Before McLAUGHLIN, KALODNER and STALEY, Circuit Judges.
Was there a genuine issue as to a material fact, which under well-settled principles, precluded the entry of a summary judgment?
In New Jersey, is the invitee of a tenant, injured by reason of a landlord's negligent performance of his express agreement to make repairs to the leased premises, barred from making recovery from the landlord because the invitee is "an utter stranger to the landlord"?
These two issues are presented by this appeal from the Order*fn1 of the District Court for the District of New Jersey granting summary judgment in favor of defendant, Ownership Corp., Inc., in an action for damages brought by plaintiff, Mollie Krieger.
Federal jurisdiction is based on diversity of citizenship and the requisite jurisdictional amount.*fn2
The facts may be summarized as follows:
Defendant on May 25, 1957 was the owner of a one-family residence in Mount Arlington, New Jersey which it had leased to one Mrs. Ida C. Fabricant on May 6, 1957 for a term expiring October 15, 1957. On the evening of May 25, 1957 plaintiff paid a social visit to Mrs. Fabricant at the latter's invitation. During the course of her visit plaintiff fell and was injured in the course of making her exit from the residence. She filed suit against defendant alleging in the first Count of her Complaint that at the time of the accident defendant was in control of the operation and maintenance of the premises; the doorway, stairways, steps and landings used in making her exit were improperly constructed and negligently maintained, and insufficiently and negligently illuminated so as to create a hazard and "hidden trap." In the second Count of her Complaint plaintiff alleged defendant had created and maintained a nuisance, which resulted in her injury.
Defendant filed an answer denying plaintiff's allegations in her complaint.
Subsequently, on September 2, 1958, a pre-trial conference was had before the District Court at which the parties presented and developed their contentions. A "Transcript of Pretrial Conference" was filed on September 5, 1958 together with an "Order Adopting Foregoing Transcript of Pretrial Conference as a Pretrial Order".
The Transcript read in part as follows:
"Plaintiff was concededly an invited guest of the tenant occupying the entire premises, but the complaint charges that the defendant, concededly the owner of the premises, was in control thereof.
"Plaintiff charges that a portion of the premises, to wit, an exit door and stairway, were so improperly constructed as to constitute a hazard and hidden trap, and that the hazard presented by the condition was enhanced by the improper location of an improper illuminating device, which the landlord and tenant had collaborated in furnishing and installing.
"Plaintiff charges that, more specifically, the landlord of the premises had agreed with the tenant to install a lighting fixture at a proper location to illuminate the place or exit of the premises.
"The tenant, under the terms of this agreement, agreed to and did furnish the fixture; but the plaintiff claims that the landlord placed, or caused it to be placed, at an improper location, and that the fixture and bulb were improper and inadequate.
"The defendant admits ownership of the premises in question, admits that it was leased to the tenant, who was the invitor of the plaintiff, but it denies the retention of any control over the locus in quo, denies the existence of any trap therein, denies impropriety of construction, and also denies negligence in connection with the premises.
"It further pleads contributory negligence, assumption of risk, and negligence on the part of third parties beyond the control of the defendant, also alleging that plaintiff's status on the premises in question obligated the defendant only to refrain from the commission of willful or wanton harm."
The record establishes that the statements quoted were by way of a summarization by the District Court of the parties' contentions and did not represent any stipulation on their part as to the "facts" detailed.
That that is so is made evident by the stenographic transcript of the subsequent argument on defendant's motion for summary judgment. It discloses that at the outset of that argument the District Court again recounted in summary what was said in the pretrial conference Transcript and counsel for defendant immediately called to its attention that what was said in that Transcript merely represented "* * * plaintiff's contentions, distinguished from the stipulations [as to other matters not related to liability] at the pretrial conference", and the District Court indicated its agreement.In particular, defendant's counsel stated "* * * there has been no affidavit supplied by the plaintiff to substantiate her position that this agreement [to place the light fixture at a proper location with respect to the exit] was in fact in existence between the owner of the premises and the tenant"; and, "* * * that [the agreement] is something I don't think plaintiff can prove at the time of trial. * * *".
At the juncture stated the District Court declared that "for the purpose of this argument I am going to assume as true all those facts upon which you [plaintiff's counsel] are relying * * * [and] face ...