Sidewalk Liability for Fall Downs on Sidewalks of Commercial Premises in NJ
Kenneth Vercammen & Associates Law Office helps people
injured due to the negligence of others. We provide representation
throughout New Jersey. The insurance companies will not help. Don't give
up! Our Law Office can provide experienced attorney representation if
you are injured in an accident and suffer a Serious Injury.
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The
law imposes upon the owner of commercial or business property the duty
to use reasonable care to see to it that the sidewalks abutting the
property are reasonably safe for members of the public who are using
them. In other words, the law says that the owner of commercial property
must exercise reasonable care to see to it that the condition of the
abutting sidewalk is reasonably safe and does not subject pedestrians to
an unreasonable risk of harm. The concept of reasonable care requires
the owner of commercial property to take action with regard to
conditions within a reasonable period of time after the owner becomes
aware of the dangerous condition or, in the exercise of reasonable care,
should have become aware of it. If there was a condition of this
sidewalk that was dangerous in that it created an unreasonable risk of
harm for pedestrians, and if the owner knew of that condition or should
have known of it but failed to take such reasonable action to correct or
remedy the situation within a reasonable period of time thereafter as a
reasonably prudent commercial or business owner would have done under
the circumstances, then the owner is negligent.
Sometimes, store
customers are injured in fall downs caused by holes in sidewalks in
dimly lit areas. Customers may be injured by failure to repair broken
sidewalks. Sometimes people trip when business fail to clean up broken
or fallen items on sidewalks. No one plans on being injured in an
accident, whether it is a car accident, fall down or other situation.
Speak with a personal injury attorney immediately to retain all your
rights. The businesses are responsible for the maintenance of their
premises which are used by the public. It is the duty of the store to
inspect and keep said premises in a safe condition and free from any and
all pitfalls, obstacles or traps that would likely cause injury to
persons lawfully thereon. It is further the duty of the store to
properly and adequately inspect, maintain and keep the premises free
from danger to life, limb and property of persons lawfully and
rightfully using same and to warn of any such dangers or hazards
thereon. You may be lawfully upon the premises as a business invitee in
the exercise of due care on your part, and solely by reason of the
omission, failure and default of the store, be caused to fall down If
the store did not perform their duty to plaintiff to maintain the
premises in a safe, suitable and proper condition, you may be entitled
to make a claim. If severely injured, you can file a claim for damages,
together with interest and costs of suit. Injured people can demand
trial by jury.
WHAT TO TRY TO DO AT THE ACCIDENT SCENE IF INJURED
1.
Stop . . . do not leave the scene of the accident. CALL THE AMBULANCE,
tell them where the accident occurred and (ask for medical help if
needed). 2. Notify the property manager or owner, if possible. Insist
they observe where you fell. For example, if you fall on an icy sidewalk
at the store/ business, notify the manager. 3. Get names and addresses
of all witnesses Witnesses will be a tremendous help to you in any
subsequent court action if there is any question of liability involved.
Get the names and addresses of as many witnesses as possible. If they
refuse to identify themselves, jot down the license plate numbers of
their automobiles. Do not discuss the accident with the witnesses. Do
not give the witnesses names to anyone but the police, your attorney or
your insurance company.
4. While waiting for ambulance, write
down- Accident Information Date __ Time __ Location __ Weather __ Road
conditions __ Damage __
5. Summary of accident __
6. Diagram of accident location
7.
Call an ambulance. If you have any reason to suspect you were injured
in the accident, go to a hospital immediately or see a physician
promptly. Youll want it on record that you sought treatment right away,
not in a week or so.
8. Write down name of Police Officers, Department and Badge Number, Ambulance crew, etc.
9.
Do not assign or accept blame for the accident. - The scene of the
accident is not the place to determine fault. Discuss the accident only
with the ambulance and medical personnel, your attorney and with
representatives of your insurance company. Give the other party only
your name and address. - Be cooperative with the police.
10. Have immediate photos taken of accident site.
11.
Call a personal injury attorney immediately, not a real estate
attorney. Call Kenneth A. Vercammen- Trial Attorney Attorney At Law
(732) 572-0500 When you need help the most, we will be ready to help
you.
12. Never give a signed statement to the claims adjuster
representing the property owners insurance company. The same goes for a
phone recording. They may be used against you in court to deny your
claim. Speak with your personal injury attorney first.
