On certification to the Superior Court, Appellate Division.
For reversal and remandment -- Chief Justice Wilentz and Justices Schreiber, Handler, O'Hern and Garibaldi. For reversal -- Justices Clifford and Pollock. The opinion of the Court was delivered by Handler, J. Schreiber, J., concurring in part and dissenting in part. Justice O'Hern joins in this opinion. Clifford, J., dissenting. Justice Pollock authorizes me to record his joinder in this dissenting opinion. Schreiber and O'Hern, JJ., concurring in the result.
The Ocean Tennis Association, a non-profit group of tennis players, conducted a social function at premises consisting of a clubhouse building and adjacent tennis courts owned and operated by defendant, Racquet Club of Bricktown. The social event was a fashion show and buffet luncheon held on the second floor of the clubhouse building. Defendant's premises were made available for such functions in order to familiarize people with its facilities with the expectation that they would become patrons and generate future business.
The property had originally been owned by T. Harry Lang and Associates, who had begun construction of the facility in
1975. However, during construction, the company encountered financial difficulties. In May 1976 Stephen Leone, the president of one of Lang's creditors, Glen Rock Lumber Company, formed the defendant Racquet Club of Bricktown, which assumed ownership of the property upon executing on a judgment and thereafter operated the tennis club. Construction was completed and a certificate of occupancy was issued on July 30, 1976.
The fashion show and luncheon took place on April 17, 1977, eleven months after issuance of the certificate of occupancy. Plaintiffs Margaret Piscal and Jerilyn Brown, who were attending the show, were on an interior wood stairway leading from the entrance floor of the building to the second floor where the event was being held. Without warning, the stairs pulled away abruptly from the wall and the stairway collapsed. Both Piscal and Brown suffered injuries as a result of their fall, giving rise to the present suit against the Racquet Club of Bricktown.*fn1
At trial, plaintiffs did not point to any specific act of negligence by defendant, but instead relied on the doctrine of res ipsa loquitur, maintaining that the facts of the accident raised an inference of negligence on the part of the defendant. The trial court instructed the jury that defendant as the building owner had a duty to provide a reasonably safe place for its patrons and charged res ipsa loquitur, explaining that the collapse of the stairway bespeaks negligence on the part of the defendant and it is up to the defendant to explain away that inference. Defendant's counsel objected to the charge because his client could be vicariously liable for the negligence of its predecessor in title who had constructed the building, despite the defendant's lack of notice of the defective stairs. The trial court also charged the jury that if the stairs constituted a hazardous condition, defendant would be responsible if it had failed to take reasonable measures to prevent the condition from arising or to
discover and correct it, irrespective of the defendant's actual or constructive notice of the particular unsafe condition. Defendant also objected to this instruction.
The jury returned a verdict for plaintiffs. Defendant moved for a new trial or, alternatively, judgment notwithstanding verdict. The trial judge denied the motions and defendant appealed. The Appellate Division affirmed the verdict below, holding that the doctrine of res ipsa loquitur was available to plaintiffs and that the overall charge to the jury was fair. We granted defendant's petition for certification and requested supplemental briefs on the following question: "Should the doctrine of res ipsa loquitur apply in the circumstances of this case, where the present owner and occupier of the premises in question did not control the building at the time of its construction?"
In any case founded upon negligence, the proofs ultimately must establish that defendant breached a duty of reasonable care, which constituted a proximate cause of the plaintiff's injuries. Hansen v. Eagle-Picher Lead Co., 8 N.J. 133, 139-40 (1951). Res ipsa loquitur, a Latin phrase meaning "the thing speaks for itself," is a rule that governs the availability and adequacy of evidence of negligence in special circumstances. The rule creates "an allowable inference of the defendant's want of due care" when the following conditions have been shown: "(a) the occurrence itself ordinarily bespeaks negligence; (b) the instrumentality [causing the injury] 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." Bornstein v. Metropolitan Bottling Co., 26 N.J. 263, 269 (1958).
The rule in effect creates a "permissive presumption" that a set of facts "furnish reasonable grounds for the inference that if due care had been exercised by the person having control
of the instrumentality causing the injury, the mishap would not have occurred." Id. While the doctrine allows only an inference of negligence, it can create a powerful influence in the minds of the jury, and, as a practical matter, "may very well shift the burden of persuasion." Gould v. Winokur, 98 N.J. Super. 554, 564 (Law Div.1968), aff'd 104 N.J. Super. 329 (App.Div.), certif. den. 53 N.J. 582 (1969). Once res ipsa loquitur is established, the case should go to the jury unless defendant's countervailing proof is "so strong as to admit of no reasonable doubt" as to the absence of negligence. Ferdinand v. Agricultural Ins. Co. of Watertown, N.Y., 22 N.J. 482, 493 (1956). In a case in which res ipsa loquitur applies, a directed verdict against the plaintiff can occur only if the defendant produces evidence "which will destroy any reasonable inference of negligence, or so completely contradict it that reasonable men could no longer accept it." W. Prosser, Law of Torts, § 40 at 233 (4th ed. 1971); see also 2 F. Harper and F. James, The Law of Torts, § 19.11 at 1099-1101 (1956).
