CALABRESI, Circuit Judge:
BACKGROUND
I. Investigation and Arrest
In June 2008, customs officials discovered cocaine in a package addressed to "Andino Jose" at "1474 Bryant, A2, Apt Basement, Bronx, NY 10460." The package was redirected to the New York City office of U.S. Immigration and Customs Enforcement, where agents prepared it for a controlled delivery to Andino, the Defendant-Appellant in this case. The agents opened the package, replaced the cocaine with a look-alike substance, resealed the package, and sent it on its way.
The controlled delivery occurred on June 23, 2008. A postal inspector disguised as a mail carrier delivered the package to 1474 Bryant, where he left the package with a woman claiming to know Andino. The woman then called Andino and informed him of the package's arrival.
Andino showed up a few minutes later. He entered the building, picked up the package, and transported it to an adjacent building (1472 Bryant), where he left it unopened. He then exited 1472 Bryant, at which point he was arrested.
In custody, Andino confessed that a man going by the name of "Mikey" — whom agents later identified as Keithroy Davis — had instructed him to receive the package and to transport it to 1472 Bryant, promising to "take[] care of Andino if he agreed to do so. Andino also confessed that he was aware that the package contained drugs, but maintained that he believed the drugs to be marijuana rather than cocaine.
II. Proceedings Below
Andino and Davis were indicted together on one count of conspiring to distribute, and to possess with intent to distribute, 500 grams and more of cocaine, in violation of the Controlled Substances Act. Specifically, the indictment alleged that Andino and Davis "unlawfully . . . conspire[d] . . . to violate the narcotics laws of the United States," and that "[i]t was a part and an object of the conspiracy that [Andino and Davis] would and did distribute and possess with intent to distribute a controlled substance, to wit, 500 grams and more of . . . cocaine . . . in violation of Sections 812, 841(a)(1), and 841(b)(1)(B) of Title 21, United States Code." J.A. 9. Davis pleaded guilty on April 24, 2009; Andino took his case to trial.
Prior to Andino's trial, Andino and the government proposed jury instructions to the District Court. Among other things, the submitted instructions differed on the scienter element of the conspiracy charge. On the government's instructions, the jury did not need to find that Andino "knew that the conspiracy involved cocaine in particular." Rather, it could establish guilt if it found "that he knew that [the conspiracy] involved any controlled substance." S.A. 35 (emphasis added). On Andino's instructions, by contrast, the jury had to find that Andino "had an understanding of the unlawful purpose of the plan, including the nature and anticipated weight of the substance involved." S.A. 14.
The first discussion of the scienter issue occurred early in the trial. Andino pointed to our decisions in United States v. Santos, 541 F.3d 63, 70-71 (2d Cir. 2008), and United States v. Adams, 448 F.3d 492, 499-500 (2d Cir. 2006), which he characterized as holding that "[a] conspiracy charging an enhanced quantity of a controlled substance . . . requires knowledge or reasonable foreseeability of the type and quantity of the substance whose distribution was the object of the conspiracy." S.A. 71-72. The government responded that Andino's proposed rule ran afoul of "[t]he established law of the Second Circuit, as well as the law of every other Circuit that has addressed this question." S.A. 80. Appearing to agree with the government, the district judge expressed her view there was "a ton of case law that says if he thought it was heroin and it turned out to be cocaine, or the reverse I guess which is more serious, he is stuck." J.A. 166. But she did not decide the issue.
The question resurfaced at the close of the government's case, when Andino moved for acquittal under Federal Rule of Criminal Procedure 29. Andino's counsel stated that the government had at most proven that Andino "believed that there was marijuana in the package," which given what he claimed to be the applicable scienter standard, was insufficient to sustain a conviction on the conspiracy charge. J.A. 380. The District Court denied the motion, stating that "the government does not have to accept, and it doesn't, that Mr. Andino is telling the truth when he said, oh, I thought it was marijuana. It could be just his second false exculpatory statement." J.A. 381.
Following the court's denial of the Rule 29 motion, it held another conference on the jury charges. On the court's new proposed set of instructions, the jury would be asked three questions:
The first is: Did the defendant enter into a conspiracy to violate the narcotics laws of the United States?
