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Szalontai v. Yazbo's Sports Cafe5/26/2005
sult of his own voluntary act or neglect.
We are confident that the hole was within Yazbo's Sports Café's exclusive control, and there is no indication that plaintiff's injury was the result of his own voluntary act or neglect. Thus, plaintiff satisfies both the second and third prongs of the res ipsa loquitur test. However, plaintiff is unable to vault the first prong of the test, as he is unable to demonstrate that the appearance of this hole bespeaks negligence, that is to say, that it is causally related to the actions or failure to act of any of the property owner/operator defendants.
Here, the uncontradicted testimony was that the property owner/operator defendants periodically inspected the parking lot and saw nothing amiss. Further, there was no proof tendered whatsoever as to the cause of the hole or whether other similar holes had appeared on the property of the owner/operator defendants. We are mindful that, in addition to that absence of proof, and relying exclusively on his res ipsa loquitur claim, plaintiff took no steps to prove his claim: no depositions were taken, no site inspections were conducted, no soil borings were requested, and, most tellingly, no proofs were tendered from the person or entity that repaired the hole as to its genesis, characteristics or repair requirements. In short, plaintiff undertook no meaningful discovery to shore up his claim by circumstantial evidence and thereby prove from the outset that the property owners/operators somehow breached their duty of care to plaintiff. The conclusion is as plain as it is damning: in the absence of any circumstantial proof to the effect that a recognized duty of care has been breached, a plaintiff is not entitled to the inference of negligence that flows from the res ipsa loquitur doctrine.
Although neither advanced in his petition for certification nor otherwise briefed by the parties, at oral argument plaintiff complained that he was hampered, if not outright prevented, in his ability to establish the cause of the hole by the fact that Yazbo's Sports Café fixed the hole shortly after plaintiff was injured. When asked whether plaintiff sought an adverse inference based on a claim of spoliation of evidence (that evidence in a civil action was destroyed purposely, resulting in an interference with the proper administration of justice and rendering the spoliating party subject to sanctions, Rosenblit v. Zimmerman, 166 N.J. 391, 401-07 (2001)), plaintiff declined to make that claim, perhaps because of the tension between a spoliation claim under the circumstances present here and our State's clear and long-standing public policy favoring subsequent remedial measures. See Perry v. Levy, 87 N.J.L. 670, 672 (E. & A. 1915) (" vidence of changes and repairs made subsequently to the injury, or as to precautions taken subsequently, to prevent recurrence of injury, is not admissible as showing negligence or as amounting to an admission of negligence [because] the effect of declaring such evidence competent would be to inform a defendant that if he makes changes or repairs, he does it under a penalty [that such remedial measures] operate as a confession that he was guilty of a prior wrong."). This strong public policy has been codified in our Evidence Rules. See N.J.R.E. 407 ("Evidence of remedial measures taken after an event is not admissible to prove that the event was caused by negligence or culpable conduct.").
Our strong public policy encouraging prompt remedial measures, however, is meant as a shield, and not as a sword. Although the policy serves to insulate those who conscientiously repair dangerous conditions before any further injuries occur, it cannot and does not serve as a safe harbor f
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