IF YOU HAVE BEEN INJURED ON A SIDEWALK DUE TO NEGLIGENCE OF THE BUSINESS
It
is important that you -- 1. DO NOT discuss your case with anyone except
your doctors and attorney. 2. DO NOT make any statements or give out
any information. 3. DO NOT sign any statements, reports, forms or papers
of any kinds, . 4. DO NOT appear at police or other hearings without
first consulting with your attorney. INFORM YOUR ATTORNEY PROMPTLY of
any notice, request or summons to appear at any hearings. 5. Refer to
your attorney anyone who asks you to sign anything or to make any
statement or report or who seeks information concerning your case. 6.
Direct your doctor and other treatment providers not to furnish or
disclose any information concerning your case to any entity other than
your insurance company without YOU AND YOUR ATTORNEYS WRITTEN
PERMISSION. 7. You may have insurance coverages such as Blue Cross, Blue
Shield or Major Medical which require prompt attention. However, be
sure to have your treatment providers send bills immediately to all of
your insurance companies. 8. Notify your attorney promptly of any new
developments. Small things may be important. Keep your attorney
informed. 9. Maintain accurate records of all information and data
pertaining to your case. 10. If you or any witnesses should move, be
sure to notify your attorney of the new address.
Financial Recovery if injured while falling down
1.
Kenneth Vercammen Helps Injured persons A person who is injured as a
result of the negligence of another person is what we in the legal
profession refer to as a personal injury claimant. In other words, they
have been injured as a result of an accident, and now wish to prosecute a
claim against a negligent property owner and its insurance company. As
the attorney of record, we will be bringing this action for the injured
person. Therefore, I request that all clients do as much as possible to
cooperate and help in every way. The purpose of this article is to
describe the procedure that we may follow and give you sufficient
instructions to enable you to assist us in this undertaking. Needless to
say, helping us is just another way of helping yourself.
Sidewalk
Fall down Liability Certain cases impose limited liability on
commercial landowners for injuries to pedestrians on abutting sidewalks.
See Stewart v. 104 Wallace St., Inc., 87 N.J. 146 (1981). The duty to
maintain the sidewalks flows from the economic benefit that a commercial
landowner receives from the abutting sidewalk and from the landowners
ability to control the risk of injury. Id. at 158; Davis v. Pecoreno, 69
N.J. 1, 8 (1975) (holding gas station owner liable for injury caused by
packed snow and ice on abutting sidewalk because traffic was directly
beneficial to his business and enured to his economic benefit). Several
decisions of the Appellate Division delineate the appropriate limits of a
commercial property owners liability for off-premises injuries.
Critical to those decisions is the premise that a landowners liability
may extend beyond the premises for activities that directly benefit the
landowner. Thus, the owner of a shopping center was not liable to a
woman who fell on a dirt path leading from the shopping center to a
parking lot. See Chimiente v. Adam Corp., 221 N.J. Super. 580 (1987). In
Chimiente, sidewalks provided a safe alternative route. Id. at 584. The
dirt path conferred no direct economic benefit on the shopping center.
Ibid. Similarly, a shopping center on Route 22 was not liable to a
customer who was struck by a car while crossing the highway. See
MacGrath, supra, 256 N.J. Super. at 250-51, 253. A restaurant that
provided parking on the opposite side of the street, however, had a duty
to provide safe passage from the lot to the restaurant. See Warrington
v. Bird, 204 N.J. Super. 611 (1985), certif. denied, 103 N.J. 473
(1986). The restaurant knew that its patrons would cross the street, and
derived a direct economic benefit from their use of the path. Id. at
617. Finally, a caterer was found liable for the death of a business
invitee who was killed crossing a county highway after parking her car
in a lot the caterer knew or should have known the invitee would use.
See Mulraney v. Aulettos Catering, 293 N.J. Super. 315, certif. denied, _
N.J. _ (1996). Prominent among the reasons for the imposition of
liability was the proposition that the use of the lot furthered the
caterers economic interest. Id. at 321. Critical to the imposition of
liability is a direct economic benefit to the commercial landowner from
the path taken by the injured party and the absence of an alternative
route.
