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Nelson v. Great Atlantic and Pacific Tea Co.

Decided: January 9, 1958.


Clapp, Jayne and Schettino. The opinion of the court was delivered by Schettino, J.A.D. Jayne, J.A.D. (dissenting).


Appeal is from a judgment of involuntary dismissal granted by the Law Division of this court on respondent's motion after plaintiffs' opening statements to the jury. The appeal does not involve defendant Tamburelli, since plaintiffs conceded that the damages sought did not arise from any fault of this defendant and plaintiffs agreed to a dismissal of the suit against Tamburelli.

The action is for personal injuries suffered by plaintiff Fay Nelson, necessitating considerable medical treatment, including 11 days of hospitalization with traction, a cast and a special kind of corset. Plaintiff Leo Nelson, husband, seeks compensation for his expenses and loss of consortium.

We recite the history of this case. On Thursday evening November 18, 1954, at about 8:00 or 8:30 P.M., plaintiff, Fay Nelson, walked to the premises of the respondent to make certain purchases. The outside premises of respondent

consist of a large parking area and a sidewalk around the building. Respondent had installed flood lights on the side of the building to light the area for safety of customers when it was open for business in the evening. Mrs. Nelson, while on the respondent's premises, tripped and fell in the parking area at or near the sidewalk. The area where Mrs. Nelson fell was dark, the lights were out, and had been out for approximately a week. Mrs. Nelson knew her foot struck something but she did not know exactly what the object was because of the darkness.

After plaintiffs' original opening to the jury, respondent made a motion stating that plaintiffs had failed to set forth a cause of action, in that plaintiff wife did not know upon what she had tripped or fallen and that the opening failed to set forth or allege any negligence on the part of respondent and, if anything, that there had been an assumption of risk under the law, since she continued to walk with the lights out, and that respondent had no notice that the lights were out. The court and plaintiffs' counsel engaged in discussion as to the location of the place where the fall had occurred and the duty which the defendant owed to anyone in the area. The court then permitted plaintiffs' counsel to reopen to the jury.

In the reopening plaintiffs' counsel made it clear that Mrs. Nelson fell on the premises leased by respondent near the sidewalk which surrounded the building and that the lights were out and had been out for almost a week. Respondent's counsel renewed his motion for involuntary dismissal on the theory that there was no law requiring respondent to keep the sidewalk and premises around the building lit. Plaintiffs urged the theory that where a person voluntarily undertakes to perform an act resulting in reliance by another person, followed by an arbitrary discontinuance of such act, there is an entrapment which constitutes negligence. Plaintiffs also stated that they would show that the lights in question were normally on illuminating the area for respondent's customers, that the lights had been out for about a week, that respondent had notice of this condition, and

that Mrs. Nelson had upon many occasions in the past shopped in the evening at respondent's store.

In granting the motion for an involuntary dismissal the trial court concluded:

"The opening does not indicate that the plaintiff was an invitee at the place where she fell. Neither the opening nor the subsequent argument indicates that she was an invitee at the position or place where she fell. The case is based on negligence, and since the opening does not indicate that she was an invitee, and the defendant is only liable for negligence to invitees and not to licensees, there is no liability on negligence. The opening does not set forth a cause of action. The opening indicates that the plaintiff tripped and fell on some object. There is no indication from the opening as to what the object is that caused her to fall or caused her to trip. There is no indication as to how long the object had been there."

Respondent concedes that a summary disposition of plaintiffs' case on the opening is an extraordinary measure and that such disposition should not be made unless the facts are undisputed and the law involved is clear. Ross v. Orr , 3 N.J. 277, 284 (1949); ...

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