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Merkel v. Safeway Stores Inc.

Decided: December 20, 1962.

HENRY MERKEL, PLAINTIFF,
v.
SAFEWAY STORES, INC., A MARYLAND CORPORATION, DEFENDANT



Fulop, J.c.c. (temporarily assigned).

Fulop

[77 NJSuper Page 536] On January 26, 1961, at about noon, plaintiff drove his automobile to the parking lot of the defendant adjacent to the defendant's store on Liberty Avenue in Hillside, New Jersey. He left his automobile and walked in the parking area to the sidewalk, turning to the right with the intention of entering defendant's store to make purchases. At about the point at which he turned, and while on the sidewalk in front of the corner of the building, the plaintiff fell and was injured.

Plaintiff contended at the trial that he fell upon ice covered with snow on the sidewalk. It had not snowed for more than a day before the incident in question. The plaintiff contended that he was an invitee and defendant owed him the duty to use reasonable care to provide and maintain a safe place to use in walking from the parking area to the store, and that the defendant had failed to do so.

Defendant contended that its duty of care to its customers did not extend to the public sidewalk and that its only duty to the plaintiff with respect to snow and ice on the public sidewalk was that which it owed to all members of the public walking on the sidewalk, namely, to refrain from negligently increasing the hazard created by the elements. Thus, defendant would not be liable for any hazard arising from snow or ice in its natural state. It would not be required to clear the sidewalk or to place salt or other anti-slip products on it.

Defendant moved for judgment in its favor as a matter of law. This was not granted and the case went to the jury on plaintiff's theory. The jury brought in a verdict for the plaintiff in the sum of $1,500.

Defendant now renews its motion for judgment in its favor, notwithstanding the verdict pursuant to R.R. 4:51-2.

In its notice of motion defendant included motions "for a new trial because the verdict is against the weight of the evidence" and "to reduce the damages." These two motions were abandoned at the oral argument and defendant confines itself to the single legal point.

The single legal issue is the nature and extent of the defendant's duty to the plaintiff with respect to the section of public sidewalk which plaintiff had to walk over to reach the store entrance from the parking area.

Before considering the legal question, it should be noted that:

(a) Defendant did attempt to clear this area of the sidewalk. There was testimony that its employees shovelled the snow, did not succeed in clearing off all of the ice, and did

place a mixture of sand and salt on it. Thus, the jury could have found a negligent performance of these acts.

(b) The evidence of negligence by defendant was thin and I probably would not have found the defendant liable had ...


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