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SUPREME COURT OF NEW YORK, CIVIL TRIAL TERM, KINGS COUNTY 1969.NY.42765 <>; 304 N.Y.S.2d 335; 60 Misc. 2d 840 August 18, 1969 JACK FRUMMER, PLAINTIFF,v.HILTON HOTELS INTERNATIONAL, INC., ET AL., DEFENDANTS Irving A. Scheinberg for plaintiff. Max J. Gwertzman for defendants. Guy James Mangano, J. Author: Mangano

Guy James Mangano, J.

Author: Mangano

 In this negligence action the jury has returned a verdict in favor of the defendant, and the court has been asked by the plaintiff to set aside that determination and grant a new trial. Before discussing the basis of this post-trial motion, the evidence at the trial should be briefly outlined.

On June 9, 1963, plaintiff registered as a guest at the Hilton Hotel in London, England. That night, upon returning to his room, he took a bath. The following night he followed the same procedure. On the third day of his visit, however, he came back to his room late and decided to go to bed immediately. The next morning, June 12, when he arose, he took a shower. While soaping himself he slipped in the bathtub, fell and sustained serious injuries.*fn1

At the trial plaintiff sought to charge the defendant*fn2 with liability on three separate bases: (1) Failing to provide a rubber shower mat even after it had been specifically requested; (2) failing to install grab bars on the wall immediately adjacent to the overhead shower, and (3) not constructing the base of the tub so as to minimize the risk of a person losing his footing. Hilton Limited's position was that it had acted properly in providing all necessary safety devices and that in any case it was plaintiff's own carelessness that was the true cause of the accident. Evidence was offered by the plaintiff to establish each of his theories of liability, while Hilton countered with expert evidence tending to support its position that it had done all that reasonable care required. It may fairly be said that the evidence presented an issue of fact which was for the jury to resolve and which it has -- in defendant's favor.

The motion to set aside the judgment entered upon the jury's verdict is based upon two grounds. The first is that the court failed to charge properly the relevant provisions of English law, particularly the Occupiers' Liability Act of 1957 (5 and 6 Eliz. 2, ch. 31), and the second is that certain photographic evidence was improperly excluded.

The latter point requires only brief comment and therefore will be dealt with first. The defendant called as a witness one Del Como, who on direct testified as to the safety practices of the hotel and the hotel industry in England generally. On cross-examination of the witness plaintiff's counsel sought to introduce photographs showing that grab bars had been installed in the bathtub. It is conceded that these photographs were taken and represent a circumstance which existed only after the accident. Under settled law, the photographs were inadmissible, as they constitute evidence of subsequent repairs (Richardson, Evidence [3d ed., Prince], § 173). Seeking to avoid this exclusionary rule, the moving papers claim that the witness opened the door to this line of inquiry. How this is so is not explained and a reading of the court record shows no statement by the witness concerning safety procedures at the time of the accident which can fairly be said to require contradiction by this type of evidence.

Alternatively, plaintiff's counsel argued that the photographic evidence was admissible to show how the bathtub might easily have been constructed with this added safety precaution. Had such evidence been offered as part of the plaintiff's principal case and in a manner that would have left the jury unaware that changes had in fact been made in the hotel after the accident, the court's ruling would have been otherwise. Instead, the evidence was offered in a manner calculated to bring to the jury's attention the subsequent repairs. This would have unfairly prejudiced the defendant, making hindsight rather than foresight the test of liability.

We turn then to the first point raised here, the contention that the court's charge on the Occupiers' Liability Act of 1957 was inadequate. In the charge the court made no explicit reference to the statute's provisions. The charge contained a general statement of the responsibilities of an innkeeper. From the charge as a whole the jury was informed that the failure of the defendant to provide mats, to install grab bars, or to construct the base of the tub differently, might be held by the jury to constitute negligence. The court felt then and after further research is still of the opinion that no difference is to be found in the duty of an innkeeper under English law than under the common law of New York (21 Halsbury, Laws of England [3d ed.] Inns and Innkeepers, pp. 450-51; 27 N. Y. Jur., Hotels, Restaurants, and Motels, §§ 53, 58). The duty is the same in both jurisdictions -- the exercise of reasonable care.

The Occupiers' Liability Act has no special relevance here, and no specific reference to the statute was required. The law states in subdivision 2 (par. [1]) that an "occupier of premises owes the same duty, the 'common duty of care' to all his visitors, except insofar as he is free to and does extend, restrict, modify or exclude his duty to any visitor or visitors by agreement or otherwise." The next subdivision then goes on to define the term "common duty of care" in language not only familiar to us but to be found in every jurisdiction in the United States. It is "a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there." It does not require much insight to see that the principal purpose of the law was to eliminate the common law invitee-license distinction, and the statute explicitly so provides (§ 1, subd. [2]). An innkeeper's duty was not materially affected by this statute.

Since the court's charge did treat the defendant as owing the degree of care required by common law to an invitee, plaintiff's claim that the Occupiers' Liability Act increased the defendant's responsibility is without merit. Consequently, the moving papers do not establish any basis for the granting of the relief requested. Nevertheless, this discussion cannot terminate here.

During the course of the court's research on the Occupiers' Liability Act, the court became aware of an issue not raised by plaintiff's counsel. It is that contributory negligence is not a defense to this action under English law. That country has adopted a comparative negligence statute which reduces a plaintiff's damages to the extent that plaintiff can be said to be responsible for his own injuries. The statute -- entitled the Law Reform (Contributory Negligence) Act (8 and 9 Geo. VI., ch. 28) -- became law in 1945, and provides in pertinent part (§ 1) as follows: "(I) Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage."

Here the jury was charged in accordance with established New York law, that any negligence on the part of the plaintiff contributing to the accident required a verdict for the defendant. Three questions are thus raised: (1) Assuming that the English statute applies, was the failure to charge the provisions of that statute prejudicial? (2) If the answer to the first question is affirmative, then is the English law the proper controlling rule? (3) Again, if the answer to the latter question be in the affirmative, does plaintiff's failure to bring the matter to the court's attention preclude relief?

Reviewing the record as a whole, it cannot be gainsaid that the issue of contributory fault was important. It may well have been the decisive consideration in the jury's deliberations. This is so despite the fact that the court charged the jury that momentary forgetfulness by the plaintiff of the risk of slipping did not require a finding of contributory negligence. The defendant strenuously argued to the jury -- and now in opposition to the present motion again urges -- that the plaintiff, by proceeding to shower without the mat he claims he asked for, was guilty of contributory negligence as a matter of law. In light of plaintiff's fairly substantial evidence of negligence, it is reasonable to assume that this argument of the defendant carried much if not conclusive weight with the jury. There is, therefore, a strong probability that had England's comparative negligence doctrine been applied, the jury would have returned a verdict in plaintiff's favor -- albeit in an amount reduced by the jury's assessment of the respective responsibilities of the plaintiff and the defendant for the accident.

As the use of New York's contributory negligence rule rather than England's comparative negligence law was in all likelihood the determining factor, it must be decided which rule properly applies here. Fitzpatrick v. International Ry. Co. (252 N. Y. 127) seems clearly in point. There the accident occurred in Ontario, which also had a form of comparative negligence statute. Finding that Ontario's law did not merely provide for a different procedure, but altered substantive law, Judge Cardozo, writing for the Court of Appeals, held according to then ...

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