On appeal from the Superior Court of New Jersey, Law Division, Union County.
Shebell and Long. The opinion of the court was delivered by Shebell, P.J.A.D.
Plaintiffs, Claudia Ruiz and her husband, Alberto Ruiz, appeal from a jury verdict of no cause for action entered in favor of defendants, Toys "R" Us, Inc. and Unado Corporation. We reverse and remand.
Plaintiffs were married on April 21, 1990, in their home country of Argentina and were honeymooning in the United States in June 1990. During their time in New Jersey, they stayed with relatives. On June 14, 1990, plaintiffs, along with Mrs. Ruiz's sister and brother-in-law, went to Toys "R" Us, a large retail toy store, at the Bradlees Shopping Center in Union to purchase gifts for relatives in Argentina. They arrived at the store at approximately 6:30 p.m. It had rained lightly all day. Claudia, the twenty-three-year-old plaintiff, was walking in the second aisle toward the back of the store, when she slipped and fell sustaining serious permanent injuries. She had not seen anything on the floor before her fall, but thereafter she noticed there was water on the floor and she was wet. There were no signs or ropes around the water area.
After the fall, plaintiff's husband stayed with her while her brother-in-law went to get an employee from the store. Initially, a female employee came to the plaintiff and her family, but the employee was apparently unable to speak their language. Plaintiff's husband spoke to the store manager. The manager went to the spot where the water was, and upon seeing the water, he sent someone to clean it up. The manager also took information from the plaintiffs and prepared an accident report that recounted "[c]ustomer states that she slipped in a puddle of water between the back wall and [aisle] 1C." The report described the condition of the location of the accident as "water on the floor," and also stated that the nature of plaintiff's harm was "back injury." The manager submitted this report and a second computerized "general liability report" to the Toys "R" Us management on that same day.
Plaintiff testified that the manager recommended that she go to the hospital and told her the store would take care of paying any hospital bills. Upon leaving the store, plaintiff received emergency treatment at Irvington General Hospital. She thereafter received medical treatment for injuries to her left knee and back. We need not detail the medical proofs presented at trial for purposes of this opinion.
Plaintiff's case included the reading of portions of the depositions of the area director of the Toys "R" Us stores and the property management director for Vornado Corporation, the parent company of Unado. The Toys "R" Us store's director disclosed detailed knowledge of the roof leakage problems. Specifically, his deposition revealed that there were more than ten times between January 1, 1990, and June 14, 1990, that there had been water leaking from the roof onto the floor. He asserted that the managers of the Toys "R" Us were responsible for making sure that water was taken off the floor.
The property management director of Vornado related in his deposition that Unado's tenant, Toys "R" Us, had made complaints about the leaking roof in the latter part of 1988. He stated that at that time Unado had hired a roofing company to make temporary repairs and was also contemplating major repairs to the roof.
The counsel for defendant Toys "R" Us also read to the jury parts of the deposition of the area store director. The director had testified in his deposition that no other customers had slipped on any water prior to plaintiff's fall. He stated that the store had a procedure put into effect to deal with the roof leaks and the water on the floor. He outlined how store personnel would check to see "if there was any leakage and if the rain occurred throughout the day, we would walk the store." He further stated that a maintenance person or an employee would mop up any water and put down wet floor signs. He claimed that the responsibility to walk the floors on days that it was raining was shared by all members of management and that other employees were also aware of the problems. He claimed that there were repairs made
to the roof prior to June 1990, but these were made by the landlord, not Toys "R" Us.
The director of property management for Vornado testified that his first notice of leaks in the roof was by letter from Kids "R" Us, a neighboring store, dated January 19, 1988. After being advised of the leaks, he hired a roofing contractor to make repairs on behalf of Unado. After initial roof repairs, Unado was again notified by Toys "R" Us that the roof continued to leak and Unado continued to repair the leaks as they occurred. He added that there was a time when Unado decided that the entire roof of the complex had to be replaced. The project was started, but no part of the re-roofing covering the Toys "R" Us store was begun before plaintiff's fall. Additional roof repairs were completed sometime in 1991. He identified four bills for the roof repair. One showed repairs of a portion of the old roof over the Toys "R" Us store dated June 9, 1990. The new roof over that store was not started until the later part of 1990 or early 1991.
Plaintiffs appeal the jury's finding of no negligence on the part of defendants, as well as the trial Judge's denial of their motion for a new trial. Plaintiffs urge that the trial court's "charge as to actual and constructive notice was capable of producing a misconception in the mind of the jury as to the obligation of plaintiff. . . ."
The charge in question relating to notice was as follows:
If you find that the premises were not in a reasonably safe condition, then in order to recover the plaintiff must show that either the owner or occupier knew of the unsafe condition for a period of time prior to the plaintiff's injury, sufficient to permit him in the exercise of reasonable care, to have corrected it. That's when actual notice is required. Or that the condition had existed for a sufficient length of time prior to plaintiff's injury that in the exercise of reasonable care the owner or occupier should have discovered it and thus corrected it. Now what's the difference between what we call actual notice or constructive notice? In other words, just because there's water on the floor and somebody slips on it doesn't mean that the owner is liable. The owner has to have notice of that condition, actual notice. They actually knew there was water on the floor at ...