| Edited
by Kenneth Vercammen, Esq.
The law imposes upon the owner of commercial or business property
the duty to use reasonable care to see to it that the sidewalks
abutting the property are reasonably safe for members of the public
who are using them. In other words, the law says that the owner
of commercial property must exercise reasonable care to see to it
that the condition of the abutting sidewalk is reasonably safe and
does not subject pedestrians to an unreasonable risk of harm. The
concept of reasonable care requires the owner of commercial property
to take action with regard to conditions within a reasonable period
of time after the owner becomes aware of the dangerous condition
or, in the exercise of reasonable care, should have become aware
of it. If there was a condition of this sidewalk that was dangerous
in that it created an unreasonable risk of harm for pedestrians,
and if the owner knew of that condition or should have known of
it but failed to take such reasonable action to correct or remedy
the situation within a reasonable period of time thereafter as a
reasonably prudent commercial or business owner would have done
under the circumstances, then the owner is negligent.
Sometimes, store customers are injured in fall downs caused by
holes in sidewalks in dimly lit areas. Customers may be injured
by failure to repair broken sidewalks. Sometimes people trip when
business fail to clean up broken or fallen items on sidewalks. No
one plans on being injured in an accident, whether it is a car accident,
fall down or other situation. Speak with a personal injury attorney
immediately to retain all your rights. The businesses are responsible
for the maintenance of their premises which are used by the public.
It is the duty of the store to inspect and keep said premises in
a safe condition and free from any and all pitfalls, obstacles or
traps that would likely cause injury to persons lawfully thereon.
It is further the duty of the store to properly and adequately inspect,
maintain and keep the premises free from danger to life, limb and
property of persons lawfully and rightfully using same and to warn
of any such dangers or hazards thereon. You may be lawfully upon
the premises as a business invitee in the exercise of due care on
your part, and solely by reason of the omission, failure and default
of the store, be caused to fall down If the store did not perform
their duty to plaintiff to maintain the premises in a safe, suitable
and proper condition, you may be entitled to make a claim. If severely
injured, you can file a claim for damages, together with interest
and costs of suit. Injured people can demand trial by jury.
WHAT TO TRY TO DO AT THE ACCIDENT SCENE IF INJURED
1. Stop . . . do not leave the scene of the accident. CALL THE
AMBULANCE, tell them where the accident occurred and (ask for medical
help if needed). 2. Notify the property manager or owner, if possible.
Insist they observe where you fell. For example, if you fall on
an icy sidewalk at the store/ business, notify the manager. 3. Get
names and addresses of all witnesses Witnesses will be a tremendous
help to you in any subsequent court action if there is any question
of liability involved. Get the names and addresses of as many witnesses
as possible. If they refuse to identify themselves, jot down the
license plate numbers of their automobiles. Do not discuss the accident
with the witnesses. Do not give the witnesses' names to anyone but
the police, your attorney or your insurance company.
4. While waiting for ambulance, write down- Accident Information
Date __ Time __ Location __ Weather __ Road conditions __ Damage
__
5. Summary of accident __
6. Diagram of accident location
7. Call an ambulance. If you have any reason to suspect you were
injured in the accident, go to a hospital immediately or see a physician
promptly. You'll want it on record that you sought treatment right
away, not in a week or so.
8. Write down name of Police Officers, Department and Badge Number,
Ambulance crew, etc.
9. Do not assign or accept blame for the accident. - The scene
of the accident is not the place to determine fault. Discuss the
accident only with the ambulance and medical personnel, your attorney
and with representatives of your insurance company. Give the other
party only your name and address. - Be cooperative with the police.
10. Have immediate photos taken of accident site.
11. Call a personal injury attorney immediately, not a real estate
attorney. Call Kenneth A. Vercammen- Trial Attorney Attorney At
Law (732) 572-0500 When you need help the most, we will be ready
to help you.
12. Never give a signed statement to the claims adjuster representing
the property owner's insurance company. The same goes for a phone
recording. They may be used against you in court to deny your claim.
Speak with your personal injury attorney first.
