CHRISTINE POLLOCK v. COACHMAN MANOR, LLC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4891-11T4

CHRISTINE POLLOCK,

Plaintiff-Appellant,

v.

COACHMAN MANOR, LLC; SIYATA ASSOCIATES, LLC,

Defendants-Respondents,

and

JOSEPH I. KAZARNOVSKY,

Defendant.

______________________________

Argued March 19, 2013 Decided June 28, 2013

Before Judges Kennedy and Mantineo.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-2165-10.

Daniel B. Zonies argued the cause for appellant Christine Pollock.

William J. Marconi argued the cause for respondents Coachman Manor, LLC and Siyata Associates, LLC (Duncan MacDonald & Herforth, attorneys; Mr. Marconi, on the brief).

PER CURIAM

Plaintiff appeals from the grant of summary judgment dismissing her personal injury complaint against defendants Coachman Manor, LLC, and Siyata Associates, LLC, entities that owned the apartment complex where plaintiff lived (collectively referred to as "defendant landlord"). We affirm.

I.

Our review of a motion court order granting or denying summary judgment is de novo, and we apply the same standard as the motion court in determining whether there are any genuinely disputed issues of material fact sufficient to warrant resolution of the disputed issues by the trier of fact. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Our analysis requires that we first determine whether the moving party has demonstrated that there are no genuine disputes as to material facts, and then we decide "whether the motion judge's application of the law was correct." Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230-31 (App. Div.), certif. denied, 189 N.J. 104 (2006). In so doing, we view the evidence "in the light most favorable to the part[y] opposing summary judgment." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). We accord no special deference to the motion judge's conclusions on issues of law. Zabilowicz v. Kelsey, 200 N.J. 507, 512 (2009).

Following are the salient facts viewed in a light most favorable to plaintiff. Plaintiff leased an apartment from defendant landlord in March 2006 and continued to reside there at all times relevant to the events described in this opinion. The apartment was equipped with a gas stove and oven.

In late March or early April 2006, plaintiff called the defendant landlord to come to the apartment because plaintiff's mother, while visiting, reported smelling gas. Defendant landlord sent a worker to plaintiff's apartment, and that worker "jiggled the knobs" on the oven and the gas smell disappeared.

Then, in 2007, plaintiff noticed that the burners on the stove failed to ignite, and she called defendant landlord. A maintenance worker again went to plaintiff's apartment, and lit the pilot light on the stove, which solved the problem. Plaintiff never had any other problems with either the stove or the oven until February 8, 2009.

On that date, plaintiff turned the knob on her oven to the setting for 350 degrees and waited five minutes to allow the oven to heat. Then, as she opened the oven door to place an item in to be cooked, flames were expelled from the interior of the oven, causing plaintiff to sustain burns.

Plaintiff thereafter filed a complaint against defendant landlord for personal injuries. Plaintiff never provided an expert report and, after the completion of discovery, defendant landlord moved for summary judgment. The motion judge granted summary judgment, and determined that plaintiff had presented no direct evidence that defendant landlord was negligent, and that the record did not support application of the doctrine of res ipsa loquitur.

This appeal followed. Plaintiff argues on appeal that the two complaints she made to the defendant landlord during 2006 and 2007 were sufficient to support the application of res ipsa loquitur here, and that the motion judge erred in concluding otherwise.

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, "landlords and business owners should be liable for foreseeable injuries that occur on their premises." Cuzmicz v. Ivy Hill Park Apartments, Inc., 147 N.J. 510, 517 (1997). This duty arises out of the fact that landlords and 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." Ibid.

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 v. Glass Garden, Inc., 175 N.J. 559, 563 (2003); 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., 429 N.J. Super. 365, 373 (App. Div. 2013) (quoting Szalontai v. Yazbo's Sports Cafe, 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 incident, she was at least required to establish that it is more probable than not that defendant's conduct, or the manner in which the oven was maintained, 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").

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 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 Myrlak v. Port Auth., 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 Jimenez, 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 incident, and establishes that the greater probability of fault lies with defendant, plaintiff may not rely upon the doctrine of res ipsa loquitur.

There is nothing in this record to establish that the incident was the fault of defendant landlord other than the occurrence of the incident itself. Plaintiff complained once about the smell of gas in early 2006 and the problem was solved by defendant landlord's maintenance worker who simply manipulated the control knob. Plaintiff thereafter had no problem with the oven. The 2007 complaint concerned the failure of the stove burners to ignite, and that was solved by the expedient of re-lighting the pilot light. After that, plaintiff experienced no problem with the stove. This is not enough to satisfy plaintiff's burden of producing evidence reducing the likelihood of other causes of the incident so that the greater probability of fault lies at defendant's door.

Affirmed.