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Office can provide experienced attorney representation if you are injured
in an accident and suffer a Serious Injury.
Fall Down Law in New Jersey Based on Jury Request to Charge
Edited by Kenneth Vercammen, Esq.
Sometimes, store customers are injured in fall downs caused by wet and
slippery floors or failure by stores to clean up broken or fallen items.
No one plans on being injured in an accident, whether it is a car accident,
fall down or other situation. Speak with a personal injury attorney immediately
to retain all your rights. The stores are responsible for the maintenance
of their premises which are used by the public. It is the duty of the
store to inspect and keep said premises in a safe condition and free from
any and all pitfalls, obstacles or traps that would likely cause injury
to persons lawfully thereon. It is further the duty of the store to properly
and adequately inspect, maintain and keep the library premises free from
danger to life, limb and property of persons lawfully and rightfully using
same and to warn of any such dangers or hazards thereon. You may be lawfully
upon the premises as a business invitee in the exercise of due care on
your part, and solely by reason of the omission, failure and default of
the store, be caused to fall down If the store did not perform their duty
to plaintiff to maintain the premises in a safe, suitable and proper condition,
you may be entitled to make a claim. If severely injured, you can file
a claim for damages, together with interest and costs of suit. Injured
people can demand trial by jury.
The following information is taken from the old model jury charges dealing
with fall downs by store customers:
INVITEE - DEFINED AND GENERAL DUTY OWED
An invitee is one who is permitted to enter or remain on land (or premises)
for a purpose of the owner (or occupier). He/She enters by invitation,
expressed or implied. The owner (or occupier) of the land (or premises)
who by invitation, expressed or implied, induced persons to come upon
his/her premises, is under a duty to exercise ordinary care to render
the premises reasonably safe for the purposes embraced in the invitation.
Thus, he/she must exercise reasonable care for the invitee's safety. He/She
must take such steps as are reasonable and prudent to correct or give
warning of hazardous conditions or defects actually known to him/her (or
his/her employees), and of hazardous conditions or defects which he/she
(or his/her employees) by the exercise of reasonable care, could discover.
BUSINESS INVITEE FALL DOWNS: The basic duty of a proprietor of premises
to which the public is invited for business purposes of the proprietor
is to exercise reasonable care to see that one who enters his/her premises
upon that invitation has a reasonably safe place to do that which is within
the scope of the invitation. Notes:
(1) Business Invitee: The duty owed to a "business invitee"
is no different than the duty owed to other "invitees."
(2) Construction Defects, Intrinsic and Foreign Substances: The rules
dealt with in this section and subsequent sections apply mainly to those
cases where injury is caused by transitory conditions, such as falls due
to foreign substances or defects resulting from wear and tear or other
deterioration of premises which were originally constructed properly.
Where a hazardous condition is due to defective construction or construction
not in accord with applicable standards it is not necessary to prove that
the owner or occupier had actual knowledge of the defect or would have
become aware of the defect had he/she personally made an inspection. In
such cases the owner is liable for failing to provide a safe place for
the use of the invitee.
Thus, in Brody v. Albert Lipson & Sons, 17 N.J. 383 (1955), the court
distinguished between a risk due to the intrinsic quality of the material
used (calling it an "intrinsic substance" case) and a risk due
to a foreign substance or extra-normal condition of the premises. There
the case was submitted to the jury on the theory that the terrazzo floor
was peculiarly liable to become slipper when wet by water and that defendant
should have taken precautions against said risk. The court appears to
reject defendant's contention that there be notice, direct or imputed
by proof of adequate opportunity to discover the defective condition.
17 N.J. at 389.
It may be possible to reconcile this position with the requirement of
constructive notice of an unsafe condition by saying that an owner of
premises is chargeable with knowledge of such hazards in construction
as a reasonable inspection by an appropriate expert would reveal. See:
Restatement to Torts 2d, §343, Comment f, pp. 217-218 (1965), saying
that a proprietor is required to have superior knowledge of the dangers
incident to facilities furnished to invitees.
Alternatively, one can view these cases as within the category of defective
or hazardous conditions created by defendant or by an independent contractor
for which defendant would be liable (see introductory note above).
