On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, L-5247-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Coburn and Grall.
In this personal injury accident case, plaintiffs appeal from a summary judgment granted to defendants. We affirm.
The relevant facts necessary to our disposition may be summarized briefly. Plaintiff Richard Christensen, a self-employed commercial fisherman, rented a berth for his boat from defendants. A ladder with a number of rungs was attached to the side of the birth and went down into the water. On November 30, 2002, plaintiff made a couple of trips up and down the ladder while loading his boat. On the last trip, one of the rungs gave way, causing Richard to fall and sustain the injuries that are the subject of this civil action. Plaintiff indicated that depending on the tide the bottom area of the ladder was submerged beneath the water to varying degrees.
Plaintiff provided no factual evidence indicating that the ladder rung was rotten or defective in any other respect. Nor did he retain an expert on liability. Instead, he relied on the doctrine of res ipsa loquitur.
We will assume for purposes of this opinion that defendants owed Richard a duty to use reasonable care to keep the ladder in good repair. To prove a breach of that duty, negligence, plaintiffs had to offer evidence that the poor condition of the rung caused injury and that defendants knew or should have known about it. Dwyer v. Skyline Apartments, Inc., 123 N.J. Super. 48, 52 (App. Div. 1973). When a party relies on res ipsa loquitur, that party must prove that the incident ordinarily bespeaks negligence; the instrumentality causing the harm was controlled by defendant; and there is no indication that the accident resulted from plaintiff's voluntary act. Brown v. Racquet Club of Bricktown, 95 N.J. 280, 288 (1984).
The fatal problem with plaintiffs' case is that there was no evidence respecting the condition of the ladder rung that broke. In Reiter v. Max Mars Color & Chemical Co., 35 N.J. 37 (1961), the Court applied res ipsa loquitur because the ladder rung that collapsed under the plaintiff's weight was rotten.
Id. at 41. Without such evidence, or evidence of a similar kind, there is no basis for inferring that a reasonable inspection would have revealed a defect in the rung. Thus, this accident did not bespeak negligence. Consequently, the judgment for defendants must be affirmed.
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