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Szalontai v. Yazbo's Sports Cafe

May 26, 2005

JAMES SZALONTAI, PLAINTIFF-APPELLANT,
v.
YAZBO'S SPORTS CAFÉ; MICHAEL SIMKO; FRANK HABERLE AND ANCO ENVIRONMENTAL SERVICES, INC., DEFENDANTS-RESPONDENTS, AND YAZBO'S SPORTS BAR; SIMKO'S PUB AND JOHN DOE, (BEING A FICTITIOUS NAME), DEFENDANTS.



On certification to the Superior Court, Appellate Division.

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

This appeal requires that the Court examine the boundaries that delimit the application of the doctrine of res ipsa loquitur, this time within the confines of the discovery deadlines that are part of our "best practices" requirements.

For some time before December 1995, Michael Simko owned and operated "Simko's Pub" in the Borough of Sayreville, Middlesex County, New Jersey. In December 1995, Simko agreed to sell his business to Dennis Bello and Frank Haberle. Pursuant to their agreement of purchase and sale, Simko contracted with Anco Environmental Services, Inc. (Anco) to decommission and fill an underground storage tank on the premises of Simko's Pub. Anco drained the underground storage tank and filled it with polyfill foam. Bello and Haberle renamed Simko's Pub as "Yazbo's Sports Café" (Yazbo's) and operated it much in the way Simko had previously operated Simko's Pub.

On July 17, 1999, James Szalontai and a friend left Yazbo's and were walking on the paved portion of the parking lot towards Szalontai's car when the ground suddenly gave way and Szalontai's right leg up to his hip went into a hole, causing injuries to his right knee and lower back. Shortly afterwards, Yazbo's repaired the hole.

In December 2000, Szalontai filed a personal injury action against Yazbo's Sports Café and one of its owners (Haberle); Yazbo's predecessor Simko's Pub and its prior owner (Simko); Anco; and a fictitious defendant. Szalontai charged Yazbo's, Haberle, Simko's Pub and Simko with common law negligence by failing to maintain the parking lot, failing to inspect the parking lot, and creating a hazardous condition to their business invitees. Szalontai charged Anco with negligently performing its work in decommissioning and filling the underground storage tank.

On January 11, 2002, the trial court granted an extension of the discovery period for an additional ninety days to April 12, 2002. During that extended period, the parties engaged in limited discovery. Other than form interrogatories and six supplemental interrogatories with concomitant requests for production of documents propounded on January 7, 2001, no other discovery -- no fact depositions, no site inspections, no expert reports or depositions -- was propounded. Significantly, Szalontai never sought to link causally the existence of any underground tank, and any work associated with the tank, to the spot where he was injured.

On April 23, 2002, twelve days after the extended discovery period expired, the case was arbitrated. At the arbitration, Szalontai relied on the doctrine of res ipsa loquitur to establish liability against all defendants. Significantly, both Simko and Bello testified that no repairs had been made to the parking lot and that there had been no complaints as to the condition of the parking lot. Also, Anco put forth proofs that its decommissioning and filling work for the underground storatge tank on Yazbo's Sports Café property was nowhere near the spot where Szalontai fell. At the conclusion of the arbitration, the arbitrator entered an award in favor of defendants. Pursuant to Rule 4:21A-6(b)(1), Szalontai rejected the arbitration award and demanded a trial de novo. Thereafter, Szalontai sought an additional extension of the discovery period in order to submit a civil engineering expert reportThe trial court listed the case for trial on July 22, 2002. On June 7, 2002, the trial court denied Szalontai's motion to extend the discovery deadline, reasoning that, because the arbitration in this case had already been held, the standard plaintiff was required to meet under Rule 4:24-1(c) was a showing of exceptional circumstances, a showing Szalontai did not make. Furthermore, the trial court ordered that the testimony of the late-tendered expert was barred at trial.

