*1 GIANGRASSO, ANTHONY GIANGRASSO AND LUCILLE PLAINTIFFS-RESPONDENTS, COVER DEAN FLOOR CO., FLOOR COVER RATE ING FORMERLY CUT DEAN INC., CO., DEFENDANT-APPELLANT. ING Decided January 22,1968. Argued 8,1967 November *2 Mr. Francis J. Lute for the (Messrs. Seaman respondents Ciarle, Mr. Richard N. on the attorneys; D’Agosto, brief). Mr. Gerald W. for the Conway appellant (Messrs. Schreib- Lancaster, er & attorneys).
The opinion the court was delivered by damages J. This action was to recover brought Haíteman, a was from fall which while resulting plaintiff occurred seeking entrance to defendant’s store. At the conclusion an evidence, the trial court plaintiff’s involuntary entered invitee, on not an dismissal was grounds plaintiff were, that even if not any she the defendant had breached her, of care with to and further that she duty respect contributorily barred from because she had been recovery Division, a law. as matter of The negligent Appellate an reversed and we certification. unreported opinion, granted 49 N. J. 362 (1967). of January
The record discloses that on the evening her house with the intent of to walking 1962 left a Her on defendant’s store to make house fronted purchase. Elm in Edison and was Township what was then Street the rear of defendant’s directly premises. located opposite and Elm driveway Erom the intersection of plaintiff’s a routes available to person seeking are several Street, there Street, front of defendant’s store on Eulton reach the to are located. Plaintiff could entrances have only where the Street, Elm for feet proceeded on to right turned Washington Street, a 200 feet to turn, made left walked Eulton Street, which runs Elm turned left Street, parallel again and proceeded feet to the front of defendant’s store. she a Alternatively, could have taken somewhat longer route left on Elm a turning turn making on both Route and Eulton Street. Neither of the routes crosses defendant’s property. course,
Instead of following either plaintiff apparently elected to take shorter approach the front entrance by proceeding which ran along the side of defend- along ant’s from the building, front the store to Elm Street. Rather than travel Elm Street until she could along turn left onto the she crossed Elm path, Street and entered de- land via a fendant’s at the rear of driveway the store used trucks. Plaintiff delivery then to reach the attempted path by unlit, and at crossing open, unpaved time *3 muddy area which is bounded the rear of by the building, Street, Elm the and the above driveway referred to path and from Elm which was a row separated by of shrubs. Before she could reach the she on a path slipped of piece wet cardboard.
It clear that to recover plaintiff’s right is depends upon as invitee whether she since under the qualified proofs no owed to her duty violated as a defendant licensee or a Kaczka, v. 17 N. J. Tomsky Super. 211 trespasser. (App. cited; Bernhardt, and authorities v. 1952) Div. Standiford Div. J. 357 (App. 1951). 13 N. Super. for the status of determining The test person as an in set forth v. Phillips Co., was originally Library invitee & 314-315 A. (E. L. pp. 1893) N. J. re-affirmed in Cox, 39 N. J. 95 (1963) where the Handleman court said, 107: p. at occupier liability his an owner or for condition of “‘[T]he of the premises of the was induced to make use arises where the by injury for,
premises, in course of which he sustained the sued the invitation, by implied express or invitation be from acts and con- to gist liability in the fact defendants. The the consists duct the injured merely own, person did not act on motives his to that the contributed, sign occupier that which no of the act or owner or premises or he entered was led the acts conduct the because he occupier premises intended of the or that the were owner believe them, he used such use to be used in the manner was not which and that only acquiesced in, in accordance with the intention but was adapted design way place prepared or the or or ” allowed to be used.’ The area of the invitation of the extends such parts premises as may reasonably be believed for access to open the particular to which invitation place the is extended. Such a determination on therefore depends the cir surrounding Williams cumstances. v. Morristown Memorial Hosp., N. J. 389-390 Super. pp. (App. Div. 1960) cited.
