a passageway which was used for people to walk in." Moreover, it appeared that Sellick himself had been hurt because of the failure to put a light there, and had complained to the tenants of the failure so to do.
We deal first with plaintiff's claim against the landlord. The landlord contends that plaintiff was merely its licensee and therefore under no duty to him, except with respect to traps and concealed dangers. But cf. Mistretta v. Alessi , 45 N.J. Super. 176 (App. Div. 1957), as to the duty owed by a possessor of land to his licensee.
The landlord has not, we think, properly analyzed the relationships here. As the jury could have found, the tenants had, after plaintiff's arrival on the premises, indicated a willingness to have him enter those premises and remain
there until Sellick left. He was therefore their licensee. Restatement, Torts , § 330, comment (a) , § 332, comment (h); Imre v. Riegel Paper Corp. , 24 N.J. 438, 446 (1957); Harper and James, Torts , § 27.11 (1956). However, the landlord owed the tenants' licensee the full duty of reasonable care with respect to those common entryways and passageways, appurtenant to their leasehold, which the tenants were entitled to use and which the licensee might reasonably be expected to traverse. Stating it more broadly, the rule is this: a possessor of a multi-family dwelling house, an office building, a factory or other property, who leases a part and retains possession of common facilities, such as those referred to, is liable to the lessees' licensee for bodily harm caused the licensee by a dangerous condition upon the part retained, if the lessor in the exercise of reasonable care could have discovered the condition and the unreasonable risk involved and have made the condition safe. Restatement, Torts , § 360, and Illustration 1, dealing with the social guest of a tenant in an office building; Taylor v. N.J. Highway Authority , 22 N.J. 454, 461 (1956); Taneian v. Meghrigian , 15 N.J. 267, 277 (1954); Corrao v. West Jersey Corp. , 13 N.J. Super. 342, 347 (App. Div. 1951); Higgins v. County Seat B. & L. Assn. , 123 N.J.L. 116, 120 (Sup. Ct. 1939), dealing with an insufficient platform in an entryway; Shemin v. Steinberg , 117 N.J.L. 458 (Sup. Ct. 1937), referring to the duty of the landlord of an office building after hours; Guensch v. Third Presbyterian, etc., Newark , 109 N.J.L. 78, 81 (E. & A. 1932). As to the landlord's duty of inspection under the circumstances, see Stevenson, Negligence , § 509 (1954).
Accordingly, though the plaintiff is but a licensee of the lessees, he is constituted under the circumstances the invitee of the lessor. The rationale underlying this proposition is fairly obvious. The lessor, with respect to the retained premises referred to, is in the position of one who invites persons to enter upon his land for a business purpose of his own, and he extends this ...