Bates v. Valley Fair Enterprises, Inc.

Decision Date18 December 1964
Docket NumberNo. A--936,A--936
PartiesClaire BATES and John Bates, Plaintiffs-Appellants, v. VALLEY FAIR ENTERPRISES, INC., t/a Valley Fair Discount Center, Valley Fair-Trenton, Inc., Defendant-Respondent.
CourtNew Jersey Superior Court — Appellate Division

Lewis C. Stanley, Trenton, for appellants.

H. Curtis Meanor, Jersey City, for respondent (Lamb, Blake, Hutchinson & Dunne, Jersey City, attorneys, H. Curtis Meanor and Paul B. Thompson, Jersey City, of counsel).


The opinion of the court was delivered by


Plaintiffs appeal from a final judgment based upon a verdict of no cause of action and from the denial of subsequent motions for a new trial and for judgment n.o.v.

The action was for personal injuries sustained by plaintiff wife as a result of a fall on the parking lot of defendant's shopping center located on Olden Avenue Extension, Ewing Township. On the day of the accident she set out from her home on a shopping trip to defendant's supermarket. She drove to the home of her sister and then accompanied her sister and her niece to defendant's premises.

Defendant's parking lot had a capacity of some 750 cars and permitted parking all around the building. There were no special lanes for walking and no attendants. Plaintiff was looking for a parking place as close to the front of the store as possible. When she observed one which seemed to be vacant, she asked her sister, who was driving, to stop. She then disembarked and began to walk towards the front of the car. As she continued walking and motioning with her left hand for her sister to drive into the empty space, she slipped and fell on what she described as icy patches on the pavement, sustaining the injuries for which she sued. Her husband joined Per quod.

It was undisputed that there had been a rather heavy fall of snow on December 11 and 12 during the prior week. There had been a lighter fall on December 16, 1960, the day before the accident. The weather at the time of the accident was clear and cold, and plaintiff testified on direct examination that the streets and sidewalks were clear, the snow having been removed. When she reached the parking lot she found that the snow had been plowed and was pushed back against the sides of the lot. There were no signs prohibiting the use of the lot or cautioning regarding the use thereof.

Witnesses for the defendant testified that on December 11 and 12 the store had been closed due to the storm. Thereafter, a snow removal contractor cleared the parking lot with bulldozers after which the area was covered with cinders. There was also testimony that on December 17, following the snowfall of the prior day, cinders and salt were spread on the entire parking lot.

At the conclusion of the evidence plaintiff's attorney moved to strike the defense of contributory negligence and for an adjudication of defendant's negligence as a matter of law. Both motions were denied. Defendant's motion for judgment was likewise denied. The jury's verdict was that: 'We find no cause for action. Contributory negligence on the part of both parties.' Thereupon a motion for a new trial and judgment n.o.v. was made, argued and denied. The present appeal followed.

Plaintiff urges three grounds for reversal: (1) defendant's negligence had been established as a matter of law and should not have been submitted to the jury; (2) plaintiff's contributory negligence was erroneously submitted to the jury; and (3) prejudicial error in the charge. However, before passing upon these contentions, we turn to consideration of defendant's motion to dismiss for failure of the appellants to file notice of appeal within the period provided by R.R. 1:3--1(b), and plaintiff's motion for an extension of time pursuant to R.R. 1:27A and 1:27B(d).

The verdict was rendered on April 30, 1963 and judgment was entered by the clerk on May 2, 1963. While the notice of appeal was not filed with the clerk until July 8, 1963, the time for appeal had been tolled by the motion for a new trial and for judgment n.o.v., which was served on May 9 and determined and denied by order filed with the clerk on May 28, 1963. R.R. 1:3--3(f). The notice of appeal was served upon the attorneys for defendants on July 5, 1963, but the wife of counsel for the plaintiff, who was assisting him while he was in the process of moving his offices, was not aware of the summer closing hours for state offices and arrived at the clerk's office too late to file it on that day. It was filed on Monday, July 8, the next day the office was open. It would thus appear that 48 days elapsed between the date of the entry of judgment and the date of the filing of the notice of appeal with the clerk as required by R.R. 1:2--8(a). In support of defendant's motion for dismissal counsel cites In re Nuese, 15 N.J. 149, 104 A.2d 281 (1954); State v. Newman, 36 N.J.Super. 506, 116 A.2d 585 (App.Div.1955) and In re Pfizer, 6 N.J. 233, 78 A.2d 80 (1951).

