Opinion
C.A. No. 09C-08-218 RRC.
Submitted: October 20, 2010.
Decided: December 3, 2010.
On Plaintiff Maria I. Cruz's Motion for Default Judgment or, in the Alternative, an Adverse Inference Instruction. Denied.
On Defendants, G-Town Partners, L.P. d/b/a Georgetown Manor Apartments and Geller Associates, Inc.'s, Motion for Summary Judgment. Granted.
Joseph J. Rhoades, Esquire Stephen T. Morrow, Esquire, Wilmington, Delaware, Attorney for Plaintiff Maria I. Cruz.
Arthur D. Kuhl, Esquire, Reger, Rizzo Darnall, LLP, Wilmington, Delaware, Attorney for Defendants G-Town Partners, L.P. d/b/a Georgetown Manor, Apartments and Geller Associates, Inc.
Dear Counsel:
INTRODUCTION
This case arises from a May 18, 2008 accident in which Plaintiff was injured when her bathroom sink became detached from the wall and fell. Defendants assert that Plaintiff was standing completely or partially on the sink at the time of its fall from the wall. Conversely, Plaintiff claims that the sink simply became detached from the wall and fell on Plaintiff.
Defendants' motion for summary judgment asserts that there are no issues of material fact in dispute and that Defendants are entitled to judgment as a matter of law. The resolution of Defendants' motion for summary judgment is complicated by Plaintiff's pending "Motion for Default Judgment or, in the Alternative, an Adverse Inference Instruction" against Defendants. This latter motion stems from the fact that Plaintiff's "former friend" (they are now no longer "friend[s]") and neighbor photographed the scene of the accident immediately after Plaintiff's injury; copies of such photographs were electronically stored and later forwarded to Defendants. For reasons that remain unclear, the location of these photographs (assuming that the photographs or copies of them still exist) is apparently unknown to Defendants and all witnesses. The absence of the photographs, with no instruction for an adverse inference, would prove fatal to Plaintiff's case because Plaintiff's expert has opined that it is not possible for him to reach a conclusion as to what caused the sink's fall without reviewing the photographs. When Plaintiff's expert's inability to reach a conclusion is coupled with the Court's conclusion that expert, not lay, testimony is required to establish any breach of a duty of care by Defendants, Plaintiff cannot prove that any alleged negligence by Defendants caused the accident. Therefore, Plaintiff's motion for default judgment or, in the alternative, an adverse inference instruction against Defendants becomes the sole mechanism by which Plaintiff may potentially make a prima facie showing of negligence.
Essentially, Plaintiff contends that she should not be penalized for the unavailability of these photographs, and that an adverse inference instruction should issue against Defendants. In turn, Plaintiff would use the adverse inference instruction, an evidentiary device which is, as its title suggests, wholly inferential, to invoke the doctrine of res ipsa loquitur, another inferential device. Plaintiff necessarily relies on these inferential devices to both defeat Defendant's motion for summary judgment and to serve as the crux of her case-in-chief.
Apart from the bare fact of the sink's fall, Plaintiff has adduced no evidence of any negligence on Defendants' part. Plaintiff contends that res ipsa loquitur should apply to this case and defeat Defendants' motion for summary judgment, and acknowledges that application of res ipsa loquitur requires that "the facts warrant an inference of such force as to call for an explanation or rebuttal from the Defendants." Put simply, this case is virtually devoid of facts probative on the issue of negligence, and Plaintiff seeks to invoke the threshold inference of an adverse inference instruction to "warrant an inference of such force as to call for an explanation or rebuttal from the Defendants" and trigger res ipsa loquitur.
Although the applicability of res ipsa loquitur is ordinarily determined at the close of the plaintiff's case in chief, Plaintiff has specifically requested (and Defendants agree) that that these related motions be decided prior to trial. Therefore, the Court has concluded that the establishment of Plaintiff's right to the issuance of an adverse inference instruction becomes necessary for Plaintiff's case to survive summary judgment because, absent an adverse inference instruction, Plaintiff is unable to adduce facts about the sink detachment which would "call for an explanation or rebuttal" from Defendants. Indeed, Plaintiff acknowledges that without the photographs, her expert cannot potentially render an opinion as to the cause of the sink's fall. In short, if Plaintiff's motion for an adverse inference instruction is denied, it follows that res ipsa loquitur is not implicated because Plaintiff cannot produce direct or circumstantial evidence of Defendants' negligence as a cause of this accident. In turn, Defendants' motion for summary judgment necessarily must be granted.
Pltf.'s Opp'n. to Defs.' Mot. for Summ. J. at 2.
Typically, when deciding a motion for summary judgment, the facts and all reasonable inferences flowing therefrom must be viewed in the light most favorable to the non-moving party. Moreover, the language of D.R.E. 304(c)(1) favors the deferral of a decision on the applicability of res ipsa loquitur until the close of the plaintiff's case. However, this Court may appropriately determine the applicability of res ipsa loquitur at alternative stages of the proceedings other than at the close of the plaintiff's case based on a "case-by-case" evaluation of the parties' contentions and factual showings. As explained by this Court:
Lacy v. G.D. Searle Co., 484 A.2d 527, 530 (Del. Super. 1984) (holding that "the stage at which the applicability of res ipsa loquitur may be considered should be determined on a case-by-case basis considering the nature of the contentions, the sufficiency of the factual showing and the applicable standards of the doctrine.").
Rule of Evidence 304(c)(1) favors determining the applicability of the doctrine of res ipsa loquitor [sic] at the close of plaintiff's case. The language, however, only says "should be determined." The rule does not force the Court into any particular course of action. Rather, the stage at which a court may consider the applicability of res ipsa loquitor [sic] is determined on a case-by-case basis considering the nature of the contentions, the sufficiency of the parties' factual showing, and the doctrine's applicable standards.
Orsini v. K-Mart Corp., 1997 WL 528034, *4 (Del. Super. 1997) (citing Lacy, 484 A.2d at 530).
Orsini v. K-Mart Corp., 1997 WL 528034, *4 (Del. Super. 1997) (citing Lacy, 484 A.2d at 530).
In this case, Plaintiff and Defendants have requested a pretrial decision on these related motions. Plaintiff, understandably, does not wish to try this case, only to have this Court rule at the close of Plaintiff's case that 1) res ipsa loquitur does not apply and 2) that Plaintiff thus needs an expert to establish negligence. Without such expert, the Court would then be required to grant Defendants' motion for judgment as a matter of law pursuant to Superior Court Civil Rule 50(a)(1). Therefore, this Court has decided the applicability of res ipsa loquitur, based on the present record, at this stage in the proceedings rather than at the close of Plaintiff's case.
"If . . . there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue, the Court may determine the issue against the party and may grant a motion for judgment as a matter of law against that party. . . ."
