Simpson v. Duffy

• Decision Date: 12 May 1952
• Docket Number: No. A--70,A--70
• Citation: 88 A.2d 520,19 N.J.Super. 339
• Parties: SIMPSON et al. v. DUFFY et al.
• Court: New Jersey Superior Court — Appellate Division

Page 339

19 N.J.Super. 339

88 A.2d 520

SIMPSON et al. v. DUFFY et al.

No. A--70.

Superior Court of New Jersey Appellate Division.

Argued April 14, 1952.

Decided May 12, 1952.

Milton T. Lasher, Hackensack, argued the cause for appellants.

Victor C. Hansen, Newark, argued the cause for respondents (Cox & Walburg, Newark, attorneys).

Before Judges EASTWOOD, BIGELOW and FRANCIS.

The opinion of the court was delivered by

FRANCIS, J.C.C.

This is a negligence action. Plaintiffs are husband and wife. The wife sought recovery on account of personal injuries, and the husband joined because of his consequent losses. At the close of the trial, after both sides had completed the submission of proof, the motion of defendants for judgment in their favor was granted. Plaintiffs appeal from the judgment thus entered, contending that the matter should have been submitted to the jury for determination.

Defendant American Stores Company, operated a self-service supermarket at 744 Anderson Avenue, Cliffside Park, New Jersey, and on the date of the accident in question, the defendant, John Duffy, was its manager. Meat, vegetables and general foodstuffs were offered for sale to the public.

The vegetables were displayed in counter bins located on both sides of an aisle which at the point of the female plaintiff's fall was somewhat over nine feet wide.

On September 25, 1950, at about 10 a.m., the plaintiff, Ella Simpson, came into the store to make some purchases. She took one of the wire pushcarts provided for customers and first went to the meat counter. After giving an order she walked down the aisle of the vegetables. While doing so she observed two employees working there. One was trimming vegetables and the other was carrying them across the aisle and placing them in the display bins. The trimming was being done near a scale on the north side of the aisle and the show bins in which the vegetables were being deposited were on the south side. As she reached a point near the vegetable bins, on the opposite side of and some distance west of the scale, she suddenly slipped and fell. The cause of the fall was unknown to her until after it occurred. After being picked up and seated on a box four or five feet away she could see that it had been caused by 'some sort of green vegetable * * *, it was dripping all over'; 'some sort of a vegetable leaf'; 'a vegetable leaf or some piece of a vegetable of another kind * * *.' An employee of the defendant mopped it up.

No evidence was adduced as to the length of time the vegetable matter was on the floor before the accident.

It appeared that the market opened at 8 a.m. Defendants' proof was to the effect that the floor involved was swept at 8:30 to 9 o'clock. At the place where the fall occurred the floor was clean; it was not wet nor did it have any vegetable matter on it.

An employee of the market, who saw the mishap, found on the floor what he described as a fresh piece of gum with a 'skid' mark as though 'somebody stepped on it.'

The testimony disclosed that the fruit and vegetable display bins are empty in the morning at the opening of the store. By about 9 A.M. on this day, according to one of the men who worked at these counters, all the vegetable bins had been refilled. The vegetables were brought in from the back room and placed therein. At the time of the accident, he said, the other employee, who worked in this aisle, was taking bananas out of a box and putting them upon a stand. There was nothing on the floor from this operation.

Between opening time and 10 o'clock about 150 to 200 customers had come into the store. Thirty or 40 of them were served on the scale side of the vegetable and fruit aisle; they bought principally apples, pears and bananas. Fifty to 75 of them made purchases from the self-service vegetable counter.

In this posture of the proofs defendants' motion for judgment was granted on the ground that no negligence had been shown.

It is undisputed that the injured plaintiff was an invitee on the premises of the defendant, American Stores Company. In this situation the duty running from the company to her is as stated in Schumann v. Horn & Hardart Baking Co., 8 N.J.Super. 153, 73 A.2d 614, 616 (App.Div.1950):

'One who invites persons to come upon his premises is under a duty to exercise ordinary care to render the premises reasonably safe for such purpose. Griffin v. DeGeeter, 132 N.J.L. 381, 40 A.2d 579, (E. & A. 1945). The proprietor of a store is not an insurer, but he is liable (1) for defects of which he knows or (2) defects which have existed for so long a time that, by the exercise of reasonable care, he had both an opportunity to discover and to remedy. Daddetto v. Barbiero, (Barbiera) 4 N.J.Super. 479, 67 A.2d 691 (App.Div.1949); Restatement, Torts, N.J.Anno. § 343 (1940).'