IF YOU HAVE BEEN INJURED ON A SIDEWALK DUE TO NEGLIGENCE OF THE
BUSINESS
It is important that you -- 1. DO NOT discuss your case with anyone
except your doctors and attorney. 2. DO NOT make any statements
or give out any information. 3. DO NOT sign any statements, reports,
forms or papers of any kinds, . 4. DO NOT appear at police or other
hearings without first consulting with your attorney. INFORM YOUR
ATTORNEY PROMPTLY of any notice, request or summons to appear at
any hearings. 5. Refer to your attorney anyone who asks you to sign
anything or to make any statement or report or who seeks information
concerning your case. 6. Direct your doctor and other treatment
providers not to furnish or disclose any information concerning
your case to any entity other than your insurance company without
YOU AND YOUR ATTORNEY'S WRITTEN PERMISSION. 7. You may have insurance
coverages such as Blue Cross, Blue Shield or Major Medical which
require prompt attention. However, be sure to have your treatment
providers send bills immediately to all of your insurance companies.
8. Notify your attorney promptly of any new developments. Small
things may be important. Keep your attorney informed. 9. Maintain
accurate records of all information and data pertaining to your
case. 10. If you or any witnesses should move, be sure to notify
your attorney of the new address.
Financial Recovery if injured while falling down
1. Kenneth Vercammen Helps Injured persons A person who is injured
as a result of the negligence of another person is what we in the
legal profession refer to as a personal injury claimant. In other
words, they have been injured as a result of an accident, and now
wish to prosecute a claim against a negligent property owner and
its insurance company. As the attorney of record, we will be bringing
this action for the injured person. Therefore, I request that all
clients do as much as possible to cooperate and help in every way.
The purpose of this article is to describe the procedure that we
may follow and give you sufficient instructions to enable you to
assist us in this undertaking. Needless to say, helping us is just
another way of helping yourself.
Sidewalk Fall down Liability Certain cases impose limited liability
on commercial landowners for injuries to pedestrians on abutting
sidewalks. See Stewart v. 104 Wallace St., Inc., 87 N.J. 146 (1981).
The duty to maintain the sidewalks flows from the economic benefit
that a commercial landowner receives from the abutting sidewalk
and from the landowner's ability to control the risk of injury.
Id. at 158; Davis v. Pecoreno, 69 N.J. 1, 8 (1975) (holding gas
station owner liable for injury caused by packed snow and ice on
abutting sidewalk because "traffic was directly beneficial
to his business and enured to his economic benefit"). Several
decisions of the Appellate Division delineate the appropriate limits
of a commercial property owner's liability for off-premises injuries.
Critical to those decisions is the premise that a landowner's liability
may extend beyond the premises for activities that directly benefit
the landowner. Thus, the owner of a shopping center was not liable
to a woman who fell on a dirt path leading from the shopping center
to a parking lot. See Chimiente v. Adam Corp., 221 N.J. Super. 580
(1987). In Chimiente, sidewalks provided a safe alternative route.
Id. at 584. The dirt path conferred no direct economic benefit on
the shopping center. Ibid. Similarly, a shopping center on Route
22 was not liable to a customer who was struck by a car while crossing
the highway. See MacGrath, supra, 256 N.J. Super. at 250-51, 253.
A restaurant that provided parking on the opposite side of the street,
however, had a duty to provide safe passage from the lot to the
restaurant. See Warrington v. Bird, 204 N.J. Super. 611 (1985),
certif. denied, 103 N.J. 473 (1986). The restaurant knew that its
patrons would cross the street, and derived a direct economic benefit
from their use of the path. Id. at 617. Finally, a caterer was found
liable for the death of a business invitee who was killed crossing
a county highway after parking her car in a lot the caterer knew
or should have known the invitee would use. See Mulraney v. Auletto's
Catering, 293 N.J. Super. 315, certif. denied, _ N.J. _ (1996).
Prominent among the reasons for the imposition of liability was
the proposition that the use of the lot furthered the caterer's
economic interest. Id. at 321. Critical to the imposition of liability
is a direct economic benefit to the commercial landowner from the
path taken by the injured party and the absence of an alternative
route.
1. Clients should provide my office with the following 1. Any bills
2. All Hospital or doctor records in your possession 3. Photos of
scars, cuts, bruises 4. Photos of damage to your clothes and property
5. Photos of accident site 6. Major Med Card 7. Paystub if lost
time from work
2. Attorney- Client Confidential Relationship First, I want to
thank our clients for giving me the opportunity to assist them in
their case. I am a legal professional and I have great pride and
confidence in the legal services that I perform for clients during
our relationship as attorney-client. If you have concerns about
your case, please call my office. (732) 572-0500 We feel that this
case is extremely important not only to you, but to this office
as well. This is not simply a matter of obtaining just compensation
for you, although that is very important; we take professional pride
in guiding our clients carefully through difficult times to a satisfactory
conclusion of their cases.
