JOHN LYNCH v. JUAN DONASCIMENTO, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5029-05T25029-05T2

JOHN LYNCH,

Plaintiff-Appellant,

v.

JUAN DONASCIMENTO and IRMA

DONASCIMENTO,

Defendants-Respondents.

______________________________

 

Argued May 21, 2007 - Decided June 18, 2007

Before Judges Lintner and Seltzer.

On appeal from the Superior Court

of New Jersey, Law Division, Monmouth

County, L-1089-02.

John T. Bazzurro argued the cause for

appellant (Chamlin, Rosen, Uliano &

Witherington, attorneys; Mr. Bazzurro, on the brief).

Michael W. Horner argued the cause for respondents (White and Williams, attorneys;

Mr. Horner and Christopher P. Morgan,

on the brief).

PER CURIAM

Plaintiff, John Lynch, appeals from two orders, each dated May 12, 2006. The first precluded use of the doctrine of res ipsa loquitur at the trial of this personal injury action; the second, entered in the absence of any other proof of defendants' negligence, granted summary judgment to defendants, Juan Donascimento and Irma Donascimento, dismissing the complaint. We affirm.

The facts are essentially uncontradicted. Plaintiff is employed by the United States Postal Service and has been delivering mail to premises owned by defendants in Belford, New Jersey on a daily basis for some sixteen years. On March 11, 2000, plaintiff was delivering mail to defendants' home and, as he crossed the steps to reach the mailbox, the lower step came loose, causing him injury.

Defendants had been living at the property for approximately ten months before March 11, 2000. When they purchased the property, a home inspection was conducted by the home owners' insurance carrier. That inspection revealed conditions needing correction, none of which related to the steps on which plaintiff was injured. During the time they lived in the house, defendants had not had any problems with the steps leading from the sidewalk to the mailbox; they experienced no movement of the porch steps or received any complaints from any source concerning any defective condition of the steps; and they had no indication that the step might give way. Plaintiff testified in deposition that he had never noticed anything to cause a suspicion that the steps were about to become loosened. Defendants, however, had not inspected the property between the date of their purchase and the date of the accident.

After plaintiff filed a complaint and discovery was completed, defendants sought summary judgment. The motion was denied on the basis that proof of negligence may be supplied by the doctrine of res ipsa loquitur, a decision that was left for the trial judge. Thereafter, plaintiff filed a motion in limine seeking a determination that res ipsa loquitur would be charged to the jury and that, even in the absence of any additional evidence of negligence, a jury question would be presented. While that motion was pending, defendants again filed a motion for summary judgment and for reconsideration of the order denying the prior summary judgment motion. Both motions were considered before trial. The judge concluded that res ipsa loquitur provided no inference of defendants' negligence under the facts of this case and, because there was no other proof of negligence, granted defendants' motion and dismissed the complaint. Plaintiff appeals from those determinations.

Because this is an appeal from a summary judgment, we apply the same standard as did the motion judge to resolve the issue, Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998), without affording any special deference to the judge's interpretation of the law. Balsamides v. Protameen Chems., Inc., 160 N.J. 352, 372 (1999); Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). That is, we review the record in the light most favorable to plaintiff and determine if the record thus viewed requires judgment as a matter of law. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). We must also determine if the judge's decision to preclude the use of res ipsa loquitur was correct.

Plaintiff was a business invitee of defendants. See Jiminez v. Maisch, 329 N.J. Super. 398, 402 (App. Div. 2000). Generally, a landowner owes a duty to a business invitee "to provide a reasonably safe place to do that which is within the scope of the invitation." Butler v. Acme Markets, Inc., 89 N.J. 270, 275 (1982).

This duty to maintain safe premises and protect invitees includes an affirmative obligation upon the proprietor to inspect the premises "to discover their actual condition and any latent defects," Restatement (Second) of Torts 343 comment (b), at 216 (1966) as well as "possible dangerous conditions of which he does not know." W. Prosser, [Law of Torts], 61 at 393 [(4th ed. 1971)].

