LEONARD FURST, JR. and MARY FURST v. LUCENT, INC. and MOWATT, INC.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2828-08T3

LEONARD FURST, JR. and MARY FURST,

Plaintiffs-Appellants,

v.

LUCENT, INC. and MOWATT, INC.,

Defendants-Respondents.

____________________________________

Submitted January 12, 2010 - Decided February 22, 2010

Before Judges Parrillo and Lihotz.

On appeal from Superior Court of New Jersey, Law

Division, Morris County, Docket No. L-174-07.

Marshall L. Gates, attorney for appellants (Mr.

Gates, of counsel; Mr. Gates and Galen G. Medley,

on the brief).

Hack, Piro, O'Day, Merkinger, Wallace and McKenna,

attorneys for respondent Lucent Technologies (Thomas

M. Madden, on the brief).

Law Offices of Michael C. Urciuoli, attorneys for

respondent Mowatt, Inc. (Jeffrey A. Savage, on the

brief).

PER CURIAM

In this slip and fall case, plaintiff Leonard Furst, Jr. appeals from the summary judgment dismissal of his negligence complaint against defendants, Lucent, Inc. and Mowatt, Inc. We affirm.

The facts viewed most favorably to plaintiff, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), are as follows. Plaintiff was employed by Verizon, Inc. (Verizon) as a technician. On August 17, 2005, he was on the third floor of Verizon's Morristown office, working the 4:00 p.m. to midnight shift. At around 11:30 p.m., while walking toward his desk, plaintiff put his right foot forward and it slid, twisting to the left. Apparently, his foot became lodged in a four-inch space between his desk and the floor. His right ankle was injured and required surgery.

Although he could not see any type of residue on the sheet linoleum flooring, plaintiff believed he slipped on an invisible slick substance, which he further believed, from past experience, had come from cable wiring installed by Lucent. Although plaintiff inspected the area after his fall, he could not identify any slippery substance.

Lucent was under contract from Verizon to perform on-site work at its Morristown office. According to Sandy Horan, an operations supervisor who worked for Lucent in 2005, Lucent was not on-site at Verizon's Morristown office performing a cable installation on August 17, 2005. In fact, the last time before the accident that Lucent had installed cable at that location was at the end of July 2005. The next delivery and installation of cable at the premises was not until August 18, 2005, one day after plaintiff's accident. Moreover, the cable installed by Lucent was not packed in any type of packing material, either to protect it or ease its installation. The cable had no lubricant or preservative of any kind on it.

Walter Schuckmann worked for Lucent from 1965 to 2008. In the summer, 2005, Schuckmann installed communications equipment at Verizon's Morristown office. He confirmed Horan's testimony that the cable he installed was not coated with any lubricant or other waxy substance. Moreover, he never experienced any invisible slippery substance on the floors of Verizon's Morristown office. According to Schuckmann, although he laid the cable out when installing it on the second floor, there was never a need to place it down on the third floor because he ran the wiring "[u]p and into its location" on that floor. Thus, the cable installed by Lucent never came into contact with the linoleum flooring on the third floor.

Verizon contracted with Mowatt to perform cleaning and janitorial services at its Morristown building. According to that contract, Mowatt was not allowed to wet mop the floors in equipment areas such as the third floor, and instead was only permitted to dry mop those areas housing electrical equipment. The contract also required Mowatt to maintain a porter presence at the Verizon building from 7:00 a.m. to 5:00 p.m. Mowatt's on-site representative, Maria Arias, had not seen nor was ever notified of any slippery substance on the third floor.

