RICHARD R. COOCH, Resident Judge.

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."1 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.2 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.

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.3 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.4 As explained by this Court:

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).6 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.

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."7 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.8 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."9 This statement was apparently corroborated by Ms. Carr's observations; she described the scene as follows:

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."11 This testimony was based on Ms. Abel's personal observation of Plaintiff's bathroom "directly after the ambulance left."12

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:

Immediately following the accident, Ms. Carr photographed the scene; approximately four or five photographs of the sink and the wall were taken.14 Ms. Carr testified that she took "at least three or four more [photographs in addition to the one photograph that has been located]."15 She stated that the photographs were taken from "various angles" and that she "zoomed in on the plumbing. . . ."16

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.17 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."18 The pictures were taken with a digital camera and then transferred or forwarded by electronic mail.19

Additionally, an exchange occurred between Plaintiff and Ms. Carr on a MySpace message board on August 18, 2008.20 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):

During her deposition, Ms. Carr attempted to clarify this MySpace exchange as follows:

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.23 Although the precise length of Plaintiff's hospitalization is not clear, she apparently returned to her apartment "within hours."24 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."25 Given the absence of the photographs and the immediate cleaning of the scene, Plaintiff wa unable to inspect or independently photograph the sink and its mountings.

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."26 One photograph was located and a copy produced by Defendants, although this photograph apparently does not appear to be particularly probative.27 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).28

With respect to the accident, Plaintiff testified that she was cleaning the sink when it "all of a sudden" fell from the wall.29 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.30 Plaintiff indicated that she was "standing right in front of the sink" and touching the sink with her left hand when it fell.31

Conversely, Defendants have adduced evidence which suggests that Plaintiff was standing on the sink at the time of the accident.32 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.33 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."34 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.35 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.36

Defendants retained Duane R. Ferguson, Senior Technical Consultant for SEA, Ltd., to render an expert opinion on the cause of the sink's fall.37 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."38 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]."39 The sink was not additionally supported by "legs."

In contrast, Plaintiff's expert, Gary Sheesley, P.E., has been unable to form a conclusion as to why the sink fell.40 Mr. Sheesley is a professional engineer, licensed to practice in the Commonwealth of Pennsylvania and the State of Ohio.41 In an affidavit dated June 23, 2010, Mr. Sheesley stated that

Mr. Sheesley supplemented this affidavit with a letter to Plaintiff's counsel dated September 9, 2010.43 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."44 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.45

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.46 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."47

Plaintiff responds that the lack of an expert opinion that Defendants were negligent is due to Defendants' "destruction of vital evidence."48 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. 304.49 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."50 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."51

STANDARD OF REVIEW

I. Spoliation of Evidence

The Court may permit an adverse inference instruction against a party as a sanction for the intentional or reckless destruction of evidence.52 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."53 The Court described the use of an adverse inference instruction as "no more than the application of a rule of common sense."54 Essentially, if spoliation of evidence has occurred, "an inference arises that such evidence would be unfavorable to [the spoliator's] case."55 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.]"

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.56 The party seeking an adverse inference instruction must do more than simply demonstrate that the "absence of evidence is not adequately explained."57 Rather, there must be a "mental state indicative of spoliation."58 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.59 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."60 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."61

Courts may also sanction spoliation through judgment by default, although this is the most extreme sanction.62 A motion for judgment by default should be granted only "if no other sanction would be more appropriate under the circumstances."63 Entry of a default judgment against a spoliating party requires that the spoliator act willfully or in bad faith in destroying the evidence.64 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.65

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.66 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. . . ."67 There are four prerequisites to the invocation of the doctrine:

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." 69

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.70 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

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.72

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."73 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.74 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."75

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."76 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.77 When deciding a motion for summary judgment, the Court typically must view the record in a light most favorable to the non-moving party.78 Similarly, all reasonable inferences must be drawn in favor of the non-moving party.79 However, the opposing party may not merely assert the existence of a disputed issue of fact.80 Instead, the burden shifts to the non-moving party to demonstrate the existence of a disputed issue of material fact.81 Ultimately, a motion for summary judgment "must be decided on the record presented. . . ."82 To survive a motion for summary judgment, Plaintiff must present "some evidence to support all elements" of her claims.83

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."84 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.85 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.

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. Introduction

This 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.86 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.

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.87 Further, Plaintiff never moved to compel Defendants' to bear the expense and complete a forensic analysis of the relevant computers.88 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.89 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.90 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.

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:

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."92

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:

The Restatement (Third) of Torts is in accord:

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.95 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."96

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.97 In fact, Plaintiff testified that the sink's alleged looseness was of "no concern at [the time she discovered this alleged condition]."98 However, Plaintiff's obligation to report this alleged condition is defined by statute; 25 Del. C. § 5505(a) provides:

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."99 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.

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.100 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."101

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.102 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."103 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."104 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. . . ."105 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.106

This Court will not expand a landlord's common law duty to inspect.107 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."108 This duty to inspect "extends to defects the landlord is aware of or should be aware of through reasonable inspection of the rental unit."109 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."110

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."111 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.112 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.113

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.114 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."115

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.116 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.

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."117 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."118 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.