3. Diary We want you to keep a diary of your experiences since
your accident. In addition to this daily record, we also ask you
to start describing a single day in the course of your life. In
other words, describe what you do when you get up in the morning,
the first thing you do after you go to work, what type of work and
effort you put into your employment, what activities you engage
in after work, etc. In other words, we need you to describe the
changes in your working life, your playing life, your life as a
husband or wife or child or parent. In your written description
of your day, we would appreciate your explanation in the greatest
detail possible and in your own words how the accident and subsequent
injuries have affected your life, your personality, and your outlook.
Remember that suffering does not entail mere physical pain; suffering
can be emotional and can be transmitted to your family, friends,
and co-workers. Keep a diary of all matters concerning this accident-no
matter how trivial you think it may be. You should include notes
on the treatments you receive, therapy, casts, appliances, hospitalization,
change of doctors, change of medication, symptoms, recurrence, setbacks,
disabilities and inconveniences. If you have any doubt about the
propriety of including some particular information, please call
the office and let us assist you.
4. Record expenses You can also begin to set up a system for recording
the expenses incurred in conjunction with your claim in minute detail.
Medical and legal expenses are a strong part of the value of your
lawsuit, so good records of these expenses must be kept at all times.
From time to time, however, there will be expenses incurred that
you must keep track of yourself. We ask you to make every effort
to avoid any possible error or inaccuracy as jurors have a relentless
reverence for the truth. Keep your canceled checks and your list
of expenses together, for we will need them at a later date. Your
attorney will keep track of your legal expenses, which may include
costs of filing, service of complaint, investigation, reports, depositions,
witness fees, hospital/ medical records, etc.
5. Investigation and Filing of Complaint Procedurally, the following
events occur in most personal injury cases. First, your attorney
must complete the investigation. This will involve the collection
of information from your physician, your employer, and our investigator.
We will need your doctors to provide us with copies of all bills,
medical records and possibly a medical report. When we feel that
we have sufficient information to form an opinion as to the financial
extent of your damages, we will commence negotiations with the opposition
for a settlement. If the insurance company will not make an adequate
offer, then a Complaint and Case Information Statement is prepared
by your attorney. It is filed in the Superior Court, Law Division.
Your attorney then will prepare a summons and have the defendants
personally served with the Summons and Complaint. The defendant,
through their insurance company, must file an "Answer"
within 35 days. Kenneth Vercammen's office generally does not file
a Complaint until the treating doctor signs an affidavit of merit
setting forth why the injury is permanent and the diagnostic tests
upon which the permanent injury is based. You will need to speak
with your doctor to ask if you have a permanent injury.
6. Interrogatory Questions and Discovery The Answer is followed
by a request for written interrogatories. These are questions that
must be answered by each party. The Superior Court has set up certain
"Form A" Interrogatory Questions which are contained in
the Rules of Court. Generally, written interrogatories are followed
by the taking of depositions, which is recorded testimony given
under oath by any person the opposition wishes to question. The
deposition is just as important as the trial itself. In the event
you are deposed during the course of this action, you will receive
detailed instructions as to the procedure and will be required to
watch a videotape. After taking depositions, the case will be set
down for an Arbitration. If the parties do not settle after the
Arbitration, the case will be given a trial call date. Altogether,
these procedures may take from six months to several years, and
your patience may be sorely tried during this time. However, it
has been our experience that clients who are forewarned have a much
higher tolerance level for the slowly turning wheels of justice.
7. Doctor/ Treatment It will help your case to tell us and your
doctors about any injury or medical problems before or after your
accident. Good cases can be lost by the injured person concealing
or forgetting an earlier or later injury or medical problem. Insurance
companies keep a record of any and all claims against any insurance
company. The insurance company is sure to find out if you have ever
made a previous claim. Tell your doctors all of your complaints.
The doctor's records can only be as complete as what you have given.
Keep track of all prescriptions and medicines taken and the bills.
Also save all bottles or containers of medicine.
8. Bills Retain all bills which relate to your damages, including
medical expenses, hospital expenses, drugs and medicines, therapy,
appliances, and anything needed to assist in your recovery. If possible,
pay these bills by check or money order, so that a complete record
may be kept. If this is not possible, be certain to obtain a complete
receipt with the bill heading on it, to indicate where the receipt
came from and the party issuing it.