1. Clients should provide my office with the following 1.
Any bills 2. All Hospital or doctor records in your possession 3. Photos
of scars, cuts, bruises 4. Photos of damage to your clothes and
property 5. Photos of accident site 6. Major Med Card 7. Paystub if lost
time from work
2. Attorney- Client Confidential Relationship
First, I want to thank our clients for giving me the opportunity to
assist them in their case. I am a legal professional and I have great
pride and confidence in the legal services that I perform for clients
during our relationship as attorney-client. If you have concerns about
your case, please call my office. (732) 572-0500 We feel that this case
is extremely important not only to you, but to this office as well. This
is not simply a matter of obtaining just compensation for you, although
that is very important; we take professional pride in guiding our
clients carefully through difficult times to a satisfactory conclusion
of their cases.
3. Diary We want you to keep a diary of your
experiences since your accident. In addition to this daily record, we
also ask you to start describing a single day in the course of your
life. In other words, describe what you do when you get up in the
morning, the first thing you do after you go to work, what type of work
and effort you put into your employment, what activities you engage in
after work, etc. In other words, we need you to describe the changes in
your working life, your playing life, your life as a husband or wife or
child or parent. In your written description of your day, we would
appreciate your explanation in the greatest detail possible and in your
own words how the accident and subsequent injuries have affected your
life, your personality, and your outlook. Remember that suffering does
not entail mere physical pain; suffering can be emotional and can be
transmitted to your family, friends, and co-workers. Keep a diary of all
matters concerning this accident-no matter how trivial you think it may
be. You should include notes on the treatments you receive, therapy,
casts, appliances, hospitalization, change of doctors, change of
medication, symptoms, recurrence, setbacks, disabilities and
inconveniences. If you have any doubt about the propriety of including
some particular information, please call the office and let us assist
you.
4. Record expenses You can also begin to set up a system for
recording the expenses incurred in conjunction with your claim in
minute detail. Medical and legal expenses are a strong part of the value
of your lawsuit, so good records of these expenses must be kept at all
times. From time to time, however, there will be expenses incurred that
you must keep track of yourself. We ask you to make every effort to
avoid any possible error or inaccuracy as jurors have a relentless
reverence for the truth. Keep your canceled checks and your list of
expenses together, for we will need them at a later date. Your attorney
will keep track of your legal expenses, which may include costs of
filing, service of complaint, investigation, reports, depositions,
witness fees, hospital/ medical records, etc.
5. Investigation
and Filing of Complaint Procedurally, the following events occur in most
personal injury cases. First, your attorney must complete the
investigation. This will involve the collection of information from your
physician, your employer, and our investigator. We will need your
doctors to provide us with copies of all bills, medical records and
possibly a medical report. When we feel that we have sufficient
information to form an opinion as to the financial extent of your
damages, we will commence negotiations with the opposition for a
settlement. If the insurance company will not make an adequate offer,
then a Complaint and Case Information Statement is prepared by your
attorney. It is filed in the Superior Court, Law Division. Your attorney
then will prepare a summons and have the defendants personally served
with the Summons and Complaint. The defendant, through their insurance
company, must file an Answer within 35 days. Kenneth Vercammen's office
generally does not file a Complaint until the treating doctor signs an
affidavit of merit setting forth why the injury is permanent and the
diagnostic tests upon which the permanent injury is based. You will need
to speak with your doctor to ask if you have a permanent injury.
6.
Interrogatory Questions and Discovery The Answer is followed by a
request for written interrogatories. These are questions that must be
answered by each party. The Superior Court has set up certain Form A
Interrogatory Questions which are contained in the Rules of Court.
Generally, written interrogatories are followed by the taking of
depositions, which is recorded testimony given under oath by any person
the opposition wishes to question. The deposition is just as important
as the trial itself. In the event you are deposed during the course of
this action, you will receive detailed instructions as to the procedure
and will be required to watch a videotape. After taking depositions, the
case will be set down for an Arbitration. If the parties do not settle
after the Arbitration, the case will be given a trial call date.
Altogether, these procedures may take from six months to several years,
and your patience may be sorely tried during this time. However, it has
been our experience that clients who are forewarned have a much higher
tolerance level for the slowly turning wheels of justice.
7.
Doctor/ Treatment It will help your case to tell us and your doctors
about any injury or medical problems before or after your accident. Good
cases can be lost by the injured person concealing or forgetting an
earlier or later injury or medical problem. Insurance companies keep a
record of any and all claims against any insurance company. The
insurance company is sure to find out if you have ever made a previous
claim. Tell your doctors all of your complaints. The doctors records can
only be as complete as what you have given. Keep track of all
prescriptions and medicines taken and the bills. Also save all bottles
or containers of medicine.
