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Warshany v. Supermarkets General

Decided: July 20, 1978.


Keefe, J.d.r.c. (temporarily assigned).


[161 NJSuper Page 516] The issue to be resolved herein is the proper function of the trial judge

in supervising a jury's apportionment of negligence under the Comparative Negligence Statute. N.J.S.A. 2A:15-5.1 et seq.

Plaintiff Sharon Warshany was injured on August 22, 1976 as a result of a fall while shopping at the Pathmark Supermarket operated in Hopelawn, New Jersey, by defendant Supermarkets General Corporation. Plaintiff sued for injuries sustained, and her husband Robert sued per quod.

The following facts were elicited at trial. Plaintiff and her husband were present on the store premises for the purpose of grocery shopping. They proceeded through the aisles of the supermarket, selecting items from the shelves, and placing them into a cart which plaintiff was pushing. Mrs. Warshany and her husband turned into one of the aisles, noting a Pathmark employee standing with a mop in his hand at the head of the aisle where they entered. They proceeded past the employee and continued approximately 30 feet into the aisle beyond him. Plaintiff testified that the accident occurred at this point when she slipped and fell on a clear substance which was later identified as baby food. Plaintiff further testified that she had reached for a box of cereal when the fall occurred. She described the accident as occurring very quickly, stating that both feet slid out from under her and that she fell to a sitting position. Both she and her husband testified that prior to the accident they were unaware of any foreign substances on the floor.

The accident report, completed by defendant's customer service manager and partially read into evidence, indicated that plaintiff fell in the baby food aisle at about 7:20 P.M. while clean-up of "breakage" was being attended to by a porter. The jury was also apprised of the fact that another customer had fallen in the same aisle at about 7:15 P.M.

The judge reserved on plaintiff's motions for a directed verdict on the issue of defendant's liability and to strike the claim as to her negligence, made at the conclusion of the testimony, and submitted the factual issues to the jury. In

response to written interrogatories the jury found negligence on the part of defendant as well as negligence on the part of plaintiff, and apportioned the causal negligence equally between the parties, i.e. , 50-50.

After return of the verdict plaintiff renewed her motions made at the conclusion of testimony and requested the judge to set aside the jury's finding that plaintiff was contributorily negligent and further requested the judge to either enter judgment against defendant for 100% of any verdict awarded by a subseqent jury or to reapportion the percentage of negligence between the parties. In the alternative, plaintiff moved for a new trial as to all issues. Following oral argument the judge requested counsel to supply supplementary briefs addressing the issue of the propriety of the jury's apportionment of negligence.

The court is convinced that there were sufficient facts on the record to warrant the submission of the issue of the plaintiff's contributory negligence to the jury and to sustain its findings in that regard, particularly in view of the Appellate Division's decision in Krackomberger v. Vornado, Inc. , 119 N.J. Super. 380 (App. Div. 1972). In that case, plaintiff slipped on a clear plastic dress cover which she had not previously observed, while walking through an aisle in defendant's department store. The trial judge refused to charge that plaintiff had a right to assume that the floor in defendant's store was free from obstruction as she walked down the aisle, which right existed until she was aware or should have been aware of the hazard that caused her to fall. That refusal was held to constitute error for which plaintiff was entitled to a new trial. The court noted that plaintiff's contributory negligence could only have been premised on a failure to observe the condition of the floor immediately prior to the accident. However, the court concluded that the question of the reasonableness of plaintiff's conduct in proceeding as she did under the circumstances was a question of fact, and therefore granted a new trial on both the issues of negligence and contributory negligence.

Cf. Bates v. Valley Fair Enterprises, Inc. , 86 N.J. Super. 1 (App. Div. 1964). In the case at bar plaintiff had a duty, corresponding to defendant's duty to keep the premises in a reasonably safe condition, to exercise reasonable care for her own safety. Whether the employee with the mop was sufficient enough warning to her of the possibility of a dangerous condition, and whether she proceeded ...

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