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Mickens v. Marascio

Decided: July 13, 1971.

MARIAN MICKENS AND FRANK MICKENS, PLAINTIFFS-APPELLANTS,
v.
EMILY MARASCIO, VICTOR M. MARASCIO, MALCOLM F. BROPHY AND EDWARD GRUM, DEFENDANTS-RESPONDENTS



For reversal -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor and Schettino. For affirmance -- None. The opinion of the Court was delivered by Schettino, J.

Schettino

This is a negligence action. Plaintiff-wife fell over a sidewalk curbstone located on the property of defendants Dr. and Mrs. Victor M. Marascio. Following the accident, plaintiffs instituted the instant action against five alleged joint tortfeasors, joining, in addition to the Marascios, their tenant, Dr. Malcolm F. Brophy, and contractors, Angelo Ciaglia and Edward Grum. The various defendants cross-claimed for contribution under the Joint Tortfeasors' Contribution Law. N.J.S.A. 2A:53A-1 et seq.

After plaintiffs had completed their case on liability but prior to the submission of medical evidence on damages, the trial court dismissed plaintiffs' complaint against Dr. Brophy and Grum, holding as a matter of law that neither could be held culpable for plaintiff-wife's injuries. The trial court also dismissed the cross-claims against Dr. Brophy and Grum. Subsequently, at the close of all the evidence, the trial court dismissed plaintiffs' complaint and the Marascios' cross-claim against Ciaglia. The trial court then submitted plaintiffs' claim against the Marascios to the jury. The jury found for plaintiffs, awarding plaintiff-wife $15,000 on her claim for personal injuries and plaintiff-husband $7,000 on his per quod claim.

The Marascios appealed to the Appellate Division, which affirmed the dismissal as to Ciaglia but held that the complaint and cross-claims against Grum and Dr. Brophy should not have been dismissed; it concluded there was sufficient evidence in the record to present a jury question as to their liability. The Appellate Division ordered a complete new

trial as to all issues and all parties except Ciaglia. Plaintiffs alone sought relief from this Court, claiming their judgment against the Marascios should not have been disturbed and that the retrial should be limited to a consideration of the codefendants' cross-claims for contribution. We granted certification. 56 N.J. 248 (1970).

At trial, plaintiffs' proofs were to the following general effect. Plaintiff-wife had taken her two children for an eye examination to defendant Dr. Brophy, who maintained a professional office in the Marascios' building. In order to enter Dr. Brophy's office, plaintiff had to walk up a walkway which was perpendicular to the street and adjacent to an asphalt driveway on the property. After the visit to Dr. Brophy was completed, plaintiff started down this walkway, progressing toward the street with her two children between her and the driveway. When she reached a point, near the end of the walkway nearest the street, where the sidewalk narrowed to provide an entrance apron in the driveway, an automobile suddenly turned from the street into the driveway. Fearing for the safety of her children and in order to avoid the vehicle, she grabbed for the children and stumbled to the right. During the process of pulling the children towards her, her left leg struck a concrete curbing, causing her to fall and break her hip. The curbstone was located at the edge of the lawn, where it borders the inside edge of the public sidewalk.

Plaintiffs' theory of liability was that the placement of the curbstone adjacent to the lawn side of the public sidewalk created a dangerous condition; that the condition was aggravated by the narrowing of the sidewalk, running adjacent to the driveway, at the driveway entrance; and that the condition was further aggravated by negligent maintenance of the lawn, because grass on the edge of the lawn was permitted to grow level with and over the curbstone, and obscured the curbstone from the view of a person coming down the walkway.

Plaintiffs claimed that the Marascios were negligent in suffering a hazardous condition to exist on their property, aggravating the condition through negligent maintenance of the lawn, and failing to warn invitees of its existence; that Dr. Brophy was negligent for failing to take proper steps to insure the safety of his business invitees; that defendant Ciaglia had improperly and negligently constructed the curbing in the first instance; and that defendant Grum had negligently and improperly installed the narrow walkway, adjacent to the driveway, aggravating the hazardous condition.

In reversing the trial court's order of dismissal as to Grum and Dr. Brophy, the Appellate Division commented:

Our examination of the record satisfies us that plaintiffs' complaint and the cross-claims should not have been dismissed as to defendants Brophy and Grum. Accepting as true plaintiffs' evidence and giving to it every inference of fact that can legitimately be drawn therefrom, there was sufficient evidence to present a jury question as to the negligence of each of these defendants, that of Grum in the manner in which he installed the walkway and that of Brophy as the occupier of the premises, in failing to exercise reasonable care to his business invitees by protecting them against dangerous conditions which he knew or reasonably should have known existed.

These findings are not challenged by any of the parties before this Court; and, no one has sought review of the Appellate Division's affirmance of the Ciaglia dismissal. Consequently, the sole issue presented is whether the trial court's erroneous order of dismissal as to these two defendants ...


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