Nelson v. Great Atlantic & Pacific Tea Co.

Jayne, J. A. D.

(dissenting). I share with my associates an aversion to the summary dismissal of an action grounded solely upon the poverty of an attorney’s introductory remarks to the jury, but counsel for the appellants candidly acknowledged at the argument of the present appeal that the opening address at the inception of the trial of the instant case embodied completely the disclosure of all of the factual evidence which the plaintiffs could have adduced.

Envisioning evidence of such obscurity and speculation as here, I would vote to affirm a judgment of involuntary dismissal.

It is axiomatic that negligence is not to be presumed from the mere fact of the occurrence of an accident or injury. Without some comprehension of the characteristics of the mishap, its proximate cause can only be determined by entering the field of surmise and conjecture, the boundaries of which, as illustrated by tip majority opinion, are coextensive with the fertility of the judge’s imagination.

Did Mrs. Nelson slip or trip ? Was the object an abandoned lettuce leaf or a forsaken banana peel, or was it more substantial, such as a head of lettuce or a stalk of bananas? Nobody knows. I think that we ought not conjecture that whatever it was and wherever it was on the premises, a jury could logically and legitimately deduce from such nebulous information that the defendant was culpably responsible for her collision with it. That the unknown object would have been observed had the premises been illuminated is in my estimation nothing more than a gracious guess.

The majority opinion obliges me somewhat reluctantly to confess that the pace of the modern decisions in our jurisdiction toward the conversion of occupiers of land into insurers of the safety of entrants, whether adults or infants, whether invitees, licensees, or trespassers, is too nimble for my primitive agility.

A new trial will evidently produce only a duplication of the question. I would affirm the dismissal of the action.