On January 11, 2007, plaintiff sued Lucent and Mowatt alleging negligence. Defendants answered. During the ensuing discovery, plaintiff requested a ten-inch sample of the cable installed on the third floor in the summer, 2005. In response to the court's May 27, 2008 order to produce, on July 1, 2008, Lucent advised that it could not provide an exemplar sample, inasmuch as the cable, manufactured by another company specifically for the Verizon job, was pre-cut and installed in full. Lucent claimed there was no excess cable to produce as a sample. Plaintiff's renewed motion to produce was denied without prejudice on July 10, 2008. In the meantime, plaintiff's counsel informed Lucent that some two years after the incident, plaintiff had obtained a piece of cable that had been discarded and recovered from a trash disposal location at the Morristown facility. The cable produced by plaintiff was examined by Schuckmann, who maintained that it was not the type of cable installed by Lucent at the time of plaintiff's injury. On August 29, 2008, all parties conducted a site inspection at the Verizon location.

Following discovery, both defendants moved for summary judgment. After hearing argument, the judge granted the motion, dismissing plaintiff's complaint. The judge reasoned:

The fact is that negligence can never be presumed, except in a res ipsa situation. This is not a case of res ipsa loquitor. The plaintiff must show here at least the existence of genuine material issue of fact. I find that there has been a defect in the plaintiff's case in this regard.

The use of Shuckman 1 is highly problematic. There has been little or no linkage between . . . this exhibit and the actual proof of the cable that was actually installed. I note there is no expert, at all, retained to explain the substance. It would be purely speculative for the jury, at this stage, to associate whatever condition on P-1 -- Shuckman Exhibit 1 to the -- the cables that were -- or cable that was -- that was used in the actual installation. It's purely speculation.

There is no evidence in this record that would contradict the undisputed fact that the so-called exhibit, Shuckman 1, is identical to the actual cable that was installed. All evidence is to the contrary.

Additionally, there's no evidence to dispute that Mowatt did not really clean the area near the desk, where he slipped. There's no showing that Mowatt should have cleaned that area due to a complaint or its usual practice. Indeed, the -- the evidence is to the contrary.

. . . .

. . . [W]hen looking at the record very carefully and in a frame of mind giving to the plaintiff every reasonable inference, I must conclude that, giving that deference to the plaintiff, I am at a loss to find any evidence which would allow this case to reasonably go to the jury at the time as against either parties, defendants.

On appeal, plaintiff raises the following issues:

I. THE COURT ERRED BY NOT ORDERING THE RESPONDENT LUCENT TO PRODUCE A SAMPLE OF CABLE DURING DISCOVERY AND THUS DENYING ENTRY OF A MATERIAL FACT.

II. THE COURT ERRED WHEN IT GRANTED THE MOTION FOR SUMMARY JUDGMENT BECAUSE THE ISSUE OF WHETHER RESPONDENT MOWATT, INC.'S EMPLOYEE'S LACK OF UNDERSTANDING OF ENGLISH WAS A PROXIMATE CAUSE OF THE INCIDENT IS A FACT FOR A JURY TO DETERMINE.

III. THE LAW DIVISION ERRED IN GRANTING SUMMARY JUDGMENT SINCE THE PREMISES AND THE CABLE WERE IN THE EXCLUSIVE CONTROL OF RESPONDENT LUCENT AND RESPONDENT MOWATT, INC. DURING THE ACCIDENT, THE DOCTRINCE OF RES IPSA LOQUITOR WOULD BE APPLICABLE.

We have considered each of these issues in light of the record, the applicable law, and the arguments of counsel, and we are satisfied they are without merit. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons stated in the motion judge's oral decision of January 9, 2009. We add only the following comments.

Plaintiff claims the denial of his request for a sample of the cable installed in 2005 contravenes Rule 4:10-2(c), which permits discovery of non-privileged, relevant "tangible things" upon a showing of "substantial need" and inability "without undue hardship to obtain the substantial equivalent of the materials by other means." However, a court may limit the scope of discovery if it determines that:

(1) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; (2) the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or (3) the burden or expense of the proposed discovery outweighs its likely benefit . . . .

[R. 4:10-2(g).]

Here, there was no abuse of discretion in the court's denial of plaintiff's discovery request. In the first place, the cable in question was neither manufactured by, nor in the possession of, Lucent following its installation in the summer 2005. As the testimony of Lucent employees indicates, the cable that Lucent installed in the Verizon building in 2005 was specifically manufactured, pre-cut and installed in full, without any excess retained by Lucent.