8. Bills Retain all bills which relate
to your damages, including medical expenses, hospital expenses, drugs
and medicines, therapy, appliances, and anything needed to assist in
your recovery. If possible, pay these bills by check or money order, so
that a complete record may be kept. If this is not possible, be certain
to obtain a complete receipt with the bill heading on it, to indicate
where the receipt came from and the party issuing it.
9. Evidence
Be certain to keep anything that comes into your possession which might
be used as evidence in your case, such as shoes, clothing, glasses,
photographs, defective machinery, defective parts, foreign substances
which may have been a factor in your accident, etc. Be sure to let the
office know that you have these items in your possession.
10.
Photographs Take photographs of all motor vehicles, accident site, etc.,
that may be connected--directly or indirectly--with your accident.
Again, be sure to let the office know that you have such photographs.
11
Keep your attorney advised Keep this office advised at all times with
respect to changes in address, important changes in medical treatment,
termination of treatment, termination of employment, resumption of
employment, or any other unusual change in your life.
12. Lost
wages Keep a complete record of all lost wages. Obtain a statement from
your company outlining the time you have lost, the rate of salary you
are paid, the hours you work per week, your average weekly salary, and
any losses suffered as a result of this accident. Where possible, also
obtain other types of evidence such as ledger sheets, copies of time
cards, canceled checks, check stubs, vouchers, pay slips, etc.
13.
New information In the event that any new information concerning the
evidence in this case comes to your attention, report this to the
attorney immediately. This is particularly true in the case of witnesses
who have heretofore been unavailable.
14 Do not discuss the case
The insurance company may telephone you and record the conversation or
send an adjuster (investigator) who may carry a concealed tape recorder.
You should not discuss your case with anyone.
Obviously, we
cannot stress too strongly that you DO NOT discuss this matter with
anyone but your attorney or immediate, trusted family. You should sign
no documents without the consent of this office. Remember that at all
times you may be photographed and investigated by the opposition. If you
follow the simple precautions which we have set out in your checklist,
we feel that we will be able to obtain a fair and appropriate amount for
your injuries. If you get any letters from anyone in connection with
your case, mail or fax them to your attorney immediately.
15.
Questioning If any person approaches you with respect to this accident
without your attorneys permission, make complete notes regarding the
incident. These notes should include the name and address of the party, a
description of the person, and a narrative description of what was said
or done. Under no circumstances should you answer any question(s). All
questions should be referred to your attorneys office.
16.
Investigation by Defendant Insurance Company Permit us to reiterate at
this time that the oppositions insurance company will in all probability
have a team of lawyers and investigators working diligently to counter
your claim. During the course of their investigation, it is quite
possible that they may attempt to contact you through various (and
sometimes, devious) methods. Please do not make their jobs any easier
for them by answering their questions.
We cannot emphasize too
strongly that you should refrain at all times from discussing this
matter with anyone--and that includes your employer, your relatives,
your neighbors, and even your friends. Of course, there are exceptions
to this rule.
If there are friends or neighbors or relatives who
know all of the facts and circumstances surrounding the accident and can
be of assistance to you, then they should be referred to this office so
that their natural sympathy can be channeled into an effective asset
for you.
Insurance companies pay money to claimants when they are
satisfied there are both liability and damages that support a recovery.
They can be expected to thoroughly investigate the facts of the
accident and any past injuries or claims. The insurance company will
obtain copies of all of the claimants past medical records.
The
value of a case depends on the Permanent Injury, medical treatment and
doctors reports Undoubtedly, you have questions as to how much your case
is worth. We are going to be frank: The fact of the matter is there can
be no answer to this question until we have completed the investigation
in your case. Once we complete our investigation, of course, we can
make a determination as to the amount of the defendants liability, if
any, and even at that we will only be at a starting point. After that,
we must obtain all necessary information concerning your lost wages,
your disability, your partial disability, your life changes, and your
prognosis. You may rest assured of one thing, however, and that is the
fact that your case will not be settled below its true value, that is
the fair compensation for the injuries you have received. You may also
rest assured that no settlement agreement will be entered into without
your consent.
The following information is taken from the old
model jury charges dealing with fall downs by store customers. INVITEE -
DEFINED AND GENERAL DUTY OWED (12/88) An invitee is one who is
permitted to enter or remain on land (or premises) for a purpose of the
owner (or occupier). He/She enters by invitation, expressed or implied.
