Citation Numbers: 208 Misc. 1014
Judges: Stoddart
Filed Date: 10/26/1955
Status: Precedential
Modified Date: 1/12/2023
In this negligence action, tried by the court without a jury, the defendant did not testify hut rested on the plaintiff’s case.
Under the circumstances of this case, I do not believe the plaintiff has established his right to a recovery. In the first place, the plaintiff knew that the defendant needed assistance in caring for the house. He knew or should have known that if the defective linoleum was to be repaired, either he or his wife would have to tack it down or to pay for its repair by someone else.
It is contended by the plaintiff that he had the status of a business visitor or invitee, wh,ereas the defendant urges that the plaintiff was a social guest.
The plaintiff cites section 332 of the Restatement of the Law of Torts, as authority for his contention that he was an invitee. That section contains the statement that a member of a family who pays rent or other consideration for his lodging is not a social guest but rather an invitee to whom ordinary care is owed. No New York case in support of that statement is cited. Even if it be assumed that in some situations a member of a family may be entitled to the care due an invitee, the facts here do not warrant such holding. The plaintiff and his family were in possession of the entire premises and the defendant resided with them. The plaintiff was the head of the household. He did not pay any rent to the defendant for the use and occupation of the premises nor had he any agreement with her to provide him with living quarters in return for services to be rendered by him. Whatever moneys were paid (or services performed) by him were for the benefit of his family of which the defendant was a member. No unusual fact existed to vary
Accordingly as the defendant did not breach any duty of care owed to the plaintiff, and as the plaintiff was contributorily negligent, the complaint is dismissed.
Thirty days’ stay; sixty days to make a case.