We are in accord that the interests of justice call for the allowance of the extension. Martindell v. Martindell, 21 N.J. 341, 348--350, 122 A.2d 352 (1956); In re Erie Railroad System, 19 N.J. 110, 140--141, 115 A.2d 89 (1955); In re Syby, 66 N.J.Super. 460, 169 A.2d 479 (App.Div.1961); see also, State v. Petrolia, 21 N.J. 453, 457, 122 A.2d 639 (1956); Hodgson v. Applegate, 31 N.J. 29, 155 A.2d 97 (1959); Klinsky v. Hanson Van Winkle Munning Co., 43 N.J.Super. 166, 128 A.2d 4 (App.Div.1956); Alberti v. Civil Service Commission, 78 N.J.Super. 194, 188 A.2d 194 (App.Div.1963). We are satisfied that defendant was in no wise prejudiced by the delay in filing and, as will be pointed out infra, that the appeal presents questions of substantial merit for determination. We are equally well satisfied that the failure of counsel's wife to arrive at the clerk's office before summer closing time may be considered as good cause within R.R. 1:27B(d). The motion is accordingly granted and we turn to consideration of the merits.

Plaintiffs' first is that the negligence of the defendant had been established as a matter of law and should not have been submitted to the jury. They urge that the parking lot in question was a part of the common passageways connected with defendant's shopping center and that it was its duty to exercise reasonable care to keep it free of ice and snow. Since the defendant in its answers to interrogatories conceded that there was some snow on the pavement of the parking lot and, admittedly, there was no warning of its presence given to those invited thereon, they contend that there remained no factual issue for the jury's determination. In support they cite Gellenthin v. J. & D., Inc., 38 N.J. 341, 353, 184 A.2d 857 (1962); Skupienski v. Maly, 27 N.J. 240, 248--249, 142 A.2d 220 (1958); Krug v. Wanner, 28 N.J. 174, 179--184, 145, A.2d 612 (1958); Merkel v. Safeway Stores, Inc., 77 N.J.Super. 535, 187 A.2d 52 (Law Div.1962). The defendant urges, contra, that it was a jury question as to whether the measures taken by it amounted to reasonable care under the circumstances.

We find no merit to plaintiffs' contention. The parking area was an integral portion of defendant's shopping center. As such, defendant owed to business invitees the duty of exercising reasonable care to maintain it in a reasonably safe condition. Nelson v. Great Atlantic & Pacific Tea Co., 48 N.J.Super. 300, 306, 137 A.2d 599 (App.Div.1958). See also Annotation, 'Liability of Owner or Operator of Parking Lot or Station for Personal Injuries,' 14 A.L.R.2d 780 (1950). As part of this general obligation, defendant was under a duty to exercise reasonable care to keep it free of ice and snow. Cf. Skupienski v. Maly, supra, at p. 249, 142 A.2d 220;Merkel v. SafewayStores Inc., supra, at p. 540, 187 A.2d 52. See also Fitz Simons v. National Tea Co., 29 Ill.App.2d 306, 173 N.E.2d 534 (App.Ct.1961); Evans v. Sears, Roebuck & Co., 104 S.W.2d 1035 (Mo.Ct.App.1937). In view of the contradictory testimony, whether reasonable care was exercised became a question of fact to be determined by the jury.

The cases cited by the plaintiff do not hold otherwise. In Gellenthin the uncontroverted proofs indicated that defendant's leader pipe was constructed in such a manner that water from it was discharged in mid-air, ran across the sidewalk and froze. In Skupienski v. Maly, Krug v. Wanner and Merkel v. Safeway Stores, Inc., the question of defendant's negligence was held to be for the jury.

We are likewise satisfied that the contributory negligence of Mrs. Bates was properly submitted to the jury. Counsel argues that she had the right to assume that the way was safe and, in submitting the issue of contributory negligence to the jury, the court deprived her of the right to rely on this assumption. We disagree. Mrs. Bates came to the premises as a business invitee. The evidence supports her contention that she was using the parking lot in the manner in which it was intended that it be used. Defendant was required to exercise ordinary care to render the premises reasonably safe. Nelson, supra, at p. 305, 137 A.2d 599. She had the right to assume that it had performed this duty. Cooper v. Reinhardt, 91 N.J.L. 402, 404, 103 A. 24 (Sup.Ct.1918). Yet some degree of observation was required of her. She knew that it had snowed the week before and again on the day before the accident. She had observed snow banked along the streets and at the sides of the parking lot. The temperature that day varied from 20 to 34 F. As an apparent concession to the weather, she was wearing rubber boots. The accident occurred in the daytime and there was no testimony of any interference with her vision. Clearly, she was required to exercise reasonable care for her own safety as she walked along. This included the making of such observations as were reasonably called for by the circumstances. What...

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    ...N.J. 303, 316, 153 A.2d 1, 78 A.L.R.2d 95 (1959); Benton v. Y.M.C.A., 27 N.J. 67, 141 A.2d 298 (1958); Bates v. Valley Fair Enterprises, Inc., 86 N.J.Super. 1, 205 A.2d 746 (App.Div.1964); but cf. Rado v. Zlotnick, 7 N.J.Super. 197, 72 A.2d 533 (App.Div.1950) , certification denied 5 N.J. 3......
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