This Court holds that, although Defendants' apparent failure to have preserved or retained the photographs deserves criticism, there is nonetheless insufficient evidence of spoliation to warrant either a default judgment or an adverse inference instruction against Defendants. Defendants' inability to produce the photographs was not sufficiently explained, and the evidence suggests that employees of Defendants may have exerted improper influence on certain individuals in possession of the photographs. Nonetheless, it is significant that Plaintiff did not seek an independent review or analysis (such as a forensic analysis by a computer programming expert) of the various computers or electronic devices that would be expected to have contained the photographs at some point in time. This Court will not countenance any intentional or reckless spoliation of evidence, but the unusual facts underlying the absence of these photographs are sufficiently equivocal and incomplete to defeat Plaintiff's claim of entitlement to an adverse inference instruction. Further, the probative value of the photographs is speculative at best; Plaintiff acknowledges that it is uncertain if the photographs would have assisted the Plaintiff's expert in rendering an opinion of negligence against Defendants. This Court notes that Defendants have identified an expert who, without viewing the photographs in question, has concluded that the Defendants were not negligent; Plaintiff did not move to preclude Defendants' expert's opinions or testimony in this case.
Upon review of the facts, the law, and the parties' submissions, Plaintiff's motion for default judgment, or, in the alternative, an adverse inference instruction, is DENIED. It necessarily follows that res ipsa loquitur is not applicable to this case; therefore, Plaintiff will be unable to offer proof of Defendants' negligence through direct or circumstantial evidence. Accordingly, Defendants' motion for summary judgment is GRANTED.
FACTS AND PROCEDURAL HISTORY
Plaintiff was injured on May 18, 2008 when, according to Plaintiff, she was cleaning the bathroom sink in her apartment at Georgetown Manor Apartments and it "suddenly broke away from the wall and crashed to the floor." Plaintiff's former friend and neighbor, Keli M. Carr, was the first to arrive at the scene of the accident; Ms. Carr later stated that her initial impression of the accident was that Plaintiff was decorating the bathroom wall with border paper and was partially or completely standing on the sink at the time of its detachment from the wall. Ms. Carr testified that, upon arriving at the scene of the accident, she stated ". . . what the F are you doing standing on the sink? And [Plaintiff] was like, I couldn't reach." This statement was apparently corroborated by Ms. Carr's observations; she described the scene as follows:
. . . I looked up and there was like half wall border on the ceiling. And then I looked down and like you could see her rolls on the floor and like half of the other wall border was like on the floor. And you could see like her bucket there. You could see like on the toilet, the toilet lid was like cocked to the side. Like you could see she was standing on her toilet and I guess she tried to stand on her sink and she lost her balance and everything just shifted I guess when she fell.
Id.
Id.
Similarly, Pam Abel, the apartment complex manager, testified that "[Plaintiff] was hanging the wall border up in the bathroom and stopped right above the sink," leading her to conclude that Plaintiff "was standing on the sink with her foot over on the toilet trying to-to hang the rest of the wall border above the sink." This testimony was based on Ms. Abel's personal observation of Plaintiff's bathroom "directly after the ambulance left."
Pltf.'s Resp. in Support of Mot. for Default J. or, in the Alternative, an Adverse Inference Instruction Ex. C at 104.
Id. at 102.
Plaintiff also allegedly made subsequent statements to Abebe Lackey, a maintenance technician employed by Defendants, suggesting that she was standing on the sink at the time of the accident. At the request of Colony Insurance Company (apparently Defendants' liability insurance carrier), a report dated September 30, 2008 was prepared by Quality Adjustment Company. Therein, Mr. Lackey's statements were described as follows:
[Mr. Lackey] testified on a date which he can't recall, he engaged in a conversation with the claimant wherein she stated words that led him to believe that in some form or fashion she was standing or partially standing on the sink when it fell. He cannot recall her exact words but he suggested that the next time she wanted to hang decorative borders she should use a ladder. They both shared a laugh.
Id. Ex. D at 5.
Id. Ex. D at 5.
Immediately following the accident, Ms. Carr photographed the scene; approximately four or five photographs of the sink and the wall were taken. Ms. Carr testified that she took "at least three or four more [photographs in addition to the one photograph that has been located]." She stated that the photographs were taken from "various angles" and that she "zoomed in on the plumbing. . . ."
Pltf.'s Mot. for Default J. or, in the Alternative, an Adverse Inference Instruction at 1.
Pltf.'s Mot. for Default J or, in the Alternative, an Adverse Inference Instruction Ex. A at 31.
Id.
However, Ms. Carr subsequently surrendered the photographs to her husband, Steven Carr (a maintenance man employed by Defendants), and all copies of the photographs were tendered to Defendants, allegedly at Defendants' insistence. Apparently, the photographs were electronically transferred, or "forwarded," from Ms. Carr's computer to Mr. Carr's computer, then from Mr. Carr's computer to Ms. Abel's computer, and finally from Ms. Abel's computer to "the owner or owners of Georgetown Apartments." The pictures were taken with a digital camera and then transferred or forwarded by electronic mail.
Id. Ex. A. at 92.
Tr. of Oral Argument of October 20, 2010 at 4 [hereinafter Tr. at ___].
Pltf.'s Mot. for Default J. or, in the Alternative, an Adverse Inference Instruction Ex. A at 34-36.
Additionally, an exchange occurred between Plaintiff and Ms. Carr on a MySpace message board on August 18, 2008. Therein, Plaintiff stated her continuing desire for the photographs and her belief that Ms. Carr still possessed copies; Ms. Carr responded to Plaintiff as follows (all typographical errors in original):
Pltf.'s Response in Support of Mot. for Default J. Ex. B.
Hey, Honestly I feel bad because I feel like I am stuck in the middle of my best friend and my husbands job. What am I supposed to do? Since we are keeping it real, then let me keep it real, because that's the only way to be.
Wayback when, when you went into [Apartment Complex Manager Pam Abel's] office about the incident, and you too were talking about what happened and you told her "Well, Keli took Pictures". .during your conversation, that immediately put us in the middle. When she called [Adam Geller, Ms. Abel's supervisor] to tell him about the whole situation, Adam asked her if anyone took pictures, and she had no choice but to tell her well actually yeah, one of my maintenance men's wives did. Do you realize what an uproar that caused? He was LIVID. He did not understand why an employee of Georgetown would be taking pictures of an incident like that. Steve was very close to losing his job. At that point, Adam demanded that all of the pictures that I took be turned over to him directly. I had no choice. I had to protect steves job. This is all we have. Pam said if you needed the pics down the road (like if you were going to sue), then your lawyer could get them from Georgetown. We honestly don't have them anymore. We havent had them, or have talked about them since then. We had to do what they asked us to do. Honestly if you didnt tell Pam that I took pictures, then I could have gave them to you with no problems. . . .
Id.
Id.
During her deposition, Ms. Carr attempted to clarify this MySpace exchange as follows:
Q. Do you believe your husband as an employee of Georgetown should have or was within his rights to take photographs of the area where the incident occurred?
A. Maybe if the camera was in his hand, it wouldn't have been such a big deal. But maybe me being his wife and not being an employee of Georgetown Manor, I should not have taken the pictures.
Q. And then he said, at that point, he-Steve was very close to losing his job is that what [the MySpace exchange of August 18, 2008] says?
