On appeal from a judgment of the Superior Court, Appellate Division, whose opinion is reported at 109 N.J. Super. 402.
For affirmance -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor and Schettino. For reversal -- Justices Hall and Haneman. Hall, J. (dissenting). Justice Haneman joins in this opinion.
The judgment is affirmed for the reasons expressed in the opinion of Judge Kilkenny filed in the Appellate Division, 109 N.J. Super. 402.
This case concerns the basis of liability of possessors of land to a relative who is requested to come to their home to perform some household chores and is injured by reason of a condition on the premises. Since the fundamental facts are undisputed, I agree this basic question is one of law for the court. My disagreement with the majority stems from the adopted conclusion of the Appellate Division that the trial judge was correct in holding, upon denial of defendants' motion for judgment at the close of the case and in his charge to the jury, that the injured plaintiff was an "invitee," thus requiring the property owner to exercise reasonable care to have the premises in a safe condition. In my view, she was, as defendants contended on their motion, only a "licensee" and barred from recovery by reason of her full knowledge of the condition.
The pertinent facts, which include some not mentioned in the opinion of the Appellate Division, may be quickly summarized.
Mrs. Benedict, the injured plaintiff, is a sister of defendant Mrs. Podwats, a co-owner of the Podwats home. They lived quite close together and Mrs. Benedict had visited her sister at least once a week since the Podwatses had purchased the house about two years before. On the day in question Mrs. Podwats, who worked during the day, had asked her to come over to arrange some flowers in preparation for a meeting she was to have after work and to "do anything I'd see to be done." The latter turned out to include hanging out some laundry to dry on a line in the backyard. There was, of course, no expectation of remuneration for the services.
The back door of the house opened on a cement patio with a brick border, constructed by a prior owner. Both the cement and the bricks had a painted surface, which the Podwatses had applied. At the far end three steps led downward to a concrete sidewalk and the backyard. At this point the brick border was not entirely level with the cement, sloping downward away from the patio about an inch. The steps had no handrail and the expert testimony was that the painted surface was smooth and more slippery over the bricks than over the patio. This situation constituted the dangerous condition asserted. The injury occurred in the early afternoon when Mrs. Benedict was on her way to the backyard to retrieve some of the laundry from the line because of the possibility of a shower. As she reached the brick border preparing to descend the steps, her feet went out from under her and into the air; she landed on her low back on the steps and bounced down to the sidewalk. She had nothing in her arms at the time, her vision was not obstructed and she was looking where she was going.
Not adverted to by the Appellate Division is the fact that the use of the back door, the patio and the steps was not merely a way to reach the backyard, with which Mrs. Benedict
was not familiar. Rather, as she testified, it was the main and only route used by everyone to enter the house; she used it to enter every time she came to visit. The front door was not utilized and was kept locked. She was thoroughly acquainted with the downward tilt of the bricks since her relatives had acquired the property. A child had previously slipped at this spot. Indeed, she said the patio had been discussed between the two families, which, as the trial judge commented in his charge, led him to the inference that the condition had been talked about.
The law of this state is clear: the action that a possessor of land must take or from which he must refrain or respond in dollars for injuries suffered by persons upon his property by reason of a dangerous condition thereof, depends upon the status of the injured person, i.e. the circumstance of his entry. As was said in Snyder v. I. Jay Realty Co., 30 N.J. 303, 311-312 (1959):
In this state we have consistently adhered to the historically based view of the common law that the duty owed by an occupier of land to third persons coming thereon is determined according to the status of such third person, i.e., invitee, licensee or trespasser. Indeed, the ascertainment of that status is an essential preliminary to the application of the particular standard of care to be exercised by the land occupier * * *. These common law classifications are sufficiently flexible to fulfill the purposes of our legal system in serving the needs of present day society. * * * We believe that adherence to the traditional classifications is desirable in that it lends a reasonable degree of predictability to this area of the law. These classifications also aid in the proper distribution of trial functions between judge and jury, wherein the latter determines only disputed questions of fact.
Questions of who falls in which class and the affirmative or negative duties which may reasonably and justly be expected of land possessors as to each are essentially matters of policy for judicial determination. While distinctions may be shadowy and the lines fine in some instances, we have in late years generally followed the ...