Picco v. Fords Diner, Inc.

• Decision Date: 01 March 1971
• Citation: 274 A.2d 301,113 N.J.Super. 465
• Parties: John PICCO, Individually and as Guardian ad Litem of Frederick Picco, an infant, Plaintiff-Respondent, v. FORDS DINER, INC., a New Jersey corporation, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 465

113 N.J.Super. 465

274 A.2d 301

John PICCO, Individually and as Guardian ad Litem of Frederick Picco, an infant, Plaintiff-Respondent, v. FORDS DINER, INC., a New Jersey corporation, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Argued Feb. 8, 1971.

Decided March 1, 1971.

Thomas P. McHugh, Newark, for appellant (Gurry & Conlan, Newark, attorneys).

Andrew M. Rockman, Perth Amboy, for respondent (Levinson, Conover, Lieberman & Fink, Perth Amboy, attorneys).

Before Judges SULLIVAN, COLLESTER and LABRECQUE.

The opinion of the court was delivered by

SULLIVAN, P.J.A.D.

Plaintiffs sued defendant corporation, the operator of a diner, for damages resulting from injuries suffered by the infant plaintiff while a patron at the diner when he was assaulted by unknown persons in the parking lot at the rear of the diner.

The infant plaintiff and a companion had driven to defendant's diner at about 11 P.M. for coffee. The parking spaces in front of the diner were occupied and plaintiff, who was driving, went around to the rear of the diner and parked in the area also provided there for diner patrons. Plaintiff and his companion went into the diner and had coffee. Plaintiff left the diner ahead of his companion who was paying the check. As plaintiff walked around to the rear parking area he was assaulted by unknown persons and received serious injuries. The proofs showed that there were two spotlights and a fluorescent light in the rear of the diner, but both plaintiff and his companion testified that none of these lights was on at the time of the assault. The basis of plaintiffs' claim of negligence was the duty owed the infant plaintiff, as a patron, and the alleged foreseeability of a criminal assault on a patron in the unlighted rear area during night hours.

The jury found in favor of plaintiffs and awarded total damages of $4,300. On motion, the trial court set the damage award aside as inadequate (plaintiffs' specials were $3,300), and ordered a new trial on damages only. At the retrial, plaintiffs were awarded $9,000.

Defendant argues that the evidence failed to present a jury issue as to liability and that its motion for judgment, and judgment notwithstanding the verdict, should have been granted. Specifically, it is argued that in the absence of any proof of a crime area or prior assaults on diner patrons, defendant could not have reasonably anticipated such an occurrence and was under no duty to provide lighting in the rear parking area as a means of discouraging possible criminal assaults.

The question is a close one. However, we conclude that the trial judge correctly held that a jury issue was involved. The infant plaintiff was a business invitee on the premises. One of the facilities provided for use of patrons was the rear parking area. Defendant was under a duty to use reasonable means to protect patrons from mishap while using the area. Absence of any night illumination of this parking area might reasonably be considered a dereliction on the part of defendant, which contributed proximately to the...