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Szalontai v. Yazbo's Sports Cafe5/26/2005
y immediately investigating the cause of the collapse and taking appropriate action or warning the public not to use the lot. Recognition of that obligation fully accords with the principles we established as relevant to a duty analysis in Hopkins v. Fox & Lazo Realtors, 132 N.J. 426 (1993): "the relationship of the parties, the nature of the attendant risk, the opportunity and ability to exercise care, and the public interest in the proposed solution." Id. at 439.
To be sure, plaintiff left much to be desired in the way he pursued the discovery aspect of this case. However, because the commercial landowner also fell far short in its much more important duty, I would reverse the trial court's order denying plaintiff's request for an extension of the discovery deadline. During the extension period, I would require the commercial landowner to attempt to ascertain the cause of the cave-in, share that information with plaintiff in discovery, and permit plaintiff to investigate further as well. After exchanging discovery, I would direct the trial judge to reconsider the motion to dismiss.
Justices Zazzali and Albin join in this opinion.
Chief Justice Poritz PRESIDING
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