Overby v. Union Laundry Co., A--600

• Decision Date: 28 October 1953
• Docket Number: No. A--600,A--600
• Citation: 28 N.J.Super. 100,100 A.2d 205
• Parties: OVERBY et al. v. UNION LAUNDRY CO. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 100

28 N.J.Super. 100

100 A.2d 205

OVERBY et al. v. UNION LAUNDRY CO.

No. A--600.

Superior Court of New Jersey Appellate Division.

Argued Oct. 13, 1953.

Decided Oct. 28, 1953.

Edmund J. Canzona, Red Bank, for appellants (Parsons, Labrecque, Canzona & Combs, Red Bank, attorneys).

Thomas Francis Doyle, Jersey City, for respondent (Townsend & Doyle, Jersey City, attorneys; Mark Townsend, Jersey City, of counsel; Frederick J. Fox, Jersey City, on the brief).

Before Judges EASTWOOD, JAYNE and FRANCIS.

The opinion of the court was delivered by

JAYNE, J.A.D.

The mishap in consequence of which this action was instituted occurred in the building of the Union Laundry Company at the corner of Patterson Avenue and Broad Street in the Borough of Shrewsbury on the early afternoon of July 26, 1952. The plaintiff, Louise Overby, sought to recover from the company compensatory damages for the bodily injuries she sustained in the mishap. Her husband, John A. Overby, sued Per quod. The motion made at the conclusion of the plaintiffs' evidence for an involuntary dismissal of the action was granted and a conformable judgment entered, from which the plaintiffs appeal.

The pretrial order reveals concisely the theme of the alleged cause of action:

'plfs contend that the plf Louise on July 26, '52, entered the place of business of deft in Shrewsbury, N.J. as a customer and that she slipped on the slippery floor and injured herself. Plfs further allege the floor had been recently waxed and was done carelessly and negligently; the wax being soft and slippery. Plf claims personal injuries and expenses and the plf John as husband of the plf Louise files his derivative claim; plfs alleged that the plf Louise fell at a point about one step inside the front door.'

The only testimony introduced at the trial to establish the allegation that the floor had been carelessly and negligently waxed came from Mrs. Overby. It is laconic and may be conveniently quoted:

'Q. Will you tell us the manner in which you entered the laundry and what happened? A. Well, I stepped into the laundry on my right foot and went to make a second step with my left foot, and my right toe slipped from under me and I went down on my right knee.

'Q. What kind of shoes were you wearing? A. I had barefoot sandals on, no stockings.

'Q. In that type of shoe, is the toe covered or protected, or open? A. No, there is just a leather sole with one strap between my big toe--my first and second toe, and strap across my heel and over my instep.

'Q. You put that foot down and it slipped, is that right? A. That's right.

'Q. Did any part of your foot strike the saddle or sill of the entrance as you stepped in? A. No, it didn't.

'Q. Will you tell us what you observed? A. Well, where I had slipped I had made a skid mark on the floor, and there was a scraping left on the floor from where I had skidded, and I sat there and I looked around the edge and around the edge near the baseboard and spots on the floor near the counter, you could see where it was dull, a dull soft-looking finish, it wasn't polished completely like the middle of the floor. The middle of the floor was shiny, glassy-looking.

'Q. You speak about a skid mark. Can you tell us specifically the length and width of that mark? A. Well, I would say it was about an inch wide and about a foot, a foot and a little over in length.

'Q. And when you went out, as you went by the place did you pass over the spot where you fell as you left the place? A. Yes, I did. I took my foot and rubbed it on the edge, and there was wax on my shoe, on the corner of my shoe.

'A. You did it deliberately? A. Yes, I did. I wanted to see what was there, what caused me to fall. It was something there.

'Q. That's right, it was something that caused you to fall? A. That's right, it was wax there.

'Q. You are so right. A. It was wax.

'Q. It was while you were there in the ten or fifteen minutes in this pain that when you were leaving you went over and scraped your--put your shoe against the side to find out whether there was any wax there? A. I knew I slipped. I knew it was slippery there when I fell.

'Q. Possibly you don't understand my question? A. I'm sorry, sir. I did, I walked there and on my way out the door I took my toe and scraped around on the side.'

