The I. Jay Realty Co.: For affirmance -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall and Schettino. For reversal -- Justice Burling. The Aaron Sachs case: Burling, J., concurring in result. For reversal -- Chief Justice Weintraub, and Justices Burling, Francis, Proctor and Hall. For affirmance -- Justices Jacobs and Schettino. The opinion of the court was delivered by Proctor, J. Burling, J. (dissenting in A-120 and concurring in the result in A-121). Jacobs and Schettino, JJ. (dissenting in part).
The plaintiff was injured as the result of a fall on a platform at the rear of a three-story factory building in Newark, owned by the defendant, I. Jay Realty Company. The defendants, Arnold Sachs, Isidore Sachs and J. Milton Sachs, partners trading as the New Jersey Knitwear Co., were engaged in the manufacture of sweaters. They occupied the third floor of the building and were one of several tenants. The New Jersey Knitwear Company, a corporate entity apart from the Knitwear partnership, was also named as a party defendant. The individual partners, the partnership entity and the corporation were considered by the parties as a unit and will hereinafter be referred to as the tenant.
Plaintiff brought an action against the owner and the tenant to recover damages for the injuries he sustained. When the case was first tried the trial court entered a judgment of involuntary dismissal as to both defendants on plaintiff's opening statement to the jury. The Appellate
Division reversed and ordered a new trial. 46 N.J. Super. 323 (1957). This court denied certification. 25 N.J. 316 (1957). At the retrial, upon the conclusion of the entire case the trial court entered a judgment of dismissal in favor of both defendants on the ground that the plaintiff was a trespasser at the time he sustained his injury and that there was no breach of any duty owed to him by either of the defendants. It further held as a matter of law that the plaintiff was contributorily negligent and that he had assumed the risk of any dangerous condition which may have existed. The Appellate Division reversed as to both defendants, holding that all issues should have been submitted to the jury. 53 N.J. Super. 336 (1958). We granted the defendants' petitions for certification. 29 N.J. 355 (1959).
Plaintiff was a friend of Frank Selleck, a truck driver employed by the defendant tenant. Selleck had been so employed for about eight or nine months before the accident. On April 6, 1953 the plaintiff met Selleck in New York City where the latter had completed his deliveries. Selleck suggested that the plaintiff ride back to the factory with him and that they would then return to New York on a personal matter. It was necessary for Selleck to go to the factory in order to turn in his receipts for the day and pick up some merchandise for delivery to Stirling, New Jersey, before he finished work. Plaintiff accompanied him. When they arrived at the factory premises at about 8 P.M. it was getting dark. Selleck parked his truck at the loading platform at the rear of the building. The two men then walked to the front and ascended the common stairway to the third floor occupied by the defendant tenant. This was the first time that the plaintiff had visited the tenant's place of business. Selleck introduced the plaintiff to several employees who were working that night. Morgan Batten was the tenant's acting foreman and "was in charge of the floor" that evening. While Selleck and Batten were loading some cartons on to an elevator at the rear of the building, plaintiff "browsed around," watched the other employees and had a
bottle of soda. None of the partners of the tenant was present. After about 20 minutes Selleck called the plaintiff and said, "We're ready to leave." Batten, Selleck and the plaintiff then entered the elevator and descended to the loading platform on the ground floor. It was now dark outside, and although there was a light in the elevator, it illuminated only the immediate area and the remainder of the L-shaped platform was "pitch black." Batten picked up a carton and started to walk down the platform toward the truck. He was followed by Selleck who also carried a carton. The plaintiff then picked up a carton and followed Selleck. The plaintiff testified:
"I followed his [Selleck's] figure and that was the way I had my direction, by following the figure. I had no idea of what was happening whatsoever.
Q. Then, did they make any turns, from what you observed? A. They may have. The way they walked, I walked. If they walked straight, I walked straight. If they made a turn, I made a turn.
Q. Then, what happened to you? A. Then I fell, I hadn't taken more than two steps.
Q. Then, what happened when you fell, describe it? A. I fell into this recess."
The recess into which plaintiff fell is about 40 inches deep and is formed by an open space between the platform and the building. It is at a right angle to the passage leading from the elevator and begins at a point five or six feet from the elevator door. There was no guard rail around the recess, and although there was provision for a light on the wall adjacent to it, the light was not in working order on the night of the accident, nor at any time during Selleck's employment. On a night about a month before the accident Selleck had fallen into the recess and had requested one of his employers, Arnold Sachs, to have the light repaired. At that time Sachs called the owner and complained about the absence of a light but apparently nothing was done.
No one was produced at the trial to testify for the defendant owner. The only witness called for the defendant tenant
was J. Milton Sachs, one of the partners. He testified that he had never authorized any of the employees to bring guests into the premises and that he had no knowledge that any of the employees had ever done so. He specifically denied any knowledge of the plaintiff's presence on the premises that evening. On cross-examination he testified that the factory was in operation day and night, and that the elevator was used or could be used "twenty-four hours a day" by all of the tenants in the building.
In the course of the direct examination of the witness Selleck, he was asked if he had ever brought any one else on the premises. The defendant tenant's objection to this question was sustained on the ground that any course of conduct on Selleck's part would not be binding upon the tenant. The witness had answered in the affirmative before the objection was interposed, and at the oral argument in this court plaintiff's counsel informed us that had he been permitted to pursue the matter Selleck would have testified that his wife and daughter had visited him at defendant tenant's premises.
The Appellate Division reversed the judgment of dismissal, holding that it was open to the jury to find that the plaintiff, a guest of an employee of defendant tenant, was a licensee of the tenant and as such was an invitee of the owner; that the owner owed the plaintiff a duty of reasonable care to maintain the passageway in a reasonably safe condition. As to the tenant the court held that the knowledge of plaintiff's presence by the tenant's foreman, Batten, was imputed to his employer, the tenant, and that if the tenant had the ability to foresee any unreasonable risk of harm to licensees "resulting from the lessor's failure to maintain the common approaches or exit-ways * * * the tenant, as any other possessor of land, must exercise reasonable care to make the condition ...