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Szalontai v. Yazbo's Sports Cafe5/26/2005
indicated that the untoward event was not caused or contributed to by any act or neglect on the part of the injured person. . . .
Application of the principal of res ipsa loquitur at the trial of cases must be engaged in with regard for the nature of its impact on the facts. Where the facts of a particular situation warrant its invocation, an inference of negligence may be drawn; it is not compelled. The facts are said to provide circumstantial evidence of negligence to be weighed, but not necessarily to be accepted as sufficient; they afford a basis for an inference of want of due care which the jury may, but need not, draw. Even in the absence of explanation by the defendant, the jury may properly conclude that the inference should not be drawn or that the facts are not adequate to sustain the plaintiff's ultimate burden of showing, to the degree required, the origin of the accident in the negligence of the defendant. [Lorenc v. Chemirad Corp., 37 N.J. 56, 70-71 (1962) (citations omitted).]
The doctrine of res ipsa loquitur "permits an inference of negligence that can satisfy the plaintiff's burden of proof, thereby enabling the plaintiff to survive a motion to dismiss at the close of his or her case. The inference, however, does not shift the burden of proof." Eaton v. Eaton, 119 N.J. 628, 638 (1990) (citations omitted). More recently, we observed that
hether an occurrence ordinarily bespeaks negligence is based on the probabilities in favor of negligence. Hence, res ipsa is available if it is more probable than not that the defendant has been negligent. The doctrine does not shift the burden of persuasion to the defendant. Rather, what is required of defendant is an explanation, not exculpation. It shifts to the defendant the obligation to explain the causative circumstances because of defendant's superior knowledge. The doctrine confers upon the plaintiff an inference of negligence sufficient to establish a prima facie case at the close of plaintiff's evidence. [Myrlak v. Port Auth. of N.Y. and N.J., 157 N.J. 84, 95-96 (1999) (citations and internal quotation marks omitted).]
Res ipsa loquitur is not a panacea for the less-than-diligent plaintiff or the doomed negligence cause of action. Instead, res ipsa loquitur is a rule of law that has its origin in negligence and "governs the availability and adequacy of evidence of negligence in special circumstances." Res ipsa loquitur is not a theory of liability; rather it is an evidentiary rule that governs the adequacy of evidence in some negligence cases.
Ordinarily, negligence is a "a fact which must be proved and which will never be presumed," and the burden of proving negligence in any particular case is on the plaintiff. The doctrine of res ipsa loquitur, where applicable, is a method of circumstantially proving the existence of negligence. [Id. at 95 (citations omitted).]
Regardless of the doctrine's application, a plaintiff nonetheless must satisfy its burden to proffer competent evidence that "reduces the likelihood of other causes so that the greater probability of fault lies at defendant's door." Jimenez v. GNOC, Corp., 286 N.J. Super. 533, 545 (App. Div.), certif. denied, 145 N.J. 374 (1996).
B.
We now consider whether plaintiff's negligence claim meets the conditions for a res ipsa loquitur inference, that is, we ask was the occurrence itself --- the act of a hole suddenly appearing beneath plaintiff's foot as he crossed the parking lot --- one that ordinarily bespeaks negligence; was the hole into which plaintiff fell within Yazbo's Sports Café's exclusive control; and is there any indication in the circumstances that plaintiff's injury was the re
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