About DCAThe New Jersey Department of Community Affairs (DCA) is a State agency created to provide administrative guidance, financial support and technical assistance to local governments, community development organizations, businesses and individuals to improve the quality of life in New Jersey.

DCA offers a wide range of programs and services that respond to issues of public concern including fire and building safety, housing production, community planning and development, and local government management and finance.

DCA's programs and services are provided through the following Divisions:

Division of Codes and StandardsDivision of Housing and Community ResourcesDivision of Fire SafetyDivision of Local Government ServicesDCA is closely affiliated with the following agencies:

Government Records CouncilNew Jersey Historic TrustNew Jersey Housing and Mortgage Finance AgencyNew Jersey Redevelopment AuthorityUrban Enterprise Zone (UEZ) Program

About the Commissioner RICHARD E. CONSTABLE, III, ESQ.

In November of 2011, Governor Chris Christie nominated Richard E. Constable, III, Esq. to his cabinet to lead the New Jersey Department of Community Affairs (DCA). The Department plays a key role in supporting local and county governments reduce property taxes, improve their operations through best practices, and advance sensible affordable housing development. It also offers a wide range of programs and services that respond to issues of building and fire safety, community planning and development, and financial assistance for individuals in need.In addition to overseeing the Department of Community Affairs, Commissioner Constable serves as Chair of the New Jersey Housing and Mortgage Finance Agency, the New Jersey Redevelopment Authority, and the New Jersey Meadowlands Commission.

On Monday, October 29, 2012, Superstorm Sandy caused unprecedented damage to New Jersey’s housing, business, infrastructure, health, social service and environmental sectors. Immediately following the Storm, Governor Christie tapped Commissioner Constable and DCA as the lead in providing Sandy-displaced families with temporary and permanent housing options. As the State

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continues to rebuild and recover, the DCA has been entrusted to administer billions in federal Community Development Block Grant Disaster Recovery and FEMA funds to support New Jersey’s efforts to rebuild homes, businesses, and infrastructure impacted by Superstorm Sandy.

Prior to leading the Department of Community Affairs, Commissioner Constable managed the day-to-day operations for the New Jersey Department of Labor and Workforce Development as its Deputy Commissioner.

From 2002 to 2010, he worked as a federal prosecutor with the U.S. Attorney’s Office in Newark. There he regularly investigated and prosecuted high-profile elected and appointed officials, including members of the legislature and mayors, who were charged with bribery and extortion.

Before his post with the U.S. Attorney’s Office, Commissioner Constable worked as a litigation associate with Sullivan and Cromwell LLP in New York City.

Raised in East Orange and currently residing in Orange, Commissioner Constable holds a Juris Doctorate degree and Masters in Government Administration, both from the University of Pennsylvania. He also graduated from the University of Michigan, magna cum laude with a degree in political science, where he was a Harry S. Truman Scholar. After graduating from law school, he clerked for Minnesota Supreme Court Justice and NFL Hall of Famer Alan C. Page.

DivisionsDivision of Codes and Standards

The Division of Codes and Standards establishes and enforces building codes, in partnership with the State’s municipalities, to protect the health and safety of residents. The Division houses the Bureau of Housing Inspection; implements construction codes including building, plumbing, fire protection, radon codes, asbestos and lead abatement; and oversees carnival/amusement ride inspections, LP gas installations, rooming and boarding house licenses, and the State’s New Home Warranty program.Division of Fire Safety

The Division of Fire Safety serves as the central fire service agency in the State. The Division is responsible for the development and enforcement of the State Uniform Fire Code, as well as for implementing public education and firefighter training programs.Division of Housing and Community Resources

The Division of Housing and Community Resources is committed to strengthening and revitalizing communities through the delivery of affordable housing, supportive services and the provision of financial and technical assistance to communities, local government and community based organizations.Division of Local Government Services

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The Division of Local Government Services works with local governments to ensure their financial integrity and solvency, and to support their efforts to comply with State laws and regulations.Sandy Recovery Division

The Sandy Recovery Division manages the majority of the federal funds that will be used to assist New Jersey in recovering from Superstorm Sandy. These funds come from the Community Development Block Grant (CDBG) Disaster Recovery programs of the U.S. Department of Housing and Urban Development. The Division is committed to efficiently and effectively addressing the long-term needs of New Jersey’s Sandy-impacted residents and communities.

