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Mitchell v. Simmons

Decided: December 26, 1978.

EVA MITCHELL, PLAINTIFF-APPELLANT,
v.
ARNETT SIMMONS, DEFENDANT-RESPONDENT



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County.

Pressler and King. The opinion of the court was delivered by King, J.A.D.

King

Plaintiff appeals from the trial court's dismissal of her personal injury action at the conclusion of her case. Plaintiff was a tenant under a month-to-month oral lease of a second-floor apartment located in a single-family dwelling unit in the City of Asbury Park. Plaintiff first began living in the apartment in 1958. In December 1974 she tripped and fell on defective linoleum flooring in her private hallway.

Plaintiff relied solely on her own testimony to establish liability. She said that when she moved into the apartment the floor covering "was nice". Over the years the linoleum

covering "wore out" in the hallway, the kitchen and the front room. Plaintiff complained to defendant landlord and in 1972 he supplied enough linoleum to recover the floor in the kitchen and the front room. The landlord merely supplied the linoleum and, pursuant to her agreement with him, several of plaintiff's friends installed the materials. Thereafter up until the fall in December 1974 plaintiff continued to press the defendant for linoleum to cover the hallway. She testified that the hallway floor "was in badder shape than either" the kitchen or front room in 1972. In response to her requests plaintiff said her landlord merely replied, "I do it later, later" and "well later for that." Defendant personally observed the deteriorated condition of the hall floor on many occasions.

When confronted with defendant's motion to dismiss, the trial judge concluded that defendant's promise to provide linoleum to repair the defective hallway flooring constituted a divisible undertaking distinct from his having supplied floor covering for the kitchen and the front room. The trial judge said: "I do not think that it was the same arrangement. I think she thought that she was entering into a similar one. The arrangement never fully ripened, because the material was never provided; and it was never put down." He concluded that there "is no contract that the jury would have to consider" and dismissed the case.

We respectfully disagree with the trial judge's analysis of the record. Although plaintiff's testimony is somewhat disjointed, we conclude that a jury could have reasonably believed that the landlord agreed in 1972 to furnish linoleum for the kitchen, front room and hallway, but neglected to complete the entire undertaking. For instance, we note the following testimony:

Q. What was the condition of the linoleum in the hallway at the same time when he purchased the linoleum for the kitchen and for the front room?

A. It was in badder shape than either of them. He said he would get more later.

Q. Did you ever specifically ask him to fix the ...


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