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(NOTE: The status of this decision is Unpublished.)
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5215-08T35215-08T3
OTIS BENNETT,
Plaintiff-Appellant,
v.
B.J. LOUNGE, JEFFREY NEWTON,
Defendants-Respondents,
and
BARBARA NEWTON,
Defendant.
Argued January 5, 2010 - Decided
Before Judges Fuentes and Gilroy.
On appeal from the Superior Court of New Jersey, Law Division, Cumberland County,
Docket No. L-207-07.
Robert D. Fischer argued the cause for appellant (Chance & McCann, LLC, attorneys; Mr.
Fischer, on the brief).
L. Patrick Dacey argued the cause for respondents (Bolan Jahnsen Dacey, attorneys; Mr.
Dacey, of counsel; Elizabeth A. Wilson, on the brief).
PER CURIAM
Plaintiff Otis Bennett appeals from the June 3, 2009 order that granted defendants B.J. Lounge and Jeffrey Newton's
motion for an involuntary dismissal, R. 4:37-2(b). We affirm.
The facts are not in dispute. Newton is the owner of defendant B.J. Lounge, a tavern located in Upper Deerfield
Township (collectively, the defendants). Plaintiff has been an acquaintance of Newton for over ten years. During
that time plaintiff has worked at the tavern on a part-time basis as a bouncer and maintenance worker.
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On July 18, 2005, Newton requested plaintiff to assist him in performing work at the tavern, including the hanging
of an Eagles football team banner on one of the tavern's interior walls. Newton handed plaintiff one end of the
banner along with a staple gun. Newton took the other end of the banner, pushed a chair against the wall, stood on
the chair and held the banner while waiting for plaintiff to do likewise. Plaintiff selected a metal chair, pushed it
against the wall and stood on it. Unfortunately, the chair collapsed without warning, causing plaintiff to suffer
personal injuries.
On February 21, 2007, plaintiff filed a personal injury negligence action against defendants, alleging defendants had
failed to maintain the tavern in a reasonably safe condition; had failed to inspect the chair for defects prior to
plaintiff standing on it; had failed to warn plaintiff of the chair's dangerous condition; and otherwise had created the
dangerous condition that caused the accident. At close of plaintiff's case, defendants moved for an involuntary
dismissal, pursuant to Rule 4:37-2(b). The court granted the motion.
In deciding the motion, the trial court determined that plaintiff was a business invitee at the time of the accident,
and Newton had neither inspected the chair for defects nor warned plaintiff of the chair's dangerous condition
before plaintiff stood on it. However, the court also determined that plaintiff had not presented evidence, by expert
testimony or otherwise, showing that a reasonable inspection of the chair prior to the accident would have
revealed the chair's defect. Absent such proof, the court concluded plaintiff failed to prove that defendants had
actual or constructive notice of the chair's defect and granted judgment in favor of defendants.
The problem that I have is there is zero evidence from which anyone could infer
that the inspection - - well, A, what is a reasonable inspection, B, what it would disclose,
and C, that the . . . inspection, if it had been done by Mr. Newton, would have disclosed
the defect that caused the chair to fail, which caused Mr. Bennett to be injured.
There's zero . . . evidence, frankly, on actual [notice]. There's zero on constructive
notice. There's no testimony how long the defect was present. So, what we're focusing
on is Mr. Newton's obligation to inspect and then provide a notice to Mr. Bennett of the
potential danger if he were to use the chair that he selected.
Frankly, I find that that would take expert testimony. I don't see how this jury, on
the proofs that we've got . . . could determine that a reasonable inspection would have
disclosed that there was something wrong with this chair. The suggestion that the fact
that it failed should . . . allow the jury to find that the inspection would have disclosed
it, I would suggest, is off the mark. That's basic - - it's close to res ipsa. It failed;
therefore, it must have been defective.
The plaintiff has . . . more of a burden than that. This is not a res ipsa case. The
plaintiff has some obligation to establish what . . . a reasonable inspection would have
disclosed and that the inspection would have disclosed whatever was wrong with this
chair.
Because, absent that, the landlord [or] owner . . . would not have seen anything
and, therefore, would have had no duty to warn . . .
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Accordingly, I find there is zero evidence from which a jury could evaluate that
element. And, because there is nothing from which they could even give a reasonable
inference, I'm going to grant the motion at the end of the plaintiff's case pursuant to
[Rule] 4:37-2(b).
On June 3, 2009, the trial entered a confirming order. Plaintiff moved for reconsideration, and the court denied the
motion on June 12, 2009.
On appeal, plaintiff argues that the trial court erred in granting defendants' motion for an involuntary dismissal,
contending he was not required to prove actual or constructive notice because Newton had created the condition
by directing plaintiff to stand on the chair without inspecting it. Alternatively, plaintiff argues that he was entitled
to an inference of negligence under the doctrine of res ipsa loquitor.
We review a trial court's grant of a defendant's motion for judgment at the close of the plaintiff's case, R. 4:37-2(b),
de novo, that is, by applying the same legal standard as the trial court. Epperson v. Wal-Mart Stores, Inc., 373 N.J.
Super. 522, 527 (App. Div. 2004). Under the rule, the trial court is required to deny the motion "if the evidence,
together with the legitimate inferences therefrom, could sustain a judgment in plaintiff's favor." R. 4:37-2(b). Stated
another way, if the trial court, after accepting as true all the evidence presented in a plaintiff's case and providing
the plaintiff with "'the benefit of all inferences which can reasonably and legitimately be deduced therefrom,
reasonable minds could differ, the motion must be denied.'" Zive v. Stanley Roberts, Inc., 182 N.J. 436, 441-42 (2005)
(quoting Verdicchio v. Ricca, 179 N.J. 1, 30 (2004)). If we determine "there is no genuine issue of material fact, we
decide whether the trial court's ruling on the law was correct." Turner v. Wong, 363 N.J. Super. 186, 199 (App. Div.
2003). "However, '[a] trial court's interpretation of the law and the legal consequences that flow from established
facts are not entitled to any special deference.'" Ibid. (quoting Manalapan Realty, L.P. v. Twp. of Manalapan, 140 N.J.
366, 378 (1995)).
We have considered plaintiff's arguments in light of the record and applicable law. We conclude that the arguments
are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for
the reasons expressed by Judge Farrell in granting the motion for an involuntary dismissal on May 5, 2009. R. 2:11-
3(e)(1)(A).
Affirmed.
The June 3, 2009 order also confirmed the trial court's grant of defendant Barbara Newton's motion for an
involuntary dismissal. Plaintiff does not appeal from that part the order. Accordingly, all references made
hereinafter to the surname "Newton" shall only refer to defendant Jeffrey Newton.
(continued)
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a5215-08.opn.html
(continued)
2
A-5215-08T3
January 25, 2010
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