9. Evidence Be certain to keep anything that comes into your possession
which might be used as evidence in your case, such as shoes, clothing,
glasses, photographs, defective machinery, defective parts, foreign
substances which may have been a factor in your accident, etc. Be
sure to let the office know that you have these items in your possession.
10. Photographs Take photographs of all motor vehicles, accident
site, etc., that may be connected--directly or indirectly--with
your accident. Again, be sure to let the office know that you have
such photographs.
11 Keep your attorney advised Keep this office advised at all times
with respect to changes in address, important changes in medical
treatment, termination of treatment, termination of employment,
resumption of employment, or any other unusual change in your life.
12. Lost wages Keep a complete record of all lost wages. Obtain
a statement from your company outlining the time you have lost,
the rate of salary you are paid, the hours you work per week, your
average weekly salary, and any losses suffered as a result of this
accident. Where possible, also obtain other types of evidence such
as ledger sheets, copies of time cards, canceled checks, check stubs,
vouchers, pay slips, etc.
13. New information In the event that any new information concerning
the evidence in this case comes to your attention, report this to
the attorney immediately. This is particularly true in the case
of witnesses who have heretofore been unavailable.
14 Do not discuss the case The insurance company may telephone
you and record the conversation or send an adjuster (investigator)
who may carry a concealed tape recorder. You should not discuss
your case with anyone.
Obviously, we cannot stress too strongly that you DO NOT discuss
this matter with anyone but your attorney or immediate, trusted
family. You should sign no documents without the consent of this
office. Remember that at all times you may be photographed and investigated
by the opposition. If you follow the simple precautions which we
have set out in your checklist, we feel that we will be able to
obtain a fair and appropriate amount for your injuries. If you get
any letters from anyone in connection with your case, mail or fax
them to your attorney immediately.
15. Questioning If any person approaches you with respect to this
accident without your attorney's permission, make complete notes
regarding the incident. These notes should include the name and
address of the party, a description of the person, and a narrative
description of what was said or done. Under no circumstances should
you answer any question(s). All questions should be referred to
your attorney's office.
16. Investigation by Defendant Insurance Company Permit us to reiterate
at this time that the opposition's insurance company will in all
probability have a team of lawyers and investigators working diligently
to counter your claim. During the course of their investigation,
it is quite possible that they may attempt to contact you through
various (and sometimes, devious) methods. Please do not make their
jobs any easier for them by answering their questions.
We cannot emphasize too strongly that you should refrain at all
times from discussing this matter with anyone--and that includes
your employer, your relatives, your neighbors, and even your friends.
Of course, there are exceptions to this rule.
If there are friends or neighbors or relatives who know all of
the facts and circumstances surrounding the accident and can be
of assistance to you, then they should be referred to this office
so that their natural sympathy can be channeled into an effective
asset for you.
Insurance companies pay money to claimants when they are satisfied
there are both liability and damages that support a recovery. They
can be expected to thoroughly investigate the facts of the accident
and any past injuries or claims. The insurance company will obtain
copies of all of the claimant's past medical records.
The value of a case depends on the Permanent Injury, medical treatment
and doctor's reports Undoubtedly, you have questions as to how much
your case is worth. We are going to be frank: The fact of the matter
is there can be no answer to this question until we have completed
the investigation in your case. Once we complete our investigation,
of course, we can make a determination as to the amount of the defendant's
liability, if any, and even at that we will only be at a starting
point. After that, we must obtain all necessary information concerning
your lost wages, your disability, your partial disability, your
life changes, and your prognosis. You may rest assured of one thing,
however, and that is the fact that your case will not be settled
below its true value, that is the fair compensation for the injuries
you have received. You may also rest assured that no settlement
agreement will be entered into without your consent.
The following information is taken from the old model jury charges
dealing with fall downs by store customers. INVITEE - DEFINED AND
GENERAL DUTY OWED (12/88) An invitee is one who is permitted to
enter or remain on land (or premises) for a purpose of the owner
(or occupier). He/She enters by invitation, expressed or implied.
