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Mayer v. Fairlawn Jewish Center

Decided: December 27, 1961.

EDWIN L. MAYER, PLAINTIFF-RESPONDENT,
v.
FAIRLAWN JEWISH CENTER AND RANDALL CONSTRUCTION CO., INC., DEFENDANTS-APPELLANTS



Price, Sullivan and Leonard. The opinion of the court was delivered by Price, S.j.a.d.

Price

[71 NJSuper Page 314] Defendants Fairlawn Jewish Center (hereinafter Center) and Randall Construction Co., Inc. (hereinafter Randall) appeal from a judgment entered in a negligence action in the Superior Court, Law Division, on the verdict of a jury which awarded damages in the sum of $10,000 to plaintiff for personal injuries sustained on November 16, 1958. Plaintiff was injured when he fell while on property, owned by Center, on which property certain new construction and renovation work was being

performed by Randall under contract with Center, to which contract reference is hereinafter made.

Although the respective defendants at trial vigorously contested the charge that they were negligent, neither defendant on appeal challenges the resolution of that issue by the jury. Center's appeal is based on the contention that it was entitled to the charitable immunity provided by L. 1958, c. 131, which, as it became effective July 22, 1958, and by its terms did not expire until June 30, 1959, was in effect at the time of the aforesaid accident. Randall, asserting that plaintiff "was guilty of contributory negligence as a matter of law," contends that the trial court erroneously denied its motion for dismissal made on that ground at the end of plaintiff's case. Center also appeals from the trial court's dismissal of its cross-claim against defendant Randall for the alleged breach of one of the provisions of the aforesaid contract for construction and renovation of Center property.

On the date of the accident plaintiff Edwin L. Mayer was employed as the Regional Director of the Development Corporation for Israel, a New York corporation engaged in the sale of bonds issued by the government of the State of Israel for the economic development of that country. In his official capacity plaintiff attended a dinner held at the Center on the evening of November 16, 1958, for the promotion of bond sales. Arriving at the Center about 7:30 P.M., plaintiff entered the building through the main entrance. About an hour later plaintiff decided to go outside to "get a breath of air." He walked to an exit where there were "swinging doors." The doorway was not the one through which he had entered the room, nor was it identified by an "exit" sign visible from the interior of the room as were other doorways. Beyond the swinging doors was a short hallway leading to the kitchens. Plaintiff testified that on entering the hallway he asked one of Center's employees where he might exit from the building. The employee indicated a single door at the

end of the hall. Plaintiff proceeded outside through that door, which was unlocked and which had a lighted "exit" sign above it, visible from the hallway. It was dark outside. Plaintiff testified that after taking "two," "three" or "four" steps, he turned to his left and fell into a stairwell, 9 to 11 feet in depth. He sustained substantial physical injury. The proofs established that there was no railing or other guard around the stairwell then under construction; the area was unlighted, and there were no warning signals or signs indicating the presence of the unfinished stairwell. On the date of the accident the stairwell and other portions of the Center property were under construction by Randall pursuant to the aforesaid contract between Center and Randall.

The president of Center testified that the Development Corporation, plaintiff's employer, was using Center's building free of charge pursuant to Center's offer. The Development Corporation made arrangements for the dinner and caused the tickets to be printed. The tickets were sold by lay leaders of the Center working under the supervision of the Development Corporation. The tickets were priced at $6 each. Plaintiff confirmed the fact that insofar as he knew "there was no direct charge" by Center for the use of its hall on the evening in question, but that he believed that out of each $6 dinner ticket charge, 50 cents went to Center, which arrangement was explained in Center's answers to interrogatories (received in evidence) as a payment from the caterer to Center "for a kitchen charge." Plaintiff further testified that the Development Corporation made the arrangements for the dinner "for the benefit of the Fair Lawn Jewish Committee, headed by lay leadership -- the volunteers in the Jewish Center and community at large * * *; to benefit the State of Israel, but to involve the people, the Jewish people of Fair Lawn * * *." There is no doubt from the proofs that the sale of the bonds and the use of the hall therefor, represented a co-operative effort by Center and the Development Corporation

to achieve a common objective, and that plaintiff's status, as determined by the trial court, was that of an invitee on the premises of Center.

I.

We consider initially Randall's claim that plaintiff was guilty of contributory negligence as a matter of law. We find no error in the trial court's refusal to dismiss plaintiff's action on that ground. Appellant Randall stresses plaintiff's failure to leave the building through the same doorway which he used on entering. There was nothing in the proofs from which it might reasonably be concluded that he was required to do so. Moreover, his actions, on exiting from the building, definitely raised a jury question as to whether he was guilty of contributory negligence. In Seipel v. Sevek , 29 N.J. 593, 597 (1959), it was held that "unless the contributory negligence is a necessarily exclusive conclusion from the facts, there is no warrant for removal of the issue from the consideration of the jury." See also, Marty v. Erie R. Co. , 62 N.J. Super. 458, 465-466 (App. Div. 1960), certif. denied 33 N.J. 387 (1960).

Under the evidence, the court would have been unjustified in holding that as a matter of law plaintiff should have foreseen the existence of the uncompleted and unguarded stairwell, of the presence of which, as above stated, there was no warning. Neither did the few steps he took in the dark, on leaving through the doorway which bore a lighted exit sign, and to which doorway he had been directed by a Center employee, constitute contributory negligence as a matter of law. We find no error in the trial court's refusal to grant Randall's motion for dismissal.

II.

We turn to Center's claim of immunity stemming from the statute in effect at the time of ...


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