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Szalontai v. Yazbo's Sports Cafe5/26/2005
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 " 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. 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
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