Kelly v. Loft, Inc.

• Decision Date: 25 January 1940
• Docket Number: No. 20.,20.
• Citation: 124 N.J.L. 185,11 A.2d 58
• Parties: KELLY et al. v. LOFT, Inc.
• Court: New Jersey Supreme Court

11 A.2d 58

124 N.J.L. 185

KELLY et al. v. LOFT, Inc.

No. 20.

Court of Errors and Appeals of New Jersey.

Jan. 25, 1940.

Appeal from Supreme Court.

Action by Anna Kelly and Raymond Kelly against Loft, Inc., a body corporate of the state of Delaware, to recover for injuries suffered in a fall. From a judgment of nonsuit, plaintiffs appeal.

Affirmed.

Quinn & Doremus, of Red Bank (John J. Quinn, of Red Bank, of counsel), for plaintiffs-appellants.

Edward R. McGlynn, of Newark (Joseph Weintraub, of Newark, on the brief), for defendant-respondent.

PORTER, Justice.

The plaintiff-appellant, Anna Kelly, went into the defendant-respondent's store in Asbury Park in the evening of March 22nd, 1937, to purchase candy. While in the act of leaving the store she slipped, fell to the floor and was hurt. The main floor of this store is six inches above the entrance doorway. Instead of a step there is an incline of the floor from the entrance to the level of the main floor. This incline is eight feet in length, making an elevation of three quarters of an inch to each foot. The floor is covered with linoleum.

She, with her husband, brought suit to recover their respective damages. The complaint charges negligence in two respects. First, the failure to use reasonable care in the maintenance of the floor by the use thereon of slippery and dangerous substances. Second, the construction of the floor in a negligent manner.

At the close of the plaintiffs-appellants case the trial judge granted a nonsuit, and from the judgment entered thereon the plaintiff appeals.

We think the nonsuit was right.

The proofs were barren of the presence of any substance on the floor which caused the fall. Interrogatives were read into the record which indicated that the linoleum had been mopped with warm water and soap on the morning of the accident and dried by the mopping and evaporation. Clearly there were no facts raised of any lack of reasonable care of condition of the floor covering.

As to faulty construction the testimony of an experienced builder was that the floor was not constructed by standard and generally accepted practise, that the incline was too sharp a slope. In his opinion, it was dangerous. He quite clearly bases his opinion to that effect on the theory that store floors ought to be level and that most of them, 90% he estimates, are.

It is not enough that the construction of the floor was not standard but it should further be shown that the deviation from the standard resulted in an unsafe and dangerous condition. That was not shown. True an expert witness, who was thoroughly examined, gave his opinion that it was dangerous but he based his opinion solely on the theory that all store floors should be level. While that is some testimony it is...