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Wasserstein v. Swern and Co.

Decided: May 22, 1964.


Gaulkin, Foley and Lewis. The opinion of the court was delivered by Foley, J.A.D.


[84 NJSuper Page 3] By leave, defendant appeals from an interlocutory order of the Law Division denying its motion to quash subpoenas duces tecum which plaintiffs had served

upon two agents of defendant's insurance carrier, requiring them to produce "all records of any and all claims made in anywise relating or pertaining to the escalators at Swern & Co., t/a Lit Brothers in Trenton, New Jersey, for 10 years prior to December 10, 1962."

The complaint filed in the matter alleged that on October 3, 1960 plaintiff Mary Wasserstein, while a customer in defendant's department store, sustained personal injuries when she fell on an escalator on which she was riding from the second floor to the first floor of the store. Negligence was charged in general language.

In a pretrial deposition Mrs. Wasserstein testified that she was caused to fall when a woman riding in front of her in some manner lost her balance and fell backward toward plaintiff. At the pretrial hearing, the negligence charged included allegations that defendant "permitted said escalator to become overcrowded and unsafe, made no provisions for stopping it when someone fell, and for protecting other passengers when someone fell; * * * failing to warn plaintiff of dangers; * * *."

The subpoenas were served on December 6 and made returnable on December 11. Trial of the case was commenced on December 11, 1962 when a jury was impanelled and plaintiffs' attorney made an opening statement to the jury. In this statement the theory of liability upon which plaintiffs relied was that defendant violated its duty to exercise reasonable care by failing to prevent overcrowding of the escalator, and in failing to warn customers of dangers inhering in the normal use of the device. Notice and knowledge of these dangers, the attorney stated, would be proved by evidence that defendant was aware that on many prior occasions, and for various causes, other persons had fallen on the escalator while it was in motion. He stated:

"We will have incidents of many, many, many occasions; not once, not twice, not fifteen but many, many times, that patrons, business invitees who came into this store to transact business, they fell on the escalator because their heel was caught, their shoes were caught,

their sneakers were caught, their boxes, their packages, their clothing got caught on the escalator, causing them to fall and people even injuring their fingers in this escalator. That all proves knowledge of a dangerous condition under the law which we are required to prove."

The following day, before any other witness was called, plaintiffs called to the stand Marcel J. Koster, one of the persons upon whom a subpoena was served. At the conclusion of his testimony, which was taken out of the presence of the jury, defendant moved to quash the subpoenas. Parenthetically, we observe that the better practice would have been for defendant to have made the motion as soon as possible after the subpoenas were served and prior to the impanelling of the jury. See R.R. 4:46-2. Koster testified that he was manager of the East Orange office of defendant's insurance carrier, and that this office services claims in the territory in which defendant's department store is located. He stated that he had brought with him from the East Orange office the only files relating to prior accidents in the category described in the subpoena, and that if there were additional files, he could "only surmise that these records are in Baltimore, Md., [the home office of the insurance company] or places other than Baltimore, Md., unknown to me." As to his efforts to obtain such records, he said:

"We have called up our office in Baltimore and requested same. Unfortunately we don't know which are escalator cases and which are not escalator cases. Many of these files have been destroyed. It's humanly impossible at this point to comply with this. I personally have endeavored and have done everything that I can to procure these records."

Koster went on to say that not only was it impossible for him to comply with the subpoena in the time allotted to him to do so, but that he did not know how long it would take to fully comply; that defendant's store operation is a part of a nationwide organization of allied stores covered by the insurance company for public liability, and that the ...

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