Opinion
May 21, 1951.
In an action to recover damages for personal injuries alleged to have been caused by defendant's negligence and for medical expenses and loss of services incident thereto, plaintiffs appeal from a judgment in favor of defendant, entered upon the dismissal of the complaint, on motion by defendant, at the conclusion of plaintiffs' attorney's opening statement to the jury. Judgment reversed on the law and a new trial granted, with costs to appellants to abide the event. If we assume, without so deciding, that plaintiff Augusta Faber was, as the learned Trial Justice concluded, merely a social guest upon the premises of the defendant, plaintiffs were nevertheless, entitled to a trial upon the claim, in their complaint and in counsel's opening statement, that defendant had created a dangerous condition on the premises, which was known to him, but not to plaintiffs. Under such circumstances, if defendant realized that the condition involved an unreasonable risk, and if he failed to use reasonable care to make the premises safe or to warn plaintiffs of the condition and the risk involved, he may be cast in liability, even though plaintiffs were but social guests. Liability might also have been imposed, if the jury had found that defendant, while plaintiffs were on his premises, as guests, had negligently created a new danger by improperly repairing the stair carpet. ( Higgins v. Mason, 255 N.Y. 104; Goldstein v. Levy, 266 App. Div. 786.) Nolan, P.J., Carswell, Johnston, Sneed and Wenzel, JJ., concur.