Professional Documents
Culture Documents
There are three choices a NJ municipality may make regarding the jurisdiction
of the elevator subcode in its town. It may give jurisdiction to the State, it may
hire its own local Subcode Official, or it may subcontract to a third party
agency.
If the State has jurisdiction in a town, the Elevator Safety unit coordinates
inspections between the owner, elevator company and the State. The unit
conducts all cyclical and acceptance (inspections under permit) inspections.
Owners are billed for inspections directly by the State.
In all three circumstances, Municipal Construction Officials are expected to
periodically review the list of registered elevator devices in their municipalities
and bring any necessary changes to the Elevator Safety unit's attention via email to ElevatorSafetyUnit@dca.state.nj.us
Click here to view the list of registered elevator devices.
If the State has jurisdiction in a town, this unit also coordinates the Elevator
Subcode portion of Plan Review and Permitting with the municipality and the
applicant/owner. The unit reviews building plans containing elevator devices
(for a partial release) at the municipality's office. All elevator (layouts) plans
are reviewed (for a final release) at the State office, owners/applicants are
billed and releases are completed. The local Construction Official is notified of
the elevator release and permit documentation is coordinated between the
required parties.
Technical assistance is given to all parties requesting help specific to the
Elevator Subcode. Monitoring of Subcode Officials and Inspectors in
municipalities and third party agencies is carried out routinely. A penalty
enforcement process is utilized where violations are not abated timely.
Related Forms and Publications
Forms
lifts pre-approval letter form 7-19-2014
Request for Final Acceptance Inspection For New Work
Elevator Registration Application
Seasonal Application
Application for Transfer of Owner
UCC-F326, Elevator Devices -Accident/Incident Report
UCC-F150, Elevator Subcode Technical Section
UCC-F155, Elevator Subcode Technical Section -Multiple Devices
UCC-F160, Application for Variation
Publications
Bulletin 94-7, Plans for Elevator Devices
Laws, Rules, Regulations
NJAC 5:23-12
Elevator Safety Subcode
NJAC 5:23-12A Optional Elevator Inspection Program
that prior to the event, the elevator in question had recurring problems.
Specifically, in the month before her accident, on November 30 and December
6, 2010, repair technicians addressed issues with the elevator. Plaintiff also
argued that about twelve hours prior to her accident, technicians were called
to "troubleshoot [the] controller and valve" on the elevator in response to a
reported problem. The technician returned the elevator to service less than an
hour before plaintiff entered it.
After discovery ended, defendants filed a motion for summary judgment
dismissing the case contending that plaintiff's expert's report should be
stricken as a net opinion, and that the doctrine of res ipsa loquitur did not
apply in the case. After hearing oral argument, the trial judge granted
defendants' motion. The trial judge first struck plaintiff's expert's report as a
net opinion. The trial court then concluded that, without an expert opinion
establishing negligence, summary judgment was appropriate because "the
common knowledge of lay jurors is incapable of assessing negligence of both
defendants" and thus, "there [was] no basis for a reasonable jury to find in
favor of the plaintiff[.]"
The trial court also found that plaintiff could not proceed under a theory of res
ipsa loquitur since an expert's testimony was still required to determine
whether defendants were negligent in maintaining and operating the elevator.
The trial court reasoned that the mechanics of how elevators work was a
complex issue that jurors could not understand without the assistance of
expert testimony. This appeal followed.
On appeal, plaintiff's sole contention is that the trial court erred in granting
summary judgment as expert testimony was not required for plaintiff to
proceed under a theory of res ipsa loquitur.1 We agree.
We review a trial court's decision to grant or deny summary judgment de
novo, Heyert v. Taddese, 431 N.J. Super. 388, 411 (App. Div. 2013), utilizing
"'the same standard [of review] that governs the trial court.'" Mem'l Props.,
LLC v. Zurich Am. Ins. Co., 210 N.J. 512, 524 (2012) (quoting Henry v. N.J.
Dep't of Human Servs., 204 N.J. 320, 330 (2010)). Because our review is de
novo, we "accord no deference to the trial judge's conclusions on issues of
law." Depolink Court Reporting & Litig. Servs. v. Rochman, 430 N.J. Super. 325,
333 (App. Div. 2013). Thus, the evidence must be viewed "in the light most
favorable to the non-moving party" and must be analyzed to determine
"whether the moving party was entitled to judgment as a matter of law."
Mem'l Props., supra, 210 N.J. at 524 (citing Brill, supra, 142 N.J. at 523); see
also R. 4:46-2(c).
The doctrine of res ipsa loquitur arose from public policy concerns in order to
allow "a blameless injured plaintiff to obtain an inference of negligence where
certain required factors are present." Mayer v. Once Upon A Rose, Inc., 429
N.J. Super. 365, 374 (App. Div. 2013). The doctrine creates a permissive
inference, which may be accepted or rejected by a jury, that "if due care had
been exercised by the person having control of the instrumentality causing
the injury, the mishap would not have occurred." Ibid. (citations omitted).
Res ipsa loquitur "permits an inference of defendant's negligence where (a)
the occurrence itself ordinarily bespeaks negligence; (b) the instrumentality
was within defendant's exclusive control; and (c) there is no indication in the
circumstances that the injury was the result of the plaintiff's voluntary act or
neglect." Jerista v. Murray, 185 N.J. 175, 192 (2005) (internal citations and
10
quotation marks omitted). While the doctrine does not shift the burden of
proof, the presentation of a prima facie case based on res ipsa generally
assures that a plaintiff "will survive summary judgment." Id. at 193.
"Whether an occurrence 'ordinarily bespeaks negligence' depends on the
balancing of probabilities being in favor of negligence." Buckelew v.
Grossbard, 87 N.J. 512, 526 (1981). It follows that a plaintiff has demonstrated
the doctrine of res ipsa loquitur "if it is more probable than not that the
defendant has been negligent." Myrlak v. Port Auth. of N.Y. & N.J., 157 N.J. 84,
95 (1999) (citing Buckelew, supra, 87 N.J. at 526).
