Opinion
April 4, 1963
Present — Bergan, P.J., Coon, Herlihy, Reynolds and Taylor, JJ.
Plaintiffs appeal from an order granting summary judgment in a liability negligence case. The examinations before trial of the infant plaintiff and the defendants were part of the moving papers. The facts are not in dispute. The 12-year-old plaintiff and defendants' daughters, together with other children, on the afternoon of October 20, 1961 were playing "house" on the second floor of a garage on the defendants' property. A door, which had been closed and secured, was opened by one of the children who, together with the plaintiff, was waving good-by to some of the departing children. Thereafter plaintiff turned away from the door and then leaned back, fell through the open door to the ground and was injured. The only question on this appeal is whether summary judgment should have been granted against the infant plaintiff. There are legions of cases which enunciate the rule that a social guest, such as plaintiff, is a licensee and takes the premises as found and is entitled to no greater protection than the members of the owner's family. The duty of the defendants has been stated to be twofold: (1) to abstain from affirmative acts of negligence of infliction of intentional injuries ( Fauci v. Milano, 15 A.D.2d 939); (2) to exercise reasonable care in disclosing any danger known to them but not likely to be discovered by the plaintiff. ( Krause v. Alper, 4 N.Y.2d 518.) The facts herein do not admit of any liability under (1) and there are no grounds for recovery under (2) as there is no allegation in the complaint of entrapment or a hidden pitfall nor do the facts justify such an allegation. The barn-type door, through which the plaintiff fell, could not be considered more dangerous than any other type. It was securely fastened and until opened by one of the playmates, no one could have fallen through it. Under such circumstances the granting of summary judgment was proper. ( Schlaks v. Schlaks, 17 A.D.2d 153; Fauci v. Milano, supra; Krause v. Alper, supra.) Order granting summary judgment unanimously affirmed, without costs.