The fall of a building or structure ordinarily raises an inference of negligence on the part of the party in control of the falling object. See Law v. Morris, 102 N.J.L. 650 (E. & A.1926); Von Staveren v. F.W. Woolworth Co., 29 N.J. Super. 197 (App.Div.1954); Galbraith v. Smith, 120 N.J.L. 515 (Sup.Ct.1938); Cleary v. Camden, 118 N.J.L. 215, 219-20 (Sup.Ct.1937), aff'd o.b. 119 N.J.L. 387 (1938); See also 62 Am.Jur. 2 "Premises Liability," § 279 at 561 (1972). Such situations frequently present occasions for the application of res ipsa loquitur.
This case presents a number of facts that point strongly in favor of invoking the doctrine of res ipsa loquitur. The accident resulting in plaintiffs' injuries consisted of the collapse of stairs, which were under defendant's exclusive control at the time of their collapse. Moreover, the facts do not suggest that plaintiffs exhibited a want of due care that in any way caused or contributed to the accident. However, the critical question in determining the applicability of res ipsa loquitur in this case depends
on the scope of defendant's duty of care. "Even though there is beyond all possible doubt negligence in the air, it is still necessary to bring it home to the defendant." W. Prosser, supra, § 39 at 218. Justice Francis, concurring in Bornstein, made the pointed observation that the element of "exclusive control" in the defendant "relate[s] to the time of the indicated negligence * * * [and o]ur cases applying the principle of res ipsa loquitur generally speak in terms of control at the moment of accident." 26 N.J. at 275. He expressed agreement with Prosser's view:
"It would be far better, and much confusion would be avoided, if the idea of 'control' [as an essential element] were discarded altogether, and we were to say merely that the apparent cause of the accident must be such that the defendant would be responsible for any negligence connected with it." [ Id. at 276 (citing W. Prosser, supra § 39 at 221).]
These considerations require a directed focus on the duty of care that defendant owed plaintiffs and whether a breach of that duty is available inferentially to explain the happening of the accident. The accident must be one that inferably arose because "the apparent cause of the accident lies within the scope of the defendant's obligation" and "the defendant has not exercised reasonable care" by failing to discharge that duty owed to the plaintiffs. W. Prosser, supra, § 39 at 226.
In this case the standard of care applied to defendant is shaped by its status as the proprietor of a commercial premises and its relationship to plaintiffs as invitees at the time of the accident. "The proprietor of premises to which the public is invited for business purposes of the proprietor owes a duty of reasonable care to those who enter the premises upon that invitation to provide a reasonably safe place to do that which is within the scope of the invitation." Butler v. Acme Markets, Inc., 89 N.J. 270, 275 (1982). This duty to maintain safe premises and protect invitees includes an affirmative obligation upon the proprietor to inspect the premises "to discover their actual condition and any latent defects," Restatement (Second) of Torts § 343 comment (b), at 216 (1966) as well as "possible dangerous conditions of which he does not know." W. Prosser,
supra, § 61 at 393. See also 2 F. Harper and F. James, supra, § 27.12 at 1487; 62 Am.Jur. 2d, supra, § 65 at 312-13.
A proprietor generally is not liable for injuries caused by defects of which he had no actual or implied knowledge or notice, and no reasonable opportunity to discover. W. Prosser, supra, § 61 at 393. Whether a reasonable opportunity to discover a defect existed will depend on both the character and the duration of the defect. Id. Thus, proprietors have been absolved of liability where a defective condition was found not to be discoverable by reasonable inspection, see Dombrowska v. Kresge-Newark, Inc., 75 N.J. Super. 271 (App.Div.1962), or where a latent defect, undiscoverable except by extraordinary investigation, caused an injury shortly after a new owner bought a building. Francisco v. Miller, 14 N.J. Super. 290, 297-99 (App.Div.1951).
Defendant recognizes that, confronted by a permissible inference of negligence on its part arising from the collapse of the stairway under its control, in order to avoid that inference, it had to explain through adequate proof that it was not negligent or that its negligence did not contribute to the accident. See Rose v. Port Authority of New York, 61 N.J. 129, 137 (1972); Wollerman v. Grand Union Stores, Inc., 47 N.J. 426, 430 (1966). Defendant points to several factors to defeat the application of res ipsa loquitur. It stresses the fact that the faulty stairway was constructed by a third party. It also argues that the defective condition was latent and, further, that the defect was not discoverable upon a reasonable inspection. Therefore, defendant contends, the inference of negligence under res ipsa loquitur cannot stand as a matter of law.
Defendant in effect argues the existence of other possible causes of the accident which serve to exonerate it from any responsibility and defeat the application of res ipsa loquitur. However, a plaintiff need not exclude all other possible causes of an accident as a condition of entitlement to the doctrine, provided he can show that it is more probable than not that the
defendant's negligence was a proximate cause of the mishap. See Lynch v. Galler Seven-Up Pre-Mix Corp., 74 N.J. 146, 154 (1977). As long as the facts permit a reasonable inference that defendant's control over the instrumentality under the circumstances was such that some act of negligence on its part was a contributing cause of the resulting accident, an explanation dissipating separate inferences of ...