The owner (or occupier) of the land (or premises) who by invitation,
expressed or implied, induced persons to come upon his/her premises, is
under a duty to exercise ordinary care to render the premises reasonably
safe for the purposes embraced in the invitation. Thus, he/she must
exercise reasonable care for the invitees safety. He/She must take such
steps as are reasonable and prudent to correct or give warning of
hazardous conditions or defects actually known to him/her (or his/her
employees), and of hazardous conditions or defects which he/she (or
his/her employees) by the exercise of reasonable care, could discover.
BUSINESS INVITEE FALL DOWNS: The basic duty of a proprietor of premises
to which the public is invited for business purposes of the proprietor
is to exercise reasonable care to see that one who enters his/her
premises upon that invitation has a reasonably safe place to do that
which is within the scope of the invitation. Notes:
(1) Business Invitee: The duty owed to a business invitee is no different than the duty owed to other invitees.
(2)
Construction Defects, Intrinsic and Foreign Substances: The rules dealt
with in this section and subsequent sections apply mainly to those
cases where injury is caused by transitory conditions, such as falls due
to foreign substances or defects resulting from wear and tear or other
deterioration of premises which were originally constructed properly.
Where
a hazardous condition is due to defective construction or construction
not in accord with applicable standards it is not necessary to prove
that the owner or occupier had actual knowledge of the defect or would
have become aware of the defect had he/she personally made an
inspection. In such cases the owner is liable for failing to provide a
safe place for the use of the invitee.
Thus, in Brody v. Albert
Lipson & Sons, 17 N.J. 383 (1955), the court distinguished between a
risk due to the intrinsic quality of the material used (calling it an
intrinsic substance case) and a risk due to a foreign substance or
extra-normal condition of the premises. There the case was submitted to
the jury on the theory that the terrazzo floor was peculiarly liable to
become slipper when wet by water and that defendant should have taken
precautions against said risk. The court appears to reject defendants
contention that there be notice, direct or imputed by proof of adequate
opportunity to discover the defective condition. 17 N.J. at 389.
It
may be possible to reconcile this position with the requirement of
constructive notice of an unsafe condition by saying that an owner of
premises is chargeable with knowledge of such hazards in construction as
a reasonable inspection by an appropriate expert would reveal. See:
Restatement to Torts 2d, §343, Comment f, pp. 217-218 (1965), saying
that a proprietor is required to have superior knowledge of the dangers
incident to facilities furnished to invitees.
Alternatively, one
can view these cases as within the category of defective or hazardous
conditions created by defendant or by an independent contractor for
which defendant would be liable (see introductory note above).
Cases:
Bozza
v. Vornado, Inc., 42 N.J. 355, 359 (1954) (slip and fall on sticky,
slimy substance in self-service cafeteria which inferably fell to the
floor as an incident of defendants mode of operation).
Buchner v. Erie Railroad Co., 17 N.J. 283, 285-286 (1955) (trip over curbstone improperly illuminated).
Brody v. Albert Lifson & Sons, 17 N.J. 383, 389 (1955) (slip and fall on wet composition floor in store).
Bohn v. Hudson & Manhattan R. Co., 16 N.J. 180, 185 (1954) (slip on smooth stairway in railroad station).
Williams
v. Morristown Memorial Hospital, 59 N.J. Super. 384, 389 (App. Div.
1960) (fall over low wire fence separating grass plot from sidewalk).
Nary v. Dover Parking Authority, 58 N.J. super. 222, 226-227 (App. Div. 1959) (fall over bumper block in parking lot).
Parmenter
v. Jarvis Drug Stor, Inc., 48 N.J. Super. 507, 510 (App. Div. 1957)
(slip and fall on wet linoleum near entrance of store on rainy day).
Nelson
v. Great Atlantic & Pacific Tea Co., 48 N.J. Super. 300 (App. Div.
1958) (inadequate lighting of parking lot of supermarket, fall over
unknown object).
Barnard v. Trenton-New Brunswick Theatre Co., 32
N.J. Super. 551, 557 (App. Div. 1954) (fall over ladder placed in
theatre lobby by workmen of independent contractor).
Ratering v. Mele, 11 N.J. Super. 211, 213 (App. Div. 1951) (slip and fall on littered stairway at entrance to restaurant).