Cases:
Bozza v. Vornado, Inc., 42 N.J. 355, 359 (1954) (slip and fall on sticky,
slimy substance in self-service cafeteria which inferably fell to the
floor as an incident of defendant's mode of operation).
Buchner v. Erie Railroad Co., 17 N.J. 283, 285-286 (1955) (trip over
curbstone improperly illuminated).
Brody v. Albert Lifson & Sons, 17 N.J. 383, 389 (1955) (slip and
fall on wet composition floor in store).
Bohn v Hudson & Manhattan R. Co., 16 N.J. 180, 185 (1954) (slip onsmooth
stairway in railroad station).
Williams v. Morristown Memorial Hospital, 59 N.J. Super. 384, 389 (App.
Div. 1960) (fall over low wire fence separating grass plot from sidewalk).
Nary v. Dover Parking Authority, 58 N.J. super. 222, 226-227 (App. Div.
1959) (fall over bumper block in parking lot).
Parmenter v. Jarvis Drug Store, Inc., 48 N.J. Super. 507, 510 (App. Div.
1957) (slip and fall on wet linoleum near entrance of store on rainy day).
Nelson v. Great Atlantic & Pacific Tea Co., 48 N.J. Super. 300 (App.
Div. 1958) (inadequate lighting of parking lot of supermarket, fall over
unknown object).
Barnard v. Trenton-New Brunswick Theatre Co., 32 N.J. Super. 551, 557
(App. Div. 1954) (fall over ladder placed in theatre lobby by workmen
of independent contractor).
Ratering v. Mele, 11 N.J. Super. 211, 213 (App. Div. 1951) (slip and
fall on littered stairway at entrance to restaurant).
DUTY TO INSPECT OWED TO INVITEE The duty of an owner (or occupier) of
land (or premises) to make the place reasonably safe for the proper use
of an invitee requires the owner or occupier to make reasonable inspection
of the land (or premises) to discover hazardous conditions. Cases:
Handelman v. Cox, 39 N.J. 95, 111 (1963) (salesman showing merchandise
to employees of defendant fell down cellar stairway partially obscured
by carton)
NOTICE OF PARTICULAR DANGER AS CONDITION OF LIABILITY If the jury members
find that the land (or premises) was not in a reasonably safe condition,
then, in order to recover, plaintiff must show either that the owner (or
occupier) knew of the unsafe condition for a period of time prior to plaintiff's
injury sufficient to permit him/her in the exercise of reasonable care
to have corrected it, or that the condition had existed for a sufficient
length of time prior to plaintiff's injury that in the exercise of reasonable
care the owner (or occupier) should have discovered its existence and
corrected it.
Cases:
Tua v. Modern Homes, Inc., 64 N.J. Super. 211 (App. Div. 1960), affirmed,
33 N.J. 476 (1960) (slip and fall on small area of slipper waxlike substance
in store); Parmenter v. Jarvis Drug Store, Inc., 48 N.J. Super. 507, 510
(App. Div. 1957) (slip and fall on wet linoleum near entrance of store
on rainy day); Ratering v. Mele, 11 N.J. Super. 211, 213 (App. Div. 1951)
(slip and fall on littered stairway at entrance to restaurant).
Notes:
(1) The above charge is applicable to those cases where the defendant
is not at fault for the creation of the hazard of where the hazard is
not to be reasonably anticipated as an incident of defendant's mode of
operation. See: Maugeri v. Great Atlantic & Pacific Tea Company, 357
F.2d 202 (3rd Cir. 1966) (dictum).
(2) An employee's knowledge of the danger is imputed to his/her employer,
the owner of premises. Handelman v. Cox, 39 N.J. 95, 104 (1963).
NOTICE NOT REQUIRED WHEN CONDITION IS CAUSED BY DEFENDANT If the jury
members find that the land (or premises) was not in a reasonably safe
condition and that the owner (or occupier) or his/her agent, servant or
employee created that condition through his/her own act or omission, then,
in order for plaintiff to recover, it is not necessary for the jury members
also to find that the owner (or occupier) had actual or constructive notice
of the particular unsafe condition.