New Jersey courts have consistently recognized the doctrine of res ipsa
loquitur in cases involving malfunctioning complex instrumentalities such as
escalators, elevators, and automatic sliding doors. See, e.g., Rose v. Port of
N.Y. Auth., 61 N.J. 129, 136-37 (1972) (holding that res ipsa loquitur could be
invoked where the plaintiff was injured by an automatic sliding door);
Rosenberg v. Otis Elevator Co., 366 N.J. Super. 292, 298, 300-03 (App. Div.
2004) (finding that res ipsa loquitur applies where the plaintiffs were injured
after an elevator dropped three floors); Pisano v. S. Klein on the Square, 78
N.J. Super. 375, 379, 395-97 (App. Div.), certif. denied, 40 N.J. 220 (1963)
(holding that res ipsa loquitur could be used to show negligence with respect
to the defendant's escalators).
It is important to note that res ipsa loquitur "is not a theory of liability[.]"
Myrlak, supra, 157 N.J. at 95. Rather, it is a method by which plaintiffs can
circumstantially prove the existence of negligence by permitting the factfinder to infer that the defendants were negligent or failed to act with due
care. See Rosenberg, supra, 366 N.J. Super. at 301 (internal citations omitted).
"Where applicable, res ipsa allows a plaintiff to establish a prima facie case
and to withstand a motion to dismiss for lack of direct proof of negligence. Res
ipsa does not shift the burden of proof to the defendant, but only the burden
of producing evidence." Knight v. Essex Plaza, 377 N.J. Super. 562, 569 (App.
Div. 2005), overruled on other grounds by Jerista, supra, 185 N.J. at 195 (citing
Myrlak, supra, 157 N.J. at 96).
Under the first element of res ipsa loquitur, courts have concentrated
primarily on two factors: (1) whether it is more probable than not that the
defendant was negligent in causing the accident2 and (2) whether plaintiff
must present expert testimony. This first factor focuses on whether the
accident is of the type that would not ordinarily occur absent negligence.
Buckelew, supra, 87 N.J. at 526. Plaintiffs are not required to explain all of the
reasons why an instrument has malfunctioned or to eliminate each of these as
the true cause of the malfunction. Rather,
[t]he requirement as it is generally applied is more accurately stated as one
that the evidence must afford a rational basis for concluding that the cause of
the accident was probably "such that the defendant would be responsible for
any negligence connected with it." That does not mean that the possibility of
other causes must be altogether eliminated, but only that their likelihood
must be so reduced that the greater probability lies at defendant's door.
[Brown v. Racquet Club of Bricktown, 95 N.J. 280, 292 (1984) (internal
citations omitted).]
Moreover, instead of requiring the plaintiff to eliminate these other causes, res
ipsa shifts the burden to the defendant to explain why the instrumentality
11
excess of the allowable thirty pounds." Noting that Farrell did not know "the
force that the doors exerted on closing," Howarth concluded, "if the
retractable safety edge and electric eye [had] worked properly the accident
would not have occurred." Assigning blame to Farrell, Howarth asserted,
"without properly testing the doors' closing force it is entirely probable they
could have malfunctioned...."
We agree with the Law Division judge that this evidence was too slim a reed
to support application of the res ipsa loquitur doctrine. The Latin phrase
means "the thing speaks for itself." The rule creates an allowable inference of
negligence when the following three conditions have been met: "(1) the
occurrence itself ordinarily bespeaks negligence, (2) the instrumentality was
within the defendant's exclusive control, and (3) there is no indication in the
circumstances that the injury was the result of the plaintiff's own voluntary act
or neglect." Myrlak v. Port Auth. of N.Y. and N.J., 157 N.J. 84, 95, 723 A.2d *295
45 (1999); Brown v. Racquet Club of Bricktown, 95 N.J. 280, 288-92, 471 A.2d
25 (1984); Vespe v. DiMarco, 43 N.J. 430, 437, 204 A.2d 874 (1964). Where
applicable, the doctrine is a method of circumstantially proving the
commission of a negligent act. Tierney v. St. Michael's Medical Center, 214
N.J.Super. 27, 30, 518 A.2d 242 (App.Div.1986), certif. denied, 107 N.J. 114,
526 A.2d 184 (1987).
Whether an occurrence ordinarily bespeaks negligence is based on the
probabilities a party acted without the exercise of due care. Thus, res ipsa
loquitur is available "if it is more probable than not that the defendant has
been negligent." Myrlak v. Port Auth. of N.Y. and N.J., 157 N.J. at 95, 723 A.2d
45. Stated somewhat differently, the proper test of the applicability of the
doctrine is whether there is evidence from which the court can find that in the
ordinary course of things, the mishap, more likely than not, was the result of
the defendant's negligence. Hillas v. Westinghouse Electric Corp., 120
N.J.Super. 105, 113, 293 A.2d 419 (App. Div.1972).
We agree that an automatic door closing like a vice upon a person attempting
to enter an elevator is an occurrence that bespeaks negligence or a product
defect. But more is required under the res ipsa loquitur doctrine. Specifically,
the evidence must support a reasonable inference that it was the defendant
who was at fault.
This qualification can best be illustrated by comparing the facts of this case
with those present in Allendorf v. Kaiserman Enterprises, 266 N.J.Super. 662,
630 A.2d 402 (App.Div.1993). There, the plaintiff sued an elevator
maintenance company for injuries sustained when the elevator doors closed
as she was attempting to enter the unit. Several weeks before the accident,
the defendant received a report that an "anti-skid" device had been wedged
under the bottom of the elevator door. The defendant's mechanic removed
the device, but discovered that the safety edge on the elevator door had been
bent. The mechanic straightened the safety edge "as best [he] could." He also
tried to readjust the electric eye so that it would not be activated by the bend
in the safety edge, but it was unclear whether he was successful in this
endeavor. Early on the day of the accident, the defendant received a report
that the elevator door was sticking. A mechanic was sent to fix the problem.
