GARY MANN v. MICHAEL HARRIS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2897-07T22897-07T2

GARY MANN,

Plaintiff-Respondent,

v.

MICHAEL HARRIS,

Defendant-Appellant,

and

SOCIETY HILL @UNIVERSITY

HEIGHTS, III, and IMPAC

PROPERTY MANAGEMENT,

Defendants-Respondents.

___________________________

 

Submitted November 10, 2008 Decided

Before Judges Sapp-Peterson and Alvarez.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. SC 2385-07.

Chasan Leyner & Lamparello, P.C., attorneys for appellant (Michael A. Cassata, on the brief).

Respondents Gary Mann, Society Hill

@ University Heights, III, and Impac Property Management have not filed briefs.

PER CURIAM

Defendant Michael Harris (Harris) appeals from a verdict awarded after a bench trial finding him liable for payment of $2,675 jointly and severally with defendants Society Hill at University Heights III (the condominium association) and Impac Property Management (Impac), the firm that manages the condominium property. For the reasons that follow, we reverse as to Harris.

Harris raises the following issues on appeal:

POINT I

THE TRIAL COURT MISINTERPRETED THE LAW GOVERNING A NEGLIGENCE CAUSE OF ACTION BECAUSE THE DEFENDANT DID NOT BREACH A DUTY OF CARE AND PROXIMATELY CAUSE INJURY TO THE PLAINTIFF.

A. THE COURT BELOW APPLIED THE DOCTRINE OF

RES IPSA LOQUITUR TO THE EVIDENCE ADMITTED AND IMPERMISSIBLY SHIFTED THE BURDEN OF PROOF TO DEFENDANTS.

In May 2007, plaintiff Gary Mann learned from his tenant at 37 Woodcliff Street in Newark that the bathroom ceiling in his apartment had collapsed due to a water leak originating from the upstairs unit owned by Harris. On May 5, 2007, plaintiff was admitted into Harris's unit to attempt to locate the source of the leak. Plaintiff saw that the bathing facilities in the upstairs unit were not immediately above his apartment and could not determine the source of the leak. Plumbers were eventually called, but they could not pinpoint the source of the leak without opening the walls of Harris's unit. As a result, although a temporary repair was made, no permanent repair has been possible. As the trial judge described, plaintiff has "a tube hanging through his ceiling." The cost to temporarily repair the leak was $1,425, and plaintiff lost rental income totaling $1250, for total damages of $2,675.

The following month, plaintiff filed a complaint in the Small Claims Section of the Special Civil Part. A bench trial commenced on September 25, 2007. Because plaintiff was pro se, the matter was adjourned to afford him an opportunity to retain counsel and to file an amended complaint naming the condominium association as a defendant. The matter was tried to conclusion on December 12, 2007. On February 1, 2008, the trial court denied Harris's motion for a new trial as well as reconsideration of its prior decision.

Harris contends in this appeal, as he did unsuccessfully before the trial court, that Siddons v. Cook, 382 N.J. Super. 1 (App. Div. 2005), exempts him from liability. In accord with the doctrine set forth in that opinion, we find that plaintiff did not factually establish either that Harris breached his duty of care to plaintiff or that he proximately caused the damage.

In Siddons, plaintiff owned a condominium unit that was flooded when a dishwasher hose malfunctioned in the apartment next door. Id. at 5. Siddons sued the unit owners, the Cooks, as well as the condominium association, for the resulting damage. Ibid. The trial court dismissed plaintiff's claim by way of summary judgment, finding that the Cooks were neither strictly liable nor negligent. The trial court also found that the condominium association had no duty to warn plaintiff about the potential flooding hazard, even though the association had prior knowledge of the risk. Ibid. We reversed as to the condominium association, reasoning that it did have a duty to warn plaintiff about the known risk. Id. at 10.

Despite imposing liability on the condominium association, we did not hold the unit owners liable. Id. at 14. Because the owners were unaware of any leakage, we concluded that no reasonable jury could find them negligent. Id. at 13-14. Even though the unit owners had a duty to inspect and maintain, the claimant was nonetheless required to establish that a breach of the duty had occurred, and that the injury was proximately caused by the breach. Id. at 13.

The parallel between Siddons and this situation is clear. In order to be held liable for damage to plaintiff's unit, Harris must have breached some duty of care to the plaintiff. Ibid. Additionally, the breach of that duty of care must be the proximate cause of the injury. Ibid. Plaintiff did not present any such proofs at trial.

In this case, the trial judge reasoned that because no expert witness defined the condominium's common elements or clarified whether the leaky pipe was such an element, the responsible defendant could not be singled out from the three named in the suit. He therefore grouped Harris as a joint tortfeasor essentially on a theory of res ipsa loquitur. In other words, Harris was held liable because the court could not ferret out which defendant was responsible to maintain the plumbing that caused the ceiling to collapse.

Res ipsa loquitur, however, is only applicable when all defendants may be culpable and none can be identified as being the responsible party. See, e.g., Apuzzio v. J. Fede Trucking, Inc., 355 N.J. Super. 122, 129-30 (App. Div. 2002). Res ipsa loquitur calls for deviation from the standard negligence analysis, and no record that warrants a deviation from that standard analysis was developed here. Plaintiff presented no proof to even suggest that Harris failed to exercise due care in any respect or that he had any, much less exclusive, control over the plumbing that harmed plaintiff's unit. See Anderson v. Somberg, 67 N.J. 291, 299, cert. denied, 423 U.S. 929, 96 S. Ct. 279, 46 L. Ed. 2d 258 (1975). Without a scintilla of evidence that Harris breached a duty of care to his neighbor, Harris cannot be lumped together with the condominium association that is legally responsible for the common elements or with Impac, the entity responsible for building maintenance.

"A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty v. Twp. Comm., 140 N.J. 366, 378 (1995). We do not agree with the trial court's application of the doctrine of res ipsa loquitur to these facts and find that it is inapplicable to Harris.

Reversed as to Harris.

 

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A-2897-07T2

January 5, 2009