Kilkenny, Labrecque and Leonard. The opinion of the court was delivered by Labrecque, J.A.D.
Mildred Gatty, individually and as executrix of her husband's estate, appeals from a judgment in favor of plaintiffs based upon a jury verdict, and from the denial of her motion for a new trial or for judgment n.o.v.
On February 26, 1966 plaintiff Marian Van Der Woude and her husband William Van Der Woude were visiting Mrs. Gatty, Mrs. Van Der Woude's aunt, on the occasion of the latter's birthday. They arrived at about 6:30 P.M., and during the course of their departure some four hours later Mr. Van Der Woude sustained a fall while leaving the premises by way of the front porch and steps.
There was proof that the building in question was a two-family one owned by Mr. and Mrs. Gatty (he died after suit was instituted). They lived in the first-floor apartment and tenants occupied the apartment on the second floor. Entrance from the street to both apartments was by a porch and steps at the front of the building. There was a light fixture on the porch but the light had not been turned on at the time of the accident. Mr. Van Der Woude slipped and fell on a patch of ice on the first step. It was "bitter cold" on the evening of the accident although the afternoon had been "clear and sunny." There had been a previous snow, and snow and ice had been melting during the day. Immediately
after the accident icicles were observed hanging down from the roof over the first step.
Although defendant's brief raises seven points, the core issue here is the duty owing plaintiff Van Der Woude at the time of the accident. Defendant advances a twofold argument: (1) she owed no duty to him other than that owing to a social guest, and (2) assuming the contrary, it was error to permit recovery based upon a finding that his status was that of an invitee in view of the state of the pleadings and pretrial order, and of plaintiffs' opening.
It would appear clear that while visiting in the Gatty apartment plaintiffs came under the classification of what has been loosely denominated as social guests. The duty owing to one in that category is somewhat less than that owed an invitee on the premises. Berger v. Shapiro , 30 N.J. 89, 97-99 (1959). However, since it was not disputed that the porch and steps where Mr. Van Der Woude fell were furnished for use in common by the occupants of the two apartments, the trial judge charged the jury that Mr. Van Der Woude, while using them, was an invitee of the owners, to whom the duty of exercising reasonable care was owing. See Snyder v. I. Jay Realty Co. , 30 N.J. 303, 313 (1959). Defendant urges that, while the rule thus charged was correct as a general principle, it was subject to an exception which precluded liability for failure to exercise reasonable care where the injured person was using a common stairway following a social visit to an owner of the building who also resided there. We disagree.
In Taneian v. Meghrigian , 15 N.J. 267 (1954) it was held that where the owners of a multi-family dwelling maintained a common stairway for access to the apartments, the duty of reasonable care owing to persons visiting tenants extended to a plaintiff who was injured on a common stairway following a social call on one of the owner occupants of an apartment in the building. Defendant urges that Taneian is distinguishable and should not be applied here, principally because (1) there the court was dealing with a
14-family apartment subject to the Tenement House Act, N.J.S.A. 55:1-24, and (2) the building had more than two owners (Meghrigian and Najarian), whereas here there was but one.
We find no basis in the court's reasoning in Taneian for restricting its application as defendant urges. There is nothing to suggest that if both Meghrigian and Najarian had resided in the apartment (as, indeed, did Mr. and Mrs. Gatty here) the duty owing to Taneian would be less than that owing to an invitee, or that liability depended upon the status of the building as a tenement house. On the contrary, the court held:
[B]y the same token, the landlord who is also a dweller in a unit of a multi-family house is under the same duty of care to his own social visitors as the guests of all other tenants in their use of the common passages: for this is a common-law tort liability arising out of the reservation of possession and control of the common facilities for their mutual material welfare, a relation radically different from that obtaining in the dwelling unit itself. This would seem to be axiomatic truth, once the basic principle is taken into account. Giving due regard to the difference between invitation and mere permission, there was here an invitation implied from conduct and use. Plaintiff was not, on the occasion of the mishap, "an ordinary guest in a dwelling house," where the guest "for the time being becomes a member of the family of the host, entitled to the ...