Exactly what repair work was done was not known. Plaintiff's expert concluded
that the electric eye safety device was known to be out of service for a long
enough time prior to the accident to have been repaired. He also found that
the elevator was generally in a poor state of repair during the period prior to
plaintiff's accident.
15
malfunctioned
by
reason
of
defendant's
negligent
We do not suggest that plaintiff's expert was required to "pinpoint the causal
negligent act." Ibid. To serve as the foundation for application of res ipsa
loquitur, however, such expert testimony should have provided an explanation
in lay terms of the possible ways in which the accident could have occurred
that would more likely than not point to defendant's negligence as a
substantial contributing cause. Id. at 546, 575 A.2d 858. Howarth's report and
deposition testimony did not satisfy this foundational requisite. The conclusion
ultimately drawn by Howarth constituted a net opinion. Buckelew v.
Grossbard, 87 N.J. 512, 524, 435 A.2d 1150 (1981).
Accordingly, the summary judgment is affirmed.
JERISTA v. MURRAY
842 A.2d 840 (2004)
367 N.J. Super. 292
Terry JERISTA and Michael Jerista, her husband, Plaintiffs-Appellants, v. Thomas
M. MURRAY, Jr., Esq., Defendant-Respondent.
Superior Court of New Jersey, Appellate Division.
Decided February 17, 2004.
Jack L. Wolff, Morristown, argued the cause for appellants (Mr. Wolff, of
counsel; Marc J. Friedman, Parsippany, on the brief).
Mark M. Tallmadge argued the cause for respondent (Bressler, Amery & Ross,
attorneys; Mr. Tallmadge and Diana C. Manning, on the brief).
Before Judges KESTIN, AXELRAD and LARIO.
[842 A.2d 841]
The opinion of the court was delivered by AXELRAD, J.T.C. (temporarily
assigned).
In this legal malpractice action, plaintiffs, Terry Jerista1 and Michael Jerista,
appeal from summary judgment in favor of their former attorney, defendant,
Thomas J. Murray, Jr. We affirm.
On August 30 or 31, 1987, plaintiff was injured on the premises of the Shop
Rite supermarket in Hasbrouck Heights. The facts surrounding the accident
are sketchy. According to plaintiff's deposition in the current action, her
husband, pushing their child in a shopping cart ahead of her, entered the
store uneventfully. As plaintiff entered, the automatic door suddenly swung
back and closed on her, causing injury to her wrist, forearm, and back.
Plaintiffs retained defendant, and on April 7, 1989, he filed suit on their behalf
against Shop Rite. Shop Rite filed a third-party complaint against New Jersey
Automatic Door, Inc., the company responsible for installation and
maintenance of the door. Defendant did not obtain any photographs or hire
any expert to inspect the door. On June 22, 1990, plaintiffs' complaint against
Shop Rite was dismissed for failure to answer interrogatories. Defendant did
not move to reinstate his clients'
[842 A.2d 843]
claim. Plaintiffs allege they had no knowledge of the dismissal until ten years
later, at which time they filed suit against defendant for legal malpractice.
In the current action, plaintiffs retained an expert, Daniel M. Hurley, Esquire,
who opined as to defendant's malpractice. Plaintiffs also provided a report
from a medical expert regarding Terry's injuries. Plaintiffs provided no expert
report regarding the alleged malfunction of the door.
In his report, Hurley asserts malpractice in defendant's failure to properly
investigate the accident, in failing to determine who manufactured and
17
installed the door and the door-operating mechanism, and in failing to realize
that the case was both a "Negligence and Product Liability case." Hurley also
found negligence in defendant's failure to prepare draft answers to
interrogatories served upon his clients, failure to prevent the case from being
dismissed, and failure to advise his clients of the dismissal.
Defendant's legal malpractice expert, Diane Marie Acciavatti, opined that
plaintiff could not prove causation in her claim against defendant because she
did not offer an expert to testify as to any defective condition of the door,
plaintiff was comparatively negligent in proceeding through an automatic
door, which had opened in the wrong direction, and plaintiff would be unable
to prove that her injuries resulted from the incident at Shop Rite rather than
numerous unrelated medical conditions.
Defendant moved for summary judgment, claiming that even if there were a
breach of duty by defendant-attorney, plaintiff failed to demonstrate a
proximate link of damages to the breach. Plaintiff responded that, because of
the passage of time, she was unable to produce any proof that the door
presently on the Shop Rite premises was the same door that caused her
injuries. Therefore, she could not obtain an expert who would establish a
manufacturing, design, or installation defect of the door that was involved in
the accident.
The Law Division judge granted summary judgment to defendant because of
plaintiffs' failure to produce an expert regarding the liability of the
manufacturer or installer of the door or of Shop Rite. More specifically,
plaintiffs failed to establish a "case within a case", i.e., had the initial action
been pursued, it would have resulted in a favorable recovery. Conklin v.
Hannoch Weisman, 145 N.J. 395, 417, 678 A.2d 1060 (1996). The court
determined that plaintiffs' "case within a case" was grounded upon products
liability and governed by the Products Liability Act, N.J.S.A. 2A:58C-1 to -11.
The court rejected plaintiffs' res ipsa loquitur argument, and held that, without
an expert, plaintiffs were unable to establish a prima facie showing of
causation. Although the record is unclear, it appears the court also concluded
that the Products Liability Act subsumed plaintiffs' premises liability claim
against Shop Rite.
Plaintiffs argued before the trial court and on appeal that Terry had a viable
premises liability negligence case against Shop Rite, which did not require
expert testimony. According to plaintiffs, the supermarket's breach of duty
could be inferred using the doctrine of res ipsa loquitur, and that was
sufficient to defeat defendant's summary judgment motion.
We do not necessarily agree that plaintiff's products liability claim subsumed
her negligence claim. We need not address that issue, however, in view of our
determination that, as a matter of law, plaintiff is not entitled to a res ipsa
loquitur inference on her underlying negligence action against Shop Rite. Nor
do the dynamics of this case merit relieving plaintiff from the
[842 A.2d 844]
requirement of having to prove a "suit within a suit" in order to sustain her
legal malpractice claim. See Lieberman v. Employers Ins. of Wausau, 84 N.J.