A. Steve and I believed so at that time, yes. Because the whole incident was really bad.
Q. Okay. And at that point, Adam demanded that all the pictures that I had took be turned over to Georgetown and mailed to him directly. I had no choice. Is that correct?
A. Correct.
Pltf.'s Mot. for Default J. or, in the Alternative, an Adverse Inference Instruction Ex. A at 91-92.
Pltf.'s Mot. for Default J. or, in the Alternative, an Adverse Inference Instruction Ex. A at 91-92.
Plaintiff contends that she directed (and, presumably, relied upon) Ms. Carr to take photographs, and that the scene of the accident was cleaned by Defendants prior to her return from the hospital. Although the precise length of Plaintiff's hospitalization is not clear, she apparently returned to her apartment "within hours." According to Plaintiff, Defendants' removal of the sink and their clean up of the bathroom destroyed "the exact evidence sought to be obtained from the missing photographs." Given the absence of the photographs and the immediate cleaning of the scene, Plaintiff was unable to inspect or independently photograph the sink and its mountings.
Pltf.'s Reply in Support of Mot. for Default J. at 2.
Tr. at 10.
Pltf.'s Reply in Support of Mot. for Default J. at 2. Plaintiff does not contend that the prompt cleaning of the bathroom was done to conceal evidence and concedes that "it would be natural" for Defendants to immediately and promptly clean Plaintiff's bathroom subsequent to the accident. Tr. at 10.
Defendants assert that they have produced all photographs that they possesses and they "[are] not in possession of, and cannot locate, any other photographs which were taken following the incident, prior to repair." One photograph was located and a copy produced by Defendants, although this photograph apparently does not appear to be particularly probative. Defendants argue that Plaintiff had "ample opportunity and/or ability to `examine' the actual sink in question and take all the photos she wished as it was in her apartment that the incident occurred" (even though Plaintiff lived alone, was injured, and was taken to the hospital via ambulance immediately after the accident).
Defs.' Resp. in Opp'n. to Pltf.'s Mot. for Default J. at 1-2.
Tr. at 9.
Defs.' Resp. in Opp'n. to Pltf.'s Mot. for Default J. at 3.
With respect to the accident, Plaintiff testified that she was cleaning the sink when it "all of a sudden" fell from the wall. According to Plaintiff, the sink was "loose" when she moved in, although she could not recall if she ever had a conversation with anyone about this alleged condition. Plaintiff indicated that she was "standing right in front of the sink" and touching the sink with her left hand when it fell.
Pltf.'s Reply in Support of Mot. for Default J. Ex. A. at 45.
Id.
Id. at 47-48.
Conversely, Defendants have adduced evidence which suggests that Plaintiff was standing on the sink at the time of the accident. The report prepared by Quality Adjustment Company indicates that Ms. Carr provided a statement to Keith DeMarco, Quality Adjustment Company's investigator, detailing her recollection of the accident. Therein, Ms. Carr reported that Plaintiff "revealed that she had been installing a bathroom decorative border around the area where the wall and ceiling join" and "[w]hen the installation exceeded her reach [Plaintiff] stated words that led [Ms. Carr] to believe [Plaintiff] either stood on the sink or at least placed one foot on the sink." Similarly, Ms. Carr testified that her impressions of the scene of the accident, coupled with Plaintiff's statements immediately following the accident, indicated that Plaintiff was hanging decorative wall border and standing or attempting to stand on the sink to reach a particular spot for hanging the border. According to Defendants, such evidence prevented them from having "any realistic expectation that [the accident] would lead to a lawsuit," thus not triggering any alleged duty to preserve the photographs.
Defs.' Resp. in Opp'n. to Pltf.'s Mot. for Default J. at 4.
Pltf.'s Reply in Support of Mot. for Default J. Ex. D. at 3.
Id.
Defs.' Mot. for Summ. J. Ex. B. at 20.
Defs.' Resp. in Opp'n. to Pltf.'s Mot. for Default J. at 4.
Defendants retained Duane R. Ferguson, Senior Technical Consultant for SEA, Ltd., to render an expert opinion on the cause of the sink's fall. The instant sink was not available to inspect, thus Mr. Ferguson evaluated two "exemplar" sinks from the same complex because "wall mounted sinks are typical industry standard units customarily installed in that manner." Mr. Ferguson concluded "[i]t is highly unlikely that the subject sink just fell from the wall without a significant force applied to it. Therefore, the failure of the sink was a result of Ms. Cruz standing or sitting on it, causing it to rotate out of the mounting bracket [on the wall]." The sink was not additionally supported by "legs."
Id. Ex. A. Although Mr. Sheesley, Plaintiff's expert, criticized Mr. Ferguson's use of "exemplar" sinks to conduct the analysis, Plaintiff has not filed any motions in limine to limit or exclude Mr. Ferguson's expert opinion.
Id. at 4.
Id.
In contrast, Plaintiff's expert, Gary Sheesley, P.E., has been unable to form a conclusion as to why the sink fell. Mr. Sheesley is a professional engineer, licensed to practice in the Commonwealth of Pennsylvania and the State of Ohio. In an affidavit dated June 23, 2010, Mr. Sheesley stated that
Pltf.'s Mot. for Default J. or, in the Alternative, an Adverse Inference Instruction Ex. C.
Id. ¶ 1.
[w]ithout viewing the photographs taken of the accident scene and the method and manner in which the sink was affixed to the wall, I will not be in a position to render an opinion as to what caused the sink to fall and whether that fall was due to a violation of any standard applicable to Defendants in the maintenance and upkeep of its apartment complex.
Id. ¶ 6.
Id. ¶ 6.
Mr. Sheesley supplemented this affidavit with a letter to Plaintiff's counsel dated September 9, 2010. In this letter, he commented that the report completed by Mr. Ferguson could yield "no information pertinent to this matter" because "no useful conclusions can be formed from the information that there were two firmly attached sink in the Georgetown Manor Apartments, a complex containing 418 apartments." Mr. Sheesley noted that Mr. Ferguson's analysis did not report if the exemplar sinks were "loose," given that Plaintiff claims her sink was loose, nor did Mr. Ferguson's analysis report if all sinks are attached in the same manner as the two exemplar sinks.
Pltf.'s Reply in Support of Mot. for Default J. Ex. F.
Id.
Id.
THE PARTIES' CONTENTIONS
Defendants move for summary judgment on the grounds that 1) Plaintiff's expert report is equivocal, thus insufficient, and 2) Plaintiff has failed to provide any evidence to support the allegations contained within the complaint. Defendants argue that res ipsa loquitur is not available to Plaintiff because the existing evidence and the lack of an expert opinion assigning fault to Defendants would simply require Plaintiff to "present speculative evidence and ask the jury to do the same amount of speculating in finding negligence on the part of the Defendants."Plaintiff responds that the lack of an expert opinion that Defendants were negligent is due to Defendants' "destruction of vital evidence." Plaintiff contends that an expert is unnecessary because a prima facie case of negligence can be made under the doctrine of res ipsa loquitur, pursuant to D.R.E. 304. According to Plaintiff, "sinks do not just fall from walls without some act of negligence and Defendants bore sole responsibility for installing and maintaining the sink in question." Plaintiff further notes that the jury may reasonably disregard the expert opinion rendered by Mr. Ferguson because the report explaining "why a sink might fall sheds no light on the cause of this sink's fall."