And, secondly: Did he know or reasonably foresee that the cocaine, in a sense, would be delivered?
The third: How much cocaine did he anticipate?
J.A. 389. According to this proposal, the court explained, Andino would be convicted if the jury answered "yes" to Question 1, but he would not face the enhanced penalties applicable to a cocaine-specific offense unless the jury answered "yes" to Question 2.
This time around, it was the government's turn to object. Specifically, the government expressed concern that the instructions "open[ed] up the possibility of the defendant being convicted of participating in a conspiracy to distribute a drug other than cocaine." J.A. 392. But given that the government had "allege[d] in the indictment that it is a cocaine conspiracy," a non-cocaine conviction might result, improperly, in a constructive amendment of the indictment. J.A. 392. Confronted with this possibility, the District Court withdrew the proposed instructions, stating that "[t]he government now is sort of prepared to go for the whole enchilada." J.A. 400. The government responded that it "absolutely do[es] want to go for the whole enchilada." J.A. 400.
Meanwhile, Andino requested that the court "make it clear to [the jurors that] if they find it was a marijuana conspiracy, they must acquit." J.A. 399. But the court denied the request, observing that "I don't charge theories. You can argue your theory." J.A., 412. Notably, and surprisingly, the government stated that it "welcome[d]" Andino's argument that if he "was engaged in a marijuana conspiracy, the jury should acquit." J.A. 400.
Ultimately, and despite all of the above described discussions, the court instructed the jury that the government was required to prove, first, "an agreement or understanding to violate those provisions of the law which make it illegal to distribute or possess with intent to distribute a controlled substance, namely, cocaine," and, second, that Andino "knowingly became a member of the conspiracy, that is, that he knowingly associated himself with and participated in the alleged conspiracy to distribute and possess with intent to distribute a controlled substance, namely, cocaine." J.A. 511.
III. Conviction and Appeal
The jury returned a guilty verdict, finding that Andino conspired to distribute or possess with intent to distribute cocaine in the amount of less than 500 grams. At sentencing, Andino argued for a reduced sentence on the ground that the record "really point[s] to a marijuana conspiracy." S.A. 100. The District Court rejected this argument, stating that it had "ma[d]e it very clear over and over again in the charge" that this "was a cocaine case. . . . They ha[d] to find it was cocaine." S.A. 100. The court then imposed a sentence of 48 months' imprisonment.
Andino has understandably not contested the difference between the quantity of cocaine alleged in the indictment (500 grams and more) and the quantity of cocaine for which he was convicted (less than 500 grams). Cf. United States v. Wanton, 380 F.2d 792, 795 (2d Cir. 1967) ("A variance as to quantity between the indictment and the proof is not fatal.").
Andino timely appealed his conviction to this court.
DISCUSSION
Andino challenges his conviction on two grounds. First, he argues that the evidence was insufficient to support a cocaine-specific conspiracy conviction, because the evidence showed only an intent to possess and distribute marijuana. Second, he argues that the trial court erred in refusing to issue his requested instruction to the jury — namely, that acquittal was warranted if the government failed to prove that Andino specifically agreed to possess and distribute cocaine. Both challenges depend on the premise that the government was here required to satisfy a cocaine-specific scienter burden, demonstrating not merely that Andino knowingly joined a conspiracy to possess and distribute a controlled substance, but also that he specifically conspired to possess and distribute cocaine. We conclude, however, that this premise is incorrect, and hold that, in order to satisfy the scienter element, the government was here required to prove only that Andino agreed to traffic in a controlled substance. We therefore reject both challenges and affirm Andino's conviction.
I. The Government's Scienter Burden a. The Statutory Scienter Burden
Enacted as part of the Controlled Substances Act ("CSA"), 21 U.S.C. § 841(a) provides that "it shall be unlawful for any person knowingly or intentionally to . . . distribute, or . . . possess with intent to . . . distribute . . . a controlled substance." 21 U.S.C. § 841(a)(1). And § 841(b) of that title prescribes maximum and minimum punishments depending on the type and quantity of the controlled substance involved in the offense. 21 U.S.C. § 841(b).