325, 342, 419 A.2d 417 (1980) (holding, that under certain limited
circumstances, a "plaintiff should not be restricted to the more or less
conventional mode of trying a `suit within a suit' to establish entitlement to
damages in a malpractice action.")
In a negligence case, a plaintiff must establish that the defendant breached a
duty of reasonable care, which was a proximate cause of the plaintiff's
injuries. Brown v. Racquet Club of Bricktown, 95 N.J. 280, 288, 471 A.2d 25
(1984) (citing Hansen v. Eagle-Picher Lead Co., 8 N.J. 133, 139-40, 84 A.2d
281 (1951)). Res ipsa loquitur is a method of circumstantially proving the
existence of negligence. Myrlak v. Port Authority of N.Y. and N.J., 157 N.J. 84,
18
95, 723 A.2d 45 (1999), (citing Tierney v. St. Michael's Medical Ctr., 214
N.J.Super. 27, 30, 518 A.2d 242 (App.Div.1986), certif. denied, 107 N.J. 114,
526 A.2d 184 (1987)). Res ipsa loquitur is not a theory of liability; rather, it is
an evidentiary rule that governs the adequacy of evidence in some negligence
cases. Id. at 95, 723 A.2d 45. "The rule in effect creates a `permissive
presumption' that a set of facts `furnish reasonable grounds for the inference
that if due care had been exercised by the person having control of the
instrumentality causing the injury, the mishap would not have occurred.' "
Brown, supra, 95 N.J. at 288-89, 471 A.2d 25 (quoting Bornstein v. Metro.
Bottling Co., 26 N.J. 263, 269, 139 A.2d 404 (1958)). Thus, the rule permits a
plaintiff "the advantage of the inference of negligence to discharge the burden
of proving negligence." Jimenez v. GNOC, Corp., 286 N.J.Super. 533, 543, 670
A.2d 24 (App.Div.) (quoting Vespe v. DiMarco, 43 N.J. 430, 436-37, 204 A.2d
874 (1964)), certif. denied, 145 N.J. 374, 678 A.2d 714 (1996). However, the
inference does not shift the burden of proof to defendant. Eaton v. Eaton, 119
N.J. 628, 639, 575 A.2d 858 (1990); Buckelew v. Grossbard, 87 N.J. 512, 526,
435 A.2d 1150 (1981). The doctrine confers upon the plaintiff an inference of
negligence sufficient to establish a prima facie case at the close of plaintiff's
evidence. Buckelew, supra, 87 N.J. at 526, 435 A.2d 1150; see also Vespe,
supra, 43 N.J. at 436-37, 204 A.2d 874.
The doctrine of res ipsa loquitur permits an inference of defendant's want of
due care when: "(a) the occurrence itself ordinarily bespeaks negligence; (b)
the instrumentality was within the defendant's exclusive control; and (c) there
is no indication in the circumstances that the injury was the result of the
plaintiff's own voluntary act or neglect." Myrlak, supra, 157 N.J. at 95, 723
A.2d 45 (quoting Bornstein, supra, 26 N.J. at 269, 139 A.2d 404).
In opposition to defendant's summary judgment motion, plaintiff presented
evidence that her husband and baby entered through the automatic doors
without incident, and when she followed, the doors closed on her. Plaintiff
produced two service reports pertaining to a Stanley Magic Swing door at
Shop Rite's premises. One, dated a few days prior to the accident, indicated
the "operator [was] internally damaged" and a part was to be ordered and
installed. The other, dated September 9, 1987, about ten days after the
accident, stated that the "damaged operator" was replaced.
When an injury is caused by a piece of complex machinery, the plaintiff must
typically provide expert testimony regarding that machinery. Gore v. Otis
Elevator Co., 335 N.J.Super. 296, 302-03, 762 A.2d 292 (App.Div.2000);
Jimenez, supra, 286 N.J.Super. at 544, 670 A.2d 24.
[842 A.2d 845]
The requirement for expert testimony in complex instrumentality cases results
logically from New Jersey law that res ipsa loquitur is inapplicable where the
injured party fails to exclude other possible causes of the injury. While the
plaintiff need not reduce altogether the possibility of other causes, she must
bring forth affirmative evidence that tends to "exclude other possible causes
of the injury."
Clearly, then, a plaintiff is not entitled to bring her case to a jury under res
ipsa loquitur any time there is an unexplained accident for which a defendant
might plausibly be responsible. Rather, a plaintiff has the burden of producing
evidence that reduces the likelihood of other causes so "that the greater
probability [of fault] lies at defendant's door." Only then may a jury properly
draw an inference of negligence. Without an expert... the plaintiff has not
excluded possible causes of the alleged incident and thus cannot take
advantage of res ipsa loquitur.
[Jimenez, supra, 286 N.J.Super. at 544-45, 670 A.2d 24 (internal quotations
and citations omitted).]
The cases of Rose v. Port of New York Auth., 61 N.J. 129, 293 A.2d 371 (1972)
19
and Allendorf v. Kaiserman Enterprises, 266 N.J.Super. 662, 630 A.2d 402
(App.Div. 1993), relied upon by plaintiffs, do not support the application of res
ipsa loquitur in this case. In Rose, the plaintiff was struck in the face by an
automatic glass door at the airport when he came into close proximity with it.
Rose, supra, 61 N.J. at 133, 293 A.2d 371. In Allendorf, as the plaintiff was
entering a self-service elevator in an office building behind her two-year old
daughter, the automatic door closed on her and pinned her against the door
frame, pushing her with increasing pressure against the wall. Allendorf, supra,
266 N.J.Super. at 667, 630 A.2d 402.
Although these cases may, arguably, be factually similar to the case before
us, they differ significantly in the quantum of proof presented by each of the
plaintiffs. In Rose, the plaintiff offered two experts, one who testified regarding
the normal operation of the automatic door, and one who opined that four
possible defects in design or operation may have caused the accident. Rose,
supra, 61 N.J. at 135-36, 293 A.2d 371. The Court held that the experts'
opinions as to possible malfunctions of the door were sufficient to withstand a
Rule 4:37-2(b) motion for involuntary dismissal under a res ipsa loquitur
theory, even though the experts were unable to pinpoint the actual
operational failure that did occur. Id. at 136-37, 293 A.2d 371.
