Wollerman v. Grand Union Stores, Inc.
| Decision Date | 06 July 1966 |
| Docket Number | No. A--146,A--146 |
| Citation | 47 N.J. 426,221 A.2d 513 |
| Parties | Mary E. WOLLERMAN and Paul G. Wollerman, Plaintiffs-Appellants, v. GRAND UNION STORES, INC., Defendant-Respondent. |
| Court | New Jersey Supreme Court |
Antranig Aslanian, Jr., Englewood Cliffs, for appellants, William V. Breslin, Englewood, attorneys.
William R. Morrison, Hackensack, for respondent (Morrison, Lloyd & Griggs, Hackensack, attorneys).
The opinion of the court was delivered by
Plaintiff, Mrs. Wollerman, shopping for green peppers in the vegetable section of the defendant's supermarket, slipped and fell when she stepped on a string bean. Nearby, but not waiting on her, was an employee of the market. The proofs did not show how the bean fell to the floor, or how long it was there before her misadventure. The trial court dismissed at the end of plaintiffs' case, and the Appellate Division affirmed. We granted certification. 46 N.J. 217, 216 A.2d 10 (1966).
The trial court found the evidence was insufficient because there was no proof that defendant knew the bean was on the floor, or that the bean was there long enough to permit an inference that defendant knew of it. Reliance was placed on Simpson v. Duffy, 19 N.J.Super. 339, 88 A.2d 520 (App.Div. 1952), certif. denied, 10 N.J. 315, 91 A.2d 230 (1952). The Appellate Division agreed, and added that it could not be found that an employee of defendant was responsible for the presence of the bean, as was the case in Plaga v. Foltis, 88 N.J.Super. 209, 211 A.2d 391 (App.Div. 1965), or that defendant's mode of operation itself caused the bean to fall to the aisle, cf. Torda v. Grand Union Co., 59 N.J.Super. 41, 157 A.2d 133 (App.Div. 1959). In short, the judgment went against plaintiffs because it could be that another customer dropped the bean, and dropped it so near the moment of the accident that defendant, though duly diligent, was unaware of it.
That someone was negligent seems clear enough. Yegetable debris carries an obvious risk of injury to a pedestrian. A prudent man would not place it in an aisle or permit it to remain there.
When greens are sold from open bins on a self-service basis, there is the likelihood that some will fall or be dropped to the floor. If the operator chooses to sell in this way, he must do what is reasonably necessary to protect the customer from the risk of injury that mode of operation is likely to generate; and this whether the risk arises from the act of his employee or of someone else he invites to the premises. The operator's vigilance must be commensurate with that risk. Kahalili v. Rosecliff Realty, Inc., 26 N.J. 595, 603, 141 A.2d 301, 66 A.L.R.2d 680 (1958); Ambrose v. Cyphers, 29 N.J. 138, 144, 148 A.2d 465 (1959).
Here the hazard could have been caused by (1) carelessness in the manner in which the beans were piled and displayed; or (2) carelessness of an employee in handling the beans thereafter; or (3) carelessness of a patron. As to (1) and (2), defendant is chargeable whether or not it was aware of its employee's neglect. Defendant's knowledge is relevant only as to (3), but even there, since the patron's carelessness is to be anticipated in this self-service operation, defendant is liable, even without notice of the bean's presence on the floor, if (4) defendant failed to use reasonable measures commensurate with the risk involved to discover the debris a customer might leave and to remove it before it injures another patron.
The customer is hardly in a position to know precisely which was the neglect. Overall the fair probability is that defendant did less than its duty demanded, in one respect or another. At least the probability is sufficient to permit such an inference in the absence of evidence that defendant did all that a reasonably prudent man would do in the light of the risk of injury his operation entailed. It is just, therefore, to place 'the onus of producing evidence upon the party who is possessed of superior knowledge...
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