Sullivan, Foley and Leonard. The opinion of the court was delivered by Foley, J.A.D.
Plaintiff appeals from a judgment of involuntary dismissal granted in the Law Division. Defendants cross-appeal from the denial by the trial court of their motion to dismiss on plaintiff's opening statement.
In her complaint plaintiff alleged that on August 2, 1963 she had occasion to enter upon the premises of defendants, and, as she was entering the premises, she tripped and fell as a result of the concealed presence of a dangerous sprinkler head negligently installed and maintained by defendant's "in a place and fashion perilous to all who entered upon or passed by said premises," and as a result suffered the injuries for which she sought damages.
We deal first with the cross-appeal. Plaintiff's opening statement to the jury may be summarized as follows: Between 8:30 and 9:00 P.M. on August 2, 1963 plaintiff was collecting funds for a hospital in Sea Isle City. She approached the home of defendants which "had a lawn in front of it and the lawn had a sprinkler system in it." One of the sprinkler heads was located "at the apex, the point where the sidewalk and the walk to [defendants'] house met." As she left the sidewalk in front of the house and entered the pathway to the house, "the front of her shoe caught on a sprinkler head which we will demonstrate to you was about an inch off the ground and colored gray." As a result of her foot catching in the sprinkler head she fell and fractured her right elbow. It was stated further that plaintiff would describe to the jury "certain features of the accident" and what happened after it.
It was also stated that plaintiff would show that "this sprinkler head over which [she] tripped being in the apex of the lawn surrounded by grass was invisible at that hour of the evening to a passerby, it was raised above the ground to a level that made it a rather dangerous agency and that [defendants] either knew this or should have known this
and should have taken certain steps to alleviate this difficulty which presented certain dangers to people entering the walk."
The attorney for defendants then proceeded to open. In substance he stated that plaintiff was completely unknown to the Spiegelhalters and was soliciting funds for her own charitable interests. He pointed out that the sprinkler system is installed entirely within the boundaries of the grass area of the lawn fronting defendants' residence, and that plaintiff had not been invited by defendants to enter upon their premises. He contended that she was a mere licensee and as such no duty was owed to her by defendants other than to refrain from willful or wanton injury.
At the conclusion of the openings plaintiff was called to the stand and sworn. At that juncture defendants moved for a judgment of dismissal on plaintiff's opening upon the ground that there was nothing in plaintiff's statement "which would indicate liability" on the part of defendants that there was no duty on defendants to provide plaintiff with a means of access to the premises "other than the walk that she was on," and that plaintiff's opening indicated that she was not on the walk because the sprinkler head was on the lawn, and so did not constitute an obstruction of the public way. After hearing argument the trial judge denied defendants' motion.
Initially, it should be pointed out that a motion addressed to the opening should be made immediately upon the conclusion of that phase of the case. This traditionally has been the order of procedure both before and after 1948, when the new judicial system and rules implementing it became operative. Defendants attempt to justify the timeliness of the motion to dismiss by citing R.R. 4:44-1, which provides:
"In all trials, unless otherwise provided in the pretrial order, before any evidence is offered the plaintiff shall make an opening statement and immediately thereafter, the defendant shall make an opening statement." (Emphasis added)
Defendants argue that the words "immediately thereafter" preclude the propriety of a motion to dismiss on plaintiff's opening at the conclusion thereof. We do not attach the same significance to these words. They simply mean that defendants' opening should be made at the beginning of the case, following plaintiff's opening, and before evidence is taken, rather than at some later stage. Thus, we conclude that the rule was not intended to revise the previously accepted practice. The trial judge, therefore, would have been justified in the exercise of his discretion to deny defendants' motion to ...