On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Docket No. L-207-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes and Gilroy.
Plaintiff Otis Bennett appeals from the June 3, 2009 order that granted defendants B.J. Lounge and Jeffrey Newton's motion for an involuntary dismissal, R. 4:37-2(b).*fn1 We affirm.
The facts are not in dispute. Newton is the owner of defendant B.J. Lounge, a tavern located in Upper Deerfield Township (collectively, the defendants). Plaintiff has been an acquaintance of Newton for over ten years. During that time plaintiff has worked at the tavern on a part-time basis as a bouncer and maintenance worker.
On July 18, 2005, Newton requested plaintiff to assist him in performing work at the tavern, including the hanging of an Eagles football team banner on one of the tavern's interior walls. Newton handed plaintiff one end of the banner along with a staple gun. Newton took the other end of the banner, pushed a chair against the wall, stood on the chair and held the banner while waiting for plaintiff to do likewise. Plaintiff selected a metal chair, pushed it against the wall and stood on it. Unfortunately, the chair collapsed without warning, causing plaintiff to suffer personal injuries.
On February 21, 2007, plaintiff filed a personal injury negligence action against defendants, alleging defendants had failed to maintain the tavern in a reasonably safe condition; had failed to inspect the chair for defects prior to plaintiff standing on it; had failed to warn plaintiff of the chair's dangerous condition; and otherwise had created the dangerous condition that caused the accident. At close of plaintiff's case, defendants moved for an involuntary dismissal, pursuant to Rule 4:37-2(b). The court granted the motion.
In deciding the motion, the trial court determined that plaintiff was a business invitee at the time of the accident, and Newton had neither inspected the chair for defects nor warned plaintiff of the chair's dangerous condition before plaintiff stood on it. However, the court also determined that plaintiff had not presented evidence, by expert testimony or otherwise, showing that a reasonable inspection of the chair prior to the accident would have revealed the chair's defect. Absent such proof, the court concluded plaintiff failed to prove that defendants had actual or constructive notice of the chair's defect and granted judgment in favor of defendants.
The problem that I have is there is zero evidence from which anyone could infer that the inspection - - well, A, what is a reasonable inspection, B, what it would disclose, and C, that the . . . inspection, if it had been done by Mr. Newton, would have disclosed the defect that caused the chair to fail, which caused Mr. Bennett to be injured.
There's zero . . . evidence, frankly, on actual [notice]. There's zero on constructive notice. There's no testimony how long the defect was present. So, what we're focusing on is Mr. Newton's obligation to inspect and then provide a notice to Mr. Bennett of the potential danger if he were to use the chair that he selected.
Frankly, I find that that would take expert testimony. I don't see how this jury, on the proofs that we've got . . . could determine that a reasonable inspection would have disclosed that there was something wrong with this chair. The suggestion that the fact that it failed should . . . allow the jury to find that the inspection would have disclosed it, I would suggest, is off the mark. That's basic - -it's close to res ipsa. It failed; therefore, it must have been defective.
The plaintiff has . . . more of a burden than that. This is not a res ipsa case. The plaintiff has some obligation to establish what . . . a reasonable inspection would have disclosed and that the inspection would have disclosed whatever was wrong with this chair.
Because, absent that, the landlord [or] owner . . . would not have seen anything and, therefore, would ...