On October 22, 2002, Szalontai sought, among other relief, reconsideration of the order denying an extension of the discovery deadline and barring plaintiff's civil engineering expert from trial, and an in limine finding that res ipsa loquitur governed the case. On November 18, 2002, the trial court, in part, denied the motion for reconsideration and denied, without prejudice, the in limine request. In addition, the trial court granted Anco's cross-motion for summary judgment and dismissed all claims against it. As a result, only Szalontai's claims against the property owner/operator defendants (Yazbo's and one of its owners), and Simko's Pub and its prior owner, remained for trial.

At trial, based on the grant of summary judgment in favor of Anco, the property owner/operator defendants moved to preclude any evidence of a causal link between the underground storage tank and Szalontai's injuires and moved for an involuntary dismissal under Rule 4:37-2(b), claiming that Szalontai's liability proofs consisted solely of two facts -- that Szalontai was walking through the parking lot at Yazbo's Sports Café and that a hole suddenly opened below his right foot -- and that these two facts were insufficient. On finding that the two facts do not "bespeak negligence," the trial court refused to apply the doctrine of res ipsa loquitur and, instead, granted the property owner/operator defendants' motion for an involuntary dismissal.

Szalontai appealed and the Appellate Division affirmed in an unpublished per curiam decision. The Appellate Division held that Szalontai failed to meet the "exceptional circumstances" standard of Rule 4:24-1(c) in his request for an extension of the discovery deadline and that he failed to establish a prima facie case warranting the application of the res ipsa loquitur doctrine.

We granted certification and affirm the judgment of the Appellate Division.

HELD: Before the doctrine of res ipsa loquitur operates to shift the burden of persuasion to the defendant in a negligence case, the plaintiff first must meet all of the elements of the three-part res ipsa loquitur test; a plaintiff's failure to prove any one of those elements by a preponderance of the evidence renders the doctrine and its concomitant burden-shifting unavailable to that plaintiff. In addition, discovery in all civil cases subject to discovery track assignment must be completed in a timely manner, and additional time for discovery is available only in the limited circumstances set forth in Rule 4:24-1(c).

1. The mandate of Rule 4:24-1(c) could not be clearer: "[a]bsent exceptional circumstances, no extension of the discovery period may be permitted after an arbitration or trial date is fixed." The requirement of a showing of "exceptional circumstances" in lieu of the earlier requirement of a showing of "good cause" was added to rule revisions we approved in 2000 and known as "Best Practices." Although Rule 4:24-1(c) is of recent vintage, it has already been held that "[b]ecause of the liberalized time for discovery afforded by the tracking system embodied in 'Best Practices,' a heightened standard of 'exceptional circumstances' was adopted for any extension of discovery requested after an arbitration or trial date is fixed." O'Donnell v. Ahmed, The opinion of the court was delivered by: Justice Rivera-soto

Argued November 29, 2004

This appeal requires that we again examine the boundaries that delimit the application of the doctrine of res ipsa loquitur, this time within the confines of the discovery deadlines that are part of our "best practices" requirements. We reaffirm that, before the doctrine of res ipsa loquitur operates to shift the burden of persuasion to the defendant in a negligence case, the plaintiff first must meet all of the elements of the three-part res ipsa loquitur test, and that a plaintiff's failure to prove any one of those elements by a preponderance of the evidence renders the doctrine and its concomitant burden-shifting unavailable to that plaintiff. We also hold that, under our Rules of Court, discovery in all civil cases subject to discovery track assignment must be completed in a timely manner, and additional time for discovery is available only in the limited circumstances set forth in Rule 4:24-1(c).

I.

For some time before December 1995, Michael Simko owned and operated "Simko's Pub" in the Borough of Sayreville, Middlesex County, New Jersey. In December 1995, Simko agreed to sell his business to Dennis Bello and Frank Haberle. Pursuant to their agreement of purchase and sale, Simko contracted with Anco Environmental Services, Inc. (Anco) to decommission and fill an underground storage tank on the premises of Simko's Pub. Anco drained the underground storage tank and then filled it with polyfill foam. Anco performed the work in January 1996, when Anco certified that "[t]he oil tank and the area in which the tank is located are now structurally secure against future collapse." Bello and Haberle renamed Simko's Pub as "Yazbo's Sports Café" and operated it much in the way Simko had previously operated Simko's Pub.