In interpreting § 841, we have adhered to the principle that "the government does not have to prove that the defendant knew the specific nature and amount of the controlled substance for the enhancement provisions to apply." United States v. Collado-Gomez, 834 F.2d 280, 280-81 (2d Cir. 1987) (per curiam). This result derives from "the structure and language" of the provision, which "clearly indicates that the terms `knowingly or intentionally' in § 841(a) modif[y] the conduct set forth in that sub-section of the statute, and not the penalty provisions in § 841(b)." United States v. King, 345 F.3d 149, 153 (2d Cir. 2003) (per curiam). Put another way, § 841's scienter requirement is not type-specific. To convict on charges of cocaine possession, for example, the government need not prove that a defendant knowingly or intentionally possessed cocaine; rather, it need only prove that the defendant knowingly or intentionally possessed a controlled substance that was in fact cocaine. On this point the precedents are consistent and clear.
Andino, however, was not convicted of a direct offense; rather, he was convicted under the CSA's conspiracy prohibition, which subjects drug conspirators to the "same penalties as those prescribed for the [object] offense." 21 U.S.C. § 846. In particular, the jury found that Andino conspired to violate § 841 — i.e., that he conspired to distribute or possess with intent to distribute a controlled substance — and that the conspiracy involved cocaine in the amount of less than 500 grams. As a result, Andino was sentenced pursuant to § 841(b)(1)(C), which, through § 846, establishes the penalty range for conspiracy convictions involving the relevant amount and type of controlled substance.
The question thus arises whether this statutory framework requires the government to prove that a conspiracy defendant has specific knowledge of the type and quantity of the drugs involved in the conspiracy. On this question the parties suggest — incorrectly, we believe — that our precedents are in some tension with each other. The government asserts — and Andino does not deny — that we have sometimes expressed the view that "the mens rea requirement for conspiracy is satisfied simply if the government shows that the defendant intended to distribute and possess with the intent to distribute any controlled substance." United States v. Abdulle, 564 F.3d 119, 126 (2d Cir. 2009); see also United States v. Torres, 604 F.3d 58, 65 (2d Cir. 2010) ("The knowledge of the parties is relevant to a conspiracy charge to the same extent as it may be for conviction of the substantive offense." (internal quotation and citation omitted)); United States v. Morgan, 385 F.3d 196, 206 (2d Cir. 2004) ("Here, the government had to establish to the jury's satisfaction beyond a reasonable doubt that [the defendant] knew that she was engaged in a conspiracy to import into the United States some controlled substance." (internal citations omitted)). But Andino notes that in other cases we have applied a stricter scienter burden, holding in particular that "[c]onviction of a Section 841(b)(1)(A) conspiracy. . . . require[s] proof that . . . drug type and quantity were at least reasonably foreseeable to the co-conspirator defendant." Adams, 448 F.3d at 499; see also Santos, 541 F.3d at 70-71 (citing Adams for the proposition that "in a conspiracy punishable under 21 U.S.C. § 841(b)(1)(A), the government must also prove . . . that it was either known or reasonably foreseeable to the defendant that the conspiracy involved the drug type and quantity charged"); United States v. Martinez, 987 F.2d 920, 926 (2d Cir. 1993) (similar). These seemingly mixed messages, it is said, have created significant confusion regarding the requisite scienter burden in drug conspiracy cases — confusion that assertedly was reflected in the trial proceedings in this case.
We note that Andino's decision to go to trial may have derived in part from this alleged uncertainty of our prior case law, and that a plea agreement might well have subjected Andino to a lighter sentence than the one he received at trial. Whether under the circumstances any form of relief might be available is not before us.
But whatever the tension some of the language of these cases may seem to suggest, we believe that, in context, there are no inconsistencies in the prior holdings. In fact, all of our cases accord with the rule that the government need not prove scienter as to drug type or quantity when a defendant personally and directly participates in a drug transaction underlying a conspiracy charge. See United States v. Chalarca, 95 F.3d 239, 243 (2d Cir. 1996) ("[T]he quantity of drugs attributed to a defendant need not be foreseeable to him when he personally participates, in a direct way, in a jointly undertaken drug transaction."); United States v. Oluigbo, 375 Fed.Appx. 61, 64 (2d Cir. 2010) (summary order); United States v. Wade, 217 Fed.Appx. 77, 79 (2d Cir. 2007) (summary order).
