For reversal -- Justices Francis, Proctor, Goldmann, Schettino and Haneman. For affirmance -- Chief Justice Weintraub and Justice Jacobs. The opinion of the court was delivered by Haneman, J. Jacobs, J. (dissenting).
This action was brought to recover damages resulting from a fall which occurred while plaintiff was seeking entrance to defendant's store. At the conclusion of plaintiff's evidence, the trial court entered an involuntary dismissal on the grounds that plaintiff was not an invitee, but that even if she were, the defendant had not breached any duty of care with respect to her, and further that she was barred from recovery because she had been contributorily negligent as a matter of law. The Appellate Division, in an unreported opinion, reversed and we granted certification. 49 N.J. 362 (1967).
The record discloses that on the evening of January 20, 1962 plaintiff left her house with the intent of walking to defendant's store to make a purchase. Her house fronted on what was then Elm Street in Edison Township and was located directly opposite the rear of defendant's premises.
From the intersection of plaintiff's driveway and Elm Street, there are several routes available to a person seeking to reach the front of defendant's store on Fulton Street, where the only entrances are located. Plaintiff could have turned right on Elm Street, proceeded for 150 feet to
Washington Street, made a left turn, walked 200 feet to Fulton Street, which runs parallel to Elm Street, turned left again and proceeded 125 feet to the front of defendant's store. Alternatively, she could have taken a somewhat longer route by turning left on Elm Street and making a right turn on both Route 1 and Fulton Street. Neither of the routes crosses defendant's property.
Instead of following either course, plaintiff apparently elected to take a shorter approach to the front entrance by proceeding along a path which ran along the side of defendant's building, from the front of the store to Elm Street. Rather than travel along Elm Street until she could turn left onto the path, she crossed Elm Street and entered defendant's land via a driveway at the rear of the store used for delivery trucks. Plaintiff then attempted to reach the path by crossing an open, unlit, unpaved and at that time muddy area which is bounded by the rear of the building, Elm Street, the driveway and the above referred to path and which was separated from Elm Street by a row of shrubs. Before she could reach the path she slipped on a piece of wet cardboard.
It is clear that plaintiff's right to recover depends upon whether she qualified as an invitee since under the proofs defendant violated no duty owed to her as a licensee or a trespasser. Tomsky v. Kaczka, 17 N.J. Super. 211 (App. Div. 1952) and authorities cited; Standiford v. Bernhardt, 13 N.J. Super. 357 (App. Div. 1951).
The test for determining the status of a person as an invitee was originally set forth in Phillips v. Library Co., 55 N.J.L. 307, pp. 314-315 (E. & A. 1893) and re-affirmed in Handleman v. Cox, 39 N.J. 95 (1963) where the court said, at p. 107:
"'[T]he liability of an owner or occupier for the condition of his premises arises where the plaintiff was induced to make use of the premises, in the course of which he sustained the injury sued for, by express invitation, or by invitation to be implied from acts and conduct of the defendants. The gist of the liability consists in the fact that the person injured did not act merely on motives of his own, to
which no act or sign of the owner or occupier contributed, but that he entered the premises because he was led by the acts or conduct of the owner or occupier to believe that the premises were intended to be used in the manner in which he used them, and that such use was not only acquiesced in, but was in accordance with the intention or design for which the way or place was adapted and prepared or allowed to be used.'"
The area of the invitation extends to such parts of the premises as may reasonably be believed open for access to the particular place to which the invitation is extended. Such a determination therefore depends on the surrounding circumstances. Williams v. Morristown Memorial ...