Pltf.'s Opp'n. to Def.'s Mot. for Summ. J. at 2.
Id.
Id.
Id.
STANDARD OF REVIEW
I. Spoliation of EvidenceThe Court may permit an adverse inference instruction against a party as a sanction for the intentional or reckless destruction of evidence. The Supreme Court of Delaware, citing Wigmore on Evidence § 291, has explained an adverse inference as the allowance of an inference "that the contents of the document (when desired by the opponent) are what he alleges them to be, or (when naturally a part of the possessor's case) are not what he alleges them to be." The Court described the use of an adverse inference instruction as "no more than the application of a rule of common sense." Essentially, if spoliation of evidence has occurred, "an inference arises that such evidence would be unfavorable to [the spoliator's] case." This principle is codified by Delaware Pattern Jury Instruction for Civil Practice 23.17, which in part instructs the jury that "if you conclude [that evidence was destroyed or suppressed due to the intentional or reckless conduct of a litigant], then you may conclude that the missing evidence would have been unfavorable to [the litigant whose conduct caused the destruction or suppression of evidence.]"
See, e.g., Collins v. Throckmorton, 425 A.2d 146, 150 (Del. 1980) ("We also recognize the general rule that where a litigant intentionally suppresses or destroys pertinent evidence, an inference arises that such evidence would be unfavorable to his case.") (citations omitted); Beard Research, Inc. v. Kates, 981 A.2d 1175, 1191 (Del. Ch. 2009), ("An adverse inference instruction is appropriate where a litigant intentionally or recklessly destroys evidence, when it knows that the item in question is relevant to a legal dispute or it was otherwise under a legal duty to preserve the item.") aff'd, Del. Supr., ___ A.2d ___, No. 1316, 2010, Jacobs, J. (Nov. 23, 2010).
Equitable Trust Co. v. Gallagher, 102 A.2d 538, 541 (Del. 1954).
Id.
Lucas v. Christiana Skating Ctr., Ltd., 722 A.2d 1247 (Del. Super. 1998) (citations omitted).
Before giving an adverse inference instruction, the Court must make a preliminary finding that the evidence was lost or destroyed through intentional or reckless conduct. The party seeking an adverse inference instruction must do more than simply demonstrate that the "absence of evidence is not adequately explained." Rather, there must be a "mental state indicative of spoliation." The requirements for an intentional state of mind are relatively self-explanatory; the party must have acted with the conscious purpose of destroying the evidence. With respect to recklessness, "drawing an adverse inference is appropriate when an actor is under a duty to preserve evidence and takes part in the destruction of evidence while being consciously aware of a risk that he or she will cause or allow evidence to be spoiled by action or inaction and that risk would be deemed substantial and unjustifiable by a reasonable person." A party's duty to preserve evidence is triggered "upon the discovery of facts and circumstances that would lead to a conclusion that litigation is imminent or should otherwise be expected."
Sears, Roebuck Co. v. Midcap, 893 A.2d 542, 548 (Del. 2006)).
See Beard Research, Inc., 981 A.2d at 1191 (citing Midcap, 893 A.2d at 552).
Compare Midcap, 893 A.2d at 548-49 (holding that neither the merely negligent destruction of evidence nor the destruction of evidence pursuant to a document retention policy is sufficient for an adverse inference instruction), and Triton Const. Co., Inc. v. E. Shore Elec. Servs., Inc., 2009 WL 1387115, *8 (Del. Ch. 2009) (holding that the destruction of thousands of electronic files contemporaneous with an employee's hostile resignation from a company and immediate acceptance of employment with a direct competitor was sufficient for an adverse inference instruction).
See, e.g., Beard Research, Inc., 981 A.2d at 1191.
Id.
Triton, 2009 WL at *8.
Courts may also sanction spoliation through judgment by default, although this is the most extreme sanction. A motion for judgment by default should be granted only "if no other sanction would be more appropriate under the circumstances." Entry of a default judgment against a spoliating party requires that the spoliator act willfully or in bad faith in destroying the evidence. Although Plaintiff's motion alternatively sought a default judgment instead of an adverse inference instruction, Plaintiff in her papers and at oral argument implicitly has recognized the inapplicability of a default judgment as a sanction, given the lack of evidence of willfulness or bad faith.
See, e.g., Sundor Elec., Inc. v. E.J.T. Constr. Co., Inc., 337 A.2d 651, 652 (Del. 1975).
Id. (citation omitted).
Beard Research, Inc., 981 A.2d at 1190 (Del. Ch. 2009) (citing Positran Mfg., Inc. v. Diebold, Inc., 2003 WL 21104954, *2 (D. Del. 2003)).
See, e.g., Tr. at 43 (Plaintiff did not dispute the Court's observation at oral argument that a default judgment was "off the table" and "too extreme" for this case.)
II. Res Ipsa Loquitur
The application of the doctrine of res ipsa loquitur is controlled by D.R.E. 304. That rule is not contained in the Federal Rules of Evidence or the Uniform Rules of Evidence; instead, it restates and codifies Delaware common law of res ipsa loquitur. The doctrine "is a rule of circumstantial evidence, not affecting the burden of proof, which permits, but does not require, the trier of the facts to draw an inference of negligence from the happening of an accident under the circumstances. . . ." There are four prerequisites to the invocation of the doctrine:
D.R.E. 304 cmt.
Id. § (a)(1).
(1) The accident must be such as, in the ordinary course of events, does not happen if those who have management and control use proper care; and
(2) The facts are such as to warrant an inference of negligence of such force as to call for an explanation or rebuttal from the Defendants; and
(3) The thing or instrumentality which caused the injury must have been under the management or control (not necessarily exclusive) of the Defendants or his servants at the time the negligence likely occurred; and
(4) Where the injured person participated in the events leading up to the accident, the evidence must exclude his own conduct as a responsible cause.
Id. § (b).
Id. § (b).
If circumstances surrounding Plaintiff's injury are "as consistent with the absence of negligence as with the existence of negligence, neither conclusion can be said to have been established by legitimate proof, and no issue is made for submission to the jury."
Skipper v. Royal Crown Bottling Co. of Wilmington, 192 A.2d 910, 912 (Del. 1963).
In Thompson v. Cooles, the Superior Court of Delaware examined the applicability of res ipsa loquitur in the context of the unexplained fall of a piece of plaster from the ceiling which struck and injured the plaintiff, a business invitee of the defendant. The Court expressed its misgivings towards invoking res ipsa loquitur against the owner of a premises to impose for injuries caused by unexplained accidents on the premises; the Court stated that it was
180 A. 522 (Del. 1935).
not convinced of the wisdom or necessity of [ res ipsa loquitur's] application to the situation disclosed by a count where the proof must be supposed to be no more than that the building was owned and controlled by the Defendants, and that the plaintiff, an invitee, was injured by the fall of plaster from a ceiling, with nothing to indicate its weakened or dangerous condition, such as cracks, bulging or sagging, or of previous repairs thereto.
