On appeal from the Superior Court, Law Division, Atlantic County.
Antell, Shebell and Matthews. The opinion of the court was delivered by Shebell, J.A.D.
[204 NJSuper Page 612] Plaintiffs Rose Warrington and Lorraine Arnade appeal that part of a jury verdict rendered in favor of the defendant Dan-Pas Corporation, Inc. We reverse and remand.
Defendant Dan-Pas Corporation, Inc. operated Daniel's Restaurant on Shore Road, a County roadway in Sommers Point. It provided parking across the street from its establishment on the opposite side of Shore Road.
Plaintiff Rose Warrington, who sought damages for personal injuries, and Edward Arnade, deceased, on whose behalf a claim for wrongful death was brought, arrived with their spouses and two other couples for dinner at the restaurant at about 11 p.m. on June 25, 1978. They parked in the parking lot and crossed the road to enter the restaurant. After dining they left at approximately 12:45 a.m. As they were recrossing Shore Road to the parking lot, the vehicle of the defendant Ronald Bird, travelling at a high rate of speed, struck Mrs. Warrington and Mr. Arnade. Although a substantial verdict was rendered in plaintiffs' favor against Bird, the jury found no cause for action in favor of Dan-Pas.
Plaintiffs assert the court's charge failed to adequately instruct the jury of the restaurant's obligation to its patrons in the circumstances presented. We agree.
Factually, plaintiffs' proofs were that when they left the restaurant and attempted to cross to the parking lot the lighting was "very dim." There was testimony that when the group crossed the road upon arrival there was additional lighting around the premises which was extinguished before they left, causing less light to be cast on the roadway. Further, there was expert testimony that lighting where the patrons had to cross the roadway was less than sufficient for safe passage.
Legally, plaintiffs maintained that it was the obligation of the restaurant to provide reasonably safe passage from the restaurant to the parking lot and that early extinguishing of the lights and failure to provide adequate lighting in the area of the roadway constituted negligence even though the restaurant had no control over the County roadway.
Plaintiffs' counsel took the following exception at the completion of the court's main charge to the jury:
While Your Honor did charge with respect to the duty imposed upon the person in control of a commercial premises, including ingress and egress, coming and going, the charge, I think, should have also incorporated that it also includes public streets and sidewalks where appropriate. I think the failure to incorporate that into coming and going with egress and ingress would leave [sic] the jury to believe we are talking of the building alone.
Counsel for the co-defendant Bird joined in the objection stating:
Your Honor, I join the plaintiffs in this position, especially since Mr. Kaplan in the course of his presentation attempted to draw a distinction between lighting the premises and the responsibility to light the street, and in his closing he mentioned it wasn't the responsibility of his client to light the highway and light the roadway. Clearly the law requires that the business invitor provide adequate ...