Brown v. Racquet Club of Bricktown

CLIFFORD, J.,

dissenting.

This is the kind of case that could give res ipsa loquitur a bad name.

Plaintiffs Jerilyn Brown and Margaret Piscal were injured by the collapse of a stairway on premises of defendant Racquet Club of Bricktown. They charged that this defendant “carelessly and negligently permitted to exist on [its] property improper maintenance and repair or unsafe stairs * * * ” (Brown), and “failed to exercise reasonable care [thus causing] a dangerous and hazardous condition * * * to occur, causing plaintiff to sustain a fall” (Piscal).

In support of these allegations plaintiff introduced no evidence of any specific acts of negligence, but instead relied on res ipsa loquitur. The trial court charged the jury on that doctrine. Because of my view that the state of the evidence at the close of *303 the case did not warrant submission of res ipsa to the jury, I record a different position from those reflected in the other opinions.

It is clear, as Justice Schreiber observes, ante at 298, that the cause of the stairs’ collapse was the builder’s concededly improper method of attaching them to a single wall by the use of “tiny nails that protruded about one-half to one inch from the beam to which each step was attached.” Id. No reasonable inspection would have disclosed the latent condition of how the stairs were joined to the wall. Id. In order to see the method of attachment, one would presumably have had to remove the fascia board covering the nails, not otherwise visible to the naked eye. To the extent that dismantling of the structure is necessary to satisfy the requirement of a reasonable inspection, the requirement imposes an unrealistic standard — at least where, as here, there is no knowledge or forewarning of any flaw to excite a healthy curiosity about a problem (swaying, vibration, that sort of thing). See Dombrowska v. Kresge-Newark, Inc. 75 N.J.Super. 271 (App.Div.1962); Francisco v. Miller, 14 N.J.Super. 290 (App.Div.1951). 1

Plaintiffs did not suggest any cause for the collapse other than the one that became painfully obvious after the event — the use of short nails rather than screws or bolts or some sturdier, more reliable device. In the rubble of the tragic event lay the solution to the mystery.

In the circumstances the Court holds that plaintiffs were entitled to have the jury give them the benefit of res ipsa’s inference of negligence. I think not. Although I agree with the proposition that proof of other possible causes of the accident does not foreclose reliance on res ipsa, I nevertheless *304 conclude that on the facts before us the predicate for application of the doctrine to this defendant occupier is missing.

The Court accurately sets forth the ingredients of a res ipsa case, ante at 288-89, as set forth in Bornstein v. Metropolitan Bottling Co., 26 N.J. 263 (1958): “(a) the occurrence itself ordinarily bespeaks negligence; (b) the instrumentality 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.” Id. at 269 . The last of these circumstances is clearly present in this record, the first conditionally so, the second not at all.

As to the requirement that “the occurrence ordinarily bespeaks negligence,” surely staircases do not ordinarily collapse absent negligence on somebody’s part. The question is: whose negligence and “what kind” of negligence are contemplated? I do not understand common experience to tell us that stairways in commercial premises do not ordinarily collapse without negligence of some kind on the part of the occupier where, as here, failure to conduct a reasonable inspection has been put beyond any doubt. In this case plaintiff could well resort to the doctrine as against the builder; but I would not allow res ipsa to be considered by the jury against one in the position of this defendant, particularly when there is no suggestion of what legal duty it is that the occupier failed to fulfill.

Moreover, as concerns the second requirement of res ipsa —that the instrumentality be within the defendant’s exclusive control — the rule makes sense only if it refers to control at the time the negligence sought to be implied actually occurred. That may or may not coincide with control at the time of the accident. Justice Francis drew the distinction in his concurring opinion in Bornstein, supra, 26 N.J. 263 , an exploding bottle case in which plaintiff sought to gain the benefit of res ipsa against the bottler even though control of the offending instrumentality had passed from the bottler to a storekeeper, plaintiff’s employer, at the time of the accident:

*305 I take the reference to exclusive control to relate to the time of the indicated negligence and not to the time of the plaintiff’s injury, because obviously when the explosion occurred the bottle had long since passed out of the defendant’s control. Our cases applying the principle of res ipsa loquitur generally speak in terms of control at the moment of accident. [Id. at 275.]

So here, the principle might be given to a jury considering the liability of the builder, who was in control at the time the offending condition came into being and who caused its concealment. It should not have been available against the defendant occupier.

Finally, I share Justice Schreiber’s apprehension, ante at 298, that the Court has shifted to defendant the obligation to demonstrate that a reasonable inspection would not have uncovered the defect. The burden is plaintiff's to prove the affirmative of the stated proposition. There can be no question that plaintiff’s proof failed in that regard as a matter of law.

This opinion should not be taken as evidencing any disrespect for res ipsa. Properly applied, this time-honored doctrine is deserving of the deference it has well earned. It surely merits better treatment than being hauled off the back of the shelf, dusted off, and used just to plug up the leaks in a plaintiff’s case as porous as this one was on the theory on which it was presented (see supra at 287 n. 1).

Because there was insufficient evidence to take the issue of defendant’s negligence to the jury, either on the basis of res ipsa or the basis of a reasonable inspection of the premises, I would reverse the judgment of the Appellate Division and order the entry of judgment for defendant.

Justice POLLOCK authorizes me to record his joinder in this dissenting opinion.

SCHREIBER and O’HERN, JJ., concurring in the result.

For reversal and remandment —Chief Justice WILENTZ and Justices SCHREIBER, HANDLER, O’HERN and GARIBALDI —5.

For reversal —Justices CLIFFORD and POLLOCK — 2.

Like the majority I deal with the case as it comes to us and on the theories advanced, and take no position on the approach advanced by Justice Schreiber. See the opinion of the Court, ante at 296 n. 3.