Cases:
Smith v. First National Stores, 94 N.J. Super. 462 (App. Div. 1967) (slip
and fall on greasy stairway caused by sawdust tracked onto the steps by
defendant's employees); Plaga v. Foltis, 88 N.J. Super. 209 (App. Div.
1965) (slip and fall on fat in restaurant area traversed by bus boy);
Torda v. Grand Union Co., 59 N.J. Super. 41 (App. Div. 1959) (slip and
fall in self-service market on wet floor near vegetable bin). Also see:
Thompson v. Giant Tiger Corp., 118 N.J.L. 10 (E. & A. 1937); Wollerman
v. Grand Union Stores, Inc., 47 N.J. 426 (1956); Lewin v. Orbach's, Inc.,
14 N.J. Super. 193 (App. Div. 1951); Maugeri v. Great Atlantic & Pacific
Tea Company, 357 F.2d 202 (3rd Cir. 1966).
BURDEN OF GOING FORWARD
In Wollerman v. Grand Union Stores, Inc., 47 N.J. 426, 429-430 (1966),
the court held that where string beans are sold from bins on a self-service
basis there is a probability that some will fall or be dropped on the
floor either by defendant's employees or by customers. Since plaintiff
would not be in a position to prove whether a particular string bean was
dropped by an employee or another customer (or how long it was on the
floor) a showing of this type of operation is sufficient to put the burden
on the defendant to come forward with proof that defendant did what was
reasonably necessary (made periodic inspections and clean-up) in order
to protect a customer against the risk of injury likely to be generated
by defendant's mode of operation. Presumably, however, the burden of proof
remains on plaintiff to prove lack of reasonable care on defendant's part.
If defendant fails to produce evidence of reasonable care, the jury may
infer that the fault was probably his. See also: Bozza, supra, 42 N.J.
at 359.
Whether or not defendant has furnished an invitee with a reasonably safe
place for his/her use may depend upon the obviousness of the condition
claimed to be hazardous and the likelihood that the invitee would realize
the hazard and protect himself/herself against it. Even though an unsafe
condition may be observable by an invitee the jury members may find that
an owner (or occupier) of premises is negligent, nevertheless, in maintaining
said condition when the condition presents an unreasonable hazard to invitees
in the circumstances of a particular case. If the jury members find that
defendant was negligent in maintaining an unsafe condition, even though
the condition would be obvious to an invitee, the fact that the condition
was obvious should be considered by the jury members in determining whether
the invitee was contributorily negligent (a) in proceeding in the face
of a known hazard or (b) in the manner in which the invitee proceeded
in the face of a known hazard.
DISTRACTION OR FORGETFULNESS OF INVITEE Even if the jury members find
that plaintiff knew of the existence of the unsafe or defective condition,
or that the unsafe or defective condition was so obvious that defendant
had a reasonable basis to expect that an invitee would realize its existence,
plaintiff may still recover
if the circumstances or conditions are such that plaintiff's attention
would be distracted so that he/she would not realize or would forget the
location or existence of the hazard or would fail to protect himself/herself
against it. Thus, even where a hazardous condition is obvious the jury
members must first determine whether in the circumstances the defendant
was negligent in permitting the condition to exist. Even if defendant
was negligent, however, if plaintiff knew that a hazardous condition existed,
plaintiff could not recover if he/she was contributorily negligent, that
is to say, plaintiff could not recover if he/she did not act as a reasonably
prudent person either by proceeding in the face of a known danger or by
not using reasonable care in the manner in which he/she proceeded in the
face of the danger. In considering whether plaintiff was contributorily
negligent the jury members may consider that even persons of reasonable
prudence in certain circumstances may have their attention distracted
so that they would not realize or remember the existence of a hazardous
condition and would fail to protect themselves against it. Mere lapse
of memory or inattention or mental abstraction at the critical moment
is not an adequate excuse. One who is inattentive or forgetful of a known
and obvious danger is contributorily negligent unless there is some condition
or circumstance which would distract or divert the mind or attention of
a reasonably prudent person. Note:
In McGrath v. American Cyanamid Co., 41 N.J. 272 (1963), the employee
of a subcontractor was killed when a plank comprising a catwalk over a
deep trench up-ended causing him to fall. The court held that even if
the decedent had appreciated the danger that fact by itself would not
have barred recovery. The court said if the danger was one which due care
would not have avoided, due care might, nevertheless, require notice of
warning unless the danger was known or obvious. If the danger was created
by a breach of defendant's duty of care, that negligence would not be
dissipated merely because the decedent knew of the danger. Negligence
would remain, but decedent's knowledge would affect the issue of contributory
negligence. The issue would remain whether decedent acted as a reasonably
prudent person in view of the known risk, either by incurring the known
risk (by staying on the job), or by the manner in which he proceeded in
the face of that risk.
