On appeal from the Superior Court of New Jersey, Law Division, Ocean County, L-1255-98.
Before Judges Newman and Wells.
The opinion of the court was delivered by: Wells, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Defendants Ocean County Mall and Corporate Property Investors, (Mall) appeal from an order which granted motions of involuntary dismissal at the close of all the evidence during a jury trial in favor of co-defendant Planned Building Services, Inc. (PBS) and in favor of third-party defendant Senica Security (Senica). The Mall also appeals from a judgment entered following the jury's verdict which awarded damages of $7500 against it in favor of the plaintiff, Florence Ryder. We reverse the orders of involuntary dismissals in favor of PBS and Senica but affirm the judgment in Ryder's favor.
For purposes of this appeal the facts are not in material dispute. The Mall owns and operates a large suburban shopping center. It entered into a contract for the performance of maintenance and janitorial services with PBS. Timothy McLaughlin, the security director for the Mall testified that porters for PBS were directly responsible for walking in the common area and policing or picking up any kind of debris or spills. McLaughlin testified that the Mall is divided in essence into three areas, A, B, and the food court area also described as zones 1-4. He testified that as porters patrol the common area of the Mall they are specifically looking for spills and debris.
The operations manager for PBS, Raymond D'Armes, was produced for depositions on behalf of PBS. Various portions of D'Armes deposition were read during trial. D'Armes admitted that part of PBS' responsibilities at the Mall was to police the common area. D'Armes admitted that PBS had at least one person policing one-half of the Mall, another person policing the other half of the Mall, and other people in the food court area. D'Armes admitted that at a minimum there were always two PBS employees policing the entire Mall.
The Mall also hired Senica to provide security services. McLaughlin testified as to its responsibilities regarding the common areas of the shopping center. He stated that employees of Senica Security have a number of duties while patrolling the Mall, including looking for anything that might be a hazard to a customer.
The Mall established the schedule for Senica and determined the number of officers who were to patrol and the days and hours of the work. Senica's duties, according to McLaughlin, were to be done in compliance with the standards of the industry and as set by the Mall. Senica's work was also supervised by the Mall.
The Mall directed the security staff to make random patrols. This was described by McLaughlin as walking in a random pattern, with direction being varied. The security staff was also instructed to stop at the kiosks and to talk to the merchants. They were also available to help and talk to customers and were to be friendly. The security personnel were also directed by the Mall to go to the outside sidewalk and entrance ways to see if there were any concerns. The officers were to take their time on patrol so as to accomplish all they were supposed to do.
On the day of Ryder's accident, November 18, 1995, the Mall had five security people on duty - three Senica employees, an off- duty police officer, and Security Director McLaughlin. Of the three Senica personnel, one patrolled the exterior of the Mall and the other two worked inside.
According to McLaughlin, there was one officer assigned to zones one and two, and a second officer assigned to zone three and four. To complete a round of one zone, the officer would take fifteen to twenty minutes. It would take an officer thirty to forty minutes to cover both of his assigned zones.
Ryder testified that as she was walking in the Mall on a Christmas holiday shopping excursion, she suddenly fell. When she was helped up to a seat on a nearby planter, she observed a clear liquid on the floor nearby with some foam around its edges. Because she "was full of this drink from my heels up to the top of my head" she realized it was that liquid in which she slipped. The liquid was described as a drink called "Orange Julius." Ryder suffered injuries as the result of her fall and filed suit against the Mall and PBS. PBS, in turn, filed a third-party action against Senica. Cross-claims for indemnification and contribution were filed by all the defendants against each other.
At trial, at the close of all the evidence, the judge granted the motions of PBS and Senica for involuntary dismissal. As to PBS the judge reviewed the contract in evidence between it and the Mall and concluded that because it did not specifically require PBS to "patrol" the Mall, it could not be held responsible. As to Senica, whose contract with the Mall was not in evidence, the judge found that while it did have a duty to patrol, there ...