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Pearlstein v. Leeds

Decided: November 12, 1958.

ESTHER PEARLSTEIN, PLAINTIFF-APPELLANT,
v.
SHERWOOD LEEDS AND GOLDYE LEEDS, DEFENDANTS-RESPONDENTS



Price, Schettino and Hall. The opinion of the court was delivered by Hall, J.A.D.

Hall

Plaintiff appeals from a judgment for defendants entered in the Law Division on their motion at the close of the whole case. The suit seeks recovery for personal injuries sustained as a result of a fall on a waxed staircase in defendants' home while plaintiff was visiting there. She was fully aware of the condition. The questions presented involve aspects of the familiar problem of the duty owed by the occupier of real property to persons on the premises.

We summarize the evidence in the light most favorable to plaintiff, for on such a motion all which supports her case must be accepted as true and she must have the benefit of all legitimate inferences which may be drawn therefrom. Melone v. Jersey Central Power & Light Co. , 18 N.J. 163, 170 (1955).

Defendants had invited 20 or so of their close relatives to a family lawn party to be held on a Sunday afternoon at their home in Franklin Township, near New Brunswick, the particular occasion being to celebrate the birthdays of two of their children. Mrs. Leeds asked plaintiff, an unmarried cousin, who was invited to the party, to come from her home in Bayonne in advance to assist in the preparations. She arrived on Saturday afternoon, went shopping with Mrs. Leeds, and that evening made cole slaw and potato salad for the next day's event.

Mrs. Leeds was occupied that evening in the very natural housewifely task of cleaning the house so that it would "look very nice by the time my company arrived." Included in this was waxing and polishing the floors and stairs. The house was of the split-level type having several sets of stairs. That with which we are concerned comprised six or seven steps and led from the living room to the bedrooms, occupied by the family and Miss Pearlstein, and one of the two bathrooms. The wax was applied to each step by pouring a bit in the center and then spreading it around and rubbing it in with a cloth. There is no suggestion that the steps were slippery that evening as a result.

The next morning, not being quite satisfied, Mrs. Leeds went over the steps again with a cloth, but without applying more wax. As she put it: "Feeling it would make the shine a little bit higher, I just glossed them up." They were used by the family without comment or mishap until shortly before the guests arrived in mid-afternoon, when plaintiff, having had occasion to go to the bedroom area, on her descent found the stairs slippery from the high polish. She reported to Mrs. Leeds that "the steps were very slippery and it's dangerous for people to walk up and down," and told her to do something about it. Plaintiff testified that Mrs. Leeds replied that she would "try to get some of it off." The latter does not recall her reply, but, in any event, the relatives started to arrive very shortly and nothing was done. Late in the afternoon, after the party was over, plaintiff went up to the bedroom section again. She noticed

on her way up that they were just as slippery as they had been in mid-afternoon when she reported the condition to the hostess. On her subsequent descent while holding on to the bannister, she slipped and fell and sustained the injuries for which damages are sought. The only other evidence on the issue of liability was the testimony of another guest, a Mrs. Cohen (Mrs. Leeds' sister and plaintiff's cousin), that she noticed, on trips up or down the stairway during the party, that the steps were "highly polished or waxed" and "slippery."

The trial court granted the motion for judgment primarily on the basis that plaintiff was a social guest and so a mere licensee, the alleged dangerous condition was known to her, and therefore defendants violated no duty owed to her. Plaintiff principally urges to us that she was actually an invitee rather than a social guest and, even if she was no more than a licensee, recent decisions of our courts in the field of liability of land occupiers have in effect removed all distinction between a licensee and an invitee concerning duty, imposing a uniform general standard of reasonable care under the circumstances to make the premises reasonably safe wherever there is foreseeable risk of harm. It is claimed a jury question was presented as to defendants' compliance with that standard and the granting of the motion for judgment was therefore error.

The trial judge further held that plaintiff was barred from recovery as a matter of law because she deliberately subjected herself to a known hazard and risk, and that the mere making of a walking surface slippery from the use of wax, in the course of a usual and customary act of cleaning and polishing, if applied as here according to normal and generally accepted standards, cannot give rise ipso facto to any inference of negligence. As we view the case, these additional grounds of decision below, on the basis of which plaintiff also contends for reversal, are not of controlling importance.

First to be considered is the question of the duty owed to plaintiff under the present state ...


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