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Schramm v. Arsenal Esso Station

Decided: May 24, 1973.

BERTHA SCHRAMM AND GEORGE SCHRAMM, PLAINTIFFS-RESPONDENTS,
v.
ARSENAL ESSO STATION, DEFENDANT-RESPONDENT, AND KRAUSZER'S VENDING, INC., DEFENDANT-APPELLANT



On appeal from Superior Court, Law Division, Middlesex County.

Collester, Leonard and Halpern. The opinion of the court was delivered by Leonard, J.A.D.

Leonard

In this personal injury, slip-and-fall case, defendant Krauszer's Vending, Inc. (Krauszer's) appeals from a final judgment entered in favor of plaintiff Bertha Schramm in the sum of $5,000 and against defendants Krauszer's and Arsenal Esso Station (Arsenal), jointly and severally. Krauszer's also appeals from an order denying its motion for indemnification from Arsenal.

The trial was bifurcated and resulted in a jury verdict on the issue of liability in favor of plaintiff and against both defendants. Thereafter, the parties waived a jury trial

as to damages and the above-noted final judgment was entered, without prejudice, however, to Krauszer's right to appeal the liability aspect of the case.

On February 13, 1969, at or about 1 A.M., plaintiff drove to the Arsenal Esso station to purchase some milk from a milk machine located on the premises, as she had previously done on an average of two to three times a week. When she arrived, the station was closed for business. However, bright lights illuminated the milk machine. She parked her car, walked down a path to the machine, found it empty and was returning to her car through another path when she slipped and fell on the ice or snow accumulated on the premises. It had snowed 6.3 inches four days before the accident and 4.3 inches three days before.

Arsenal owned the service station. Krauszer's owned the milk machine, which had been placed on the premises some eight or nine years ago pursuant to an oral agreement between the parties. Krauszer's paid Arsenal one cent for each quart of milk sold, plus $12 a month to cover electricity costs. Krauszer's maintained the machine, the shelter which housed it, as well as the attached lights. Krauszer's placed milk in the machine almost daily at 8 A.M. It had been loaded on the day of the accident and on the preceding day.

During the years Arsenal cleared the premises of snow and ice. Even though there was no express agreement with respect to the area in front of the milk machine, Arsenal included it in its clearing operations.

The foreman of the jury in announcing the verdict stated that the jury found that "both defendants are guilty of negligence in the maintenance of the milk machine area * * *."

On this appeal Krauszer's first contends that it owed no duty to plaintiff and was therefore not liable for plaintiff's injuries as a matter of law. It argues that the relationship between it and Arsenal was that of licensor-licensee and by reason thereof it was not in possession of, nor did it have

control of, any portion of Arsenal's premises. This contention and the argument in support ...


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