KENNETH MAGLIONE v. GLOBE CONSTRUCTION INC ASHAN MIRZA

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Superior Court of New Jersey, Appellate Division.

KENNETH MAGLIONE, Plaintiff–Appellant, v. GLOBE CONSTRUCTION, INC., Defendant, ASHAN MIRZA, Defendant–Respondent.

DOCKET NO. A–2883–12T4

Decided: April 14, 2014

Before Judges Rothstadt and Lisa. Haddad Law Offices, attorneys for appellant (Ravi P. Shah, on the brief). Sammarro & Zalarick, P.A., attorneys for respondent (Stephen M. Sammarro, on the brief).

Plaintiff appeals from Judge Lourdes I. Santiago's January 11, 2013 order granting summary judgment to defendant Ashan Mirza, dismissing plaintiff's complaint against Mirza.   Plaintiff alleged that he sustained injuries when he slipped and fell on the sidewalk in front of Mirza's residential property, and that his fall was caused by the conditions of the property, which was under construction at that time.1  Plaintiff argues on appeal that his proofs were sufficient to withstand summary judgment.   We disagree with plaintiff and affirm.

Notwithstanding the requirement of Rule 2:6–1(a)(1), requiring parties appealing from summary judgments to include in their appendix a statement of all items submitted to the trial court on the summary judgment motion (as well as the items themselves), we have not been furnished with the complete motion record.   In response to a deficiency notice by the clerk of this court, plaintiff's counsel advised that “between Defendant's motion for Summary Judgment and Plaintiff's opposition in the form of a letter, there were no exhibits which accompanied either motion.”   From our review of the January 11, 2013 transcript of the motion hearing, it is apparent that one of the parties submitted plaintiff's interrogatory answers as an exhibit, and that plaintiff relied upon those answers in support of his argument that he had established a prima facie case of negligence which should have entitled him to withstand summary judgment.

In answer to interrogatory number two, which asked plaintiff to describe in detail his version of the accident, plaintiff stated:

The accident occurred on May 26, 2009.   The Plaintiff was walking on Laidlaw Avenue in Jersey City where he slipped and fell at the location of 53 Laidlaw Avenue, Jersey City, New Jersey.   The fall was caused by the conditions of the property at 53 Laidlaw Avenue.   The property located at 53 Laidlaw Avenue was under construction at the time of the accident.

Nowhere in his interrogatory answers did plaintiff identify or specify how or why he fell.   He did not describe any condition of the sidewalk that caused him to fall.   He furnished no photographs depicting the condition of the property.   Plaintiff filed no affidavit or certification describing the allegedly dangerous condition that caused him to fall.

At the motion hearing, plaintiff's counsel took the position that it was incumbent upon defendant, if he wanted to obtain more specific information, to depose plaintiff and ask him about it.   Plaintiff's counsel argued that plaintiff's answer to interrogatory number two was sufficient to establish a prima facie case of negligence on Mirza's part.

Plaintiff makes the same argument before us.   He argues that, under the doctrine of res ipsa loquitur, his proofs were sufficient to establish a presumption of negligence by Mirza, and the case should be presented to a jury for a final determination.   Plaintiff points to three “undeniable” facts:  (1) that he was walking in front of Mirza's property on May 26, 2009, (2) that construction was being conducted there at that time, and (3) that plaintiff fell and was injured due to unspecified conditions on the property.   From those facts, plaintiff argues that he “has provided specific proofs to support an allowable inference of Defendant's lack of due care.”

In granting defendant's motion, Judge Santiago noted that the law clearly requires that negligence will not be presumed, but must be proven by a plaintiff.   She then concluded that, viewing all evidence in the motion record most favorably to plaintiff, “there are unsupported allegations here and there's insufficient evidence in the factual record before this Court for a reasonable Juror to find in favor of the Plaintiff.”   The judge added that “the mere fact that ․ there's an injury, to presume fault it would be certainly—there's no authority for me to do that.”

We agree with the judge's analysis and conclusion.   Plaintiff's arguments on appeal lack sufficient merit to warrant discussion in a written opinion.   R. 2:11–3(e)(1)(E).   We add only the following brief comments.

Our Supreme Court has expressed the well-settled principles that guide our analysis in this case as follows:

We start with the basic proposition that ordinarily negligence must be proved and will never be presumed, that indeed there is a presumption against it, and that the burden of proving negligence is on the plaintiff.  Hansen v. Eagle–Picher Lead Co., 8 N.J. 133, 139 (1951).   The doctrine of res ipsa loquitur permits an inference of [the] defendant's negligence “where (a) the occurrence itself ordinarily bespeaks negligence;  (b) the instrumentality was within the defendant's exclusive control;  and (c) there is no indication in the circumstances that the injury was the result of the plaintiff's own voluntary act or neglect.”  Bornstein v. Metropolitan Bottling Co., 26 N.J. 263, 269 (1958).

[Buckelew v. Grossbard, 87 N.J. 512, 525 (1981).]

The res ipsa loquitur doctrine requires, at the outset, an occurrence that, by its nature, “bespeaks negligence.”  Ibid. In other words, it must be “more probable than not that the defendant has been negligent.”   Myrlak v. Port Auth. of N.Y. & N.J., 157 N.J. 84, 95 (1999).   Viewing the evidence before us in the light most favorable to plaintiff, there is nothing to suggest that it is more probable than not that Mirza was negligent.   This is a garden variety slip and fall case.   The mere fact that some construction, of an unspecified nature, was taking place in the area where plaintiff fell does not enhance plaintiff's position.   The nature of the occurrence does not satisfy the first res ipsa prong.

Although not necessary to our analysis, it appears that the second prong is not satisfied as to Mirza, as the construction was allegedly being conducted by Globe Construction, Inc. Likewise, the third prong also appears to be lacking because, by failing to describe how and why he fell, plaintiff has failed to present evidence that his alleged fall was not a result of his own negligence.

Applying the Brill 2 standard, summary judgment was properly granted because plaintiff failed to present sufficient facts to establish a prima facie case of negligence by Mirza.

Affirmed.

FOOTNOTES

1.  FN1. By order of October 5, 2012, plaintiff's complaint was dismissed with prejudice against Globe Construction, Inc., the company that was allegedly performing the construction work on Mirza's property.   Plaintiff does not appeal from the dismissal as to Globe Construction, Inc.

2.  FN2. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520 (1995).

PER CURIAM

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