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Visaggi v. Frank''s Bar and Grill Inc.

Decided: February 27, 1950.

RITA VISAGGI, AN INFANT BY HER GUARDIAN AD LITEM, SALVATORE VISAGGI AND SALVATORE VISAGGI, PLAINTIFFS-RESPONDENTS,
v.
FRANK'S BAR AND GRILL, INC., A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT-APPELLANT



On appeal from the Superior Court, Law Division.

For affirmance -- Chief Justice Vanderbilt, and Justices Case, Heher, Oliphant, Wachenfeld, Burling and Ackerson. For reversal -- None. The opinion of the court was delivered by Ackerson, J.

Ackerson

This action was initiated by Rita Visaggi, a minor, through her guardian ad litem, to recover damages for injuries allegedly occasioned by a fall due to slipping on snow-covered ice on the front porch of the apartment house at No. 975 Westside Avenue, Jersey City. The accident occurred at 10:45 A.M. on January 25, 1948, and it is alleged that the existence of the underlying ice was unknown to Rita prior to her fall. Her father joined in the action to recover damages incurred by him in consequence of his daughter's injuries.

It is not disputed that the defendant owned the apartment house and had control of the porch for the common use of the tenants and their guests and that Rita was such a guest and therefore occupied the status of an invitee. The determinative

question at the trial was whether or not the defendant had negligently permitted snow and ice to remain on the platform and steps of the porch under circumstances creating a dangerous condition.

Defendant moved at the close of the plaintiff's case, and again at the completion of the entire testimony, for the dismissal of the action on the ground that no negligence on the part of the defendant had been shown. Both motions were denied, the case was submitted to the jury and a verdict was returned in favor of both plaintiffs. From the judgment entered on this verdict the defendant appealed to the Appellate Division of the Superior Court, and, while pending there, the appeal was certified here on our own motion.

The trial judge in his charge to the jury specifically referred to the cases of Boyle v. Baldowski, 117 N.J.L. 320 (Sup. Ct. 1936), and Griffin v. Hohorst, Inc., 14 N.J. Misc. 421 (Sup. Ct. 1936), as expounding the applicable rule and concluded with respect thereto as follows:

"* * * as I have said, that while it is the duty and responsibility of the landlord to exercise ordinary care to keep the steps reasonably safe for use by tenants and guests of tenants in this kind of case it is also necessary that you be satisfied that the landlord had a sufficient previous opportunity to remedy the danger if, in fact, the situation was, as you find, a dangerous situation."

The defendant agrees that the applicable rule was correctly stated but contends here, as it did below, that there is no evidence, nor reasonable inferences from the evidence, to indicate that the defendant was negligent within the scope thereof.

Turning to the record we find that for several days prior to the accident on January 25th, there had been heavy intermittent snow storms which left considerable snow on the ground throughout that period. Rita Visaggi testified that at 10:45 that morning, as she was leaving the apartment house, after visiting a friend who was a tenant therein, she opened the front door, put her right foot out on the platform at the top of the steps, slipped on ice overlain with snow and fell down the steps to the street. Immediately after her fall

she noticed ice on the stoop where her coat had brushed the ...


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