In Zentz v. Toop, 92 N.J. Super. 105, 114-115 (App. Div. 1966), affirmed
o.b., 50 N.J. 250 (1967), the employee of a roofing contractor, while
carrying hot tar, tripped over a guide wire supporting an air conditioning
tower on a roof. The court held that even if plaintiff had observed the
wires or if they were so obvious that he/she should have observed them,
the question remained whether, considering the hazard and the work of
the employee, he/she was entitled to more than mere knowledge of the existence
of the wires or whether he/she was entitled to a warning by having the
wires flagged or painted in a contrasting color. This was a fact for the
jury to determine. The jury must also determine whether defendant had
reason to expect that the employee's attention would have been distracted
as he/she worked or that he/she would forget the location of a known hazard
or fail to protect himself against it. The court also held the plaintiff's
knowledge of the danger would not alone bar his/her recovery, but this
knowledge goes to the issue of contributory negligence.
In Ferrie v. D'Arc, 31 N.J. 92, 95 (1959), the court held that there
was no reasonable excuse for plaintiff's forgetfulness or inattention
to the fact that a railing was temporarily absent from her porch, as she
undertook to throw bones to her dog, and fell to the ground because of
the absence of a railing she customarily leaned upon. The court held:
"When an injury results from forgetfulness or inattention to a known
danger, the obvious contributory negligence is not excusable in the absence
of some condition or circumstance which would divert the mind or attention
of an ordinarily prudent man. Mere lapse of memory, or inattention or
mental abstraction at the critical moment cannot be considered an adequate
diversion. One who is inattentive to or forgetful of a known and obvious
condition which contains a risk of injury is obvious condition which contains
a risk of injury to guilty of contributory negligence as a matter of law,
unless some diversion of the type referred to above is shown to have existed
at the time."
The following discussion in 2 Harper & James, Torts, §27.13,
pp. 1489 et seq., (1956), cited with approval in Zentz v. Toop, supra,
92 N.J. Super. at 112, may be helpful in understanding the principles
involved in the above charges:
Once an occupier has learned of dangerous conditions on his/her premises,
a serious question arises as to whether he/she may--as a matter of law
under all circumstances--discharge all further duty to his/her invitees
by simply giving them "a warning adequate to enable them to avoid
the harm." A good many authorities, including the Restatement, take
the position that he/she may. But this proposition is a highly doubtful
one both on principle and authority. The alternative would be a requirement
of due care to make the conditions reasonably safe--a requirement which
might well be satisfied by warning or obviousness in any given case, but
which would not be so satisfied invariably.
* * *
1. Defendant's duty. People can hurt themselves on almost any condition
of the premises. That is certainly true of an ordinary flight of stairs.
But it takes more than this to make a condition unreasonably dangerous.
If people who are likely to encounter a condition may be expected to take
perfectly good care themselves without further precautions, then the condition
is not unreasonably dangerous because the likelihood of harm is slight.
This is true of the flight of ordinary stairs in a usual place in the
daylight. It is also true of ordinary curbing along a sidewalk, doors
or windows in a house, counters in a store, stones and slopes in a New
England field, and countless other things which are common in our everyday
experience. It may also be true of less common and obvious conditions
which lurk in a place where visitors would expect to find such dangers.
