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Bates v. Valley Fair Enterprises Inc.

Decided: December 18, 1964.


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


Plaintiffs appeal from a final judgment based upon a verdict of no cause of action and from the denial of subsequent motions for a new trial and for judgment n.o.v.

The action was for personal injuries sustained by plaintiff wife as a result of a fall on the parking lot of defendant's shopping center located on Olden Avenue Extension, Ewing Township. On the day of the accident she set out from her home on a shopping trip to defendant's supermarket. She drove to the home of her sister and then accompanied her sister and her niece to the defendant's premises.

Defendant's parking lot had a capacity of some 750 cars and permitted parking all around the building. There were no special lanes for walking and no attendants. Plaintiff was

looking for a parking place as close to the front of the store as possible. When she observed one which seemed to be vacant, she asked her sister, who was driving, to stop. She then disembarked and began to walk towards the front of the car. As she continued walking and motioning with her left hand for her sister to drive into the empty space, she slipped and fell on what she described as icy patches on the pavement, sustaining the injuries for which she sued. Her husband joined per quod.

It was undisputed that there had been a rather heavy fall of snow on December 11 and 12 during the prior week. There had been a lighter fall on December 16, 1960, the day before the accident. The weather at the time of the accident was clear and cold, and plaintiff testified on direct examination that the streets and sidewalks were clear, the snow having been removed. When she reached the parking lot she found that the snow had been plowed and was pushed back against the sides of the lot. There were no signs prohibiting the use of the lot or cautioning regarding the use thereof.

Witnesses for the defendant testified that on December 11 and 12 the store had been closed due to the storm. Thereafter, a snow removal contractor cleared the parking lot with bull-dozers after which the area was covered with cinders. There was also testimony that on December 17, following the snowfall of the prior day, cinders and salt were spread on the entire parking lot.

At the conclusion of the evidence plaintiff's attorney moved to strike the defense of contributory negligence and for an adjudication of defendant's negligence as a matter of law. Both motions were denied. Defendant's motion for judgment was likewise denied. The jury's verdict was that: "We find no cause for action. Contributory negligence on the part of both parties." Thereupon a motion for a new trial and judgment n.o.v. was made, argued and denied. The present appeal followed.

Plaintiff urges three grounds for reversal: (1) defendant's negligence had been established as a matter of law and should

not have been submitted to the jury; (2) plaintiff's contributory negligence was erroneously submitted to the jury; and (3) prejudicial error in the charge. However, before passing upon these contentions, we turn to consideration of defendant's motion to dismiss for failure of the appellants to file notice of appeal within the period provided by R.R. 1:3-1(b), and plaintiff's motion for an extension of time pursuant to R.R. 1:27A and 1:27B(d).

The verdict was rendered on April 30, 1963 and judgment was entered by the clerk on May 2, 1963. While the notice of appeal was not filed with the clerk until July 8, 1963, the time for appeal had been tolled by the motion for a new trial and for judgment n.o.v. , which was served on May 9 and determined and denied by order filed with the clerk on May 28, 1963. R.R. 1:3-3(f). The notice of appeal was served upon the attorneys for defendants on July 5, 1963, but the wife of counsel for the plaintiff, who was assisting him while he was in the process of moving his offices, was not aware of the summer closing hours for state offices and arrived at the clerk's office too late to file it on that day. It was filed on Monday, July 8, the next day the office was open. It would thus appear that 48 days elapsed between the date of the entry of judgment and the date of the filing of the notice of appeal with the clerk as required by R.R. 1:2-8(a). In support of defendant's motion for dismissal counsel cites In re Nuese , 15 N.J. 149 (1954); State v. Newman , 36 N.J. Super. 506 (App. Div. 1955), and In re Pfizer , 6 N.J. 233 (1951).

We are in accord that the interests of justice call for the allowance of the extension. Martindell v. Martindell , 21 N.J. 341, 348-350 (1956); In re Erie Railroad System , 19 N.J. 110, 140-141 (1955); In re Syby , 66 N.J. Super. 460 (App. Div. 1961); see also, State v. Petrolia , 21 N.J. 453, 457 (1956); Hodgson v. Applegate , 31 N.J. 29 (1959); Klinsky v. Hanson Van Winkle Munning Co. , 43 N.J. Super. 166 (App. Div. ...

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