The owner (or occupier) of the land (or premises) who by invitation,
expressed or implied, induced persons to come upon his/her premises,
is under a duty to exercise ordinary care to render the premises
reasonably safe for the purposes embraced in the invitation. Thus,
he/she must exercise reasonable care for the invitee's safety. He/She
must take such steps as are reasonable and prudent to correct or
give warning of hazardous conditions or defects actually known to
him/her (or his/her employees), and of hazardous conditions or defects
which he/she (or his/her employees) by the exercise of reasonable
care, could discover. BUSINESS INVITEE FALL DOWNS: The basic duty
of a proprietor of premises to which the public is invited for business
purposes of the proprietor is to exercise reasonable care to see
that one who enters his/her premises upon that invitation has a
reasonably safe place to do that which is within the scope of the
invitation. Notes:
(1) Business Invitee: The duty owed to a "business invitee"
is no different than the duty owed to other "invitees."
(2) Construction Defects, Intrinsic and Foreign Substances: The
rules dealt with in this section and subsequent sections apply mainly
to those cases where injury is caused by transitory conditions,
such as falls due to foreign substances or defects resulting from
wear and tear or other deterioration of premises which were originally
constructed properly.
Where a hazardous condition is due to defective construction or
construction not in accord with applicable standards it is not necessary
to prove that the owner or occupier had actual knowledge of the
defect or would have become aware of the defect had he/she personally
made an inspection. In such cases the owner is liable for failing
to provide a safe place for the use of the invitee.
Thus, in Brody v. Albert Lipson & Sons, 17 N.J. 383 (1955),
the court distinguished between a risk due to the intrinsic quality
of the material used (calling it an "intrinsic substance"
case) and a risk due to a foreign substance or extra-normal condition
of the premises. There the case was submitted to the jury on the
theory that the terrazzo floor was peculiarly liable to become slipper
when wet by water and that defendant should have taken precautions
against said risk. The court appears to reject defendant's contention
that there be notice, direct or imputed by proof of adequate opportunity
to discover the defective condition. 17 N.J. at 389.
It may be possible to reconcile this position with the requirement
of constructive notice of an unsafe condition by saying that an
owner of premises is chargeable with knowledge of such hazards in
construction as a reasonable inspection by an appropriate expert
would reveal. See: Restatement to Torts 2d, §343, Comment f,
pp. 217-218 (1965), saying that a proprietor is required to have
superior knowledge of the dangers incident to facilities furnished
to invitees.
Alternatively, one can view these cases as within the category
of defective or hazardous conditions created by defendant or by
an independent contractor for which defendant would be liable (see
introductory note above).
Cases:
Bozza v. Vornado, Inc., 42 N.J. 355, 359 (1954) (slip and fall
on sticky, slimy substance in self-service cafeteria which inferably
fell to the floor as an incident of defendant's mode of operation).
Buchner v. Erie Railroad Co., 17 N.J. 283, 285-286 (1955) (trip
over curbstone improperly illuminated).
Brody v. Albert Lifson & Sons, 17 N.J. 383, 389 (1955) (slip
and fall on wet composition floor in store).
Bohn v. Hudson & Manhattan R. Co., 16 N.J. 180, 185 (1954)
(slip on smooth stairway in railroad station).
Williams v. Morristown Memorial Hospital, 59 N.J. Super. 384, 389
(App. Div. 1960) (fall over low wire fence separating grass plot
from sidewalk).
Nary v. Dover Parking Authority, 58 N.J. super. 222, 226-227 (App.
Div. 1959) (fall over bumper block in parking lot).
Parmenter v. Jarvis Drug Stor, Inc., 48 N.J. Super. 507, 510 (App.
Div. 1957) (slip and fall on wet linoleum near entrance of store
on rainy day).
Nelson v. Great Atlantic & Pacific Tea Co., 48 N.J. Super.
300 (App. Div. 1958) (inadequate lighting of parking lot of supermarket,
fall over unknown object).
Barnard v. Trenton-New Brunswick Theatre Co., 32 N.J. Super. 551,
557 (App. Div. 1954) (fall over ladder placed in theatre lobby by
workmen of independent contractor).
Ratering v. Mele, 11 N.J. Super. 211, 213 (App. Div. 1951) (slip
and fall on littered stairway at entrance to restaurant).
