Warshany v. Supermarkets General Corp.

• Decision Date: 20 July 1978
• Citation: 161 N.J.Super. 515,391 A.2d 1271
• Parties: Sharon WARSHANY and Robert Warshany, her husband, Plaintiffs, v. SUPERMARKETS GENERAL CORP., Defendant.
• Court: New Jersey Superior Court

Page 515

161 N.J.Super. 515

391 A.2d 1271

Sharon WARSHANY and Robert Warshany, her husband, Plaintiffs, v. SUPERMARKETS GENERAL CORP., Defendant.

Superior Court of New Jersey, Law Division.

July 20, 1978.

Richard J. Levinson, Perth Amboy, for plaintiffs (Levinson, Conover & Axelrod, Perth Amboy, attorneys).

Edward J. DePascale, Jersey City, for defendant (Lamb, Hutchinson, Chappell, Ryan & Hartung, Jersey City, attorneys).

KEEFE, J. D. R. C. (temporarily assigned).

The issue to be resolved herein is the proper function of the trial judge in supervising a jury's apportionment of negligence under the Comparative Negligence Statute. N.J.S.A. 2A:15-5.1 Et seq.

Plaintiff Sharon Warshany was injured on August 22, 1976 as a result of a fall while shopping at the Pathmark Supermarket operated in Hopelawn, New Jersey, by defendant Supermarkets General Corporation. Plaintiff sued for injuries sustained, and her husband Robert sued Per quod.

The following facts were elicited at trial. Plaintiff and her husband were present on the store premises for the purpose of grocery shopping. They proceeded through the aisles of the supermarket, selecting items from the shelves, and placing them into a cart which plaintiff was pushing. Mrs. Warshany and her husband turned into one of the aisles, noting a Pathmark employee standing with a mop in his hand at the head of the aisle where they entered. They proceeded past the employee and continued approximately 30 feet into the aisle beyond him. Plaintiff testified that the accident occurred at this point when she slipped and fell on a clear substance which was later identified as baby food. Plaintiff further testified that she had reached for a box of cereal when the fall occurred. She described the accident as occurring very quickly, stating that both feet slid out from under her and that she fell to a sitting position. Both she and her husband testified that prior to the accident they were unaware of any foreign substances on the floor.

The accident report, completed by defendant's customer service manager and partially read into evidence, indicated that plaintiff fell in the baby food aisle at about 7:20 p. m. while clean-up of "breakage" was being attended to by a porter. The jury was also apprised of the fact that another customer had fallen in the same aisle at about 7:15 p. m.

The judge reserved on plaintiff's motions for a directed verdict on the issue of defendant's liability and to strike the claim as to her negligence, made at the conclusion of the testimony, and submitted the factual issues to the jury. In response to written interrogatories the jury found negligence on the part of defendant as well as negligence on the part of plaintiff, and apportioned the causal negligence equally between the parties, I. e., 50-50.

After return of the verdict plaintiff renewed her motions made at the conclusion of testimony and requested the judge to set aside the jury's finding that plaintiff was contributorily negligent and further requested the judge to either enter judgment against defendant for 100% Of any verdict awarded by a subsequent jury or to reapportion the percentage of negligence between the parties. In the alternative, plaintiff moved for a new trial as to all issues. Following oral argument the judge requested counsel to supply supplementary briefs addressing the issue of the propriety of the jury's apportionment of negligence.

The court is convinced that there were sufficient facts on the record to warrant the submission of the issue of the plaintiff's contributory negligence to the jury and to sustain its findings in that regard, particularly in view of the Appellate Division's decision in Krackomberger v. Vornado, Inc., 119 N.J.Super. 380, 291 A.2d 842 (App.Div.1972). In that case, plaintiff slipped on a clear plastic dress cover which she had not previously observed, while walking through an aisle in defendant's department store. The trial judge refused to charge that plaintiff had a right to assume that the floor in defendant's store was free from obstruction as she walked down the aisle, which right existed until she was aware or should have been aware of the hazard that caused her to fall. That refusal was held to constitute error for which plaintiff was entitled to a new trial. The court noted that plaintiff's contributory negligence could only have been premised on a failure to observe the condition of the floor immediately prior to the accident. However, the court concluded that the question of the reasonableness of plaintiff's conduct in proceeding as she did under the circumstances was a question of fact, and therefore granted a new trial on both the issues of negligence and contributory negligence. Cf. Bates v. Valley Fair Enterprises, Inc., 86 N.J.Super. 1, 205 A.2d 746 (App.Div.1964). In the case at bar plaintiff had a duty, corresponding to defendant's duty to keep the premises in a reasonably safe condition, to exercise reasonable care for her own safety. Whether the employee with the mop was sufficient enough warning to her of the possibility of a dangerous condition, and whether she proceeded reasonably under all the circumstances, presented significant questions of fact for resolution by the jury.

While the court is satisfied that the issue of contributory negligence was properly before the jury, it is troubled by the degree of negligence apportioned to each party. In light of the qualitative difference between the causal negligence which could possibly be attributed to defendant and that which could be attributed to plaintiff, under any reasonable view of the facts, the court is convinced that a miscarriage of justice resulted from the apportionment arrived at by the jury. R. 4:49-1(a). The nature of plaintiff's negligence in failing to understand the significance of the employee with mop in hand and then to proceed accordingly seems hardly equivalent to the quality of the conduct of defendant in breaching its duty to plaintiff as a business invitee. The facts adduced at trial indicated that defendant was aware of the breakage some 15 to 20 minutes before plaintiff's accident. Defendant further knew that just five minutes prior to plaintiff's fall another customer had fallen in the same aisle. Further, defendant in its accident report acknowledged that the accident was caused by an "unsafe condition in the store," and described that condition as a baby food which was in the process of being cleaned up.

The court is cognizant of the fact that great deference is generally afforded to jury verdicts in our law, Baxter v. Fairmont Food Co., 74 N.J. 588, 379 A.2d 225 (1977), and of the fact that it cannot ordinarily set aside a jury verdict simply because it would have reached a contrary result had it been the sole trier of fact. Dolson v. Anastasia, 55 N.J. 2, 258 A.2d 706 (1969). However, where, as here, the jury's apportionment is so clearly against the weight of the evidence, the court feels that there should be some method of intervention available to it to afford the party prejudiced thereby some degree of relief.

Counsel for plaintiff herein has requested several alternative forms of relief. First, it has been suggested that the court take the apportionment question entirely away from the jury and itself determine a reasonable apportionment of negligence, similar to the procedure available to the court by way of Additur in view of a damage award. The court finds no convincing authority and no merit to such a drastic usurpation of the province of the jury. Such an attempt by the trial court to set the percentage of negligence attributable to parties has been rejected elsewhere as beyond the trial court's discretion. Britton v. Hoyt, 63 Wis.2d 688, 218 N.W.2d 274 (Sup.Ct.1974).

Secondly, the court could grant plaintiff's motion for a new trial pursuant to R. 4:49 as to all issues in the case. While granting a motion for new trial seems proper under the facts of this case and the applicable standard, the court is hesitant to resubmit the issues of negligence and contributory negligence to a second jury. Since, as pointed out before, there were sufficient facts...