Several years later, at approximately 2:30 a.m. on July 17, 1999, plaintiff James Szalontai and his friend Sean Polletier left Yazbo's Sports Café. While the two men were walking on the paved portion of the parking lot towards plaintiff's car, the ground suddenly gave way and plaintiff's right leg up to his hip went into a hole, causing injuries to his right knee and lower back. Plaintiff explained that he was unaware of any holes in the parking lot of Yazbo's Sports Café and that the hole into which he fell did not exist until he stepped on that spot and the ground gave way. Shortly afterwards, Yazbo's Sports Café repaired the hole.

In December 2000, plaintiff filed a personal injury action against Yazbo's Sports Café and one of its owners (Haberle); Yazbo's Sports Café's predecessor Simko's Pub and its prior owner (Simko); Anco; and a fictitious defendant.*fn1 In his complaint, plaintiff charged Yazbo's Sports Café, Haberle, Simko's Pub and Simko with common law negligence by failing to maintain the parking lot, failing to inspect the parking lot, and creating a hazardous condition to their business invitees. Plaintiff's claim against Anco had a slightly different basis. According to plaintiff, Anco negligently performed its work in decommissioning and filling the underground storage tank.

Issues regarding service of process on some of the defendants, together with simple inaction in the case on plaintiff's behalf, consumed much of the period for discovery allotted to this case under Rule 4:24-1(a). As a result, on December 5, 2001, plaintiff sought, and none of the defendants opposed, an extension of the discovery period for an additional ninety days and, on January 11, 2002, the trial court granted that extension until April 12, 2002, ninety days following the entry of its Order. From the filing of the complaint on December 7, 2000 until the expiration of the extended discovery date on April 12, 2002, the parties engaged in limited discovery, significantly only after the original discovery period had expired. Other than form interrogatories and six supplemental interrogatories with concomitant requests for production of documents propounded on January 7, 2001, no other discovery -- -no fact depositions, no site inspections, no expert reports or depositions -- - was propounded. Significantly, although plaintiff's second supplemental interrogatory asked "[w]as any work done at any time on any underground tanks located below the property on which defendant's premises are located," plaintiff never sought to link causally the existence of any underground tank, and any work associated with the tank, to the spot where plaintiff was injured.

On April 23, 2002, twelve days after the extended discovery period expired, the case was arbitrated pursuant to the mandatory arbitration provisions of Rule 4:21A-1(a)(2). At the arbitration, plaintiff relied on the doctrine of res ipsa loquitur to establish liability against all defendants. In defense, Simko, the prior owner, testified that he did not recall making any repairs to the parking lot during the time he owned the property. Bello, one of the current owners, testified that there had been no construction, repaving or other work in the parking lot from the time he purchased the property from Simko until plaintiff's injuries, and that none of the many patrons and delivery and service personnel who used the parking lot ever complained about its condition. Bello confirmed that he would, from time to time when outside, check on the condition of the parking lot and never saw the need for repairs. Anco also put forth proofs at the arbitration, essentially to the effect that its decommissioning and filling work for the underground storage tank on Yazbo's Sports Café's property was nowhere near the spot where plaintiff fell.

At the conclusion of the arbitration, the arbitrator entered an award in favor of defendants and against plaintiff. Pursuant to Rule 4:21A-6(b)(1), plaintiff rejected the arbitration award and demanded a trial de novo. However, realizing his failure of proof, plaintiff finally secured the services of an expert civil engineer and, on May 16, 2002, forwarded a civil engineering expert report to defendants. Because the discovery period had expired over a month before, on May 20, 2002, plaintiff also sought leave of ...


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