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Keller v. Frank Kull Inc.

Decided: November 15, 1978.

MILDRED KELLER AND GEORGE KELLER, HER HUSBAND, PLAINTIFFS-APPELLANTS,
v.
FRANK KULL, INC., A CORPORATION, ISRAL RUBIN AND/OR SAV-MOR CO., (SAV-MOR CO. #11), JOINTLY, SEVERALLY AND IN THE ALTERNATIVE, DEFENDANTS-RESPONDENTS



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

Crane and Horn.

Per Curiam

Plaintiffs instituted an action for personal injuries sustained by Mrs. Keller (hereinafter individually designated as plaintiff) arising out of an accident which occurred on December 15, 1972. Mr. Keller joined in the action per quod. Following a trial the jury returned a verdict against them through written answers to interrogatories. R. 4:39-2. This appeal followed.

The evidence adduced at the trial tended to establish that on the above date plaintiff operated a beauty shop in premises rented by her at 795 Emerson Avenue, Lindenwold, New Jersey. Her shop was in the third store from the corner of Gibbsboro Road in a line of stores under common ownership*fn1 and leased to different parties. The first store, situate at approximately the corner of Gibbsboro Road and Emerson

Avenue, was a drugstore operated by defendant Rubin under the name "Sav-Mor Drug Store." Between plaintiff's store and the drugstore was a gift shop operated by a third person. Leading from the front door of the stores was a parking area. Each store had a back door opening onto a walkway and drainage area.

Plaintiff had become a tenant in said store about two weeks before the date of the accident. During that interval she had gone out the back door once or twice and had noticed a dumpster*fn2 located back of the Sav-Mor Drug Store. Defendant Frank Kull, Inc., which operated a trash removal business, had placed the container behind the drugstore under contract with Rubin.

Plaintiff testified that on the day of the accident she had placed some used towels in a covered plastic container behind her store. Later she noticed they were gone, but was too busy to investigate the incident at the time. About 9:30 P.M., when the drugstore was closed, she went out her front door and proceeded around the drugstore to the rear of it, because it was too dark to go out the back door. She approached the dumpster for the purpose of ascertaining whether her towels were in it. Although it was dark and she could not see inside, she opened the lid of the dumpster about one-half or three-quarters of the way up, from front to back, when the dumpster fell on her, causing personal injuries for which she and her husband sought to recover.

Although she believed the dumpster was community property, she admitted no one had verbally told her that it was, nor did anyone notify her of restrictions on her use of the rear sidewalk or the dumpster. Additional facts are discussed hereinafter.

Plaintiffs raise three grounds as bases for reversal:

Point I The court erred in refusing to instruct the

jury on the doctrine of res ipsa loquitur.

Point II The court erred in failing to ...


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