[Brown v. Racquet Club of Bricktown, 95 N.J. 280, 290-91 (1984).]

The duty to inspect, however, requires only a reasonable inspection. Olivo v. Owens-Illinois, Inc., 186 N.J. 394, 406 (2006) (citing Handleman v. Cox, 39 N.J. 95, 111 (1963)). Moreover, "[a] proprietor generally is not liable for injuries caused by defects of which he had no actual or implied knowledge or notice, and no reasonable opportunity to discover." Brown, supra, 95 N.J. at 291.

Accordingly, in order to prevail, plaintiff was required to demonstrate that the steps were in a condition rendering them unsafe for his use and that defendants either knew or, in the exercise of reasonable diligence, could have known of the unsafe condition. The evidence was uncontradicted that defendants had no actual knowledge that the steps were unsafe. Indeed, the only evidence indicated that there was not even an indication of an unsafe condition. The issue then became whether defendants had failed to make a reasonable inspection that would have discovered a dangerous condition.

Plaintiff produced no evidence of the cause of the failure of the step, produced no evidence of the nature of the inspection he believed should have been conducted, and produced no evidence that an inspection would have revealed an imminent danger. Instead, he attempted to rely on the doctrine of res ipsa loquitur.

That doctrine represents a rule of circumstantial evidence. Roper v. Blumenfeld, 309 N.J. Super. 219, 229-30 (App. Div.), certif. denied, 156 N.J. 379 (1998). It "permits an inference of Defendant's negligence," Buckelew v. Grossbard, 87 N.J. 512, 525 (1981), and is, "grounded in probabilities as to an accident's having occurred without negligence on the part of a Defendant." Roper, supra, [309 N.J. Super. ] at 230.

[Hemmen v. Atl. City Med. Ctr., 334 N.J. Super. 274, 278 (Law Div. 1999), aff'd o.b., 334 N.J. Super. 160 (App. Div. 2000).]

The doctrine may not be applied without a showing that "the occurrence itself ordinarily bespeaks negligence." Bornstein v. Metro. Bottling Co., 26 N.J. 263, 269 (1958).

Plaintiff, however, was unable to demonstrate that the failure of the step "bespeaks negligence, that is to say, that it is causally related to the actions or failure to act of" defendants. Szalontai v. Yazbo's Sports Caf , 183 N.J. 386, 401 (2005). Defendants' alleged failure here is the failure to conduct a reasonable inspection that would have revealed the need to take corrective action respecting the steps. There was, however, no basis for a belief that a reasonable inspection would have revealed that need. The probabilities do not suggest that the failure to conduct an inspection caused the injury and the judge correctly refused to apply the doctrine.

Plaintiff's reliance on Brown, supra, 95 N.J. 280, is misplaced. In that case, a stairway collapsed and plaintiff was able to identify the defect that caused the collapse as long standing. The Court noted that "[w]hether a reasonable opportunity to discover a defect existed will depend on both the character and the duration of the defect." Id. at 291. In this case, plaintiff is unable to identify either the nature of the defect or its duration. As a result, the inference, present in Brown, that an inspection would have revealed the defect, is absent here.

 
Affirmed.

The deposition transcript pages describing the incident were omitted from the appendix submitted to us. Nevertheless, at oral argument, counsel agreed that this description was sufficiently accurate.

This information is not contained in the record, except for a passing reference by the judge in his oral opinion. Appellate counsel agreed that the record before the motion judge was uncontradicted as to these facts.

Given the inspection that had been conducted some ten months before the accident and revealed no condition of the steps requiring correction, the judge might have considered whether the failure to make a further inspection was not, as a matter of law, unreasonable. Because this issue was not raised below, we do not consider it here.

We also note that only a plurality of the Court in Brown supported the application of the doctrine. Four justices would not have applied it. Brown, 95 N.J. at 297-98, 305.

(continued)

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A-5029-05T2

June 18, 2007