We reaffirm this rule today. Under 21 U.S.C. § 846, the government need not prove foreseeability of drug type and quantity to the extent that it seeks to hold a defendant accountable for drug transactions in which the defendant directly and personally took part. In cases like the present one, where the defendant personally and directly participated in the drug transaction underlying the conspiracy charge, the government need not prove that the defendant had knowledge of either drug type or quantity.
In this respect we note that in Adams, Santos, and Martinez — cases in which we required proof that drug type and quantity were reasonably foreseeable — the defendants did not directly and personally participate in the underlying drug transactions. See Adams, 448 F.3d at 495 (defendant recruited another individual to transport drugs on his behalf); Santos, 541 F.3d at 72 (defendant "expressed interest" in taking part in the narcotics transaction, but never had the opportunity to do so); Martinez, 987 F.2d at 922 (defendant was a "late-comer" to the drug conspiracy, and thus played no part in many of the transactions for which the government sought to hold him accountable). And in Abdulle and Morgan — cases in which we did not require proof of reasonable foreseeability as to type and quantity — the defendant's participation was direct and personal. See Abdulle, 564 F.3d at 122-23 (defendant was a passenger in the vehicle transporting drugs to a distribution center); Morgan, 385 F.3d at 198-204 (defendants personally transported into the United States packages containing ecstasy-like pills).
The record in the case before us makes clear that Andino's participation in the drug transaction was anything but peripheral, as indicated by the uncontroverted evidence (a) that the incriminating package bore his name; (b) that he physically possessed the package after it arrived at the listed address; and (c) that he transported the package to a neighboring building, where his co-conspirators later picked it up. These facts alone demonstrate that Andino directly and personally took part in the drug transaction giving rise to his conspiracy charge. Consequently, the government was not subject to the reasonable foreseeability requirement; it did not bear the burden of proving that Andino reasonably believed that the package contained cocaine; and, as to Andino's scienter, it was required to show only that Andino believed that the package contained a controlled substance of one type or another.
b. Andino's Indictment and the Government's Statements at Trial
Independent of the statutory scienter issue, Andino argues that the government here committed itself to proving cocaine-specific knowledge on Andino's part, by indicting him on cocaine-specific charges and by asserting at trial that it "absolutely [did] want to go for the whole enchilada" of a cocaine-specific conviction. To support this claim, and citing United States v. Wozniak, 126 F.3d 105, 110-11 (2d Cir. 1997), and United States v. Rodriguez, 392 F.3d 539, 545 (2d Cir. 2004), Andino contends that the government cannot secure a conspiracy conviction based on one type of drug when it alleges a conspiracy involving a different type of drug. Rather, he asserts, the government must prove that the drug in the indictment was the one actually involved in the conspiracy. But, whatever the merits of this contention, and his reliance on Wozniak and Rodriguez to support it, he misreads our case law when he further takes it to mean that the government must show type-specific scienter on the defendant's part, as a result of alleging a conspiracy involving a specific type of drug.
Andino also seeks to rely on our decision in United States v. Hassan, 578 F.3d 108 (2d Cir. 2008). Hassan arose from a conspiracy prosecution involving cathinone, which is harvested from a plant called khat and quickly decomposes into a different and less potent type of controlled substance known as cathine. The CSA designates cathinone as a Schedule I controlled substance and cathine as a Schedule IV controlled substance. Significantly, it does not designate khat as any type of controlled substance. The relationship between these three substances has given rise to various legal complications, one of which surfaced in Hassan.
We reversed Hassan's conviction on the ground that the jury instructions, combined with the testimony offered at trial, did not adequately differentiate between khat, cathine, and cathinone. In doing so, we rejected the government's claim that "Hassan could have been lawfully convicted by the jury even if the jury had found that he intended to import an illegal substance with cathine, and not an illegal substance with cathinone." Id. at 133 (emphasis in original). This argument lacked merit, we explained, because "the government conceded at trial that it was not trying an `any' controlled substance charge, but rather, was limiting itself to trying a cathinone-related charge, as listed in the indictment." Id. As a result, "[a] conviction based on cathine, rather than cathinone, would have been an impermissible constructive amendment of the indictment" and could not stand. Id. (internal citation omitted).