DUTY
TO INSPECT OWED TO INVITEE The duty of an owner (or occupier) of land
(or premises) to make the place reasonably safe for the proper use of an
invitee requires the owner or occupier to make reasonable inspection of
the land (or premises) to discover hazardous conditions. Cases:
Handelman
v. Cox, 39 N.J. 95, 111 (1963) (salesman showing merchandise to
employees of defendant fell down cellar stairway partially obscured by
carton) NOTICE OF PARTICULAR DANGER AS CONDITION OF LIABILITY If the
jury members find that the land (or premises) was not in a reasonably
safe condition, then, in order to recover, plaintiff must show either
that the owner (or occupier) knew of the unsafe condition for a period
of time prior to plaintiffs injury sufficient to permit him/her in the
exercise of reasonable care to have corrected it, or that the condition
had existed for a sufficient length of time prior to plaintiffs injury
that in the exercise of reasonable care the owner (or occupier) should
have discovered its existence and corrected it. Cases:
Tua v.
Modern Homes, Inc., 64 N.J. Super. 211 (App. Div. 1960), affirmed, 33
N.J. 476 (1960) (slip and fall on small area of slipper waxlike
substance in store); Parmenter v. Jarvis Drug Store, Inc., 48 N.J.
Super. 507, 510 (App. Div. 1957) (slip and fall on wet linoleum near
entrance of store on rainy day); Ratering v. Mele, 11 N.J. Super. 211,
213 (App. Div. 1951) (slip and fall on littered stairway at entrance to
restaurant).
Notes:
(1) The above charge is applicable to
those cases where the defendant is not at fault for the creation of the
hazard of where the hazard is not to be reasonably anticipated as an
incident of defendants mode of operation. See: Maugeri v. Great Atlantic
& Pacific Tea Company, 357 F.2d 202 (3rd Cir. 1966) (dictum).
(2)
An employees knowledge of the danger is imputed to his/her employer,
the owner of premises. Handelman v. Cox, 39 N.J. 95, 104 (1963).
NOTICE
NOT REQUIRED WHEN CONDITION IS CAUSED BY DEFENDANT If the jury members
find that the land (or premises) was not in a reasonably safe condition
and that the owner (or occupier) or his/her agent, servant or employee
created that condition through his/her own act or omission, then, in
order for plaintiff to recover, it is not necessary for the jury members
also to find that the owner (or occupier) had actual or constructive
notice of the particular unsafe condition. Cases:
Smith v. First
National Stores, 94 N.J. Super. 462 (App. Div. 1967) (slip and fall on
greasy stairway caused by sawdust tracked onto the steps by defendants
employees); Plaga v. Foltis, 88 N.J. Super. 209 (App. Div. 1965) (slip
and fall on fat in restaurant area traversed by bus boy); Torda v. Grand
Union Co., 59 N.J. Super. 41 (App. Div. 1959) (slip and fall in
self-service market on wet floor near vegetable bin). Also see: Thompson
v. Giant Tiger Corp., 118 N.J.L. 10 (E. & A. 1937); Wollerman v.
Grand Union Stores, Inc., 47 N.J. 426 (1956); Lewin v. Orbachs, Inc., 14
N.J. Super. 193 (App. Div. 1951); Maugeri v. Great Atlantic &
Pacific Tea Company, 357 F.2d 202 (3rd Cir. 1966).
DISTRACTION OR
FORGETFULNESS OF INVITEE Even if the jury members find that plaintiff
knew of the existence of the unsafe or defective condition, or that the
unsafe or defective condition was so obvious that defendant had a
reasonable basis to expect that an invitee would realize its existence,
plaintiff may still recover if the circumstances or conditions are such
that plaintiffs attention would be distracted so that he/she would not
realize or would forget the location or existence of the hazard or would
fail to protect himself/herself against it. Thus, even where a
hazardous condition is obvious the jury members must first determine
whether in the circumstances the defendant was negligent in permitting
the condition to exist. Mere lapse of memory or inattention or mental
abstraction at the critical moment is not an adequate excuse. One who is
inattentive or forgetful of a known and obvious danger is
contributorily negligent unless there is some condition or circumstance
which would distract or divert the mind or attention of a reasonably
prudent person. Note:
In McGrath v. American Cyanamid Co., 41
N.J. 272 (1963), the employee of a subcontractor was killed when a plank
comprising a catwalk over a deep trench up-ended causing him to fall.