DUTY TO INSPECT OWED TO INVITEE The duty of an owner (or occupier)
of land (or premises) to make the place reasonably safe for the
proper use of an invitee requires the owner or occupier to make
reasonable inspection of the land (or premises) to discover hazardous
conditions. Cases:
Handelman v. Cox, 39 N.J. 95, 111 (1963) (salesman showing merchandise
to employees of defendant fell down cellar stairway partially obscured
by carton) NOTICE OF PARTICULAR DANGER AS CONDITION OF LIABILITY
If the jury members find that the land (or premises) was not in
a reasonably safe condition, then, in order to recover, plaintiff
must show either that the owner (or occupier) knew of the unsafe
condition for a period of time prior to plaintiff's injury sufficient
to permit him/her in the exercise of reasonable care to have corrected
it, 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 its existence
and corrected it. Cases:
Tua v. Modern Homes, Inc., 64 N.J. Super. 211 (App. Div. 1960),
affirmed, 33 N.J. 476 (1960) (slip and fall on small area of slipper
waxlike substance in store); Parmenter v. Jarvis Drug Store, Inc.,
48 N.J. Super. 507, 510 (App. Div. 1957) (slip and fall on wet linoleum
near entrance of store on rainy day); Ratering v. Mele, 11 N.J.
Super. 211, 213 (App. Div. 1951) (slip and fall on littered stairway
at entrance to restaurant).
Notes:
(1) The above charge is applicable to those cases where the defendant
is not at fault for the creation of the hazard of where the hazard
is not to be reasonably anticipated as an incident of defendant's
mode of operation. See: Maugeri v. Great Atlantic & Pacific
Tea Company, 357 F.2d 202 (3rd Cir. 1966) (dictum).
(2) An employee's knowledge of the danger is imputed to his/her
employer, the owner of premises. Handelman v. Cox, 39 N.J. 95, 104
(1963).
NOTICE NOT REQUIRED WHEN CONDITION IS CAUSED BY DEFENDANT If the
jury members find that the land (or premises) was not in a reasonably
safe condition and that the owner (or occupier) or his/her agent,
servant or employee created that condition through his/her own act
or omission, then, in order for plaintiff to recover, it is not
necessary for the jury members also to find that the owner (or occupier)
had actual or constructive notice of the particular unsafe condition.
Cases:
Smith v. First National Stores, 94 N.J. Super. 462 (App. Div. 1967)
(slip and fall on greasy stairway caused by sawdust tracked onto
the steps by defendant's employees); Plaga v. Foltis, 88 N.J. Super.
209 (App. Div. 1965) (slip and fall on fat in restaurant area traversed
by bus boy); Torda v. Grand Union Co., 59 N.J. Super. 41 (App. Div.
1959) (slip and fall in self-service market on wet floor near vegetable
bin). Also see: Thompson v. Giant Tiger Corp., 118 N.J.L. 10 (E.
& A. 1937); Wollerman v. Grand Union Stores, Inc., 47 N.J. 426
(1956); Lewin v. Orbach's, Inc., 14 N.J. Super. 193 (App. Div. 1951);
Maugeri v. Great Atlantic & Pacific Tea Company, 357 F.2d 202
(3rd Cir. 1966).
DISTRACTION OR FORGETFULNESS OF INVITEE Even if the jury members
find that plaintiff knew of the existence of the unsafe or defective
condition, or that the unsafe or defective condition was so obvious
that defendant had a reasonable basis to expect that an invitee
would realize its existence, plaintiff may still recover if the
circumstances or conditions are such that plaintiff's attention
would be distracted so that he/she would not realize or would forget
the location or existence of the hazard or would fail to protect
himself/herself against it. Thus, even where a hazardous condition
is obvious the jury members must first determine whether in the
circumstances the defendant was negligent in permitting the condition
to exist. Mere lapse of memory or inattention or mental abstraction
at the critical moment is not an adequate excuse. One who is inattentive
or forgetful of a known and obvious danger is contributorily negligent
unless there is some condition or circumstance which would distract
or divert the mind or attention of a reasonably prudent person.
Note:
In McGrath v. American Cyanamid Co., 41 N.J. 272 (1963), the employee
of a subcontractor was killed when a plank comprising a catwalk
over a deep trench up-ended causing him to fall. The court held
that even if the decedent had appreciated the danger that fact by
itself would not have barred recovery. The court said if the danger
was one which due care would not have avoided, due care might, nevertheless,
require notice of warning unless the danger was known or obvious.
If the danger was created by a breach of defendant's duty of care,
that negligence would not be dissipated merely because the decedent
knew of the danger. Negligence would remain, but decedent's knowledge
would affect the issue of contributory negligence. The issue would
remain whether decedent acted as a reasonably prudent person in
view of the known risk, either by incurring the known risk (by staying
on the job), or by the manner in which he proceeded in the face
of that risk.