In Allendorf, the plaintiff offered an engineering expert who testified that the
elevator was generally in a poor state of repair and that, according to service
records, the elevator's electronic eye safety device was known to have been
out of service for a sufficient period prior to the accident to have been
repaired. Allendorf, supra, 266 N.J.Super. at 668, 630 A.2d 402. The evidence
presented to the jury pointed to the electronic eye safety device as the
probable malfunctioning part, and showed that similar malfunctions had
occurred within hours of the plaintiff's accident. Id. at 667, 630 A.2d 402.
Moreover, the maintenance company had sent an employee to service the
specific elevator that caused plaintiff's injuries during that time. Id. at 671,
630 A.2d 402. Accordingly, the evidence presented by the plaintiff supported
a sufficient foundation for a jury instruction on res ipsa loquitur. Id. at 668,
630 A.2d 402.
Plaintiff in this case did not offer a similar quantum of evidence in support of
her claim of negligent maintenance. The
[842 A.2d 846]
only evidence she presented was that an "operator" of the automatic door
was internally damaged and a part required replacement a few days prior to
her accident. She offered no proof, or even a theory, as to which part it was.
Nor did she offer any connection between the part needing replacement and
her injury. Moreover, plaintiff offered no evidence whatsoever reducing the
likelihood of other possible causes of her injury. She provided no evidence as
to whether the door had been operating safely between the time the part was
ordered and her traumatic entry. Nor did she provide the court with any expert
testimony as to the normal operation of the automatic door or a theory as to
how or why the automatic door malfunctioned when she entered but did not
when her husband and child preceded her. The only expert she presented was
an attorney who opined as to defendant's malpractice.
We recognize that in some circumstances involving complex instrumentalities,
an expert may not be required to satisfy res ipsa. Rosenberg v. Otis Elevator
Co., 366 N.J.Super. 292, 306, 841 A.2d 99 (App.Div.2004). The focus must
center on "the sufficiency of the evidence tending to reduce or rule out the
likelihood of causes other than those attributable to the defendant(s)." Ibid. In
determining whether an expert is required, consideration must be given to the
manner in which the accident occurred, regardless of whether it involves a
complex instrumentality, and whether it would be capable of bespeaking
negligence by defendant to a lay person. Ibid. This is not such a case. Plaintiff
20
accident would not have occurred. Plaintiff failed to present evidence that
Shop Rite failed to properly maintain the automatic doors, warn of any
defective equipment, and adequately maintain the premises so as to prevent
injury to its customers-invitees. See, e.g., Butler v. Acme Markets, Inc., 89 N.J.
270, 445 A.2d 1141 (1982). Plaintiff's evidence, considered in the light most
favorable to her, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540, 666
A.2d 146 (1995), is insufficient to raise a debatable question and get to a jury
on her negligence action against Shop Rite for failing to maintain safe
premises for its patrons. Accordingly, summary judgment was properly
granted to defendant. We affirm a judgment on appeal if it is correct, even
though the judge gave different reasons for it. Isko v. Planning Bd. of Tp. of
Livingston, 51 N.J. 162, 175, 238 A.2d 457 (1968).
Affirmed.
KESTIN, P.J.A.D., dissenting.
Viewing the facts indulgently in favor of plaintiffs at this stage of the
proceedings, as we must, see Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540,
666 A.2d 146 (1995), it is remarkableand paradoxicalthat an attorney who
so clearly breached his duties of due care and diligence in handling his clients'
cause, and so completely defaulted on his duty of fidelity and full disclosure
as this defendant is alleged to have done, should benefit from his own
transgressions when finally called to account in a lawsuit for professional
malpractice. We ought not to permit a sterile adherence to processes crafted
to achieve just results in most cases to apply in this matter in a way that
perverts good sense and the requirements of justice. I am not content to allow
the outrageously patent and pervasive derelictions of duty allegedly
[842 A.2d 848]
perpetrated by this defendant to pass without an appropriate response.
The "case within a case" rubric, so unremittingly applied by the trial court and
the majority in this appeal to non-suit plaintiffs, is not an unvarying rule of
liability or damages in all legal malpractice suits. Thus, whether or not
plaintiffs were entitled to the benefit of a res ipsa loquitur presumption in their
underlying negligence action is not dispositive of their claim against the
defendant herein.
In Lieberman v. Employers Ins. of Wausau, 84 N.J. 325, 419 A.2d 417 (1980),
the Supreme Court held that the "suit within a suit" approach is but one way
to prove a legal malpractice claim, not the exclusive mode. The Court
concluded
that it should be within the discretion of the trial judge as to the manner in
which the plaintiff may proceed to prove his claim for damages and that the
appropriate procedure should, if not otherwise agreed upon between the
parties, be settled through pretrial proceedings. We need not here delineate in
final detail what alternatives must be considered except to observe that they
include the "suit within a suit" approach or any reasonable modification
thereof.
[ID. AT 343-44, 419 A.2D 417.]
In determining how the claim may best be presented in order to promote a
just adjudication, the trial judge must evaluate the dynamics of the particular
case instead of proceeding by rote. All applicable factors must be realistically
considered, including the theories advanced in the instant action and those
that were and could have been developed in the underlying suit, see id. at
342-43, 419 A.2d 417, the nature and extent of the alleged "professional
mishandling" that gave rise to the malpractice suit, see id. at 343, 419 A.2d
417, and the degree to which the passage of time especially where the
defendant bears the responsibility for it "skew the proofs" or otherwise
defeat the claimants' ability to prove their claim in a "trial within a trial." Ibid.