The court held that even if the decedent had appreciated the danger that
fact by itself would not have barred recovery. The court said if the
danger was one which due care would not have avoided, due care might,
nevertheless, require notice of warning unless the danger was known or
obvious. If the danger was created by a breach of defendants duty of
care, that negligence would not be dissipated merely because the
decedent knew of the danger. Negligence would remain, but decedents
knowledge would affect the issue of contributory negligence. The issue
would remain whether decedent acted as a reasonably prudent person in
view of the known risk, either by incurring the known risk (by staying
on the job), or by the manner in which he proceeded in the face of that
risk.
In Zentz v. Toop, 92 N.J. Super. 105, 114-115 (App. Div.
1966), affirmed o.b., 50 N.J. 250 (1967), the employee of a roofing
contractor, while carrying hot tar, tripped over a guide wire supporting
an air conditioning tower on a roof. The court held that even if
plaintiff had observed the wires or if they were so obvious that he/she
should have observed them, the question remained whether, considering
the hazard and the work of the employee, he/she was entitled to more
than mere knowledge of the existence of the wires or whether he/she was
entitled to a warning by having the wires flagged or painted in a
contrasting color. This was a fact for the jury to determine. The jury
must also determine whether defendant had reason to expect that the
employees attention would have been distracted as he/she worked os that
he/she would forget the location of a known hazard or fail to protect
himself against it. The court also held the plaintiffs knowledge of the
danger would not alone bar his/her recovery, but this knowledge goes to
the issue of contributory negligence.
In Ferrie v. DArc, 31 N.J.
92, 95 (1959), the court held that there was no reasonable excuse for
plaintiffs forgetfulness or inattention to the fact that a railing was
temporarily absent from her porch, as she undertook to throw bones to
her dog, and fell to the ground because of the absence of a railing she
customarily leaned upon. The court held:
When an injury results
from forgetfulness or inattention to a known danger, the obvious
contributory negligence is not excusable in the absence of some
condition or circumstance which would divert the mind or attention of an
ordinarily prudent man. Mere lapse of memory, or inattention or mental
abstraction at the critical moment cannot be considered an adequate
diversion. One who is inattentive to or forgetful of a known and obvious
condition which contains a risk of injury is obvious condition which
contains a risk of injury to guilty of contributory negligence as a
matter of law, unless some diversion of the type referred to above is
shown to have existed at the time.
The following discussion in 2
Harper & James, Torts, §27.13, pp. 1489 et seq., (1956), cited with
approval in Zentz v. Toop, supra, 92 N.J. Super. at 112, may be helpful
in understanding the principles involved in the above charges:
Once
an occupier has learned of dangerous conditions on his/her premises, a
serious question arises as to whether he/she may--as a matter of law
under all circumstances--discharge all further duty to his/her invitees
by simply giving them a warning adequate to enable them to avoid the
harm. A good many authorities, including the Restatement, take the
position that he/she may. But this proposition is a highly doubtful one
both on principle and authority. The alternative would be a requirement
of due care to make the conditions reasonably safe--a requirement which
might well be satisfied by warning or obviousness in any given case, but
which would not be so satisfied invariably.
* * *
1.
Defendants duty. People can hurt themselves on almost any condition of
the premises. That is certainly true of an ordinary flight of stairs.
But it takes more than this to make a condition unreasonably dangerous.
If people who are likely to encounter a condition may be expected to
take perfectly good care themselves without further precautions, then
the condition is not unreasonably dangerous because the likelihood of
harm is slight. This is true of the flight of ordinary stairs in a usual
place in the daylight. It is also true of ordinary curbing along a
sidewalk, doors or windows in a house, counters in a store, stones and
slopes in a New England field, and countless other things which are
common in our everyday experience. It may also be true of less common
and obvious conditions which lurk in a place where visitors would expect
to find such dangers. The ordinary person can use or encounter all of
these things safely if he/she is fully aware of their presence at the
time. And if they have no unusual features and are in a place where
he/she would naturally look for them, he/she may be expected to take
care of himself if they are plainly visible. In such cases it is enough
if the condition is obvious, or is made obvious (e.g., by illumination).
