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Bree v. Jalbert

Decided: April 27, 1965.

WILLIAM BREE, PLAINTIFF,
v.
JOSEPH JALBERT AND MILLA JALBERT, DEFENDANTS AND THIRD-PARTY PLAINTIFFS, V. PACCO CONTRACTING COMPANY, INC., THIRD-PARTY DEFENDANT



Botter, J.s.c.

Botter

Plaintiff has moved for a new trial following a jury verdict of no cause for action on plaintiff's claim for serious personal injuries suffered in a fall on premises owned by defendants Milla and Joseph Jalbert (hereinafter called Jalbert). This was the second trial of the cause, the first having ended when the jury was unable to agree upon a verdict. This time, pursuant to R.R. 4:50-2, the court submitted to the jury four written interrogatories as well as a form of general verdict. The jury returned the general verdict, but without answers to the interrogatories. This opinion deals with plaintiff's contention that the jury's failure to answer the interrogatories warrants a new trial.*fn1

Plaintiff was a tenant in a garden apartment complex on West Madison Avenue in Dumont, New Jersey, owned by the Jalberts. Plaintiff contends that on August 10, 1962, around 9:30 P.M., he parked his car in the common parking area provided for tenants. He testified that he stepped out of his car into an accumulation of water on the parking area and started to walk toward his nearby apartment. The water covered his shoetops, he said. He testified that when he was about nine feet from the curb he slipped and fell, having stepped on mud, oil and grease lying under the water. He testified that after arising he took another step forward and

again slipped and fell on the combined substances -- the mud, water, oil and grease. It was plaintiff's contention that this condition was caused by improper drainage which permitted rainwater to accumulate along the length of the curb on the easterly side of the parking area and which tended to wash dirt, grease and oil into that portion of the parking area. He contended, further, that the Jalberts were negligent in furnishing inadequate lighting for the area in question.

The Jalberts denied negligence and asserted the defense of contributory negligence. They also brought a third-party complaint against Pacco Contracting Company, Inc. (Pacco), the contractor who graded and paved the parking area. The Jalberts contended that Pacco did its work in an improper manner and that Pacco agreed to return to make corrections but failed to do so. The Jalberts claimed indemnification from Pacco for any judgment recovered by plaintiff against Jalbert and, in the alternative, claimed contribution from Pacco as a joint tortfeasor. After Pacco was brought into the case as a third-party defendant, plaintiff also asserted a claim against Pacco based upon improper grading and paving. Pacco denied liability, contending that the elevations which determined the grade or pitch were established by Jalbert, and that in laying the subbase and the asphalt pavement Pacco merely followed the instructions of Jalbert as to such elevations.

Jalbert admitted that water did accumulate along the curb, but denied plaintiff's contention that it extended ten feet from the curb in the area where plaintiff claims to have fallen. Jalbert presented evidence to show that the area was cleaned regularly and that mud and grease were not washed into the area where plaintiff parked. Jalbert contended that the actual cause of plaintiff's fall was not the mud and grease but his attempt to jump over a puddle of water near the curb. In support of the defense of contributory negligence it was established that plaintiff knew of the conditions of which he complained for a long time, that he saw the water there on the night in question, and that he made no effort to hold on

to his car or the adjacent car when walking toward his apartment. Plaintiff admitted that he parked in a vacant spot near his apartment partly as a convenience to himself because he had suitcases in his car, but he also asserted that this was the only parking space available at the time and that he could not feasibly avoid the water in getting to his apartment. To the extent the jury believed that plaintiff did attempt to jump over the puddle it could have found that this was evidence of contributory negligence on his part.*fn2

At the end of plaintiff's case, and again at the end of all the proofs, motions were made for judgment against plaintiff on the ground that he was contributorily negligent as a matter of law. These motions were denied. The court ruled that it was for the jury to determine whether or not in the circumstances plaintiff exercised reasonable care for his own safety when walking into a known danger or by the manner in which he proceeded in view of the known danger. See McGrath v. American Cyanamid Co., 41 N.J. 272, 275 (1963); Snyder v. I. Jay Realty Co., 30 N.J. 303, 316 (1959); Benton v. Y.M.C.A., 27 N.J. 67 (1958); Bates v. Valley Fair Enterprises, Inc., 86 N.J. Super. 1 (App. Div. 1964); but cf. Rado v. Zlotnick, 7 N.J. Super. 197 (App. Div. 1950), certification denied, 5 N.J. 346 (1950).