Several considerations lead us to conclude the area in which Mrs. Giangrasso fell cannot be considered within the scope the invitation. first,
There is the absence of customers testimony that utilized either the path or the open area in which the fall occurred. Although plaintiff testified that she had seen people walk along the path, she could not tell if were cus- they tomers rather than employees Indeed she trespassers. admitted never seen a having on person the path carrying purchase. The same is true as to her testimony concerning people the area open where fell. A she truck was being unloaded in adjacent the driveway on each occasion that she saw at people either location. It seems most probable noticed persons were employees. even
Nevertheless, if we assume that the because of location, its be can considered a means of gaining access to *4 the an store, invitation to path use such does not include the area in open which she fell. Plaintiff offered no evidence that defendant conceived the planned area be open used by an customers as entrance to the area path. The was open not covered with as the was gravel, path, was nor it lit. In addition it from Elm a separated row by of of shrubs, prevent one result which was to the of use the open a of path as means access to the from Elm space Street. Thus not only encouragement was there an absence of affirmative well prospective discouraged users of the were as from All indica- a of access. the as means using open space its tions, nature as well as its uncovered and unlit including open conclusion that the to the protecting shrubbery, point not so used. space was meant to be Thus, even if the the invitation can be said to encompass path, the only invitational it is method of entering upon from Elm Street and not over and partially the dangerous obscured taken fell. way which she by plaintiff, crossing concluded that erred in
Having the Division Appellate as believing jury to exist as to status question plaintiff’s an invitee, we find unnecessary it to consider the other con- tentions advanced defendant. by
The decision of the Appellate Division is reversed that of the trial court reinstated. J : I subscribe to Di (dissenting) the Appellate
Jacobs, below that holding wife’s viewed proofs, vision’s favorably her, most as she was admittedly entitled to have Brown, them viewed at the close of her case v. (Honey N. J. were sufficient to (1956)), enable jury find that she “was invitee in the area fell, where she she was not contributorily that defendant was negligent which was the guilty negligence proximate cause plain if I tiff’s fall.” But even were inclined otherwise I would fact that still be disturbed this Court took the case for it no clearly presented significant review issues and though moment. The no framers the 1941' Constitu questions Jersey’s judicial New structure on tion modeled the federal was to be one as of appeal There to the system. Appel from certain Division, and limited classes of apart late here, no further review was to be not afforded pertinent by this Court under expressly granted where its discre except Const., N. J. of certification. See Art. VI, tionary power § Heinowitz, 10 N. J. 123, 1; Midler (1952). par. was never discretionary power intended to be exer- That this
85 in cised favor of a second review in appellate relatively trivial cases such as this one is history clear from the federal entirely (see Frankfurter, J., in Dick v. York New dissenting Life Co., Ins. 359 935, U. 437, 447, 921, S. 79 3 L. Ed. 2d S. Ct. 943 from dur (1959)), the pertinent supportive expressions 1947 ing the Constitutional Conven Convention Const. (IV 1917, tion 7, 401, 432, pp. 150, 202, 203, 283-284, 476) and from the court criteria rule which sets forth the certification a matter and certification is not stipulates and is to allowed where there are only “special be R. 1:10-2. important reasons therefor.” R.
In Dick v.
Co.,
New York
Ins.
Justice Frank
supra,
Life
furter dealt at
with the federal
length
certiorari
upon
practice
which ours was patterned. He
Taft
Chief Justice
quoted
the effect that the Supreme
function
Court’s
is conceived to
be “not the
of a
remedying
particular
litigant’s
wrong,
the consideration of cases whose decision involves principles,
the application of which are of wide
public
governmental
interest, and which should be
declared
authoritatively
by the
final court.” 359
453-454,
U. S. at
79 Ct.
L.
931,
S.
at
3 Ed.
2d at 946. He noted that
of fact have
“questions
traditionally
been deemed to be the kind of
not to
questions
ought
be recanvassed here unless
are
they
entangled
the proper
determination of constitutional or other important
is
legal
931,
sues.” 359
79
454,
U. S. at
Ct. at
3 L. Ed.
S.
2d at 946.
And towards the close of his
he
opinion,
expressed the thought
that the intermediate Court of
was the
Appeals
one charged
with the
primarily
appellate responsibility
examining
records for the
sufficiency
evidence,
that its judgment
on that score should
be
ordinarily
permitted to rest. 359 U. S.
462, 79
921,
at
S. Ct.
Changing with philosophies increased em- on individual phasis rights protections are this presenting determina
Court with more and more momentous issues for *6 dealt with justly, thoroughly tion. These issues must be all be dedicated and the should expeditiously judicial energies careful confinement to that end. The should be the approach excep of our reviews to those discretionary important which call for consideration tional cases patently from this approach court of last resort. Departures State’s and to en to dilute the unfortunately judicial energies serve for certification further courage applications R. R. set forth in fail to the criteria satisfy any utterly certification I would vote to vacate the Procedurally 1:10-2. on the merits at hand as improvidently granted; in the case affirm entered the Appellate I vote to the judgment would Division. Fearcis, Peoctoe, Goldmarr,
For reversal—-Justices Haremar—5. Schettiro and Justice Justice Wbintkaub For affirmance—Chief Jacobs—2. COOPER, WIFE, AND DOLORES HIS COOPER
DAVID PLAINTIFFS-APPELLANTS, v. GOVERNMENT EMPLOY COMPANY, EES INSURANCE DEFENDANT-RESPON DENT. Decided January 22,1968. Argued October