In Zentz v. Toop, 92 N.J. Super. 105, 114-115 (App. Div. 1966),
affirmed o.b., 50 N.J. 250 (1967), the employee of a roofing contractor,
while carrying hot tar, tripped over a guide wire supporting an
air conditioning tower on a roof. The court held that even if plaintiff
had observed the wires or if they were so obvious that he/she should
have observed them, the question remained whether, considering the
hazard and the work of the employee, he/she was entitled to more
than mere knowledge of the existence of the wires or whether he/she
was entitled to a warning by having the wires flagged or painted
in a contrasting color. This was a fact for the jury to determine.
The jury must also determine whether defendant had reason to expect
that the employee's attention would have been distracted as he/she
worked os that he/she would forget the location of a known hazard
or fail to protect himself against it. The court also held the plaintiff's
knowledge of the danger would not alone bar his/her recovery, but
this knowledge goes to the issue of contributory negligence.
In Ferrie v. D'Arc, 31 N.J. 92, 95 (1959), the court held that
there was no reasonable excuse for plaintiff's forgetfulness or
inattention to the fact that a railing was temporarily absent from
her porch, as she undertook to throw bones to her dog, and fell
to the ground because of the absence of a railing she customarily
leaned upon. The court held:
"When an injury results from forgetfulness or inattention
to a known danger, the obvious contributory negligence is not excusable
in the absence of some condition or circumstance which would divert
the mind or attention of an ordinarily prudent man. Mere lapse of
memory, or inattention or mental abstraction at the critical moment
cannot be considered an adequate diversion. One who is inattentive
to or forgetful of a known and obvious condition which contains
a risk of injury is obvious condition which contains a risk of injury
to guilty of contributory negligence as a matter of law, unless
some diversion of the type referred to above is shown to have existed
at the time."
The following discussion in 2 Harper & James, Torts, §27.13,
pp. 1489 et seq., (1956), cited with approval in Zentz v. Toop,
supra, 92 N.J. Super. at 112, may be helpful in understanding the
principles involved in the above charges:
Once an occupier has learned of dangerous conditions on his/her
premises, a serious question arises as to whether he/she may--as
a matter of law under all circumstances--discharge all further duty
to his/her invitees by simply giving them "a warning adequate
to enable them to avoid the harm." A good many authorities,
including the Restatement, take the position that he/she may. But
this proposition is a highly doubtful one both on principle and
authority. The alternative would be a requirement of due care to
make the conditions reasonably safe--a requirement which might well
be satisfied by warning or obviousness in any given case, but which
would not be so satisfied invariably.
* * *
1. Defendant's duty. People can hurt themselves on almost any condition
of the premises. That is certainly true of an ordinary flight of
stairs. But it takes more than this to make a condition unreasonably
dangerous. If people who are likely to encounter a condition may
be expected to take perfectly good care themselves without further
precautions, then the condition is not unreasonably dangerous because
the likelihood of harm is slight. This is true of the flight of
ordinary stairs in a usual place in the daylight. It is also true
of ordinary curbing along a sidewalk, doors or windows in a house,
counters in a store, stones and slopes in a New England field, and
countless other things which are common in our everyday experience.
It may also be true of less common and obvious conditions which
lurk in a place where visitors would expect to find such dangers.
The ordinary person can use or encounter all of these things safely
if he/she is fully aware of their presence at the time. And if they
have no unusual features and are in a place where he/she would naturally
look for them, he/she may be expected to take care of himself if
they are plainly visible. In such cases it is enough if the condition
is obvious, or is made obvious (e.g., by illumination). * * *
On the other hand, the fact that a condition is obvious--i.e.,
it would be clearly visible to one whose attention was directed
to it--does not always remove all unreasonable danger. It may fail
to do so in two lines of cases. In one line of cases, people would
not in fact expect to find the condition where it is, or they are
likely to have their attention distracted as they approach it, or,
for some other reason, they are in fact not likely to see it, though
it could be readily and safely avoided if they did. There may be
negligence in creating or maintaining such a condition even though
it is physically obvious; slight obstructions to travel on a sidewalk
an unexpected step in a store aisle or between a passenger elevator
and the landing furnish examples. Under the circumstances of any
particular case, an additional warning may, as a matter of fact,
suffice to remove the danger, as where a customer, not hurried by
crowds or some emergency, and in possession of his/her facilities,
is told to "watch his/her step" or "step up"
at the appropriate time. When this is the case, the warning satisfies
the requirement of due care and is incompatible with defendant's
negligence. Here again, plaintiff's recovery would be prevented
by that fact no matter how careful he/she was. But under ordinary
negligence principles the question is properly one of fact for the
jury except in the clearest situations.