Read in isolation, this language might seem to support Andino's claim that the government's indictment and statements at trial gave rise to a cocaine-specific scienter burden. In context, however, Hassan supports no such claim. Indeed, Hassan itself is explicit on this point; the amended opinion takes pains to underscore its "adhere[nce] to [the] rule" that "scienter with respect to the type and quantity of controlled substance is not required to convict a defendant under the CSA." Id. at 113 n. 1 (internal quotation omitted).
What is more, Hassan involved a number of special circumstances not present in this case, including jury instructions that failed to distinguish between controlled and non-controlled substances, see 578 F.3d at 133, and our recognition that "unique" due process issues raised by the khat/cathine/cathinone regulatory scheme required us to "scrutinize the [Hassan] instructions regarding scienter . . . very closely," id. at 132. Hassan thus stands for the proposition that in drug cases based on cathinone-specific indictments, the trial court must construct especially clear and precise jury instructions. But it in no way suggests that in drug cases based on type-specific indictments, the government must prove type-specific scienter.
Accordingly, we need not consider what the government's burden would have been, in the instant case, had the indictment alleged that it was cocaine that Andino intended to distribute, or had the government elsewhere committed itself to making such a showing. Here, neither circumstance is present. Instead, the indictment alleged only that Andino "intentionally[] and knowingly . . . conspire[d] . . . to violate the narcotics laws of the United States," and that "[i]t was a part and an object of the conspiracy . . . that Andino . . . would and did distribute and possess with intent to distribute a controlled substance, to wit, 500 grams and more of . . . cocaine." J.A. 9. And at trial, the government repeatedly expressed the view that the jury could convict if it found that Andino "directly and personally participated in a transaction that in fact did involve cocaine." J.A. 401. There is, therefore, no reason in the case before us to depart from the statutory scienter rule in drug conspiracy cases, which, given Andino's personal and direct involvement in the drug transaction, required only a showing that Andino intended to distribute a controlled substance.
II. Sufficiency and Instructions Claims
Given the applicable scienter rule, Andino's sufficiency and instructions claims can be disposed of in short order.
a. Sufficiency of the Evidence
We review sufficiency challenges de novo, asking "only whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt." Hassan, 578 F.3d at 122 (internal quotation omitted). Andino challenges the sufficiency of the evidence only as it relates to the government's scienter burden; he does not challenge — and we therefore do not review — the sufficiency of the evidence as it relates to any other element of his conspiracy conviction.
In light of our conclusion that, to establish the scienter here, the government was required to prove only an intent to distribute a controlled substance, we find that the scienter burden was easily satisfied by Andino's admission that he thought the package contained marijuana. We therefore reject Andino's sufficiency claim.
b. The District Court's Jury Instructions
"We will vacate a conviction on account of a missing requested instruction if (1) the requested instruction was legally correct; (2) it represents a theory of defense with basis in the record that would lead to acquittal; and (3) the theory is not effectively presented elsewhere in the charge." United States v. Prawl, 168 F.3d 622, 626 (2d Cir. 1999) (internal quotation omitted).
Andino alleges that the District Court erroneously refused to instruct the jury that "it must acquit Mr. Andino if he believed he would be receiving marijuana instead of cocaine." App. Br. at 52. For reasons already discussed, the proposed charge was an incorrect statement of law, and hence fails to satisfy the first prong of the Prawl test. Accordingly, we reject Andino's challenge to the jury instructions.
CONCLUSION
We have considered all of Andino's contentions on this appeal and have found in them no basis for relief. Accordingly, the judgment of the District Court is AFFIRMED.
ed 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."
D.R.E. 304(b)(2).
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.
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.
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.
25 Del. C. § 5305(a)(2)-(4).
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.
Freeman v. X-Ray Associates, P.A., 3 A.3d 224, 232 (Del. 2010) (citations omitted).
Lacy v. G.D. Searle Co., 484 A.2d 527, 530 (Del. Super. 1984).
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.