George Avlon v. Greencha Holding Corp.

CLARK, Chief Judge

(dissenting).

As I read the controlling New York cases they require the jury to determine whether the plaintiff was an invitee or not. In Murtha v. Ridley, 232 N.Y. 488, 134 N.E. 542, the seven-year-old son of the downstairs tenant of a three-family building was injured playing in the back yard of the premises when the cement coping on which he was standing gave way and he fell into the areaway below. There was evidence that a door led from his mother’s apartment into the yard, and that other tenants had access to it from the street and from the cellar. The children of all the tenants used the yard as a playground and the mothers hung clothes in it. The janitress kept it clean. The defendant testified that the children were prohibited from playing there, but it was not shown that this had been communicated to them. On this evidence the trial court submitted the issue of negligence to the jury, which found for the plaintiff. The Appellate Division, 196 App.Div. 61, 187 N.Y.S. 433, reversed on the theory that the plaintiff was a mere licensee. The Court of Appeals reinstated the jury verdict, saying: “There is some evidence, therefore, in our opinion, establishing this yard as an appurtenance to this apartment housey used in common by the tenants, retained’ in the possession and control of the landlord charging him with the duty of keeping it in a reasonably safe condition.”' 232 N.Y. 488, 492, 134 N.E. 542, 543„ *620per Crane, J. Walker v. Bachman, 268 N.Y. 294, 297, 197 N.E. 287, 288, on which my brothers rely, distinguishes this case by saying that in it “there was evidence which established the yard as an appurtenance to the apartment house used in common by the tenants and retained in the possession and control of the landlord. Nothing of the sort appears here. Cf. American Law Institute, Restatement of the Law of Torts, § 360."1

Here the evidence disclosed that (1) there was easy access to the platform not merely from the first-floor tenants’ premises here involved, but also from the bowling alley on the second floor; (2) employees and customers of both tenants used the platform for recreation and egress; (3) the landlord knew of such use and did not object to it; (4) the owner had exclusive possession and •control of the platform. The jury could, have found that the platform was an appurtenance, the use of which was impliedly rented to plaintiff’s employer; and under the Murtha rule it could have found the landlord liable to the plaintiff for failing to use due care to keep the appurtenance reasonably safe.

My brothers appear to assume a New York rule peculiar to fire escapes; and they rely heavily on Vega v. Lange, 248 App.Div. 521, 290 N.Y.S. 736, which attempted to establish such a rule. There the Appellate Division held that tenants on a fire escape with the consent of the landlord cannot be invitees, because the invitation extends only to use of such structures for emergency exit. Vega v. Lange, supra, 248 App.Div. 521, 290 N.Y.S. 736, can be distinguished from the present case because here the platform was not so designed that tenants and their employees would know at a glance that it was meant only for use in case of fire. But even assuming the platform to be a fire escape within the meaning of the Vega decision, that case has been disapproved by the New York Court of Appeals. In Silverberg v. Schweig, 288 N.Y. 217, 42 N.E.2d 493, the Appellate Division, 260 App.Div. 658, 23 N.Y.S.2d 599, citing Vega v. Lange, supra, 248 App.Div. 521, 290 N.Y.S. 736, had reversed a jury verdict for a plaintiff injured on defendant’s fire escape while connecting a radio aerial. Defendant’s agent had given the plaintiff permission to be there, but the Appellate Division ruled that fire escapes were only for emergency use and that such permission was not enough to make plaintiff an invitee. The Court of Appeals reversed Per Curiam, without citing Vega v. Lange, but saying: “There was evidence, however, sufficient to present a question of fact whether, when the infant plaintiff used the drop ladder as a means to reach the fire escape, he did so as an invitee to whom the defendants owed the duty to maintain the laddér in a reasonably safe condition for such •use.” Silverberg v. Schweig, supra, 288 N.Y. 217, 219, 42 N.E.2d 493, 494.

The Vega rule is an unnatural way to determine the existence of a jury issue and leads to anomalous results. My brethren make it clear that had Avion been injured while using this platform to retreat from a fire there would have been a jury issue; since he used the platform for normal travel, jury trial is denied. The platform on which he was hurt was clearly marked “Exit”; why should not the jury pass on the question of whether or not the landlord impliedly invited the plaintiff’s presence there? Why should Avlon’s retreat (or that of the second-floor bowlers) have to be accompanied by flames in order that a jury may pass upon the injuries resulting *621from a defective passageway? Or why should a landlord be excused upon resort to the mere word “fire escape”? To make this fundamental right turn on such barren semantics I find disturbing. I would remand for full trial.

. 2 Restatement, Torts § 360, comment o (1934), reads: “The rule stated in this Section applies not only to the hall, stairs, elevators and other approaches to the part of the land leased to the lessee as a flat, office or room in a tenement or boarding house, but also to such other parts of the land or building to the use of which by the express or implied terms of the lease the lessee is entitled, usually in common with other lessees, such as a bathroom in a boarding house and the roof or yard of a tenement building or apartment house.”