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Kenneth Vercammen & Associates Law Office helps people injured due
to the negligence of others. We provide representation throughout New
Jersey. The insurance companies will not help. Don't give up! Our Law
Office can provide experienced attorney representation if you are injured.
Our website www.njlaws.com provides information on civil cases we can
be retained to represent people.
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.
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.
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.
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.
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.
* * *
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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