Dreyer v. Tishman Realty & Construction Co. , 52 A.D.2d 76 ( 1976 )

Silverman, J.

These are appeals by defendants from a judgment for plaintiff as reduced by the Trial Judge, after a general jury verdict for plaintiff, and by both parties from the unfavorable portions of the order reducing the verdict.

The action is for damages for wrongful death and conscious pain and suffering of plaintiff’s intestate. This is the second trial in this action. The first trial resulted in a verdict and judgment for plaintiff, which this court reversed, ordering a new trial. (Dreyer v Tishman Realty & Constr. Co., 41 AD2d 628.) This court stated: “The main difficulty, however, is that the charge presented the jury with no proper definition of what standard should apply as to defendants’ duty to the unfortunate electrician; the only difference outlined by the court was between a trespasser—the proof was clear that the man was not—and one entering the room with permission. No distinction whatever was made as to the latter class, embracing as it does both invitees and licensees. It is therefore impossible to explain what rationale was availed of by the jury in reaching its decision, and a new trial is required, at which it may be established, under proper instructions, what was the status of the decedent electrician, and what standards of duty on the part of defendants related to that status. Until this question is resolved, it is impossible to resolve the issue of which of three theories of liability presented by the court to the jury for consideration—if any at all—may be considered.” It was thus established as the law of the case in this court that (a) the standard of duty on the part of defendants depends on the status of plaintiff’s intestate as licensee or invitee; and that (b) a question of fact was presented as to whether plaintiff’s intestate was a licensee or an invitee.

On the second trial, the jury in addition to bringing in a general verdict, was required to answer a special interrogatory as to plaintiff’s intestate’s status; they answered that plaintiff’s intestate was a licensee. To the extent that this answer to the interrogatory may be inconsistent with the general verdict, the answer to the interrogatory controls (CPLR 4111, subd [c]).

There is no evidence that defendants violated the limited duties traditionally imposed upon a landowner in favor of a mere licensee. “Where a person goes upon the premises of another without invitation, but simply as a bare licensee, and the owner of the property, passively, acquiesces in his coming, if an injury is sustained by reason of a mere defect in the premises, the owner is not liable for negligence; for such person has taken all the risk upon himself. * * * Toward mere trespassers or bare licensees the rule is well settled that the only duty owing to them by the owner or occupier of land is to abstain from inflicting intentional, wanton or willful injuries unless he maintains some hidden engine of destruction, such as spring guns or kindred devices, upon his property.” (Mendelowitz v Neisner, 258 NY 181, 184, quoted with approval in Carbone v Mackchil Realty Corp., 296 NY 154, 158-159; and Molnar v Slattery Contr. Co., 8 AD2d 95, 98.) As in the Carbone case, in this case too, "[t]he record is devoid of proof that at the time of the accident the defendants, by any affirmative act, changed conditions existing at the site * * * or created new perils there.” (296 NY at p 159.) See, also, Schlaks v Schlaks (17 AD2d 153, 157) as to the limited meaning of "affirmative act of negligence” in this context.

Plaintiffs intestate went into a switchboard room where there were open power switches whose dangers are obvious to any person living in our modern electrified society and particularly so to an apprentice electrician with two years’ experience. He went there to get a 50-foot metal electrical snake. The danger from the snake coming into contact with the open high voltage switches was obvious. There was, apparently improperly, some combustible material (cartons, etc.) in the switchboard room, perhaps at some disputed distance from the switches; such danger as this combustible material contributed was again open and obvious. Defendant did not by its affirmative act change the conditions existing or create new perils therein. (Carbone v Mackchil Realty Corp., supra.) "A licensee takes the property as he finds it with a duty upon the owner to refrain from any affirmative act of negligence and from inflicting any willful or wanton injury.” (Molnar v Slattery Contr. Co., 8 AD2d 95, 98.) Accordingly, the complaint must be dismissed.

Judgment, Supreme Court, New York County (Amsterdam, J.), entered April 11, 1975 should be reversed on the law on defendants’ appeal and the complaint dismissed. In view of the foregoing disposition, the appeals by plaintiff and defendants from the order entered June 3, 1975 (which denied defendants’ motion to dismiss plaintiff’s causes of action but which granted a new trial as to damages on the conscious pain and suffering action only, unless plaintiff accepts $5,000 thereon) should be dismissed as moot. Neither party shall recover costs on appeal, from the other.