For reversal -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall and Haneman. For affirmance -- None. The opinion of the court was delivered by Weintraub, C.J.
This case arose out of an automobile accident. Mrs. Pearl Cohen, Mrs. Sarah Kaminetsky, and Mrs. Sally Elson were members of a swimming club. While at the club they discussed returning in the evening for the scheduled entertainment. They agreed to check with each other later in the day and to arrange for transportation.
Mrs. Kaminetsky elected to drive. She picked up Mrs. Elson and then drove to the home of Mrs. Cohen. As Mrs. Cohen attempted to enter the car, it suddenly moved backward, the open door striking her and inflicting injuries for which she sought recovery. Her husband sued per quod, and Mr. Kaminetsky, owner of the car, was made a codefendant.
The central issue as to liability is the status of Mrs. Cohen and accordingly the nature of the duty Mrs. Kaminetsky owed her. As submitted to the jury, the answer depended upon nice factual inquiries. They were whether Mrs. Cohen was a pedestrian rather than a passenger, and, if she was a passenger, whether she was such by "invitation" of Mrs. Kaminetsky. As to the first, Mrs. Cohen said she was partly in the car when the accident occurred, whereas Mrs. Kaminetsky insisted she was still on the sidewalk. As to invitation, the testimony was uniform that there had been the discussion mentioned above in which it was understood that one car would be used, it being of no great moment which it would be. There was some conflict as to ensuing details, the testimony most favorable for the defense being that Mrs. Elson, taking it for granted that Mrs. Kaminetsky was willing to pick up Mrs. Cohen, simply suggested that course, to which Mrs. Kaminetsky readily assented. They were all going to the same place and Mrs. Cohen lived on the way.
The trial court charged that (1) if Mrs. Cohen was a pedestrian, Mrs. Kaminetsky owed her a duty of due care; and (2) if Mrs. Cohen was a passenger upon the invitation of Mrs. Kaminetsky, the same standard applied, but if she had not been thus invited, she could recover only for injuries wantonly or willfully inflicted. Since the injuries were not wantonly or willfully inflicted and Mrs. Kaminetsky's negligence seems scarcely debatable, it is fair to assume the jury found Mrs. Cohen was essentially in the car, i.e., a passenger, but not upon Mrs. Kaminetsky's invitation. The trial court's charge comported with precedents binding upon it. Myers v. Sauer, 116 N.J.L. 254 (E. & A. 1936), 117 N.J.L. 144 (E. & A. 1936); Sheehan v. McGowan, 49 N.J. Super. 1 (App. Div. 1958).
This factual pattern readily invites reconsideration of the distinction originated in Lutvin v. Dopkus, 94 N.J.L. 64 (Sup. Ct. 1920), between a "licensee" and an "invitee," anchored to the circumstance whether the passenger requested the ride or was invited upon the initiative of the driver.
The advent of the automobile presented new problems for judicial solution. One was the duty of the host to his social guest. To arrive at a suitable rule, courts looked for an analogue. Massachusetts found the gratuitous bailment to be the correct one, and viewing the accommodation as being for the benefit of the guest, it held the host could be liable only for gross negligence. Massaletti v. Fitzroy, 228 Mass. 487, 118 N.E. 168, L.R.A. 1918c, 264 (Sup. Jud. Ct. 1917). This view attracted some slight support, but the great majority of the courts refused thus to equate the hazard to life or limb with the risk of damage to mere property and settled upon the conventional standard of ordinary negligence. In the late 20's and 30's there was a legislative movement away from the doctrine of due care, statutes adopted in 27 states prescribing various bases of liability ranging from gross negligence to wanton or willful injury. For a review, see 2 Harper and James,
Torts § 16.15, pp. 950, et seq. (1956); Prosser, Torts § 77, p. 450 (2 d ed. 1955).
Our State, however, struck out in another direction in Lutvin v. Dopkus, supra (94 N.J.L. 64). It differentiated between a guest who asked for the ride and the guest who was invited by the host to come along; the former was entitled to recover only for injuries wantonly or willfully inflicted, whereas the latter could recover for ordinary negligence. So far as we know, this distinction is uniquely our own, no other state embracing it by case law or statute, and a number of jurisdictions expressly refusing to follow Lutvin. Munson v. Rupker, 96 Ind. App. 15, 148 N.E. 169 (App. Ct. 1925); Black v. Goldweber, 172 Ark. 862, 291 S.W. 76 (Sup. Ct. 1927); Holdhusen v. Schaible, 60 S.D. 275, 244 N.W. 392 (Sup. Ct. 1932); Robinson v. Leonard, 100 Vt. 1, 134 A. 706 (Sup. Ct. 1926); see also Galloway v. Perkins, 198 Ala. 658, 73 So. 956 (Sup. Ct. 1916); Green v. Maddox, 168 Miss. 171, 149 So. 882, 151 So. 160 (Sup. Ct. 1933); Mitchell v. Raymond, 181 Wis. 591, 195 N.W. 855 (Sup. Ct. 1923). Thus in all other states social guests, whether passengers upon their or the hosts' initiative, are treated alike.
In Lutvin the former Supreme Court found an appropriate analogy in the law governing the liability of the owner of real property to his social guest, and the rule took hold when the Court of Errors and Appeals accepted that precedent in Faggioni v. Weiss, 99 N.J.L. 157 (E. & A. 1923). Actually the analogue did not support Lutvin. First, nothing in our cases dealing with the landowner's liability suggests a difference between the social guest who precipitates the invitation and the one who comes upon the initiative of the host. All social guests are treated alike. Secondly, at least after Lutvin, it became clear that the social guest upon real property could recover for ...