Division of Codes and StandardsTo establish and enforce health, welfare and safety standards as are necessary, for anything built, constructed or erected for use, occupancy or ornament on, above or below the surface of the earth in New Jersey.

The Division of Codes and Standards establishes and enforces building codes, in partnership with the State's municipalities, to protect the health and safety of New Jersey residents. The Division enforces the Hotel and Multiple Dwelling Law, the Uniform Construction Code implementing the building, electrical, plumbing, fire protection, energy, mechanical, elevator, radon, asbestos, rehabilitation and barrier-free subcodes, and lead hazard abatement; it oversees carnival and amusement ride inspections, LPGas installations, rooming and boarding house licensing, and the State's New Home Warranty program.

Division Contact Information

Edward M. Smith, DirectorKevin Luckie, Assistant DirectorPhone: (609) 292-7898(609) 292-7899Fax: (609)-633-6729

Bureau of Code ServicesMichael E. Baier, Supervisor of EnforcementPO Box 816, Trenton, NJ 08625-0816Phone: (609) 984-7974Fax: (609) 984-7084The Bureau of Code Services encompasses the following programs: Asbestos and Lead Hazard Safety, Carnival-Amusement Ride Safety, Elevator Safety, Industrialized Buildings and Liquefied Petroleum Gas.

Bureau of Construction Project ReviewDavid B. Uhaze, Chief of Construction Project ReviewPO Box 817, 101 S.Broad St., 4th fl.Trenton, NJ 08625-0817

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Phone: (609) 984-7850Fax: (609) 633-2525E-mail: planreviewintake@dca.nj.govThe Bureau of Construction Project Review provides for plan review where the review and release of plans by the Department of Community Affairs is required, pursuant to N.J.A.C. 5:23-3.11 or where requested, for prototype plans intended for use Statewide.

Office of Local Code Enforcement PO Box 821, Trenton, NJ 08625-0821Phone: (609) 633-6209Fax: (609) 984-7952The Office of Local Code Enforcement provides mandated State Uniform Construction Code coverage in municipalities that have requested that the DCA assume administrative and enforcement authority of the Uniform Construction Code in those towns.

Office of Regulatory Affairs Louis J Mraw, Supervisor of EnforcementPO Box 818, Trenton, NJ 08625-0818Phone: (609) 984-7672 or (609) 984- 7768Fax: (609) 984-7718

The Office of Regulatory Affairs is responsible for monitoring local enforcement of the Uniform Construction Code Act and implementing regulations.

Bureau of Homeowner Protection Steve Denenholtz, Chief of Bureau of Homeowner ProtectionPO Box 805, Trenton, NJ 08625-0805Phone: (609) 984-7905Fax: (609) 292-2839

The Bureau of Homeowner Protection administers programs addressing the purchase of new homes, units in retirement communities, condominiums and cooperatives, and provides information on the rights and responsibilities of residential landlords and tenants in New Jersey.

Bureau of Housing Inspection Edwin Tomkiewicz, Chief, Bureau of Code EnforcementPO Box 810, Trenton, NJ 08625-0810Phone: (609) 633-6216Fax: (609) 633-6208

The Bureau of Housing Inspection oversees the registration and periodic inspection of hotels, motels and multiple dwellings as mandated under the Hotel and Multiple Dwelling Law, to ensure the health, safety and welfare of residents, guests and the general public.

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Bureau of Rooming and Boarding House StandardsMichael T Briant, Supervisor of EnforcementPO Box 804, Trenton, NJ 08625-0804Phone: (609) 633-6251 or (609) 984-1706

The Bureau of Rooming and Boarding House Standards is responsible for the implementation and enforcement of the Rooming and Boarding House Act of 1979, the inspection and licensure of emergency shelters for the homeless pursuant to Rules Governing Shelters for the Homeless, and the provisions of the Standards for Licensure of Residential Health Care Facilities.