Second, plaintiff had other means to obtain a sampling of the cable. Lucent had provided relevant documents and information for the fiber it installed. There was a site inspection of the Verizon building on August 29, 2008, and presumably plaintiff could have had his expert present to both locate and analyze the exact fiber that was run.

Finally, by plaintiff's own certification, the cable he located some two years after the incident was similar to the cable installed by Lucent, and therefore was capable of being inspected and examined by an expert to ascertain the presence of any invisible, slippery substance. Thus, because Lucent was not in possession of the item requested, and because the exact cable or its equivalent was otherwise obtainable by plaintiff, the court did not abuse its discretion in denying plaintiff's discovery motion.

Plaintiff's alternative claim of spoliation of evidence was never raised below and is therefore not cognizable here. R. 2:10-2. In any event, the claim is unfounded. Lucent owed no duty to plaintiff to preserve the cable it installed at Verizon's building during the summer, 2005. Moreover, the undisputed testimony is that Lucent supplied Verizon with only the specified length of cable for the job. Thus, no valid spoliation claim is presented under these circumstances.

There was also no error in granting summary judgment to Mowatt. "Negligence is a fact which must be shown and which will not be presumed." Long v. Landy, 35 N.J. 44, 54 (1961). To be liable in negligence, there must be a duty, a breach of that duty, and damages proximately caused by the breach. Kelly v. Gwinnell, 96 N.J. 538, 543-44 (1984). The question of duty is usually a matter of law for the court to decide. Wang v. Allstate Ins. Co., 125 N.J. 2, 15 (1991).

Here, Mowatt's duty was defined by its contract with Verizon, which required the cleaning service to maintain a presence in the building and to provide cleaning and janitorial services from 7:00 a.m. to 5:00 p.m. However, the contract also specified that unless expressly directed otherwise by Verizon, Mowatt was only to dry mop the third floor because it contained sensitive electrical equipment.

Here, the undisputed proof is that plaintiff slipped and fell at 11:30 p.m., when Mowatt was under no duty to provide an on-site presence. Moreover, there was no proof of any request from Verizon for any additional work by Mowatt. Nor was there any evidence that either plaintiff or any other Verizon employee ever complained to Mowatt about any invisible slippery substance on the floors where plaintiff worked. Thus, whether Mowatt's representative was proficient in English is entirely irrelevant since there is no evidence whatsoever that a lack of communication played any role in much less was a proximate cause of plaintiff's accident.

Lastly, plaintiff argues the doctrine of res ipsa loquitor precluded summary judgment. We disagree.

The doctrine permits an inference of negligence where: "'(a) the occurrence itself ordinarily bespeaks negligence; (b) the instrumentality was within defendant's exclusive control; and (c) there is no indication in the circumstances that the injury was the result of the plaintiff's own voluntary act or neglect.'" Kelly v. Berlin, 300 N.J. Super. 256, 265 (App. Div. 1997) (quoting Buckelew v. Grossbard, 87 N.J. 512, 525 (1981)). "Whether an occurrence 'ordinarily bespeaks negligence' depends on the balance of probabilities being in favor of negligence." Buckelew, supra, 87 N.J. at 526.

In our view, the act of falling on linoleum flooring does not ordinarily suggest other-party negligence. Indeed, plaintiff never identified any foreign material or slippery substance on the floor before, during, or after the incident. To the contrary, plaintiff merely speculated as to its presence and further surmised that the unidentified substance came from the cable installed by Lucent. Moreover, neither the fiber optic cable nor the building in which they were installed were in the exclusive control of either Lucent or Mowatt. The cables were manufactured by another company and were installed on property owned and occupied by Verizon and its employees. Accordingly, the doctrine of res ipsa loquitor is inapplicable here.

 
Affirmed.

Plaintiff's wife, Mary Furst, sued per quod.

(continued)

(continued)

2

A-2828-08T3