It is singularly inappropriate to apply a high standard of proof to plaintiffs at
22
the summary judgment stage. See Vahila v. Hall, 77 Ohio St.3d 421, 674
N.E.2d 1164, 1171 (1997).
Especially where the claims if established, bespeak such patent departures
from accepted standards of attorney conduct as are alleged here, the trial
judge should not hold the plaintiffs to modes of proceeding that would be
"awkward and impracticable." Ibid. "[T]he "suit within a suit" rule may well
suffer from an undue rigidity." Gautam v. De Luca, 215 N.J.Super. 388, 398,
521 A.2d 1343 (App. Div.1987). "A standard of proof that requires a plaintiff to
prove a virtual certainty that, but for defendant's negligence, the plaintiff
would have prevailed in the underlying action, in effect immunizes most
negligent attorneys from liability." Erik M. Jensen, The Standard of Proof of
Causation in Legal Malpractice Cases, 63 Cornell L.Rev. 666, 670 (1978).
Defendant ought not to be immune from liability for his omissions to plan and
plead the underlying case properly; for his failures to prepare the case in an
acceptable fashion, including conducting discovery in a professionally
responsible way; for his breaches of the duty to protect plaintiffs' claims
procedurally; or for his intentional acts in deceiving them about the posture of
their suit. Assuming the truth of the factual allegations plaintiffs make, as we
must at this stage of the proceedings, defendant earned no indulgence from
the court in this malpractice action. Instead of hewing to a formalistic line and
dismissing the instant claim on "case within a case" grounds, the trial court
and we, as custodians of the legal and professional standards the breach of
which so victimized these
[842 A.2d 849]
claimants, owe plaintiffs a creative treatment of the issues so as not to
deprive them of an opportunity to establish the truth of their allegations and
the extent of the damages they suffered by reason of the derelictions claimed.
This defendant's own conduct, as alleged, may well have been responsible, in
whole or in large part, for any present limitations on plaintiffs' capacity to
prove their "case within a case."
In addition to fashioning a more flexible view of how plaintiffs might proceed
on issues of liability, see Lieberman, supra, 84
N.J. at 343, 419 A.2d 417, it would be appropriate to consider applying, as
well, in cases of this type, a legal-malpractice version of the "increased risk of
harm" standard available in certain medical malpractice actions. See Evers v.
Dollinger, 95 N.J. 399, 471 A.2d 405 (1984); see also Jensen, supra, 63 Cornell
L.Rev. at 679-81 (proposing "[a] new standard: `lost substantial possibility of
recovery'"). In terms of damages, it should be no less difficult to calculate in a
legal malpractice action than in a medical malpractice action, with
appropriate regard for the uncertainties involved, the value of the loss
claimants experienced by reason of the professional defendant's errors,
omissions, and intentional disregard of professional standards.
With these thoughts in mind, I would reverse the trial court's summary
judgment order dismissing the complaint; and remand for further
consideration, including the crafting of a procedure that deals justly and
realistically with the issues involved.
FOOTNOTES
1. Because Terry Jerista was injured by the automatic door, and her husband
Michael asserted a per quod claim, we will use the singular term "plaintiff" in
this opinion when we refer to Terry.
The doctrine of res ipsa loquitur
Posted on March 5, 2013 by PaulKostro
23
Law Lessons from MARTIN MAYER v. ONCE UPON A ROSE, INC., and SAMUEL
GRUNWALD, __ N.J. Super. __ (App. Div. 2013), A-2922-11T3, January 30, 2013:
Our Supreme Court has described the doctrine of res ipsa loquitur as follows:
In any case founded upon negligence, the proofs ultimately must establish
that defendant breached a duty of reasonable care, which constituted a
proximate cause of the plaintiffs injuries. Res ipsa loquitur, a Latin phrase
meaning the thing speaks for itself, is a rule that governs the availability
and adequacy of evidence of negligence in special circumstances. The rule
creates an allowable inference of the defendants want of due care when the
following conditions have been shown: (a) the occurrence itself ordinarily
bespeaks negligence; (b) the instrumentality [causing the injury] was within
the defendants exclusive control; and (c) there is no indication in the
circumstances that the injury was the result of the plaintiffs own voluntary
act or neglect.
[Szalontai v. Yazbos Sports Caf, 183 N.J. 386, 398 (2005) (quoting Brown v.
Racquet Club of Bricktown, 95 N.J. 280, 288-89 (1984)).]
The res ipsa loquitur doctrine is based upon considerations of public policy,
allowing a blameless injured plaintiff to obtain an inference of negligence
where certain required factors are present. In essence, the doctrine plac[es]
the duty of producing evidence on the party who has superior knowledge or
opportunity for explanation of the causative circumstances. Buckelew v.
Grossbard, 87 N.J. 512, 526 (1981). Res ipsa loquitur in effect creates a
permissive presumption that a set of facts furnish reasonable grounds for the
inference that if due care had been exercised by the person having control of
the instrumentality causing the injury, the mishap would not have occurred.
Szalontai, supra, 183 N.J. at 398 (quoting Brown, supra, 95 N.J. at 288-89). The
jury is free to accept or reject that permissible inference. Ibid.
An important aspect of the res ipsa loquitur doctrine is its role at trial in
repelling a defendants motion for a directed verdict. Once res ipsa loquitur is
established, the case should go to the jury unless defendants countervailing
proof is so strong as to admit of no reasonable doubt as to the absence of
negligence. Id. at 398 (quoting Brown, supra, 95 N.J. at 289). In a case in
which res ipsa loquitur applies, a directed verdict against the plaintiff can
occur only if the defendant produces evidence which will destroy any
reasonable inference of negligence, or so completely contradict it that
reasonable men could no longer accept it. Id. at 399 (quoting Brown, supra,
95 N.J. at 289).
In Jerista v. Murray, 185 N.J. 175, 195 (2005), a leading case in which the
plaintiff invoked the res ipsa loquitur doctrine, the Supreme Court concluded
that expert testimony was not required for a res ipsa inference to be made
with respect to injuries caused by an automatic door. The plaintiffs in Jerista
brought a malpractice claim against their prior attorney, whose inaction had
allegedly led to the dismissal of their negligence complaint against a
supermarket. Id. at 180. The defendant attorney argued that he had not
caused his former clients harm, because their lack of supporting expert
testimony on liability would have prevented them anyway from obtaining a
res ipsa inference, and consequently they did not have a provable claim in the
underlying suit. Id. at 180-81. The Supreme Court rejected this courts
sweeping suggesti[on] . . . that in almost all complex instrumentality cases a
res ipsa inference will be conditioned on the production of expert testimony.
