CARLOS GAMEZ v. ST. EDWARD THE CONFESSOR PARISH DIOCESE OF METUCHEN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5648-11T1

CARLOS GAMEZ,

Plaintiff-Appellant,

v.

ST. EDWARD THE CONFESSOR PARISH,

DIOCESE OF METUCHEN,

Defendants-Respondents.

__________________________________

February 19, 2013

Argued January 29, 2013 - Decided

Before Judges Messano and Kennedy.

On appeal from Superior Court of New Jersey, Law Division, Union County, Docket No. L-4998-10.

Randi S. Greenberg argued the cause for appellant (Icaza & Burgess, attorneys; Douglas D. Burgess, of counsel; Ms. Greenberg, on the brief).

Margaret T. Korgul argued the cause for respondents (K&L Gates, attorneys; Anthony P. La Rocco, of counsel; Ms. Korgul and Matthew S. Sachs, on the brief).

PER CURIAM

Plaintiff Carlos Gamez appeals from an order of summary judgment dismissing with prejudice his complaint against defendants Diocese of Metuchen and St. Edward the Confessor Parish (hereinafter collectively referred to as St. Edward Church). Plaintiff argues that the motion judge improperly declined to apply the doctrine of res ipsa loquitur, given the circumstances of plaintiff's injury, and erred in holding that plaintiff's own actions "could have" caused the accident which led to his injury. After considering these arguments in light of the applicable law, we affirm.

I.

A.

The principles guiding our review of an order of summary judgment are well-established. Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). Under this rule, "[a]n issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact." Ibid.; see also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). The party opposing summary judgment "'must do more than simply show that there is some metaphysical doubt as to the material facts[,]'" Triffin v. Am. Int'l Group, Inc., 372 N.J. Super. 517, 523-24 (App. Div. 2004) (quoting Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3rd Cir. 1992), cert. denied, 507 U.S. 912, 113 S. Ct. 1262, 122 L. Ed. 2d 659 (1993)), as "[c]ompetent opposition requires 'competent evidential material' beyond mere 'speculation' and 'fanciful arguments.'" Hoffman v. Asseenontv.Com, Inc., 404 N.J. Super. 415, 426 (App. Div. 2009) (quoting Merchs. Express Money Order Co. v. Sun Nat'l Bank, 374 N.J. Super. 556, 563 (App. Div.), certif. granted, 183 N.J. 592 (2005)).

This court "employ[s] the same standard that governs trial courts in reviewing summary judgment orders." Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998); Paff v. Div. of Law, 412 N.J. Super. 140, 149 (App. Div. 2010). In doing so, "we consider whether there are any material factual disputes and, if not, whether the facts viewed in the light most favorable to the non-moving party would permit a decision in that party's favor on the underlying issue." Trinity Church v. Lawson-Bell, 394 N.J. Super. 159, 166 (App. Div. 2007). Accordingly, "[o]ur review of the trial court's grant of summary judgment is de novo." N.J. Div. of Taxation v. Selective Ins. Co. of Am., 399 N.J. Super. 315, 322 (App. Div. 2008); Chance v. McCann, 405 N.J. Super. 547, 563 (App. Div. 2009).

Employing this standard, then, we derive the facts from the motion record.

B.

On April 2, 2009, plaintiff was installing carpet in the apse of St. Edward Church in Milford. St. Edward Church had earlier contracted with Carpet One to replace the carpet throughout the premises, and Carpet One, in turn, subcontracted the installation of the carpet to plaintiff's employer.

At the time of the incident, tack strips had been put into place along the floor where it met the wall, and plaintiff was using a mechanical tool to stretch the carpet toward the tack strip. While undertaking this task, plaintiff was kneeling on the floor near the wall on which the cross was hung, and the cross fell from the wall and struck him.

The parish priest testified at a deposition that the cross had hung at that spot for fourteen years without incident. He stated that the cross had been affixed to the wall with a nail or a screw that then fit into a slot on the back of the cross. He added that he was out of the premises at the time of the incident, and when he returned, someone had already re-hung the cross on the wall. The record developed during discovery does not reveal whether the nail or screw had pulled out of the wall at the time of the incident, or whether the cross simply fell from the fastener which remained embedded in the wall.

II.

To establish premises liability, plaintiff bears the burden of proving that the premises owner breached the duty of care owed to him. Jerista v. Murray, 185 N.J. 175, 191 (2005). Under New Jersey law, "[b]usiness owners owe to invitees a duty of reasonable or due care to provide a safe environment for doing that which is in the scope of the invitation." Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559, 563 (2003). This duty arises out of the fact that business owners "are in the best position to control the risk of harm. Ownership or control of the premises, for example, enables a party to prevent the harm." Kuzmicz v. Ivy Hill Park Apartments, Inc., 147 N.J. 510, 517 (1997).

The owner of the premises generally is not liable for injuries caused by defects for which it had no actual or constructive notice and no reasonable opportunity to discover. Nisivoccia, supra, 175 N.J. at 563; Brown v. Racquet Club of Bricktown, 95 N.J. 280, 291 (1984). For that reason, "[o]rdinarily an injured plaintiff . . . must prove, as an element of the cause of action, that the defendant had actual or constructive knowledge of the dangerous condition that caused the accident." Nisivoccia, supra, 175 N.J. at 563.

