Summary
In Thibault v Franzese (24 AD2d 903 [2d Dept 1965]), the Second Department held that the "defendants' duty to use reasonable care to protect the plaintiff... a 73-year old senile woman, whom... the defendants had undertaken to care for while she was in their home, was not measured by what their duty would have been to a social guest as a mere licensee... They were required to use reasonable care to protect her from injury" (see also Tooker v Tooker, 193 AD2d 563, 563 [1st Dept 1993]).
Summary of this case from Jacobs v. NewtonOpinion
November 29, 1965
In an action to recover damages for personal injury sustained by the plaintiff Louise Thibault when she allegedly slipped on ice which was present on the defendants' premises, and by the plaintiff Arthur J. Thibault to recover damages for medical expenses and loss of services, the plaintiffs appeal from a judgment of the Supreme Court, Queens County, entered January 20, 1965, which dismissed the complaint at the end of the plaintiffs' case. Judgment reversed on the law, and new trial granted, with costs to abide the event. No questions of fact have been considered. In our opinion, the defendants' duty to use reasonable care to protect the plaintiff Louise Thibault, a 73-year-old senile woman, whom it is alleged the defendants had undertaken to care for while she was in their home, was not measured by what their duty would have been to a social guest as a mere licensee (cf. Zalak v. Carroll, 15 N.Y.2d 753). They were required to use reasonable care to protect her from injury. The issues of whether the defendants did undertake the duty to care for this plaintiff and whether they were negligent in the performance thereof are questions of fact which must be resolved by the jury and may not be decided by the court as a matter of law. Beldock, P.J., Ughetta, Brennan, Rabin and Benjamin, JJ., concur.