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The 10 Percent Solution
by Ron Davis

A customer of a New Jersey shopping center must accept 90 percent of the blame for a trip-and-fall injury she suffered as she walked to the center’s entranceway from her parked car.

The shopping center is Ocean County Mall, located just north of Atlantic City, and the fall occurred in daylight hours as she crossed the roadway that runs between the center and its parking lot. After her husband parked the car in the lot, she got out first and started across the roadway alone. At the center line, her foot caught in what she described as a hole and she fell to the ground, breaking her hip.

Her husband quickly assisted her and noted “a depression of some sort” at the spot where she fell. He later said the indentation in the road was about two inches wide and resembled a crevice.

The woman is blind in her left eye, however. And she is far-sighted in her right eye, requiring corrective lenses in her glasses when she drives. She was not wearing glasses when the accident occurred.

The woman nevertheless sued the owners of the shopping center, claiming that they were negligent in not previously spotting the hole she tripped over and repairing it. And an engineer, testifying on her behalf during the trial, said he believed the hole had existed for a few months before her accident and was a dangerous impediment to pedestrians.

The shopping center’s own employees agreed that the hole was a hazard and needed to be repaired. But they also described the various measures that they took on a daily basis to discover such hazards and that they were unaware of the hole before the accident.

Moreover, the judge noted the woman’s fall occurred in an area over which large numbers of vehicles rode every day. “Obviously,” he added, “a reasonable person should be aware that such use can harm the road, making it dangerous.”

Finally, evidence confirmed that independent inspectors routinely checked the center’s roadway and reported defective conditions.

After a jury concluded that the injured woman was 90 percent at fault for her injury and Ocean County Mall was 10 percent at fault, she appealed.

A New Jersey appellate court, in agreeing with the jury verdict, explained, “The fault was minimal on both sides: neither the shopping center owners, whose employees had to look for hazards throughout a large parking lot, nor the injured woman, who was walking in daylight to the center, noticed this wide crack before the accident. We cannot say that there was a miscarriage of justice when the negligence of both sides was minimal, and the jury determined that the person closest to the defect just before the accident was mostly responsible for what occurred.” (Hoffner v. Ocean County Mall, 2005 WL 3075124 [N.J. Super. A.D.])

Decision: November 2005
Published: November 2005



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