In addition, "[n]egligence is a fact which must be shown and which will not be presumed." Long v. Landy, 35 N.J. 44, 54 (1961). "[T]he mere showing of an accident causing the injuries sued upon is not alone sufficient to authorize an inference of negligence." Vander Groef v. Great Atl. & Pac. Tea Co., 32 N.J. Super. 365, 370 (App. Div. 1954) (internal quotation marks omitted).

In the case before us, plaintiff seeks to establish an inference of negligence by reliance upon the doctrine of res ipsa loquitur. Res ipsa loquitur, a Latin phrase meaning "the thing speaks for itself," permits an inference of negligence, establishing, in turn, a prima facie case of negligence. Jerista, supra, 185 N.J. at 191-92. In order to invoke the doctrine, a plaintiff must establish that "'(a) the occurrence itself ordinarily bespeaks negligence; (b) the instrumentality [causing the injury] was within the 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.'" Mayer v. Once Upon a Rose Inc., __ N.J. Super. __,__ (App. Div. 2013) (slip op. at 9) (quoting Szalontai v. Yazbo's Sports Caf , 183 N.J. 386, 398 (2005)); Buckelew v. Grossbard, 87 N.J. 512, 525 (1981) (quoting Bornstein v. Metro. Bottling Co., 26 N.J. 263, 269 (1958)). The mere

existence of a possibility of a defendant's responsibility for a plaintiff's injuries is insufficient to impose liability. In the absence of direct evidence, it is incumbent on the plaintiff to prove not only the existence of such possible responsibility, but the existence of such circumstances as would justify the inference . . . and would exclude the idea that it was due to a cause with which the defendant was unconnected.

[Szalontai, supra, 183 N.J. at 399 (citation omitted).]

The doctrine is inapplicable if it is equally likely that the negligence causing the injury "'was that of someone other than the defendant.'" Bornstein v. Metro. Bottling Co., supra, 26 N.J. at 273 (citation omitted).

While plaintiff was not required to exclude all other possible causes of the cross's fall, he was at least required to establish that it is more probable than not that defendant's conduct, or the manner in which the cross was hung, were proximate causes of the accident. See Jerista, supra, 185 N.J. at 192. This was not done here. See Brown, supra, 95 N.J. 291-92 ("In the absence of direct evidence, it is incumbent on the plaintiff to prove not only the existence of [defendant's] possible responsibility, but the existence of such circumstances as would justify the inference").

Here, the cross was affixed to the wall for fourteen years without incident. The back of the cross had a slot into which a nail or screw head could be lodged. No proofs were tendered from the person or entity that put the cross back up as to the characteristics of the wall, or whether it ever required repair. No deposition testimony was obtained establishing whether the fall was accompanied by debris from the wall; whether the cross slipped from the "nail or screw" and fell; or whether the nail or screw pulled out of the wall.

While the cross was re-hung by "someone," according to the parish priest, no search was undertaken for that person, nor was inquiry made of the church secretary, who was in the office at the time, though not a witness to the accident. In short, no meaningful discovery existed to shore up plaintiff's claim by circumstantial evidence, and to establish thereby that St. Edward Church somehow breached its duty of care to plaintiff. The conclusion is as plain as it is damning: in the absence of any circumstantial proof to the effect that a recognized duty of care has been breached, a plaintiff is not entitled to the inference of negligence that flows from the res ipsa loquitur doctrine.

Res ipsa loquitur is not a "panacea for the less-than-diligent plaintiff or the doomed negligence cause of action." Szalontai, supra, 183 N.J. at 400. Instead, res ipsa loquitur

is a rule of law that has its origin in negligence and "governs the availability and adequacy of evidence of negligence in special circumstances." Res ipsa loquitur is not a theory of liability; rather it is an evidentiary rule that governs the adequacy of evidence in some negligence cases. Ordinarily, negligence is a[sic] "a fact which must be proved and which will never be presumed," and the burden of proving negligence in any particular case is on the plaintiff. The doctrine of res ipsa loquitur, where applicable, is a method of circumstantially proving the existence of negligence.

[Ibid. (quoting Mylark v. Port Auth. of N.Y. and N.J., 157 N.J. 84, 95 (1999).]

Regardless of the doctrine's application, "a plaintiff nonetheless must satisfy its burden to proffer competent evidence that 'reduces the likelihood of other causes so that the greater probability of fault lies at defendant's door.' Jimenez v. GNOC, Corp., 286 N.J. Super. 533, 545 (App. Div.), certif. denied, 145 N.J. 374 (1996)." Ibid.

In Jiminez , supra, we stated that

[A] plaintiff is not entitled to bring her case to a jury under res ipsa loquitur any time there is an unexplained accident for which a defendant might plausibly be responsible. Rather, a plaintiff has the burden of producing evidence that reduces the likelihood of other causes so that the greater probability [of fault] lies at defendant's door. Only then may a jury properly draw an inference of negligence.

[286 N.J. Super. at 545 (citations omitted).]

Without producing evidence that reduces the likelihood of other causes of the cross's fall, and establishes that the greater probability of fault lies with defendants, plaintiff may not rely upon the doctrine of res ipsa loquitur.

A