Bischoff, Morgan and King. The opinion of the court was delivered by King, J.s.c., Temporarily Assigned.
In this personal injury negligence case plaintiff appeals from an order of the trial judge setting aside a jury verdict for plaintiff on liability only and entering judgment for defendant. At the conclusion of plaintiff's case the judge entertained defendant's motion to dismiss for evidential insufficiency. If believed, plaintiff's proofs established that she had been struck by an airborne piece of wood on the parking lot of the Menlo Park Shopping Mall while leaving her employment at the Alexander's Store located in the Mall. After hearing argument the judge said, "With reference to your motion, Mr. Henkoff [defense counsel] I am going to reserve and make no decision at this time." No further explanation of the ruling was given. The defense then presented proofs in the form of testimony of a Mr. Comp, the manager of the shopping mall accident locus operated by the defendant corporation. Upon resting its case the defense again moved for judgment and the judge again tersely reserved decision without explanation, stating: "I am going to reserve on that." A trial judge in ruling on such motions, should always place on the record the reasons for decision. See Atlas v. Silvan , 128 N.J. Super. 247, 250 (App. Div. 1974).
Immediately following the return of the verdict in favor of the plaintiff, defense counsel orally renewed the motion
for judgment in favor of defendant. The judge heard argument and made the following ruling:
I feel that the plaintiff has failed to make out a prima facie case at the conclusion of the plaintiff's case and there is no evidence from which a reasonable jury can find negligence on the part of the defendant. Consequently, I'm setting aside the verdict of the jury and directing a verdict in favor of the defendant without costs.
Despite the parties' silence on the subject on this appeal, we are constrained to observe the absence of rule authority for a trial judge to reserve decision on a motion for judgment at the conclusion of the plaintiff's case. Unlike R. 4:40-2, which specifically authorizes a court to "reserve decision on a motion for judgment made at the close of all the evidence * * *." (emphasis added), no such authority to reserve decision is contained in either R. 4:37-2(b) or R. 4:40-1 governing motions made prior to the close of all the evidence. R. 4:37-2(b) which permits a defendant to move for judgment of involuntary dismissal after plaintiff has completed the presentation of evidence, merely permits denial of the motion "if the evidence, together with the legitimate inferences therefrom, could sustain a judgment in plaintiff's favor." Although R. 4:40-1 authorizes a party to move for judgment both at the "close of all the evidence or at the close of the evidence offered by an opponent" reserved dispositions are authorized only with respect to the former. R. 4:40-2. Neither R. 4:37-2(b) nor R. 4:40-1 expressly authorizes a trial judge to reserve on such a ruling made at the close of an opponent's case, but before the close of all of the evidence. We conclude that a trial judge lacks power in a civil case,*fn1 to reserve decision on a motion to dismiss prior to the close
of all the evidence since no such authority is found in the rules. Rather a trial judge must dispose of all such applications when made.
Clearly, the rules contemplate expeditious disposition of such applications, tacitly disapproving a practice enabling a judge to view as nonexistent probative evidence from a defendant which may cure the deficiencies in a plaintiff's case, or which, at the least, creates a jury question concerning plaintiff's right to recover. If a plaintiff's case is deemed insufficient at the time the motion to dismiss is made, the motion must be granted at that time; if it is not granted, it must be deemed to have been denied, even if the judge fails to articulate such disposition. Failure to grant the motion will require the judge to consider whatever evidence the defendant presents when ruling on the motion made at the close of all the proofs, or for judgment notwithstanding the verdict.
In the present case, by ruling on the sufficiency of plaintiff's case after the defense had been presented and after the verdict had been returned, the judge was attempting to ignore whatever value the defense testimony may have had on plaintiff's right to have the case considered by the jury. This he could not do. Once the defense evidence is presented, the judge was constrained to consider such evidence in determining the sufficiency of plaintiff's case. The Supreme Court has clearly stated the applicable test on all motions for judgment in Dolson v. Anastasia , 55 N.J. 2 (1969), as follows:
In the case of motions for involuntary dismissal, the test is, as set forth in R. 4:37-2(a) and equally applicable to motions for judgment, whether "the evidence, together with the legitimate inference therefrom, could sustain a judgment in * * * favor" of the party opposing the motion, i.e. if, accepting as true all the evidence which supports the position of the party defending against the motion and according him the benefit of all inferences which can reasonably and legitimately be deduced therefrom, reasonable minds could differ, the motion must be denied. Bozza v. Vornado, Inc. , 42 N.J. 355 (1964); Bell v. Eastern Beef ...