Conford, Collester and Kolovsky. Kolovsky, J.A.D. (dissenting).
Plaintiffs appeal from a judgment entered on a jury verdict of no cause for action in favor of the defendant Abe Margolis.
On February 7, 1965, at about 6 P.M., plaintiff Elizabeth Van Sickell was injured when she fell on the sidewalk of a shopping center after leaving a laundromat to walk to her car which was parked in an off-street parking area in front of the store. It was raining and there was an accumulation of ice and snow in the area. The laundromat was operated by Alice Holmes who leased the premises from Abe Margolis, the owner of the shopping center.
Plaintiffs brought suit against both Margolis and Holmes charging, in separate counts, negligence by each of them in the maintenance of the sidewalk. Holmes could not be served with process and the action proceeded only against Margolis. In the pretrial order plaintiffs contended that Elizabeth Van Sickell "stepped into a hole or break in the sidewalk which was covered with ice and snow and was caused to fall and slip and suffer the injuries complained of." At the trial Mrs. Van Sickell testified "the snow gave way under my feet" at a crack at the edge of the sidewalk. Margolis said he had never undertaken to remove the snow from the walk, that this was the obligation of the tenant, and that the "crack" in the walk was an expansion joint and the walk needed no repairs. Plaintiffs' sole ground of appeal is that remarks made by defendant's counsel in summation, over their objection, were so prejudicial as to call for a reversal.
The record indicates that during summation defendant's counsel argued that the owner of the shopping center owed no duty to the plaintiff and the maintenance of the sidewalk was the obligation of the tenant. Thereafter the record reads as follows:
MR. CONNELL [defendant's attorney]: So, I say to you, ladies and gentlemen, first of all, we had no responsibility to do anything with regard to this property. The responsibility rested solely with
this tenant; and in furtherance of that, in the very Complaint which she filed, she charged, --
MR. ROMEI [plaintiffs' attorney]: If your Honor please, I am going to object. I think it is improper. There is a Pre-Trial Order defining the issues. The Complaint is not in evidence of anything.
MR. CONNELL: I submit, your Honor please, the pleadings are part of the case.
THE COURT: I will permit Mr. Connell to refer to the Complaint, and bear in mind ladies and gentlemen, that in a Complaint, a lot of allegations are made in drawing the Complaint, that doesn't necessarily mean that every allegation made has to be proven by the plaintiff.
I will take care of that in my charge so that there will be no confusion about it, and justice will be done to everybody.
At the beginning of the Complaint she charges the present defendant with a breach of duty. The parts that Mr. Connell is going to read to you, she charges the tenant, the lady ...