Id. at 525. But see, e.g., McCleod v. Nel-Co Corp., 112 N.E. 2d 501, 508 (Ill. App.Ct. 1953) (holding that res ipsa loquitur was properly applied when plaster inexplicably fell from hotel room ceiling and injured the plaintiff, explicitly rejecting the rationale in Thompson.)
Id. at 525. But see, e.g., McCleod v. Nel-Co Corp., 112 N.E. 2d 501, 508 (Ill. App.Ct. 1953) (holding that res ipsa loquitur was properly applied when plaster inexplicably fell from hotel room ceiling and injured the plaintiff, explicitly rejecting the rationale in Thompson.)
The Thompson Court articulated the dangers of permitting an inference of negligence based on the property owner's alleged lack of inspection:
If the inference of negligence is referable to lack of inspection, then arises the query; does a reasonably prudent man, "guided by those considerations which ordinarily regulate the conduct of human affairs," regard it as reasonably necessary to inspect and examine a ceiling the strength of which he has no cause to suspect, and which has offered no visible indication, by cracking, sagging, or bulging, of an unsafe condition? We think not.
Id. at 526.
Id. at 526.
By its terms, D.R.E. 304 provides that the applicability of the doctrine "should be determined at the close of the plaintiff's case." However, at a July status conference and again during oral argument on these motions, Plaintiff's counsel requested that the Court make a pretrial ruling on the adverse inference and res ipsa loquitur issues. Therefore, this Court may properly review and decide the issue of res ipsa loquitur at this juncture, because "the stage at which the applicability of res ipsa loquitur may be considered should be determined on a case-by-case basis considering the nature of the contentions, the sufficiency of the factual showing and the applicable standards of the doctrine."
Tr. at 32-34. ("I think you have enough information [to decide both motions prior to trial.] And I'll just concede with regard to the motion for summary judgment, too. [W]e've made our cases. . . .I don't want to encourage the Court to go through a trial that it doesn't have to go through."). As stated, Plaintiff invokes the doctrine of res ipsa loquitur only in the context of her opposition to Defendants' motion for summary judgment, and does not invoke the doctrine as support for her motion for default judgment or, in the alternative, an adverse inference instruction.
Lacy v. G.D. Searle Co., 484 A.2d 527, 530 (Del. Super. 1984).
This Court's denial of Plaintiff's motion for a default judgment or adverse inference against Defendant precludes the applicability of res ipsa loquitur, because without an adverse inference, Plaintiff can produce neither direct nor inferential evidence of Defendants' negligence. Consequently, Plaintiff necessarily cannot carry the burden of demonstrating that "the facts are such as to warrant an inference of negligence of such force as to call for an explanation or rebuttal from the Defendants," as required by D.R.E. 304(b)(4). Moreover, the policy concerns articulated in Thompson, cautioning against undue expansion of the doctrine, are equally valid and persuasive herein. Accordingly, the doctrine of res ipsa loquitur is not applicable to this case.
III. Summary Judgment
Summary judgment is appropriate where "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 and that the moving party is entitled to a judgment as a matter of law." The moving party bears the burden of demonstrating that no material issues of fact are in dispute and that it is entitled to judgment as a matter of law. When deciding a motion for summary judgment, the Court typically must view the record in a light most favorable to the non-moving party. Similarly, all reasonable inferences must be drawn in favor of the non-moving party. However, the opposing party may not merely assert the existence of a disputed issue of fact. Instead, the burden shifts to the non-moving party to demonstrate the existence of a disputed issue of material fact. Ultimately, a motion for summary judgment "must be decided on the record presented. . . ." To survive a motion for summary judgment, Plaintiff must present "some evidence to support all elements" of her claims.
Super. Ct. Civ. R. 56(c).
Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979).
Hammond v. Colt Ind. Op. Corp., 565 A.2d 558, 560 (Del. Super. 1989).
See, e.g., In re Asbestos Litigation, 509 A.2d 1116, 1117 (Del. Super. 1986) (citations omitted).
Brzoska, 668 A.2d at 1364 quoting Matsushita Elec. Ind.Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
Moore, 405 A.2d at 680 (citations omitted).
Rochester v. Katalan, 320 A.2d 704, 708 n. 7 (Del. 1974).
See, e.g., Reybold Group, Inc. v. Chemprobe Tech., Inc., 721 A.2d 1267, 1270 (Del. 1998); Hercules v. AMEC Va., 1999 WL 167830, *5 n. 31 (Del. Super. 1999) ("Where a party has the ultimate burden of proof at trial of an element of its claim, upon a motion for summary judgment, that party must make a sufficient enough showing of the existence of that element.") (citing id.)
IV. Interconnectedness of the Motions
The posture of this case is unusual, because the Court has been asked by Plaintiff and Defendants to rule, before trial, on the interplay between a proposed adverse inference instruction, a default judgment, the applicability of res ipsa loquitur, and the standard of review for summary judgment. Ordinarily, "in a circumstantial evidence case based on factual inferences, `the question of the applicability of [r]es ipsa loquitur should be determined at the close of plaintiff's evidence'" and "[i]n the summary judgment context, the facts to be considered are the objective facts of the situation presented to the extent they are not genuinely disputed. . . .any genuine dispute in fact is resolved in favor of the plaintiff." However, given that Plaintiff has requested a pretrial decision on the issues of spoliation of evidence and res ipsa loquitur, the Court necessarily must review and weigh the facts and all relevant inferences pertaining to these two issues. Such a review leads to the conclusion that this Court's denial of an adverse inference instruction or default judgment and pretrial determination that res ipsa loquitur is not applicable requires the granting of Defendants' motion for summary judgment.
Nat'l Fire Ins. Co. of Hartford v. The Penn. R.R. Co., 220 A.2d 217, 218-19 (Del. Super. 1966) (citation omitted).
Also, as noted, "the stage at which the applicability of res ipsa loquitur may be considered should be determined on a case by case basis considering the nature of the contentions. . . ." Lacy v. G.D. Searle Co., 484 A.2d 527, 530 (Del. Super. 1984). Therefore, in making its determination based on the parties contentions and requests, Plaintiff's request for a pretrial determination on this issue confirms the propriety of a decision on res ipsa loquitur at this stage of the proceedings.
With the determination on res ipsa loquitur therefore being made pretrial, there are no remaining issues of material fact in dispute; Plaintiff has adduced no expert opinion establishing Defendants' negligence as a cause of the sink's fall, and all that remains is the fact of a sink's fall. Thus, Defendants are entitled to judgment as a matter of law. Accordingly, it follows that Defendants' motion for summary judgment is GRANTED.