Proof of a fall alone would not be adequate to create an inference of negligence or to give rise to the application of the doctrine of res ipsa loquitur (Thompson v. Giant Tiger Corp., 118 N.J.L. 10, 189 A. 649 (E. & A. 1937); Coyne v. Mutual Grocery Co., Inc., 116 N.J.L. 36, 181 A. 314 (Sup.Ct.1935)).

As already indicated, the record is barren of any direct evidence as to the length of time the vegetable leaf had been on the floor before the accident occurred. Likewise no facts were adduced from which an inference could be drawn that it had reposed there for such time as would have permitted the store operator to have discovered and removed it, had the duty of reasonable inspection been fulfilled. Cf. Ellis v. Rosenberg, 188 A. 499, 15 N.J.Misc. 37 (Sup.Ct.1936); Stark v. Great Atlantic & Pacific Tea Co., 102 N.J.L. 694, 133 A. 172 (E. & A. 1926); Standard Oil Co. v. Gentry, 241 Ala. 62, 1 So.2d 29 (Sup.Ct.1941); Morris v. King Cole Stores, 132 Conn. 489, 45 A.2d 710 (Sup.Ct.Err.1946); Miscally v.Colonial Stores, 68 Ga.App. 729, 23 S.E.2d 860 (Ct.App.1943); Moore v. American Stores Co., 169 Md. 541, 182 A 436 (Ct.App.1936); Wyman v. McClellan Stores Co., 315 Mass. 117, 51 N.E.2d 969 (Sup.Ct.1943); Connair v. J. H. Beattie Co., 298 Miss. 550, 11 N.E.2d 499 (Sup.Ct.1937); Newell v. William Filene's Sons Co., 296 Mass. 489, 6 N.E.2d 820 (Sup.Ct.1937); State ex rel. Trading Post Co. v. Shain, 342 Mo. 588, 116 S.W.2d 99 (Sup.Ct.1938).

Recognizing the absence of any evidence of constructive notice, appellants argue (1) that the evidence justifies the inference that the foreign matter had been dropped on the floor by an employee of the store, and (2) that since the defendant company operates a self-service vegetable market, thereby creating the hazard of customers dropping or knocking vegetables or their leaves on the floor, proof of the presence thereon of such vegetable matter and a fall resulting therefrom creates an inference of lack of due care.

The solution of the problem must be approached with the realization that the law imposes the burden of proof upon the plaintiffs and that this burden must be sustained by showing circumstances from which the defendants' negligence is a reasonable and legitimate inference. In the discharge of this burden if the plaintiffs produced any facts which justify such an inference when viewed, as they must be, most favorably to their contention, then the case should have been sent to the jury for determination. (Schumann v. Horn & Hardart Baking Co., supra).

Plaintiffs insist that Mrs. Simpson's testimony about seeing one of the store employees trimming vegetables on one side of the aisle and the other taking them across the aisle to the display counters is susceptible legitimately of the inference that one of them dropped the matter which caused her fall. And they claim that such inference may be drawn regardless of the proof that a very substantial number of customers handled and served themselves with vegetables and fruits from the counters on both sides of this aisle over a period of two hours before the accident.

The merit of this argument must be assayed in the light of the principle set forth in Hansen v. Eagle-Picher Lead Co., 8 N.J. 133, 84 A.2d 281, 285 (1951). There the court said:

'It is well settled that the existence of a possibility of a defendant's responsibility for a plaintiff's injuries is insufficient to impose liability. 'In the absence of direct evidence, it is incumbent upon the plaintiff to prove not only the existence of such possible responsibility, but the existence of such circumstances as would justify the inference that the injury was caused by the wrongful act of the defendant and would exclude the idea that it was due to a cause with which the defendant was unconnected. While proof of certainty is not required, the evidence must be such as to justify an inference of probability as distinguished from the mere possibility of negligence on the part of the defendant."

Applying this doctrine, it is plain that to submit the question of whether or not the vegetable matter had been dropped by an employee of the store operator would be to authorize and direct the jury to decide the responsibility of the defendants on the basis of speculation and conjecture. As the Supreme Court of Errors of Connecticut said in Morris v. King Cole Stores, supra (132 Conn. 489, 45 A.2d 711), a case on which plaintiffs rely:

'A further claim is that as the stand contained strawberries and lettuce and plaintiff's fall occurred in proximity to it the jury could reasonably infer that the foreign substance (strawberries and lettuce) came from the stand and was dropped on the floor by an employee, in which event the defendants would have notice through the employee. This would be pure speculation, for it may have been brushed off by a customer or dropped by him after he had made a purchase inside the store or at this outside stand.' (Insertion ours.)

There is nothing in this record to show that Mrs. Simpson saw defendant's employee, who carried vegetables across the aisle, drop anything. She did not say how many times she...