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Min v. Kadell, Inc.

A-5645-03T5 (N.J. Super. App. Div. 2005) (Unpublished)

CONDOMINIUMS; PROPERTY DAMAGE; RES IPSA LOQUITUR—In order to succeed on a negligence claim based on res ipsa loquitur, the party asserting negligence must meet a three prong test and present evidence showing that the defendant’s action caused the property damage.

A mother and daughter owned a unit within a condominium complex. The condominium association hired a contractor to replace the roof on the condominium premises. While the contractor was installing the new roof, several pipes burst causing water, glycol stearate, and other substances to enter the unit. These substances caused extensive damage and the unit owners filed a negligence action against the condominium association and the contractor. The owners claimed that the condominium association was negligent for failing to monitor and maintain the glycol stearate levels on the premises and that its negligent conduct violated the master deed. They further argued that the contractor was negligent in installing the new roof. In support of their negligence actions, the unit owners asserted the doctrine of res ipsa loquitur. The lower court, on a motion for summary judgment, held that the unit owners failed to present a prima facie case of negligence. It further held that the unit owners did not establish a case of res ipsa loquitur or present any evidence upon which a reasonable fact finder could determine that the condominium association or the contractor was negligent. The unit owners appealed the lower court’s ruling.

The Appellate Division affirmed the lower court’s determination. In reaching its decision, the Court discussed the three prong test that the unit owners were required to meet in order to prevail on a negligence claim based on res ipsa loquitur. The unit owners were required to demonstrate that: 1) the occurrence of the pipes bursting itself bespeaks negligence; 2) the pipes were within the exclusive control of the condominium association or contractor; and 3) the damage to the unit was not the result of any voluntary act or neglect by the unit owners. In applying these factors to the action against the condominium association, the Court found that the unit owners failed to show that the occurrence of the pipes bursting bespoke negligence. It relied on its prior decision in Fanning v. Township of Montclair, 81 N.J. Super. 481 (App. Div. 1963) in holding that burst pipes do not bespeak negligence. It also applied the factors to the action against the contractor and held that the unit owners failed to show that the pipes were within the exclusive control of the contractor by asserting that the condominium association had control of the pipes. It also noted that the unit owners did not present any expert witnesses, reports, or other evidence to show that the work performed by the contractor actually caused the damage to the unit. Accordingly, the Court concluded that summary judgment was properly granted in favor of the condominium association and the contractor.


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