DISCUSSION
I. IntroductionThis case highlights the potential interdependence of adverse inference instructions as a sanction for spoliation of evidence and the doctrine of res ipsa loquitur. Plaintiff avers that she will be unable to produce any physical evidence, and thus her expert is unable to offer an opinion supporting her claim of negligence by Defendants. However, Plaintiff attributes this deficiency to Defendants' alleged wrongful loss or destruction of photographic evidence. According to Plaintiff, the only probative evidence herein was contained in the missing photographs. Thus, Plaintiff argues that she should not be penalized for the unavailability of these photographs, and an adverse inference instruction should issue against Defendants. Plaintiff would then use the adverse inference instruction, an evidentiary device which is, as its title suggests, wholly inferential, to invoke the doctrine of res ipsa loquitur, another inferential device. Taken to its logical extreme, should Plaintiff reach the jury and prevail, the verdict would necessarily be premised entirely on the singular inference that Plaintiff seeks to create based on the insufficiently explained absence of the photographs.
Of course, given the unknown content of these photographs, it is presently impossible to know whether the photographs would have been probative on the issue of Defendants' alleged negligence.
II. Spoliation of Evidence
This case presents a close call on the issue of spoliation of evidence. The record suggests that Defendants exerted some type of undue pressure or influence on their employee, Steven Carr, to ensure that all existing copies of the photographs were surrendered to Defendants. Further, the record discloses that the photographs were transferred in some manner among Keli Carr, her husband Steven Carr, and management employees of Defendants; therefore, the photographs were possibly contained on multiple computers, digital camera memory devices, and electronic mail attachment storage files. The unexplained absence of the photographs, coupled with the testimony and computer messages of Ms. Carr, is at least questionable.
However, Plaintiff did not exhaust every available mechanism to obtain these photographs; Plaintiff did not obtain a forensic computer analysis of the computers alleged to have contained the photographs to locate the photographs. Further, Plaintiff never moved to compel Defendants' to bear the expense and complete a forensic analysis of the relevant computers. The potential of such analyses to successfully retrieve the photographs cannot be definitively ascertained from the present record, but Plaintiff concedes that no attempts to evaluate the relevant electronic devices were made. Plaintiff has established an inadequately explained, perhaps even suspect, unavailability of the photographs. However, this does not satisfy the intentional or reckless standard necessary for spoliation of evidence, and the record suggests that these photographs might have been obtainable by Plaintiff. Thus, Plaintiff has not carried her burden of establishing the intentional or reckless destruction or suppression of evidence and is consequently not entitled a default judgment or adverse inference instruction against Defendants.
Although the reasons for Plaintiff's failure to pursue a forensic computer analysis are not entirely clear, it may be due, at least in part, to practical or economic factors. At oral argument, Plaintiff's counsel noted that "in cases like this, lawyers who represent injured people have to make decisions sometimes based on the economy of the case. . . ." Tr. at 34.
On the present record, this Court cannot determine if, on motion by Plaintiff, Defendant would have been required to incur the unknown expense of a forensic computer analysis.
Tr. at 7.
See, e.g., Beard Research, Inc. v. Kates, 981 A.2d 1175, 1191 (Del. Ch. 2009) ("It is not enough that the `absence of evidence is not adequately explained.'") (citation omitted).
III. Res Ipsa Loquitur
A. The Doctrine of Res Ipsa Loquitur is Inapplicable.
As previously noted, the applicability of res ipsa loquitur requires the following four elements be satisfied:
(1) The accident must be such as, in the ordinary course of events, does not happen if those who have management and control use proper care; and
(2) The facts are such as to warrant an inference of negligence of such force as to call for an explanation or rebuttal from the Defendants; and
(3) The thing or instrumentality which caused the injury must have been under the management or control (not necessarily exclusive) of the Defendants or his servants at the time the negligence likely occurred; and
(4) Where the injured person participated in the events leading up to the accident, the evidence must exclude his own conduct as a responsible cause.
It is true that wall mounted sinks should not suddenly fall in the ordinary course of events, and Defendants, as the property managers for the rental complex, exercised management and control of the sink. Critically, however, Plaintiff's motion for an adverse inference instruction has now been denied; as a result, Plaintiff has no evidence of Defendants' negligence. The sole fact adduced by Plaintiff is the sink's fall; even if this should not happen in the ordinary course of events, this singular fact does not "warrant an inference of negligence of such force as to call for an explanation or rebuttal from the Defendants."
Further, as detailed in the foregoing sections, the record contains evidence that suggests Plaintiff was standing on the sink at the time of the accident. Even viewed in the light most favorable to Plaintiff, the evidence is in conflict as to whether the sink simply fell, or if Plaintiff was standing on the sink in an effort to place border paper on the bathroom wall. As noted in American Jurisprudence:
If the facts and circumstances of the occurrence give rise to conflicting inferences, one leading to the conclusion of due care and the other to the conclusion of negligence, the doctrine does not apply. . . . Where there is no direct evidence of how an accident occurred, and the circumstances are clearly as consistent with the theory that it may be ascribed to a cause not actionable as to a cause that is actionable, the jury is not to be permitted to guess where the truth lies and make that the foundation of a verdict.
57B Am. Jur. 2d Negligence § 1208 (citations omitted).
57B Am. Jur. 2d Negligence § 1208 (citations omitted).
The Restatement (Third) of Torts is in accord:
In many situations, neither common knowledge nor expert testimony may be available to support the idea that the type of accident ordinarily happens because of the negligence of the defendant. In such situations, res ipsa loquitur can be found applicable only if the plaintiff has offered evidence tending to negate the presence of causes other than the defendant's negligence. That is, if the type of accident is sometimes caused by the defendant's negligence but is more frequently brought about by other causes that are unrelated to the defendant's negligence, res ipsa loquitur can be found applicable only once the plaintiff has presented evidence tending to negate the presence of those other causes.
RESTATEMENT (THIRD) OF TORTS § 17 cmt. D (2010).
RESTATEMENT (THIRD) OF TORTS § 17 cmt. D (2010).
The conflicting evidence with respect to whether Plaintiff was standing on the sink at the time of the accident or if the sink simply fell from the wall necessarily precludes Plaintiff from satisfying D.R.E. 304(b)(4), which requires that the evidence "exclude [Plaintiff's] own conduct as a responsible cause." Accordingly, for the reasons stated above, res ipsa loquitur cannot apply.
B. Res Ipsa Loquitur is Inapplicable Even if an Adverse Inference Instruction was Warranted.
Alternatively, the doctrine of res ipsa loquitur would not apply, even if Plaintiff's motion for an adverse inference instruction was granted. This would be true whether the issue was decided pretrial or at the close of Plaintiff's case. Consequently, the early disposition of this issue (at Plaintiff's request) would not have affected this Court's decision on the issue of res ipsa loquitur, assuming the facts at trial were essentially the same as those developed pretrial.
The application of res ipsa loquitur under the facts of this case would expand liability beyond the scope articulated in Thompson v. Cooles, supra. In the context of falling ceiling plaster, the Thompson Court succinctly framed the issue as follows: "does a reasonably prudent man . . . regard it as reasonably necessary to inspect and examine a ceiling the strength of which he has no cause to suspect, and which has offered no visible indication, by cracking, sagging, or bulging, of an unsafe condition? We think not."
