Allcorn, Kole and Ard. The opinion of the court was delivered by Ard, A.j.s.c., Temporarily Assigned.
This is an appeal by defendant hotel owner from a verdict in behalf of a hotel guest for personal injuries sustained from a fall while in the shower. Plaintiffs cross-appeal the order of the court granting remittitur.
The jury returned verdicts of $15,000 for plaintiff husband and $1,000 for plaintiff wife on her per quod count. The trial judge granted remittitur of the verdict as to plaintiff husband from $15,000 to $9,000.
The entire trial consisted of the testimony of plaintiffs and their medical expert. When plaintiffs rested defendant moved for dismissal of the action on the ground that upon the facts and upon the law they had shown no right to relief. The motion was denied. The defense offered no witnesses in its own behalf. In the judge's charge the jury was instructed as to the doctrine of res ipsa loquitur and advised that the defense of contributory negligence was not to be considered.
Plaintiff's uncontradicted testimony was that he manually turned on the shower and set it at a comfortable temperature before entering the shower. In the shower he soaped up, and while rinsing off "this hot water, really hot, came gushing
out, and at that particular time I just jumped back. As I jumped back, that's when I hit the back of the tub, and I went down."
Defendant asserts as error: (1) the use of res ipsa loquitur; (2) the trial judge's failure to dismiss the action at the conclusion of plaintiffs' case; (3) striking the defense of contributory negligence; (4) allowing plaintiff husband's doctor to testify as to permanent injury, and (5) allowing an award of damages against the weight of the evidence.
The owner or operator of a hotel is under a duty to exercise ordinary care to render the premises reasonably safe for the use of its guests. Ball v. Atlantic City Ambassador Hotel Corp. , 137 N.J.L. 744 (E. & A. 1947).
It is axiomatic that negligence must be shown, and the burden of proving it is upon the plaintiff. However, the law allows a permissible inference of negligence where certain facts are demonstrated. If the circumstances of the occurrence which caused the injury are such that, in the ordinary course of events, it would not have happened if ordinary care had been used, and where the total circumstances show a probability that defendant's lack of due care was responsible for the occurrence and eliminate the probability of efficient participation by some other cause, and there is no indication in the circumstances that the injury was the result of plaintiff's own voluntary act or neglect, the jury may draw an inference that the occurrence was the product of defendant's negligence. Vespe v. DiMarco , 43 N.J. 430 (1964); Kahalili v. Rosecliff Realty, Inc. , 26 N.J. 595, 605-607 (1958); Bornstein v. Metropolitan Bottling Co. , 26 N.J. 263 (1958).
Defendant argues that plaintiffs have failed to show that the setting of the water temperature was within defendant's exclusive control. The unopposed evidence establishes, and unquestionably the jury found, that after the initial adjustment of water temperature, plaintiff husband did not touch the controls. There is no basis for determining that the
sudden expulsion of hot water was the result of plaintiff's own voluntary act or neglect. It could be reasonably inferred that the heating plant, pipes and plumbing device which initially controls hot water temperature and pressure were in the exclusive control of defendant hotel. The circumstances of this incident furnish reasonable grounds for the inference that if due care had been ...