Home > Divisions > Codes & Standards > Bureaus, Offices & Programs > Bureau of Code Services > Elevator SafetyElevator SafetyFor further information on Elevator Safety in NJ:Phone: (609) 984-7833Fax: (609) 984-7084The Elevator Safety unit registers all elevator devices in the State of New Jersey. Elevator devices consist of elevators (hydraulic, traction, winding drum, roped hydraulic, rack & pinion and limited use limited access), escalators, moving walks, dumbwaiters, wheel chair lifts, chair lifts and man lifts. The elevator subcode is regulated under the Uniform Construction Code in Subchapter 12.

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 e-mail to ElevatorSafetyUnit@dca.state.nj.usClick 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.

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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

Formslifts pre-approval letter form 7-19-2014Request for Final Acceptance Inspection For New WorkElevator Registration ApplicationSeasonal ApplicationApplication for Transfer of OwnerUCC-F326, Elevator Devices -Accident/Incident ReportUCC-F150, Elevator Subcode Technical SectionUCC-F155, Elevator Subcode Technical Section -Multiple DevicesUCC-F160, Application for VariationPublicationsBulletin 94-7, Plans for Elevator Devices Laws, Rules, Regulations

NJAC 5:23-12 Elevator Safety SubcodeNJAC 5:23-12A Optional Elevator Inspection Program

Bureau of Code ServicesThe Bureau of Code Services is very diversified consisting of several varied units. The units are as follows: Asbestos/Lead Safety Unit, Carnival Amusement Ride Safety Unit, Elevator Safety Unit, Industrialized Buildings Unit, and Liquefied Petroleum Gas Unit. The bureau mailing address is: PO Box 816, Trenton, NJ 08625 and the building address is: 101 South Broad Street, 4th Floor, Trenton, NJ 08608. For specific information regarding each unit, you may access the unit's web page.

Asbestos Hazard AbatementLead Hazard Evaluation and AbatementCarnival Amusement Ride SafetyElevator SafetyLiquefied Petroleum Gas SafetyModular Program

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Court Says No Expert Necessary in Elevator Injury CaseMary Pat Gallagher, New Jersey Law JournalDecember 31, 2014 | 1 Comments

Photo: Vladimir Kolobov/iStockphoto.com.A commuter who claims she was hurt while trying to board an elevator at a PATH station has gotten the go-ahead from a New Jersey appeals court to proceed with her personal injury suit absent any expert testimony, based on the doctrine of res ipsa loquitur.“We reject 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,” wrote the two-judge panel in Lazarus v. Port Authority of New York and New Jersey (PATH) on Dec. 29, 2014. “On the contrary, plaintiff can rely on the common knowledge and experience of the fact-finder to deduce what happened without an expert’s opinion.”The per curiam opinion by Appellate Division Judges Margaret Hayden and Thomas Sumners Jr. reversed a decision by Hudson County Superior Court Judge Lourdes Santiago, who threw out the case on summary judgment after excluding the plaintiff’s expert report and then finding that the plaintiff could not prove her case without expert testimony.The appellate ruling came four years to the day after plaintiff Wendy Lazarus allegedly injured herself at the Pavonia-Newport PATH train station in Jersey City, N.J., on Dec. 29, 2010. She was en route to her job in New York City and had her leg extended to step into an empty elevator when it suddenly rose three to four inches above the level of the platform, causing her to fall forward onto her hands and knees, she claimed, according to the opinion.Lazarus allegedly reported the incident to a security worker at the station and later that afternoon made a formal report, the opinion said. Knee pain sent her to the hospital after work that day, where she was diagnosed with a fractured patella or kneecap, she claimed.Her negligence suit named the Port Authority, which owns and operates the station, and Morristown, N.J.-based Schindler Elevator Corp., which maintained the elevators, according to the opinion. During discovery, she obtained maintenance records showing recurring problems with the elevator.In the month leading up to her accident, technicians were summoned to address problems with it on Nov. 30 and Dec. 6, 2010, the opinion said. In addition, 12 hours before her accident, they were called to “‘troubleshoot’” the controller and valve in response to a reported problem, and the elevator was returned to service less than an hour before Lazarus entered it.The defendants moved for summary judgment, arguing that Lazarus’ expert report from an engineer saying they were negligent should be stricken as a net opinion and that, without the opinion, Lazarus’ claim failed because she could not rely on the res ipsa doctrine to show negligence. Santiago agreed on both points and granted the motion.Santiago said that, in her view, the alleged negligence was beyond “the common knowledge of lay jurors” and without an expert opinion, there was no basis for a jury to find negligence. Further, Lazarus could not go forward under a theory of res ipsa loquitur because the mechanics of how elevators work was a complex issue that jurors could not understand without the assistance of expert testimony, Santiago found.Lazarus only appealed the res ipsa holding and argued that expert testimony was not needed to