Thompson v. Cooles, 180 A. 522, 526 (Del. 1935) ("If the rule is to be applied in the case of a ceiling, there seems to be no sufficient reason why it ought not to be applied to injuries resulting from any other part of a building whose construction work may prove to be faulty or insufficient.")
Id.
Similarly, in this case, there is no evidence to suggest that Defendants had cause to suspect an unsafe condition of the sink; Plaintiff testified that the sink was "loose," whatever exactly that means, but could not recall if she had ever reported this alleged condition to Defendants. In fact, Plaintiff testified that the sink's alleged looseness was of "no concern at [the time she discovered this alleged condition]." However, Plaintiff's obligation to report this alleged condition is defined by statute; 25 Del. C. § 5505(a) provides:
Pltf.'s Reply in Support of Mot. for Default J. Ex. A at 25
Id. Ex. A at 25.
Any defective condition of the premises which comes to the tenant's attention, and which the tenant has reason to believe is the duty of the landlord or of another tenant to repair, shall be reported in writing by the tenant to the landlord as soon as is practicable. The tenant shall be responsible for any liability or injury resulting to the landlord as a result of the tenant's failure to timely report such condition.25 Del. C. § 5505(a) is tempered by § 5505(c), which states that § 5505 "shall not apply where the landlord has actual notice of the defective condition."
Although § 5505(a) speaks to a tenant's responsibility to the landlord resulting from tenant's failure to timely report a defective condition to the landlord and not specifically to a landlord's tort liability to tenant resulting from a defective condition, it is nonetheless probative to the instant analysis. In this case, Plaintiff has produced no facts to suggest that she ever informed Defendants of this alleged "looseness," much less that the Defendants were aware of this condition. Plaintiff is unsure if she ever even mentioned this condition to Defendants. Thus, this Court notes Plaintiff's apparent failure to provide Defendants with timely, adequate notice of this alleged defect (as defined by § 5505(a)), and also concludes that Defendants did not have actual notice of the alleged defect for purposes of § 5505(a).
On the present record, it cannot be determined if the sink in question was defectively attached to the wall. Also, even if, arguendo, there was some unspecified defect or dangerous condition, there is no evidence which would clarify when the alleged defective condition came into existence. Under Delaware law, "a lessor of land is not subject to liability to his lessee or others upon the land with the consent of the lessee or sublessee for physical harm caused by any dangerous condition which comes into existence after the lessee has taken possession." Applying res ipsa loquitur to Plaintiff's case would allow the circumvention of this rule of law by permitting an inference of negligence in the absence of proof of when the alleged defective condition arose.
Volkswagen of Am. v. Costello, 880 A.2d 230, 233 (Del. 2005) (citing RESTATEMENT (SECOND) OF TORTS § 355 (1965)).
Although the Thompson case arose in the context of an innkeeper and an invitee, the policy considerations inherent in the factual backdrop of Plaintiff's injury are nearly identical to the concerns raised in Thompson. Just as the Thompson Court did not allow liability based upon the bare fact of unexplained falling plaster, this Court similarly denies Plaintiff's request to invoke res ipsa loquitur premised on the bare fact of an unexplained falling sink. This holding is in accord with the majority approach; res ipsa loquitur generally does not apply in cases of injuries to tenants caused by unexplained falling plaster. To hold otherwise would be to impose potentially unbounded liability for latent defects; this Court will not disturb the general rule that a property owner's liability extends only to "defects for which he has actual notice, and with those which could have been discovered by a reasonable inspection."
Annotation, Res Ipsa Loquitur as Applicable in Action Against Landlord for Injury to Person or Property Due to Condition of Premises, 145 A.L.R. 870, § II(e) (1943). Interestingly, this annotation discusses a case from the District Court of Appeal of California in which the Court held that there "was no room" for the application of res ipsa loquitur in a case where falling plaster injured the plaintiff in her apartment unit, notwithstanding the fact that the landlord was notified of cracks in the plaster, and promised to repair the damage, two days before the accident. Dorswitt v. Wilson, 125 P.2d 626, 627 (Cal. App. 1942). However, the Dorswitt Court's holding appeared to turn on the applicability of the assumption of the risk doctrine, given the fact that Plaintiff slept under the damaged plaster, notwithstanding Plaintiff's undisputed knowledge of the condition of the plaster. Id.
Thompson, 180 A. at 526 (citation omitted).
Further, to the extent Plaintiff argues that Defendants should have detected the alleged defects through a more thorough inspection, Plaintiff cited no applicable housing or renting regulation that would require the necessary meticulous inspection of each and every rental unit's wall mounted sink. Delaware statutory law requires a landlord to "[p]rovide a rental unit which shall not endanger the health, welfare, or safety of the tenants," and "make all repairs and arrangements necessary to put and keep the rental unit . . . as they were, or ought by law or agreement to have been, at the commencement of the tenancy." This statute provided a "minimum, base-line duty," but it nonetheless "did not change the existing law in which liability could be found under common law or ordinary negligence." Consequently, liability under 25 Del. C. § 5305 requires that that the condition causing the injury was "defective and [landlord] should reasonably have been aware of the defect. . . ." Allowing an inference of negligence via res ipsa loquitur based on the bare fact of the sink's fall would disregard this longstanding common law rule and have the practical effect of imposing a novel common law inspection requirement on rental property owners and landlords, one that would require inspections beyond the scope of what "an ordinarily prudent person would require as reasonably necessary" and impose liability for latent defects which could not be discovered even upon reasonable inspection.
Tr. at 24.
Norfleet v. Mid-Atlantic Realty Co., 2001 WL 282882, *6-7 (Del. Super. 2001) (holding that applicable housing statutes provide a baseline duty, but a claim for ordinary negligence continues to be subject to the common law standard, which requires proof "that the alleged deficiencies would be considered a `defective condition' by a reasonable landlord."). It must be noted that there are two related Norfleet citations utilized in this opinion; the instant citation refers to the initial Superior Court's decision on a motion for summary judgment, dated February 16 2001, while the citation "2001 WL 695547" refers to the Superior Court's subsequent opinion on several motions in limine within the Norfleet litigation.
Ford v. Ja-Sin, 420 A.2d 184, 186 (Del. Super. 1980).
Thompson, 180 A. at 526.
This Court will not expand a landlord's common law duty to inspect. To satisfy the duty to inspect, "[t]he law demands no more than the exercise of reasonable care. . . .the duty to inspect must be a reasonable one, such as an ordinarily prudent person would regard as reasonably necessary." This duty to inspect "extends to defects the landlord is aware of or should be aware of through reasonable inspection of the rental unit." Accordingly, this Court rejects Plaintiff's proposed duty of Defendants to detect and rectify all possible latent defects as overly broad and in excess of what "an ordinarily prudent person would regard as reasonably necessary."