24
Id. at 197. Instead, the Court determined that the pertinent question is
whether based on common knowledge the balance of probabilities favors
negligence, thus rendering fair the drawing of a res ipsa inference. Id. at 199.
As to the necessity of liability experts, the Court instructed in Jerista that
[o]nly when the res ipsa inference falls outside of the common knowledge of
the factfinder and depends on scientific, technical, or other specialized
knowledge is expert testimony required. Ibid.; see also N.J.R.E. 702 (limiting
the admission of expert testimony to evidence or issues requiring specialized
knowledge for a factfinder to understand). A jury does not need an expert to
tell it what it already knows. Jerista, supra, 185 N.J. at 197.
The Court concluded in Jerista that the plaintiffs could have obtained a res
ipsa inference absent expert testimony because, even though automatic
doors are complex machines, based on common knowledge it is improbable
that such a door would close unexpectedly on a person unless it was
negligently maintained. Ibid. When the average juror can deduce what
happened without resort to scientific or technical knowledge, expert
testimony is not mandated. Id. at 200.
Similarly, in Rosenberg v. Otis Elevator Co., 366 N.J. Super. 292, 305 (App. Div.
2004), no expert testimony was required to assist the jury in evaluating an
incident where an elevator had dropped at least three floors in a freefall
before coming to a sudden stop. This court reasoned that the jurors could
make a rational inference, unaided by expert testimony, that an elevator
would not have fallen in such a precipitous manner unless the defendant had
breached its duty and caused the malfunction. Ibid.
By contrast, in Buckelew, supra, 87 N.J. at 527, a liability expert was needed
where the defendant physician had cut into the plaintiffs bladder during
surgery. An expert was required in that professional liability context to address
the relevant standard of care for such surgery because the Court [could] not
say, as a matter of common understanding, the injury to plaintiffs bladder
raises an inference of negligence. Ibid.
Stadium Owners Beware: Experts No Longer Needed in NJ Elevator/Escalator
Injury Lawsuits
Posted on January 3, 2015 by Steve
Escalator and elevator accidents at sporting events are becoming more
common. In New Jersey, plaintiffs no longer need to hire experts to win a
personal injury lawsuit for damages arising out of accidents from these
potentially dangerous devices.
Anyone that has ever attended an American sporting event has witnessed the
inevitable battle between drunk fans and gravity. These fans often struggle to
stay upright walking on a flat surface. Put them on an escalator, though, and
all bets are off.
Yet what happens when an escalator or an elevator malfunctions and causes a
legitimate injury to a fan or customer who was simply going about his or her
business as usual? According to Consumer Watch, U.S. elevators make 18
billion passenger trips per year. Those trips result in only about 30 deaths per
year, but nearly 20,000 people are injured by elevators and escalators
annually according to data provided by the U.S. Bureau of Labor Statistics and
the Consumer Product Safety Commission. Elevators cause almost 90 percent
of those injuries.
25
So what do you do if you are hurt by an escalator or elevator? More often than
not, the answer is found in a civil lawsuit for personal injuries. These lawsuits
are costly endeavors for plaintiffs lawyers because escalators and elevators
involve some fairly complex machinery and engineering. To litigate such a
case, the attorney has to hire an expert to help prove that the property owner
and/or the maintenance company was negligent. And trust me, these experts
do not come cheap.
However, a recent ruling by the New Jersey Superior Court Appellate Division
just eliminated the needs for experts, thereby drastically decreasing the cost
of litigating an elevator or escalator injury case for plaintiffs.
In Lazarus v. Port Authority of New York and New Jersey, Appellate Court
Judges Hayden and Sumners decided that a plaintiff could survive summary
judgment in an elevator injury case without an expert. (Docket No. A-051913T3).
The case arose out of an accident at the Pavonia-Newport PATH station. The
Plaintiff, Wendy Lazarus, was stepping into an elevator when it suddenly rose
several inches and caused her to fall. Ms. Lazarus fractured her patella in the
fall. She subsequently sued the Port Authority and Schindler Elevator
Corporation.
After discovery ended, the defendants filed a Motion for Summary Judgment
contending that plaintiffs experts report should be stricken as a net opinion
and that the doctrine of res ipsa loquitor did not apply. The trial judge agreed
and struck plaintiffs experts report. With no expert, the trial judge
determined that summary judgment was appropriate since, the common
knowledge of lay jurors is incapable of assessing negligence of both
defendants, and thus, there was no basis for a reasonable jury to find in
favor of the plaintiff. The trial court also found that plaintiff could not proceed
under a theory of res ipsa loquitur since an experts testimony was still
required to determine whether defendants were negligent in maintaining and
operating the elevator. The trial court reasoned that the mechanics of how
elevators work was a complex issue that jurors could not understand without
the assistance of expert testimony. Plaintiff naturally appealed.
One of the main issues aside from the need of an expert was whether the
doctrine of res ipsa loquitur applied. The doctrine of res ipsa arose from public
policy concerns in order to allow a blameless injured plaintiff to obtain an
inference of negligence where certain required factors are present. Mayer v.
Once Upon A Rose, Inc., 58 A.3d 1221 (NJ App. Div. 2013). The doctrine
creates a permissive inference, which may be accepted or rejected by a jury,
that if due care had been exercised by the person having control of the
instrumentality causing the injury, the mishap would not have occurred. Id.
