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Szalontai v. Yazbo's Sports Cafe5/26/2005
or those who seek to destroy or otherwise make unavailable relevant evidence. In this case plaintiff took no steps to substantiate his claim and he similarly took no steps to show that the remedial measures undertaken by defendant were for any reason other than to correct what had become a dangerous condition.
C.
We then must address the far simpler task of whether the trial court properly entered summary judgment in favor of Anco and against plaintiff. Here one need go no further than the facts themselves: the uncontradicted proofs demonstrated without doubt that Anco decommissioned the underground storage tank by emptying it of oil and filling it with polyfill foam, all without any digging or otherwise disturbing the ground and, more to the point, at a location other than where plaintiff's injury occurred. In light of the foregoing, the trial court properly followed the summary judgment injunction of Rule 4:46-2(c) ("The judgment or order sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law."). See generally Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520 (1995).
IV.
The judgment of the Appellate Division is affirmed.
CHIEF JUSTICE PORITZ and JUSTICES LaVECCHIA and WALLACE join in JUSTICE RIVERA-SOTO's opinion. JUSTICE LONG filed a separate opinion, concurring in part and dissenting in part, in which JUSTICES ZAZZALI and ALBIN join.
JUSTICE LONG, concurring in part and dissenting in part.
I concur in the majority's conclusion that this is not a traditional res ipsa loquitur case insofar as it cannot be said that the occurrence of the cave-in "ordinarily bespeaks negligence." Myrlak v. Port Auth. of N.Y. and N.J., 157 N.J. 84, 95 (1999) (stating, to invoke res ipsa loquitur, plaintiff must establish occurrence ordinarily bespeaks negligence, instrumentality within defendant's exclusive control, and injury not result of plaintiff's own voluntary act or neglect) (citing Bornstein v. Metropolitan Bottling Co., 26 N.J. 263, 269 (1958)).
I part company from my colleagues in connection with the necessary implication of the majority opinion that the mere refilling of the hole in the parking lot, into which the entirely innocent plaintiff fell, was an adequate response by the commercial landowner.
For me, the commercial landowner's plugging of the hole without taking steps to determine whether it is likely to recur at other locations in the parking lot (as a result, for example, of underground hydrological or geological conditions) fell short. The commercial landowner owes a transcendent duty to the public to keep its commercial premises safe or to warn of known dangers. Brown v. Racquet Club of Bricktown, 95 N.J. 280, 290-91 (1984). That duty is breached in a case like this in which the landowner made no effort to isolate the cause of the cave-in, probably hoping (without any supportive evidence) that it was a freak accident that would not recur. That is nothing more than gambling with the safety of the public and should not be tolerated.
I would hold that the initial obligation to determine the cause of the cave-in falls on the commercial landowner who is not only in the best position to set the investigatory wheels in motion on his own property, but who also has a pre-existing and overarching duty to protect his invitees against hidden dangers of which he is aware. The commercial landowner can only satisfy that duty, on these facts, b
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