In the second line of cases the condition of danger is such that
it cannot be encountered with reasonable safety even if the danger
is known and appreciated. An icy flight of stairs or sidewalk, a
slippery floor, a defective crosswalk, or a walkway near an exposed
high tension wire may furnish examples. So may the less dangerous
kind of condition if surrounding circumstances are likely to force
plaintiff upon it, or if, for any other reason, his/her knowledge
is not likely to be a protection against danger. It is in these
situations that the bit of the Restatement's "adequate warning"
rule is felt. Here, if people are in fact likely to encounter the
danger, the duty of reasonable care to make conditions reasonably
safe is not satisfied by a simple warning; the probability of harm
in spite of such precaution is still unreasonably great. And the
books are full of cases in which defendants, owing such a duty,
are held liable for creating or maintaining a perfectly obvious
danger of which plaintiffs are fully aware. The Restatement, however,
would deny liability here because the occupier need not invite visitors,
and if he/she does, he/she may condition the invitation on any terms
he/she chooses, so long as there is full disclosure of them. If
the invitee wishes to come on those terms, he/she assumes the risk.
The Restatement view is wrong in policy. The law has never freed
landownership or possession from all restrictions or obligations
imposed in the social interest. The possessor's duty to use care
towards those outside the land is of long standing. And many obligations
are imposed for the benefit of people who voluntarily come upon
the land. For the invitee, the occupier must make reasonable inspection
and give warning of hidden perils. . . But this should not be conclusive.
Reasonable expectations may raise duties, but they should not always
limit them. The gist of the matter is unreasonable probability of
harm in fact. And when that is great enough in spite of full disclosure,
it is carrying the quasi-sovereignty of the landowner pretty far
to let him ignore it to the risk of life and limb.
So far as authority goes, the orthodox theory is getting to be
a pretty feeble reed for defendants to lean on. It is still frequently
stated, though often by way of dictum. On the other hand, some cases
have simply--though unostentatiously--broken with tradition and
held defendant liable to an invitee in spite of his/her knowledge
of the danger, when the danger was great enough and could have been
feasibly remedied. Other cases stress either the reasonable assumption
of safety which the invitee may make or the likelihood that his/her
attention will be distracted, in order to cut down the notion of
what is obvious or the adequacy of warning. And the latter is often
a jury question even under the Restatement rule. It is not surprising,
then, that relatively few decisions have depended on the Restatement
rule alone for denying liability.
2. Contributory Negligence. . . But there are several situations
in which a plaintiff will not be barred by contributory negligence
although he/she encountered a known danger. . . For another, it
is not necessarily negligent for a plaintiff knowingly and deliberately
to encounter a danger which it is negligent for defendant to maintain.
Thus a traveler may knowingly use a defective sidewalk, or a tenant
a defective common stairway, without being negligent if the use
was reasonable under all the circumstances.
Conclusion We appreciate that this is a great deal of information
to absorb. We also appreciate that our requests for client's assistance
have been numerous. However, we are certain that our clients appreciate
having this information from the outset. Each request and bit of
information given here represents an important part in recovering
full value for your injury. Therefore, we respectfully request your
full cooperation. If you have questions or concerns regarding these
instructions, we encourage you to feel free to contact the office
at any time. These situations show that the invitee will not always
be barred by his/her self-exposure to known dangers on the premises.
CALL KENNETH A. VERCAMMEN, ESQ. 732-572-0500 For an Appointment
About Kenneth Vercammen:
Kenneth Vercammen is a Litigation Attorney in Edison, NJ, approximately
17 miles north of Princeton. He often lectures for the American
Bar Association and New Jersey State Bar Association on personal
injury, criminal / municipal court law and practices to improve
service to clients. He has published 125 articles in national and
New Jersey publications on trial and litigation topics. He has served
as a Special Acting Prosecutor in seven different cities and towns
in New Jersey.
In his private practice, he has devoted a substantial portion of
his professional time to the preparation and trial of litigated
matters. He has appeared in Courts throughout New Jersey several
times each week on many personal injury matters, Municipal Court
trials, and contested administrative law hearings.
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