On appeal from Superior Court of New Jersey, Law Division, Essex County.
Fritz, Furman and Deighan. The opinion of the court was delivered by Fritz, P.J.A.D.
The appealing personal injury plaintiff (hereafter referred to as plaintiff; her husband sues per quod) went, with her son, to defendant's home to pay defendant's wife for dinner tickets in connection with a fashion show sponsored by a women's club of which defendant's wife was a member. Plaintiff was not a member of the women's club. At the door, defendant's wife invited plaintiff in "for a cup of coffee." This amenity concluded, plaintiff left and in walking down the driveway slipped, fell and injured herself.
The trial judge found that
Concluding that plaintiff was a social guest to whom defendant owed only a duty to disclose known but unapparent hazards and finding that the circumstances did not demonstrate a breach of that duty, he granted defendant's motion to dismiss the complaint. Our judgment does not accord with his and we reverse.
Plaintiff charges first that the rule in New Jersey proclaiming that it is the status of the plaintiff which is determinative of the duty of care owed to a plaintiff by a defendant is anachronistic and should be changed. She cites substantial authority from foreign jurisdictions for this position. The difficulty with the argument is that the rule in New Jersey is one to which our Supreme Court has "consistently adhered," considering the ascertainment of that status "an essential preliminary to the application of the particular standard of care to be exercised by the land occupier." Snyder v. I. Jay Realty Co., 30 N.J. 303, 311 (1959). We may not, of course, depart from a rule established in our court of last resort. In re Education Ass'n of Passaic, Inc., 117 N.J. Super. 255, 261 (App.Div.1971), certif. den. 60 N.J. 198 (1972). Di Cosala v. Kay, 91 N.J. 159 (1982) may forecast an abrogation of the rule but we note that Justice Handler, in writing for a unanimous Court in Di Cosala, depended on Renz v. Penn Central Corp., 87 N.J. 437 (1981) and Eden v. Conrail, 87 N.J. 467 (1981) as support there for his statement:
But the concurrence of Justice Schreiber in Renz points up the significance of the fact that Eden and Renz were involved with
a statute respecting the duty of a railroad to persons on the railroad property. He observed:
The statute is directed to conduct, not status. It must be borne in mind that under our decisional law a plaintiff's status is a factor in determining the duty owed by a property owner. Status is inextricably intertwined with the scope of the duty owed by the property owner. Only after that duty is defined and a breach ascertained is attention directed to the plaintiff's conduct. The structure of the statute, though, addresses the plaintiff's conduct irrespective of his status. [87 N.J. at 465.]
In Renz, Snyder receives only bare mention in string citations as an example of "accommodation of negligence principles" to the "evolution of the common law of trepass." 87 N.J. at 461, 435 A.2d 540. It is unmentioned in Eden. Accordingly, Snyder represents controlling law in nonstatute cases and we may not depart from it. We turn to a consideration of the status of plaintiff upon the property.
It appears implicit from the oral opinion of the trial judge that he believed that the invitation to plaintiff at the door to come in for a cup of coffee altered the status of plaintiff upon the premises from that with which she was originally clothed to one of social guest. We cannot understand why a defendant should be afforded an opportunity unilaterally to diminish the duty of care owed to a visitor to the premises at a time when a plaintiff has already commenced an undertaking of any risks which inhere. We would not permit the duty of care to be increased in Pearlstein v. Leeds, 52 N.J. Super. 450 (App.Div.1958), certif. den. 29 N.J. 354 (1959), even though there the plaintiff social guest undertook to perform services beneficial to the host in the course of the visit. Consistently with that we here believe that status is determined by the circumstances which bring the plaintiff to the property. Conceivably other circumstances could, in some cases, alter that status, but certainly not the kind offer of a social guest to help with preparations, as in Pearlstein, or the hospitable invitation to an invitee to come in for a cup of coffee, as here.
We are satisfied that the events which brought plaintiff to defendant's home created an invitee ...