Berger v. Shapiro

152 A.2d 20, 30 N.J. 89, 1959 N.J. LEXIS 159
CourtSupreme Court of New Jersey
DecidedJune 1, 1959
StatusPublished
Cited by69 cases

This text of 152 A.2d 20 (Berger v. Shapiro) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Berger v. Shapiro, 152 A.2d 20, 30 N.J. 89, 1959 N.J. LEXIS 159 (N.J. 1959).

Opinions

The opinion of the court was delivered by

Pkoctoe, J.

The Appellate Division reversed a judgment dismissing plaintiff’s negligence suit at the close of all the evidence. 52 N. J. Super. 94 (1958). We certified upon the defendant’s application. 28 N. J. 306 (1958).

The plaintiff, Sarah Berger, an elderly woman, came from Plorida to visit her daughter and son-in-law, Samuel Shapiro, the defendant, at their home in Cedar Grove, New Jersey. She had been staying there for about two or three weeks prior to the accident which occurred on September 13, 1955. The plaintiff has been suffering from glaucoma for the past 13 years and her vision is greatly impaired. She testified that while she can “see a little, * * * enough to get around when I am close,” her vision is not at all clear and that “[ejverything is shadowy like.” Her vision at the time of the trial was the same as when the accident occurred. She had difficulty at the trial in examining a photograph of the scene of the accident.

On the day of the accident she was alone on the front lawn of the defendant’s house. Her sister, who was also a visitor, was inside and her daughter was next door with a neighbor. Mrs. Berger decided to go into the house. She [94]*94had never before used the front entrance without assistance and generally used the rear entrance where there was a banister. She testified:

“I felt I wanted something so I got up to go into the house. I very seldom go alone but my daughter wasn’t home just yet. My sister was in the house. So I thought I will go myself. So I walked up slowly, up the steps, and when X opened the door, I went back so the door would open, and my foot went into something that was empty and I fell down and broke my foot.”
She fell from the porch to the ground, a distance of about four and a half feet, breaking her heel and ankle. A rosebush situated close to the right front side of the porch was broken by her fall. On cross-examination she testified as follows:
“A. I walked up the steps all right. I walked slowly and then when I went to open the door, so I went this way to open the door, stepped back to get in and my foot went into something that was empty; I don’t know what.
Q. You don’t know what that was? A. No, I didn’t know; at that time I didn’t know.”
Later when she was recalled to the stand and shown the photographs of the steps she testified:
“Q. Did you have your hand, which hand, on the door? A. This door. I had it on the door to open it. I went back to get the door because the door is on this side. So I was on this side. I opened the door. X stepped back to open the door, my foot fell into something that was like empty. I didn’t know what it was and I went down.
Q. When you did step back you had your hand on the knob of the door to open it? A. Yes.
Q. Where did you fall? A. On the lawn, the front lawn. Bight on the side where I fell; on the side where I fell. I fell right to the side.”
And on further cross-examination she said:
“I opened the door, I stepped back, I went down this way right off the porch.”

[95]*95The record does not indicate whether the plaintiff, in conjunction with the above quoted testimony, is pointing to the photograph or physically demonstrating the manner in which she fell.

The front porch of the defendant’s house is reached by ascending four brick steps. The top step connects with a cement porch which defendant estimated to be about two and a half feet in depth. The front screen door opens from right to left (facing the house). There is no guard or railing on the right side of the porch. There was a brick missing from each end of the top step. Mrs. Shapiro, the wife of the defendant, testified that she removed the two bricks about two months before the accident and at least one month before her mother arrived for her visit. She said she did so because she discovered the bricks were loose and that she informed her husband of what she had done. Her husband, testifying in his defense, admitted that his wife had told him about two months before the accident that she had removed the bricks and wanted him to replace them. He told her that he intended to install iron railings in the spaces created by the missing bricks. This was never done. The plaintiff’s eye condition was known to both Mr. and Mrs. Shapiro.

The theory of plaintiff’s case was that while opening the front door she fell when she stepped backwards into the space created by the missing brick at the extreme right front side of the top step, and that the defendant’s failure to have replaced the brick, having had knowledge and opportunity to do so, constituted a breach of his duty of care owing to her.

At the conclusion of the entire case defendant’s attorney moved for a judgment of involuntary dismissal on two grounds: (1) that the plaintiff was a social guest and the only duty owing to her was that of refraining from willful or wanton conduct; (2) the plaintiff was guilty of contributory negligence as a matter of law. The trial judge, without ruling on either of these grounds, granted the motion for want of evidence of proximate cause and said: [96]*96“I don’t think there is any evidence from her testimony to indicate that this space caused by the removal of the brick was the cause of her fall. She says she fell, she stepped into open space.”

The Appellate Division in ordering a new trial held that in view of plaintiff’s testimony that her foot “went into” or “fell into” something, the jury might reasonably infer that the “something” was the space left by the missing brick and thus this condition was the causal factor in her fall. The Appellate Division also held that from the evidence the jury could find that the defendant violated a duty owed to the plaintiff. It further held that plaintiff was not guilty of contributory negligence as a matter of law.

On this appeal the defendant first contends that he did not violate any duty owing to the plaintiff. Both parties agree that at the time of the accident plaintiff was a social guest of the defendant. As such, the great weight of authority classifies her as a licensee, notwithstanding that her presence at the defendant’s home may have been at his express invitation. 2 Harper and James, The Law of Torts, § 27.11, p. 1476 (1956); Prosser, Torts (2d ed. 1955), p. 447; Vogel v. Eckert, 22 N. J. Super. 220 (App. Div. 1952). The Restatement of Torts, § 331, defines a social guest as a gratuitous licensee. While a social guest is on the premises of another as a result of an “invitation” in the layman’s sense of that word, this court has said that he is not entitled to as high a degree of care for his safety as one who is on the premises to confer some benefits upon the invitor other than purely social. Taneian v. Meghrigian, 15 N. J. 267, 275 (1954). See also Annotation, 25 A. L. R. 2d 598 (1952). In the latter situation the person is regarded in the law as an invitee or, in the terms of the Restatement, supra, § 332, a “business visitor,” and is owed a greater duty of care than a licensee. In Finnegan v. The Goerke Co., 106 N. J. L. 59 (E. & A.

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Bluebook (online)
152 A.2d 20, 30 N.J. 89, 1959 N.J. LEXIS 159, Counsel Stack Legal Research, https://law.counselstack.com/opinion/berger-v-shapiro-nj-1959.