On Appeal from the Superior Court of New Jersey, Law Division, Essex County.
Bischoff, King and Polow. The opinion of the court was delivered by Polow, J.A.D.
Plaintiff suffered injuries when he fell through a glass shower door in defendant's motel. He claims that after the water temperature was adjusted, he stepped into the shower with a female companion and closed the shower door. Then, although the knobs had not been touched, he alleges that a burst of scalding hot water spurted forth and he fell through the door while attempting to force it open. The jury unanimously found that defendant was not negligent. Plaintiff's sole argument on appeal is that the trial judge erroneously refused to charge the doctrine of res ipsa loquitur.
Plaintiff testified that he checked into the motel with his companion at about 7:30 p.m., that they watched television for a while and then decided to take a shower. His companion turned on the water and adjusted the temperature to their mutual satisfaction. After the water had been running about 14 minutes, his friend entered first and stepped to the rear of
the tub. Plaintiff followed, "standing right under the shower head." Shortly after the door was closed, he felt a sudden spurt of hot water "steaming and smoking" from the shower head. He explained that because "it was too hot" he tried to force open the glass door and "slipped through the shower door." Bleeding from the head as a result of his injuries, he ran to the lobby for help.
There were several inconsistencies and contradictions. Although plaintiff contends that his injuries included "thermal scarring on his left ear and right thigh as well as multiple scarring on various aspects of his body," and photographs of the lacerations and burns allegedly suffered were produced, the hospital record contained no reference to burns. The manner in which the accident happened as related to the physician and memorialized in the hospital record differed somewhat from plaintiff's description during his trial testimony. Furthermore, his companion in the shower did not testify. Plaintiff offered somewhat inconsistent explanations for her failure to appear at trial.
Relying on our opinion in Wolfe v. Chateau Renaissance , 141 N.J. Super. 59 (App.Div.1976), plaintiff's counsel requested a res ipsa charge. Wolfe also involved injuries allegedly sustained when plaintiff sought to avoid a sudden gush of extremely hot water in a hotel shower. He fell and was injured in the tub. We concluded that there were "reasonable grounds for the inference that if due care had been practiced by defendant having control of the plumbing facilities this accident would not have occurred." Id. at 64. Thus, the charge given by the trial judge, including res ipsa loquitur, i.e. , "that the occurrence bespeaks negligence," was approved. Id. at 65.
Here, the trial judge did not deny that the doctrine may be applicable. Rather, upon plaintiff's objection to omission of a res ipsa charge, the judge suggested that the instruction had been included. He responded to counsel's request by saying:
. . . the res ipsa loquitur just gets you past the plaintiffs. If they believe what the plaintiff said, that's negligence. In other words, it is common knowledge that hot water should not spurt out of a faucet and burn you. So that's no particular problem.
Counsel then insisted that the res ipsa doctrine had not been clear in the charge but the judge responded:
However, we are unable to find any such clear expression of res ipsa in the charge itself. In this connection, the only instruction given to the jury followed a definition of reasonable care and comment on ...