See, e.g., Powell v. Megee, 2004 WL 249589, *2 (Del. Super. 2004) (noting that a landlord's common law liability is defined by "an ordinary negligence standard to all defects, latent or otherwise in the rental unit of which the landlord was aware or should have been aware which endanger the health, welfare or safety of the tenant or occupant during the term of the tenancy.") (citations omitted); Norfleet, 2001 WL at *6 ("In Delaware, `[t]he duty of a landlord is to maintain the premises in a reasonably safe condition and to undertake any repairs necessary to achieve that end. The duty to repair defects extends to defects the landlord is aware of or should be aware of through inspection of the rental unit.'") (citations omitted).
Thompson, 180 A. at 526.
Norfleet v. Mid-Atlantic Realty Co., 2001 WL 2822882, *6 (Del. Super. 2001). But cf. Sanchez-Castillo v. Chirico, Del. Supr., ___ A.2d ___ , No. 184, 2010, Steele, C.J. (November 24, 2010) (ORDER) (holding that there is no duty on a landlord to conduct a reasonable inspection of a rental property for patent defects, for such a duty would render 25 Del. C. § 5505(a), the provision which imposes a duty on the tenant to report patent defects to the landlord in writing, superfluous).
Id.
C. An Expert Opinion is Required in the Absence of a Res Ipsa Loquitur Instruction.
Once it is determined that res ipsa loquitur does not apply, Plaintiff becomes required to produce an expert's opinion to establish Defendants' alleged negligence as the proximate cause of the sink's fall. Although proximate cause is usually a question for the jury, if "[a] reasoned decision on the question of proximate cause may require an understanding and analysis of issues beyond the ken of a typical jury," then "the absence of expert testimony will prevent the issue from ever reaching the jury." This Court has previously held that the extent of a landlord's duty to inspect, repair, or replace a temperature "regulator" to a gas hot water heater was beyond the ken of an average juror and required an expert opinion. Similarly, the proper installation, maintenance, and repair of a wall mounted sink is beyond the ken of an average juror, as it requires an understanding of and familiarity with the structural and mechanical requirements for a properly mounted sink. Although most or all jurors may observe and use bathroom sinks on a daily basis, the intricacies and nuances of proper and secure wall mounting is a technical issue that requires an expert explanation and opinion, as confirmed by both parties' retention of expert witnesses herein. Crucially, however, Plaintiff's expert has stated that an expert opinion on Defendants' possible negligence in mounting the sink cannot be reached due to the unavailability of the disputed photographs.
Mazda Motor Corp. v. Lindahl, 706 A.2d 526, 533 (Del. 1998) (citation omitted). See also USH Ventures v. Global Telesystems Group, Inc., 2000 WL 1211205, *2 (Del. Super. 2000) (holding that the Delaware case law is "clearly established" and "mandat[es] that expert testimony is required in cases where the issues are beyond the ken of the typical juror.")
Powell, 2004 WL at *2.
Pltf.'s Reply in Support of Mot. for Default J. Ex. F.
With respect to Plaintiff's argument that the alleged defect was discoverable by reasonable inspection and that Defendants were negligent based on a failure to sufficiently inspect or maintain the sink in accordance with the applicable standard of care, given that "[t]he Landlord-Tenant Code did not change the existing law in which liability could be found under common law or ordinary negligence," Plaintiff would be required to prove that the common law standard of care herein is higher than any applicable housing or rental codes. Although this Court has held that property managers are not professionals, Plaintiff's claim must nonetheless fail because expert testimony is "helpful and required" to the extent that Plaintiff seeks to establish that "the standard of care in the Delaware real estate rental community is higher than the minimum requirements mandated by the applicable codes, statutes and regulations."
Norfleet v. Mid-Atlantic Realty Co., 2001 WL 695547, *6 (Del. Super. 2001) ("The common law standard of care for landlords is formulated by the extent to which the reasonable landlord exceeds federal, state and local codes.") Substantively, this proposed legal standard was rejected in Section III(B) of this opinion, supra.
Norfleet, 2001 WL 695547 at *6. Cf. Vandiest v. Santiago, 2004 WL 3030014, *7 (Del. Super. 2004) (holding a claim of negligence based on a loose handrail and a faulty doorframe of which the property manager allegedly knew or should have known did not require expert testimony).
In this case, Plaintiff's requirements are two-fold; she must 1) establish that the standard of care is higher than the applicable statutes and regulations, and 2) set forth the extent of Defendants' duty to inspect, repair, or replace the bathroom sink mountings. As set forth above, these are both issues beyond the "ken" of an average juror. Therefore, Plaintiff is required to produce an expert opinion in support of her claim, and Plaintiff's expert, by his own admission, cannot render an opinion on Defendants' alleged negligence.
IV. Summary Judgment
In light of the foregoing holdings, Plaintiff will be unable to produce direct or circumstantial evidence of Defendants' alleged negligence. Given Plaintiff's expert's inability to render an opinion and the lack of any additional evidence beyond the bare fact of the sink's fall, Plaintiff cannot produce any evidence to support her claims against Defendants. To survive a motion for summary judgment, Plaintiff was required to present "some evidence to support all elements" of her claims. The denial of an adverse inference instruction and the pretrial resolution of Plaintiff's attempt to invoke the doctrine of res ipsa loquitur necessarily precludes Plaintiff from satisfying this requirement and entitles Defendants to judgment as a matter of law. The foregoing holdings necessarily preclude the existence of disputed material facts; the only remaining material fact is the sink's unexplained fall, a fact which is undisputed. Thus, Defendants' motion for summary judgment is GRANTED.
See, e.g., Reybold Group, Inc. v. Chemprobe Tech., Inc., 721 A.2d 1267, 1270 (Del. 1998); Hercules v. AMEC Va., 1999 WL 167830, *5 n. 31 (Del. Super. 1999) ("Where a party has the ultimate burden of proof at trial of an element of its claim, upon a motion for summary judgment, that party must make a sufficient enough showing of the existence of that element.") (citing id.)
CONCLUSION
In those cases (not this one) where a plaintiff has utilized every reasonable alternative for obtaining evidence and the Court is satisfied that spoliation of evidence has occurred, then appropriate sanctions will follow, including the issuance of an adverse inference instruction. Ordinarily, this Court will defer any decision on spoliation until the close of the plaintiff's case, pursuant to D.R.E. 304(c)(1). Indeed, this Court acknowledges "the overwhelming common law res ipsa loquitur precedent that requires a jury to resolve any inconsistency." At the same time, this Court may properly decide the applicability of res ipsa loquitur at alternative stages in the proceeding, based on a "case-by-case" determination, guided by the "nature of the contentions, the sufficiency of the factual showing and the applicable standards of the doctrine." This case presents unique issues, and Plaintiff requested this Court to issue its decisions on the default judgment, adverse inference instruction, and the res ipsa loquitur issue prior to trial. Accordingly, this Court has properly decided the instant motions prior to trial.For the foregoing reasons, Plaintiff's motion for default judgment or, in the alternative, an adverse inference instruction, is DENIED. Consequently, given Plaintiff's request for a pretrial decision on this issue, this Court holds that res ipsa loquitur is not applicable to Plaintiff's case. It necessarily follows that Defendants' motion for summary judgment is GRANTED.
IT IS SO ORDERED.