Res ipsa loquitur permits an inference of defendants negligence where (a)
the occurrence itself ordinarily bespeaks negligence; (b) the instrumentality
was within defendants exclusive control; and (c) there is no indication in the
circumstances that the injury was the result of the plaintiffs voluntary act or
neglect. Jerista v. Murray, 185 N.J. 175, 192 (2005). While the doctrine does
not shift the burden of proof, the presentation of a prima facie case based on
res ipsa generally assures that a plaintiff will survive summary judgment. Id.
26
at 193.
As the Appellate court summarized: New Jersey courts have consistently
recognized the doctrine of res ipsa loquitur in cases involving malfunctioning
complex instrumentalities such as escalators, elevators, and automatic sliding
doors. See, e.g., Rose v. Port of N.Y. Auth., 293 A.2d 371 (NJ 1972) (holding
that res ipsa loquitur could be invoked where the plaintiff was injured by an
automatic sliding door); Rosenberg v. Otis Elevator Co., 841 A.2d 99 (App. Div.
2004) (finding that res ipsa loquitur applies where the plaintiffs were injured
after an elevator dropped three floors).
It is important to note that res ipsa loquitur is not a theory of liability. Rather,
it is a method by which plaintiffs can circumstantially prove the existence of
negligence by permitting the fact-finder to infer that the defendants were
negligent or failed to act with due care. It essentially allows a plaintiff to
automatically survive summary judgment. Additionally, res ipsa shifts the
burden to the defendant to explain why the instrumentality malfunctioned
rather than force the plaintiff to eliminate all possible other causes. The
rationale behind this burden-shifting is that the defendant is more
knowledgeable about the instrument and has greater access to the evidence.
Escalator and elevator accident are very serious matters and victims often
require a lawyer to recovery monetary damages for their injuries.
After examining all of the evidence, including records indicating prior elevator
malfunctions at the station at issue, the Court concluded that plaintiff, a
business invitee, entered the open and apparently stationary elevator at the
PATH station, which abruptly rose several inches, causing plaintiff to fall
forward, injuring her knee. Common knowledge suggests that elevators do not
usually operate in the manner reported by plaintiff and that such an accident
does not normally occur absent negligence. Lazarus, 2014 N.J. Super. Unpub.
LEXIS 2970 (App.Div. Dec. 29, 2014).
Most importantly, the Court determined that there was no need for plaintiff to
use an expert to prove her case.
The Court specifically rejected the defendants argument that the cause of the
malfunction was so complex or specialized that the fact-finder would be
unable to understand it without an expert witness. On the contrary, the Court
found that plaintiff can rely on the common knowledge and experience of the
fact-finder to deduce what happened without an experts opinion. . .
Consequently, although this case involves a complex instrumentality,
scientific or technical knowledge is not essential to the fact-finder
understanding what happened and determining whether defendants were
negligent. The average person does not need to resort to scientific or
technical knowledge to understand that an elevator generally does not
abruptly rise off the floor as a patron is entering it and before the doors have
closed. Id. at *10-11.
The Appellate Courts conclusion that an elevator malfunction is within the
common knowledge of an average juror is a huge victory for plaintiffs
attorneys. Although most will still elect to hire an expert, New Jersey has now
made it clear that experts are not necessary because the average juror can
assess liability based on common usage of elevators and escalators.
Although this victory is sweet for plaintiffs, the Courts decision places
27
PATH station. In Lazarus v. Port Authority of New York and New Jersey, 2014
N.J. Super. Unpub. LEXIS 2970 (App. Div. Dec. 29, 2014), the plaintiff sued the
Port Authority for her injuries. Initially, her case was dismissed by the trial
judge because she did not have an expert witness to testify as to how the Port
Authority was negligent. However, she appealed, claiming that the doctrine of
res ipsa loquitor applied and she did not need an expert to pursue her claim.
The plaintiff had been on her way to work when she entered the elevator at
the PATH station. After the elevator doors opened, she put her leg into the
elevator and, suddenly, it rose 3 to 4 inches above the platform level, causing
her to fall forward onto her hands and knees. She later learned that she had
fractured her patella.
The defendants records showed that prior to the accident, the elevator had
recurring problems. Repair technicians had been there 2 times the month
before her accident and that just 12 hours prior to her accident, technicians
had been called to troubleshoot the controller and valve. The elevator had just
been returned to service less than an hour before the plaintiff entered it.
After discovery ended, the defendant successfully moved for summary
judgment, dismissing the case. It contended that without an expert to
establish negligence, the common knowledge of lay jurors is incapable of
assessing negligence as to the defendant. The trial judge rejected the
application of the doctrine of res ipsa loquitor (which means the thing speaks
for itself), reasoning that the mechanics of how an elevator works was a
complex issue that jurors could not understand without the assistance of
expert testimony.
The plaintiff appealed that decision to the Appellate Division, claiming that
she should have been entitled to proceed under this doctrine. The Appellate
Division agreed and reversed the trial courts ruling.
The court explained that this doctrine arose from public policy concerns to
allow a blameless injured plaintiff to obtain an inference of negligence where
certain required factors are met. This doctrine allows a permissive inference,
that a jury can accept or reject, that if due care had been exercised by the
person having control of the instrumentality causing the injury, the mishap
would not have occurred.
Res ipsa loquitor would permit this inference of defendants negligence if the
following is established: (1) the occurrence itself ordinarily bespeaks
negligence: (2) the instrumentality was within defendants exclusive control;
and (3) there is no indication in the circumstances that the injury was the
result of plaintiffs voluntary act or neglect.
The Appellate Division pointed out that res ipsa loquitor has consistently been
recognized in cases involving malfunctioning complex instrumentalities such
as escalators, elevators, and automatic sliding doors. After reviewing the
facts, the appeals court found that the plaintiff did meet the test for the
application of this doctrine.
The Appellate Division stated that common knowledge suggests that
elevators do not usually operate in the manner reported by the plaintiff and
that such accident does not normally occur absent negligence. Further, there
was no evidence that the plaintiff was at fault.
29
30