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Bozza v. Vornado Inc.

Decided: June 1, 1964.

VIRGINIA BOZZA AND COSIMO BOZZA, PLAINTIFFS-APPELLANTS,
v.
VORNADO, INC., A CORPORATION OF THE STATE OF NEW JERSEY AND HERSH ENTERPRISES, INC., A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANTS-RESPONDENTS



For reversal -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Schettino, J.

Schettino

Plaintiff, Virginia Bozza, brought a negligence action against defendants, Vornado, Inc. and Hersh Enterprises, Inc., for personal injuries sustained as a result of a fall which occurred on May 19, 1960, on the premises of the defendants. Her husband, Cosimo Bozza, sued per quod. At the end of the plaintiffs' proofs as to liability, the trial court granted defendants' motion for an involuntary dismissal. R.R. 4:42-2(b). The Appellate Division affirmed. Upon the plaintiffs' petition, we granted certification. 41 N.J. 519 (1964).

In ruling on the motion for an involuntary dismissal, the court must accept as true all of the evidence which supports the plaintiffs and gives plaintiffs the benefit of all legitimate inferences which may be drawn therefrom. Long v. Landy, 35 N.J. 44, 53-54 (1961). We have recently stated that if reasonable minds could differ as to whether any negligence

has been shown, the motion should be denied. Bell v. Eastern Beef Co., 42 N.J. 126 (1964).

The testimony of Virginia Bozza is as follows. On the evening of May 19, 1960, she was a business invitee in a store in East Brunswick, New Jersey, owned by defendant, Vornado, Inc. About 9:15 P.M., she went to the restaurant or cafeteria portion of the store, leased to defendant, Hersh Enterprises, Inc., and purchased a soda which she drank at the counter. Then, as she described it: "I turned, took a few steps and my right foot slipped out and my left foot went under me and my head snapped back and I landed on my right hand on the floor."

After she had been helped to her feet, plaintiff noticed a chocolate colored substance three or four inches in length on the floor. She described the matter as "a sticky material something gummy. * * * It was a sticky substance which was very slimy." Although she attributed her fall to the "sticky," "slimy" substance, Mrs. Bozza testified there were also drippings, paper straw holders, napkins and dirt on the floor. She also claimed that after the fall: "My dress was dirty, my knees were dirty and my hands were dirty."

Mrs. Bozza said that she had been to the restaurant portion of the store "quite a few times," and she gave the following description of its operation. The restaurant was of the self-service cafeteria type, the customers ordering sodas, hot dogs, hamburgers, French fried potatoes and the like at the counter. She noted that the food and drinks were either consumed at the counter or carried, with or without trays, to nearby tables, and also that the beverages were served in paper cups without any lids or tops. Plaintiff stated that bus boys were employed to clear the tables (although she did not remember any being present at the time of her fall). Finally, she characterized the cafeteria as a "very busy" operation.

In the present posture of this case an inference arises that a dangerous condition existed. Plaintiffs concede that there is no testimony which would establish that defendants had actual notice of the dangerous condition, but contend that

defendants were chargeable with constructive notice of the hazardous condition of the floor from the nature and operation of the business itself, or, alternatively, that constructive notice could be inferred from the facts of the case.

In affirming the trial court, the Appellate Division rejected both of the plaintiffs' arguments on the grounds that the defendants are not insurers, and that there were insufficient facts upon which to base a finding of constructive notice.

However, we deem it unnecessary to decide whether the facts in the instant case would permit an inference of constructive notice on the part of the defendants. Absent an explanation by defendants, a jury could find from the condition of the premises and the nature of the business that defendants did not exercise due care in operating the ...


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