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proceed under the doctrine.In reversing, the appeals court panel said, “We reject 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. ... 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.”The court emphasized that res ipsa is not a theory of liability but a method by which a plaintiff can circumstantially prove negligence by inferring it. It allows a plaintiff who lacks direct proof of negligence to establish a prima facie case and shift the burden of production to the defendant to explain why the malfunction occurred, on the rationale that the defendant is more knowledgeable and has greater access to such evidence, Hayden and Sumners said.The judges cited no case exactly on point, but noted that “New Jersey courts have consistently recognized the doctrine of res ipsa loquitur in cases involving malfunctioning complex instrumentalities,” such as escalators, falling elevators and automatic sliding doors.They likened Lazarus’ case to ones allowing res ipsa where a metal gate at a Port Authority building fell on a passerby and where the plaintiff was injured by automatic doors.They said the prior problems with the elevator bolstered their conclusion and distinguished the case from the precedential 2000 holding in Gore v. Otis Elevator, where an appeals court refused to apply the doctrine because there had been no prior complaints about the elevator.Lazarus’ lawyer, Frank Lerner of Lerner, Piermont & Riverol in Jersey City, called the holding “common sense.”James Sonageri of Sonageri & Fallon in Hackensack, N.J., who represents both defendants, said he disagreed with the ruling but no decision had been made on whether to appeal.He said he was unaware of a prior decision allowing a plaintiff to go forward based on res ipsa after the liability expert’s report was thrown out.Sonageri said he saw the case as part of a pattern of New Jersey courts expanding the use of res ipsa in the aftermath of the 2005 Supreme Court holding in Jerista v. Murray, which involved automatic doors.Contact the reporter at mgallagher @alm.com.

Read more: http://www.njlawjournal.com/id=1202713790438/Court-Says-No-Expert-Necessary-in-Elevator-Injury-Case#ixzz3SpjM62cY

WENDY LAZARUS v. PORT AUTHORITY OF NEW YORK & NEW JERSEYAnnotate this CaseNOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

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DOCKET NO. A-0

WENDY LAZARUS,

Plaintiff-Appellant,

v.

PORT AUTHORITY OF NEW YORK &

NEW JERSEY, PORT AUTHORITY

TRANS-HUDSON CORPORATION, AND SCHINDLER

ELEVATOR CORPORATION,

Defendants-Respondents.

__________________________________________________________

December 29, 2014

Argued October 21, 2014 Decided

Before Judges Hayden and Sumners.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-5670-11.

Jeffrey J. Brookner argued the cause for appellant (Lerner, Piermont & Riverol and Brookner Law Offices, LLC, attorneys; Frank Lerner, of counsel; Mr. Brookner, on the brief).

James L. Sonageri argued the cause for respondents (Sonageri & Fallon, LLC, attorneys; Mr. Sonageri, on the brief).

PER CURIAM

Plaintiff Wendy Lazarus appeals from the August 9, 2013 Law Division order granting summary judgment to defendants Port Authority of New York and New Jersey (Port Authority) and Schindler Elevator Corporation (Schindler), and dismissing plaintiff's personal injury complaint. On appeal, plaintiff contends that she did not need an expert witness as she had demonstrated a prima facie case of negligence under the doctrine of res ipsa loquitur. After reviewing the facts and applicable legal principles, we reverse and remand for further proceedings.

