Opinion
July 29, 1974
In a negligence action to recover damages for personal injuries, plaintiff appeals from a judgment of the Supreme Court, Kings County, dated March 22, 1973, and entered upon a jury verdict in favor of respondents and against appellant. Judgment reversed, on the law, and new trial ordered, with costs to abide the event. The court erred in refusing to charge that plaintiff might have been an invitee upon defendant Roosevelt Raceway's land because there was substantial evidence that the area in which he was injured had all the appearances of a continuation of the public street, Ellison Avenue, upon which the car in which defendant was riding at the time of the accident was travelling. In cases of such "misrepresentation", an injured party is treated as an invitee, and not a trespasser or a licensee, with all the duties and protection the status of invitee provides (Prosser, Law of Torts [4th ed.], p. 354). The court's charge in this regard was, at best, confusing and inadequate. In addition, we note that the trial conduct and summation of defendant Roosevelt Raceway's trial counsel were highly improper and prejudicial. Hopkins, Acting P.J., Shapiro, Christ and Benjamin, JJ., concur; Martuscello, J., dissents and votes to affirm the judgment.