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Giordano v. Mariano

Decided: November 24, 1970.


Lewis, Matthews and Mintz. The opinion of the court was delivered by Mintz, J.A.D.


Plaintiffs appeal from a judgment dismissing their complaint following a motion for involuntary dismissal at the close of plaintiffs' case.

In passing upon defendants' motion to dismiss, the court was required to consider the proofs in the light most favorable to plaintiffs and to accord them the benefit of the most favorable inferences reasonably to be drawn from the proofs. If viewed in this light reasonable minds could differ, then the motion must be denied. Dolson v. Anastasia , 55 N.J. 2, 5 (1969); Melone v. Jersey Central Power and Light Co. , 18 N.J. 163 (1955). Applying that standard we are satisfied that the proofs presented a jury question and that the dismissal was error.

On June 9, 1962 infant plaintiff Frank Giordano, then about 11 1/2 years old, was invited to attend a birthday party at defendants' home in Cherry Hill. He had never previously

been to the home. A sliding full-length glass panel door served as an entrance to the recreation room. A concrete patio estimated to be about ten feet square adjoined the entrance, and to the rear thereof was a back yard.

There was testimony to the effect that it was still light when infant plaintiff arrived. Eventually he joined the group of children in the rear yard. After it became dark there was a call for the children to come inside for ice cream and, in response, infant plaintiff and a youngster Steven Cappuccio began running or racing toward the house. As they reached the house plaintiff was slightly ahead of his friend and was still running toward what he believed to be an open doorway. As it turned out, the sliding, full-length glass panel door had been closed. Infant plaintiff crashed into the door sustaining extensive cuts on his face.

Infant plaintiff testified that "it was like pitch black" when the accident occurred; that there was no light in the rear yard, the only illumination coming from the recreation room to which the glass door led. He explained he had passed through the doorway earlier in the evening, at which time the door was fully open and that, to his belief, it had not been closed and was still open up to the time of the accident. While he stated he was aware that the doorway he had passed through employed a sliding glass door, he also admitted he had not looked to see if there were any markings on the door. He further said he saw no markings on the door as he ran toward it and, in addition, did not notice a handle on the door.

Infant plaintiff's mother testified that upon being advised of the accident she went to the hospital and there met defendant Mrs. Mariano (formerly Mrs. Harris) and her husband. According to the mother, Mrs. Mariano turned to her husband and told him the doors were dangerous and added, "I always told you I didn't like those doors. * * * it could have been one of our children."

Portions of a deposition given by defendant Mrs. Mariano were read into the record. Of significance is her statement

that while she was not specifically aware if the doors were open or closed at the time of the accident, the last time she saw the doors before the accident they were closed. She added that to her knowledge no one used them from the time she saw them closed until the accident. Of further pertinence is her testimony that the door was unmarked save for a metal lip of natural aluminum color which protruded about three or four inches, used for a handle. She also admitted that she gave no warning to the children to beware of the door.

Also read into the record were portions of a deposition given by Steven Cappuccio. His testimony substantiated in large part that of the infant plaintiff, as he indicated that the door had been opened and to his knowledge had remained so for the evening, basing this statement on his observation of people passing through the doorway without opening or closing the door. He could not remember if there was any light outside but said there was light coming from the house. He further testified that he did not strike the door himself because, as he neared the doorway, he could see a reflection caused by an unidentified source. It was his belief ...

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