* * *
On the other hand, the fact that a condition is
obvious--i.e., it would be clearly visible to one whose attention was
directed to it--does not always remove all unreasonable danger. It may
fail to do so in two lines of cases. In one line of cases, people would
not in fact expect to find the condition where it is, or they are likely
to have their attention distracted as they approach it, or, for some
other reason, they are in fact not likely to see it, though it could be
readily and safely avoided if they did. There may be negligence in
creating or maintaining such a condition even though it is physically
obvious; slight obstructions to travel on a sidewalk an unexpected step
in a store aisle or between a passenger elevator and the landing furnish
examples. Under the circumstances of any particular case, an additional
warning may, as a matter of fact, suffice to remove the danger, as
where a customer, not hurried by crowds or some emergency, and in
possession of his/her facilities, is told to watch his/her step or step
up at the appropriate time. When this is the case, the warning satisfies
the requirement of due care and is incompatible with defendants
negligence. Here again, plaintiffs recovery would be prevented by that
fact no matter how careful he/she was. But under ordinary negligence
principles the question is properly one of fact for the jury except in
the clearest situations.
In the second line of cases the
condition of danger is such that it cannot be encountered with
reasonable safety even if the danger is known and appreciated. An icy
flight of stairs or sidewalk, a slippery floor, a defective crosswalk,
or a walkway near an exposed high tension wire may furnish examples. So
may the less dangerous kind of condition if surrounding circumstances
are likely to force plaintiff upon it, or if, for any other reason,
his/her knowledge is not likely to be a protection against danger. It is
in these situations that the bit of the Restatements adequate warning
rule is felt. Here, if people are in fact likely to encounter the
danger, the duty of reasonable care to make conditions reasonably safe
is not satisfied by a simple warning; the probability of harm in spite
of such precaution is still unreasonably great. And the books are full
of cases in which defendants, owing such a duty, are held liable for
creating or maintaining a perfectly obvious danger of which plaintiffs
are fully aware. The Restatement, however, would deny liability here
because the occupier need not invite visitors, and if he/she does,
he/she may condition the invitation on any terms he/she chooses, so long
as there is full disclosure of them. If the invitee wishes to come on
those terms, he/she assumes the risk.
The Restatement view is
wrong in policy. The law has never freed landownership or possession
from all restrictions or obligations imposed in the social interest. The
possessors duty to use care towards those outside the land is of long
standing. And many obligations are imposed for the benefit of people who
voluntarily come upon the land. For the invitee, the occupier must make
reasonable inspection and give warning of hidden perils. . . But this
should not be conclusive. Reasonable expectations may raise duties, but
they should not always limit them. The gist of the matter is
unreasonable probability of harm in fact. And when that is great enough
in spite of full disclosure, it is carrying the quasi-sovereignty of the
landowner pretty far to let him ignore it to the risk of life and limb.
So
far as authority goes, the orthodox theory is getting to be a pretty
feeble reed for defendants to lean on. It is still frequently stated,
though often by way of dictum. On the other hand, some cases have
simply--though unostentatiously--broken with tradition and held
defendant liable to an invitee in spite of his/her knowledge of the
danger, when the danger was great enough and could have been feasibly
remedied. Other cases stress either the reasonable assumption of safety
which the invitee may make or the likelihood that his/her attention will
be distracted, in order to cut down the notion of what is obvious or
the adequacy of warning. And the latter is often a jury question even
under the Restatement rule. It is not surprising, then, that relatively
few decisions have depended on the Restatement rule alone for denying
liability.
2. Contributory Negligence. . . But there are several
situations in which a plaintiff will not be barred by contributory
negligence although he/she encountered a known danger. . . For another,
it is not necessarily negligent for a plaintiff knowingly and
deliberately to encounter a danger which it is negligent for defendant
to maintain. Thus a traveler may knowingly use a defective sidewalk, or a
tenant a defective common stairway, without being negligent if the use
was reasonable under all the circumstances.
Conclusion We
appreciate that this is a great deal of information to absorb. We also
appreciate that our requests for clients assistance have been numerous.
However, we are certain that our clients appreciate having this
information from the outset. Each request and bit of information given
here represents an important part in recovering full value for your
injury. Therefore, we respectfully request your full cooperation. If you
have questions or concerns regarding these instructions, we encourage
you to feel free to contact the office at any time. These situations
show that the invitee will not always be barred by his/her self-exposure
to known dangers on the premises.
CALL KENNETH A. VERCAMMEN, ESQ. 732-572-0500 For an Appointment
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