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Caparella v. Bennett

Decided: December 17, 1964.

JOSEPHINE M. CAPARELLA AND JOSEPH CAPARELLA, PLAINTIFFS-APPELLANTS,
v.
WILLIAM BENNETT, DEFENDANT-RESPONDENT



Goldmann, Sullivan and Labrecque. The opinion of the court was delivered by Sullivan, J.A.D.

Sullivan

Plaintiffs appeal from a judgment in favor of defendant entered upon a jury verdict of no cause for action.

Plaintiffs, husband and wife, were tenants in a multi-family residence owned by defendant who also occupied an apartment therein. The premises included a parking area used by the tenants and the owner. Plaintiffs contend that on Sunday morning, October 29, 1961, at about 7:45 A.M. they left their apartment to go to church. While walking across the rear of the premises to reach the parking area where their automobile was parked, Mrs. Caparella remembered that she did not have her kerchief with her. As she turned to return to the apartment, she slipped and fell on wet leaves and was injured. She filed the instant suit against defendant for damages alleging that defendant, through neglect, had created a dangerous condition. Her husband joined in the suit per quod. Defendant's answer pleaded a general denial of all of the allegations of the complaint except the fact of defendant's ownership of the property and set up as separate defenses negligence, contributory negligence, and assumption of risk on the part of Mrs.

Caparella. Interrogatories were served on defendant as to the separate defenses. The interrogatories and defendant's answers thereto are as follows:

"11. Q. State in detail, facts, not legal conclusions, constituting negligence on the part of the plaintiff herein.

A. Plaintiff was negligent in that she was fully aware of the condition of the pavement and assumed the risk of traversing said portion of the sidewalk.

13. Q. State factually in what way plaintiff failed to exercise reasonable and prudent care for her own safety.

A. Plaintiff was fully aware of the condition of the pavement as she had traversed said pavement daily for a considerable period of time, and she assumed the risk incidental to her use of the premises.

14. Q. State factually what omissions by the plaintiff resulted in the sole and approximate cause of the accident.

A. See No. 11 and No. 13."

Thereafter a pretrial conference was had and a pretrial order prepared. (The conference antedated the recent change in the rules governing the pretrial order.) In said order plaintiffs' factual contentions as to the happening of the accident are as heretofore stated. Defendant's factual contentions as set forth in said order are as follows:

"3. This defendant admits ownership of the premises located at No. 1584 Parkside Avenue, Ewing Township, New Jersey. Defendant denies negligence and puts plaintiffs to their proof in all respects thereto. He asserts affirmative defenses of ...


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