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Szalontai v. Yazbo’s Sports Café

A-2171-02T1 (N.J. Super. App. Div. 2003) (Unpublished)

LANDOWNER’S LIABILITY—For a landowner to be liable for its failure to disclose a dangerous condition, the condition must either have been known or readily discoverable and the doctrine of res ipsa loquitur only applies where there is no explanation, other than negligence, for the cause of a injury.

A man “was injured when the ground caved in beneath his feet in the parking lot” of a restaurant. He contended that the hole was caused by an improperly decommissioned oil tank under the parking lot. He argued that the tank collapsed, “creating a hole six inches by twelve inches long.” The tank company testified that it had filled the tank with a material intended to keep it from collapsing. It also contended that the tank was not located anywhere near where the hole appeared, and that no work was performed in that area. Having failed to conduct proper discovery, the injured man sought to impose liability on the property owner and others under the doctrine of res ipsa loquitur. This doctrine “is a circumstantial method of proving the existence of negligence. The doctrine permits a plaintiff ‘the advantage of an inference of negligence to discharge the burden of proving negligence.’ ... To apply res ipsa loquitur, a plaintiff must show three elements: 1) the accident which produced the injury was one which ordinarily does not happen unless someone was negligent; 2) the instrumentality or agent which caused the accident was under the exclusive control of the defendant; and 3) the circumstances indicated that the untoward event was not caused or contributed to or by any act or neligence on the part of the injured person.” The Court held that the doctrine was not applicable to this particular claim. Here, the area where the man fell was not under the exclusive control of the tank remediation company. Further, the injured man could not establish that the sinkhole would not have occurred unless someone was negligent. The evidence was that the old tank was not in the area where the fall occurred.

The Court agreed with the injured man that a property owner has a duty to make its premises reasonably safe for its patrons, including the duty to inspect the premises for known or reasonably discoverable danger. Here, however, the man “failed to show a reasonably discoverable danger of which the property owners knew or should have known.” The hole did not exist until he fell. It may have been present for any number of reasons. “The ground could have settled, the water table could have risen, or perhaps a water pipe in the vicinity broke.”

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