Defendants also moved to have the lighting issue withdrawn from the jury, urging that as a matter of law the lack of adequate lighting could not have been a proximate cause of the accident. Plaintiff said he knew the water was there and that he knew mud and grease collected under the water after rainstorms. It seems unlikely that adequate lighting would have better forewarned plaintiff of the conditions under the water on the night in question. Generally speaking, there is

no need to give notice or warning of a danger that is known. McGrath v. American Cyanamid Co., supra, 41 N.J., at p. 275. Nevertheless, pursuant to R.R. 4:51-2(a) the court reserved decision on this motion and let the issues of the lighting and proximate cause go to the jury.*fn3 Because of this it became necessary to know, in the event of a verdict for plaintiff, whether the verdict was based upon the alleged inadequate lighting or improper drainage or both. This was one reason for submitting written interrogatories to the jury.

There was another reason. The issue of Pacco's liability was put to the jury, without objection, in the following manner. If in grading and paving the parking area Pacco, at the direction of Jalbert, followed the elevations established by Jalbert, Pacco would not be liable to plaintiff, or to Jalbert in the third-party action, because Pacco did not construct something inherently dangerous; but Jalbert alone, as the landlord, would have been responsible for the consequences of the inadequate drainage. See Lydecker v. Board of Chosen Freeholders of Passaic, 91 N.J.L. 622 (E. & A. 1918); Prosser, Torts (3 d ed. 1964), sec. 99, p. 695.*fn4 However, if Pacco negligently established the elevations and the resultant pitch of the parking area, Pacco as well as Jalbert would have been responsible to plaintiff, and Jalbert in turn would have been entitled to full indemnification from Pacco, provided Jalbert had not been independently negligent in a manner that contributed to the accident, specifically, by inadequately

lighting the parking area. See Mayer v. Fairlawn Jewish Center, 38 N.J. 549 (1962). If the accident was proximately caused by negligent lighting as well as negligent drainage, both Pacco and Jalbert could have been held liable as joint tortfeasors, and in such event Jalbert would have been entitled merely to contribution from Pacco under the Joint Tortfeasors Contribution Law, N.J.S. 2A:53A-1 et seq., but not to full indemnification. Mayer v. Fairlawn Jewish Center, supra, 38 N.J., at p. 563. Thus, knowing the basis of the jury's finding on the issue of negligent lighting was essential not only as it related to the court's reservation on the motion to remove this issue from the jury but also as it related to the landlord's independent negligence and its effect upon liability of the parties in the main case as well as in the third-party action.

Pursuant to R.R. 4:50-2,*fn5 the court on its own motion prepared and submitted to the jury written interrogatories and a form of general verdict. The written interrogatories contained four questions asking (a) whether Jalbert was negligent in failing to provide proper grading and drainage in the parking area; (b) if so was such negligence a proximate cause of the accident; (c) whether Jalbert was negligent

in failing to provide proper lighting for the parking area so that the alleged unsafe conditions could be readily seen, and (d) if so, was such negligence a proximate cause of the accident. Significantly, no question was put to the jury on the issue of contributory negligence. The form of general verdict allowed a choice of three verdicts: (a) no cause for action against any defendant, (b) in favor of plaintiff against Jalbert alone, or (c) in favor of plaintiff against both Jalbert and Pacco. A form of general verdict was also supplied for the third-party action.

Plaintiff made no motions at the end of all the proofs and made no objection to the court's charge, nor to the form of interrogatories and general verdict submitted to the jury. The court fully charged the jury and, as required by R.R. 4:50-2, instructed the jury to answer the written interrogatories and to return a general verdict. After approximately two hours of deliberation the jury returned a verdict of no cause for action, handing up the form of general verdict appropriately marked, with the form of interrogatories unmarked. Upon inquiry from the court the foreman advised that the written interrogatories were not answered. At this juncture plaintiff made no objection and made no request for further action with respect to the jury's failure to answer the interrogatories. The court accepted the verdict without further inquiry as to the interrogatories, and the trial was ended.

Plaintiff now contends that the jury's failure to answer the interrogatories renders its general verdict defective. Plaintiff argues that R.R. 4:50-2 makes it mandatory for the jury to answer the interrogatories; that its failure to do so was a violation of that rule and the court's charge, and that the verdict should be set aside and a new trial granted because the jury did not follow the court's instructions. Plaintiff relies upon the principle that inconsistent verdicts must be set aside. It is also contended that the use of interrogatories serves as a check upon the jury's verdict, and that this purpose has been frustrated by the jury's failure to answer the interrogatories.

Obviously, R.R. 4:50-2 does not expressly provide for the failure of a jury to answer the propounded interrogatories. Nor has any reported decision in New Jersey dealt with R.R. 4:50-2 in this context. In a number of cases the use of this rule has been encouraged,*fn6 but New Jersey courts have not yet been faced with the variety of problems ...


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