As a legal concept negligence is not an imaginative notion, a creature of mere surmise or conjecture; it denotes elements of factuality from which a lack of due care can be rationally deduced. It is not presumed that every injurious mishap that one encounters is necessarily attributable to the negligence of another. The factual pedestal stabilizing the logical inference of negligence must be established by some competent proof. Oelschlaeger v. Hahne & Co., 2 N.J. 490, 66 A.2d 861 (1949); Callahan v. National Lead Co., 4 N.J. 150, 72 A.2d 187 (1950); Hansen v. Eagle-Picher Lead Co., 8 N.J. 133, 84 A.2d 281 (1951).

And then it is to be recognized that negligence and reasonable care are relative terms. In the field of negligence we compare and contrast the conduct of the accused with that which the hypothetical person of reasonable vigilance, caution and prudence would have exercised in the same or similar factual conditions.

The author of this opinion expressed the conviction in Gentile v. Public Service Coordinated Transport, 12 N.J.Super. 45, 51, 78 A.2d 915 (App.Div.1951), that the hypothetical example of human prudence should be regarded as our contemporary and not our forefather. I ventured the assertion that what the reasonably prudent individual would do or refrain from doing in our modern environment of advantages and coincidental hazards cannot rationally be measured today in all instances by the probable behavior of our ancestors in the conditions of the age in which they lived.

Illustrative is the recollection that in entering the village stores of the distant past the barefoot customers were more likely to get splinters in their feet from the floor than to slip on any waxed surface. Thus over the years our concepts and associated mentations of ordinary care, caution, diligence, carelessness, delay, recklessness, assumption of risks, and so on, have been constructively metabolized.

The court is presumed to know what everybody else knows. Conscious of our daily observations of the present time, it would be fantastic for us to say that the person who causes the surface of the floor of his hotel lobby, store, or office to be made smooth, clean and attractive by the use of floor wax is Ipso facto guilty of negligence and that the hypothetical person of the law would not have done so because the process tends to make the surface slippery. Our modern decisional law assumes no such senile posture. Vide, Abt v. Leeds & Lippincott Co., 109 N.J.L. 311, 162 A. 525 (E. & A.1932); Blessing v. Goodman, 137 N.J.L. 395, 60 A.2d 69 (Sup.Ct.1948).

Our former Court of Errors and Appeals invited attention, however, to the distinction between a floor that is perhaps 'very slippery' and one that is 'unusually slippery.' Blessing v. Goodman, 133 N.J.L. 608, 45 A.2d 588 (E. & A.1946).

And so it is resolved that proof of the mere circumstance that a person falls upon a floor that admittedly has been waxed does not warrant any inference that the mishap was caused by the proprietor's negligence. Abt v. Leeds & Lippincott Co., supra.

To generate an inference of negligence in such cases, it must be made to appear that either in the nature or quantity of the substance used, or in the manner or time of its application, there was such a departure from the normal or generally accepted standards as to create a hazard of a tortious character for the lawful users of the premises. Bosze v. Metropolitan Life Insurance Co., 1 N.J. 5, 61 A.2d 499 (1948).

Obviously the testimony adduced in the present case does not relate to the quality or nature of the wax used or to the time of its application. Its evidential import, if any, of a culpable omission of duty by the defendant must therefore be taken to relate to the manner in which the wax had been applied, the quantity used, and its distribution. It follows that the appropriate inquiry is whether the meager testimony would originate in the minds of jurors a reasonable inference that in those respects (1) the wax had been applied to the floor in a manner so unconformable to the normal and generally accepted practices, (2) that a hazard of a tortious character was thereby created.

Manifestly the debated question attracts our attention more predominantly to the processes of rationalization than to the principles of law. Precedents are normally scarce in this field of judicial action because seldom in the family of analogous cases do you discover twins in the evidentiary qualities of their anatomies.

We recall the decisions in Kass v. Glatzel, 147 A. 652, 7 N.J.Misc. 1006 (Sup.Ct.1929); McGee v. Kraft, 110 N.J.L. 532, 166 A. 80 (E. & A.1933); Berardo v. Ambrozy, 128 N.J.L. 295, 25 A.2d 538 (Sup.Ct.1942); Burdge v. Retail Department Stores of America, Inc., 129...