The ordinary person can use or encounter all of these things safely if
he/she is fully aware of their presence at the time. And if they have
no unusual features and are in a place where he/she would naturally look
for them, he/she may be expected to take care of himself if they are plainly
visible. In such cases it is enough if the condition is obvious, or is
made obvious (e.g., by illumination). * * *
On the other hand, the fact that a condition is obvious--i.e., it would
be clearly visible to one whose attention was directed to it--does not
always remove all unreasonable danger. It may fail to do so in two lines
of cases. In one line of cases, people would not in fact expect to find
the condition where it is, or they are likely to have their attention
distracted as they approach it, or, for some other reason, they are in
fact not likely to see it, though it could be readily and safely avoided
if they did. There may be negligence in creating or maintaining such a
condition even though it is physically obvious; slight obstructions to
travel on a sidewalk an unexpected step in a store aisle or between a
passenger elevator and the landing furnish examples. Under the circumstances
of any particular case, an additional warning may, as a matter of fact,
suffice to remove the danger, as where a customer, not hurried by crowds
or some emergency, and in possession of his/her facilities, is told to
"watch his/her step" or "step up" at the appropriate
time. When this is the case, the warning satisfies the requirement of
due care and is incompatible with defendant's negligence. Here again,
plaintiff's recovery would be prevented by that fact no matter how careful
he/she was. But under ordinary negligence principles the question is properly
one of fact for the jury except in the clearest situations.
In the second line of cases the condition of danger is such that it cannot
be encountered with reasonable safety even if the danger is known and
appreciated. An icy flight of stairs or sidewalk, a slippery floor, a
defective crosswalk, or a walkway near an exposed high tension wire may
furnish examples. So may the less dangerous kind of condition if surrounding
circumstances are likely to force plaintiff upon it, or if, for any other
reason, his/her knowledge is not likely to be a protection against danger.
It is in these situations that the bit of the Restatement's "adequate
warning" rule is felt. Here, if people are in fact likely to encounter
the danger, the duty of reasonable care to make conditions reasonably
safe is not satisfied by a simple warning; the probability of harm in
spite of such precaution is still unreasonably great. And the books are
full of cases in which defendants, owing such a duty, are held liable
for creating or maintaining a perfectly obvious danger of which plaintiffs
are fully aware. The Restatement, however, would deny liability here because
the occupier need not invite visitors, and if he/she does, he/she may
condition the invitation on any terms he/she chooses, so long as there
is full disclosure of them. If the invitee wishes to come on those terms,
he/she assumes the risk.
The Restatement view is wrong in policy. The law has never freed landownership
or possession from all restrictions or obligations imposed in the social
interest. The possessor's duty to use care towards those outside the land
is of long standing. And many obligations are imposed for the benefit
of people who voluntarily come upon the land. For the invitee, the occupier
must make reasonable inspection and give warning of hidden perils. . .
But this should not be conclusive. Reasonable expectations may raise duties,
but they should not always limit them. The gist of the matter is unreasonable
probability of harm in fact. And when that is great enough in spite of
full disclosure, it is carrying the quasi-sovereignty of the landowner
pretty far to let him ignore it to the risk of life and limb. So far as
authority goes, the orthodox theory is getting to be a pretty feeble reed
for defendants to lean on. It is still frequently stated, though often
by way of dictum. On the other hand, some cases have simply--though unostentatiously--broken
with tradition and held defendant liable to an invitee in spite of his/her
knowledge of the danger, when the danger was great enough and could have
been feasibly remedied. Other cases stress either the reasonable assumption
of safety which the invitee may make or the likelihood that his/her attention
will be distracted, in order to cut down the notion of what is obvious
or the adequacy of warning. And the latter is often a jury question even
under the Restatement rule. It is not surprising, then, that relatively
few decisions have depended on the Restatement rule alone for denying
liability.
2. Contributory Negligence. . . But there are several situations in which
a plaintiff will not be barred by contributory negligence although he/she
encountered a known danger. . . For another, it is not necessarily negligent
for a plaintiff knowingly and deliberately to encounter a danger which
it is negligent for defendant to maintain. Thus a traveler may knowingly
use a defective sidewalk, or a tenant a defective common stairway, without
being negligent if the use was reasonable under all the circumstances.
CONCLUSION These situations show that the invitee will not always be
barred by his/her self-exposure to known dangers on the premises.
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