SUNIT OHRI et al. v. VISHAW KHANNA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3340-05T13340-05T1

SUNIT OHRI and NEELAM OHRI,

Plaintiffs-Appellants,

v.

VISHAW KHANNA,

Defendant-Respondent.

_________________________________

 

Submitted: October 24, 2006 - Decided November 6, 2006

Before Judges Axelrad and R.B. Coleman.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, L-1225-04.

Mark H. Rochkind, attorney for appellant (Mr. Rochkind and Clara S. Licata, on the brief).

Farkas & Donohue, attorneys for respondent (Charles E. Murray, III, of counsel and on the brief).

PER CURIAM

Plaintiffs Sunit and Neelam Ohri appeal from summary judgment dismissal of their complaint for personal injuries suffered by Sunit when he fell off a ladder while on defendant Vishaw Khanna's property. Plaintiff's theory of the case was that he was on the premises as a business invitee and thus defendant owed a duty to inspect and replace the ladder, ensuring that there were no defects or risks placing plaintiff in danger. Plaintiff further contended he was entitled to an adverse inference against defendant based on a spoliation theory due to defendant's disposal of the ladder. Plaintiff renews these arguments on appeal and further asserts that the questions concerning the condition of the property, defendant's opportunity to exercise due care and his breach of the duty, and the comparative negligence of the parties should have been submitted to the jury. We are not persuaded by any of these arguments and affirm.

The parties were friends who bartered services, with defendant performing tax work for plaintiff and plaintiff performing handyman work in return. Considering the facts in the light most favorable to plaintiff, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995), the parties were planning to enter into a joint venture because plaintiff was unemployed, and defendant agreed to provide vacant office space in his building. On the day of the incident, plaintiff was using a ladder he had used a half-dozen times before. While he was in the process of drilling a hole to put up sheetrock, the braces of the ladder bent, the ladder twisted and collapsed, and plaintiff fell to the ground, allegedly suffering injuries. A few days later, plaintiff returned to the office space to continue work and found the twisted ladder still there. He and a carpet layer placed the ladder behind a shed on the property with empty paint cans and other discarded items. Defendant later arranged for trash pick-up, and the ladder was among those items removed.

A reasonably discoverable defect or a dangerous condition is an essential element to a premises liability claim. See Hopkins v. Fox & Lazo Realtors, 132 N.J. 426 (1993). As the Court held:

Whether a person owes a duty of reasonable care toward another turns on whether the imposition of such duty satisfies an abiding sense of basic fairness under all of the circumstances in light of considerations of public policy. That inquiry involves identifying, weighing, and balancing several factors -- the relationship of the parties, the nature of the attendant risk, the opportunity and ability to exercise care, and the public interest in the proposed solution.

[Id. at 439 (citations omitted).]

We agree with the trial court that plaintiff's status was more in the nature of a social guest or gratuitous invitee because he was on the property and used the ladder partially for his own benefit. However, even if we accept plaintiff's classification of himself as a business invitee, to which defendant would owe him the highest degree of care, plaintiff has still failed, as a matter of law, to prove negligence. The record is devoid of any evidence of defendant's knowledge of and failure to disclose a defective condition. The nature of the risk is that the ladder upon which plaintiff climbed to perform his work may or may not have been in good working order. It is apparent from the record, however, that plaintiff, not defendant, had the greater ability and opportunity to exercise due care in connection with the use of the ladder. Plaintiff had used the ladder six times previously and was the one who had the knowledge and skill of a handyman. Thus, he was in a better position to inspect the ladder, determine whether it was safe to climb, and discover any alleged defect on his own.

Moreover, plaintiff has failed to present any evidence, beyond his own assertions, of any defect in the ladder, such as a defective locking mechanism, or of the existence of a dangerous condition. Generally, falling off a ladder is not the type of act that "ordinarily bespeaks negligence." Moore v. People's Place, 13 N.J. Misc. 336, 338-39 (1935). Nor was the ladder in the exclusive control of defendant. Thus plaintiff is not entitled to a res ipsa loquitur inference of negligence. Jerista v. Murray, 185 N.J. 175, 191-92 (2005).

We are also satisfied the trial judge properly held that plaintiff was not entitled to a spoliation inference that the ladder was destroyed because it was defective. There was no indication defendant was aware of plaintiff's need for the ladder or that defendant intentionally disposed of the ladder in order to interfere with plaintiff's proofs in the litigation. See Rosenblit v. Zimmerman, 166 N.J. 391, 400-402 (200l). Indeed, it seems that plaintiff was more instrumental in the disposal of the ladder than defendant by adding it to the trash pile. Defendant merely arranged for the trash pick-up; there is no evidence he knew something was wrong with the ladder, aside from it being old.

Affirmed.

 

Neelam has a per quod claim. In this opinion "plaintiff" will refer to Sunit.

While there is some suggestion by plaintiff that the floor was uneven in the area where the ladder was set, there was no offer of proof regarding a defect in the floor.

(continued)

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A-3340-05T1

November 6, 2006