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Viewed in the light favorable to the non-moving party, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), the facts reveal that on December 29, 2010, plaintiff was on her way to work when she entered an elevator at the Pavonia-Newport PATH train station. At the time the elevator doors were open, the floor appeared level with the platform, and no one was in the elevator. As she put her leg into the open elevator, the elevator abruptly rose three to four inches above the platform level, causing plaintiff to fall forward onto her hands and knees. The doors closed immediately. Plaintiff reported the incident to a security worker at the station and later that afternoon made a formal report. Plaintiff went to a hospital after work due to knee pain, where she learned that she had a fractured patella.

On November 2, 2011, plaintiff filed a civil complaint against the defendants, alleging that the Port Authority was liable as the owner and operator of the facility and that Schindler was liable as the maintenance company for negligently maintaining the elevator. Defendants' maintenance records show 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

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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 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 fact-finder 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

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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 malfunctioned. The rationale behind this burden-shifting is that the defendant is more knowledgeable about the instrument and has greater access to the evidence. See Jerista, supra, 185 N.J. at 192; see also Rose, supra, 61 N.J. at 137.

With respect to the second res ipsa element, "[e]xclusive control of the instrumentality by the defendant is . . . the essence of this rule of evidence." Bornstein v. Metro. Bottling Co., Inc., 26 N.J. 263, 271 (1958). This element does not mandate that "a plaintiff exclude all other possible causes of an accident, only that it is more probable than not that defendant's negligence was a proximate cause of the mishap." Luciano, supra, 306 N.J. Super. at 313. In holding that the exclusive control element of the res ipsa doctrine was met when a metal gate in Port Authority building fell on a passerby, we pointed out that

Given the Authority's well-established duty to provide a reasonably safe place for its patrons to do that which is within the scope of the invitation, it was error to require [plaintiff] to establish that prior unknown conduct by a member or members of the public did not cause the gate to fall upon him. To the contrary, the 'duty to maintain safe premises and protect invitees includes an affirmative obligation upon the proprietor to inspect the premises 'to discover their actual condition and any latent defects,' . . . as well as 'possible dangerous conditions of which he does not know.'"

[Id. at 313-14 (citing Brown, supra, 95 N.J. at 290-91).]

Moreover, exclusive control is not limited to a single defendant. See Apuzzio v. J. Fede Trucking, Inc., 355 N.J. Super. 122, 128 (App. Div. 2002). Rather, "an instrumentality causing injury may be

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in joint control of two defendants in which event the doctrine of res ipsa loquitur will apply against both of said defendants." Id. at 129 (citing Meny v. Carlson, 6 N.J. 82, 94 (1950)).

Having reviewed the evidence and drawn all reasonable inferences in favor of plaintiff, Brill, supra, 142 N.J. at 523, we find that plaintiff has established a prima facie case for negligence through the doctrine of res ipsa loquitur. Here, 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. Thus, the trial court erred in finding that plaintiff could not proceed under this theory.

We view the circumstances present here as analogous to those in Rose and Luciano, where res ipsa loquitur was found to be applicable. See Rose, supra, 61 N.J. at 136-37 ("Members of the public passing through automatic doors . . . do so generally without sustaining injury[]" and when such injury does occur, "[i]t strongly suggests a malfunction which in turn suggests neglect."). Our conclusion is further bolstered by the fact that there had been several prior complaints made to defendants regarding the particular elevator that injured plaintiff. Indeed, the last reported problem occurred less than twenty-four hours before plaintiff's accident. Cf. Gore v. Otis Elevator Co., 335 N.J. Super. 296, 302 (App. Div. 2000) (reasoning that res ipsa loquitur did not apply because there was no evidence that defendant had made any repairs or received any complaints about the elevator prior to the accident).

We reject 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, plaintiff can rely on the common knowledge and experience of the fact-finder to deduce what happened without an expert's opinion. See Jerista, supra, 185 N.J. at 195, 197 (expert testimony not required to establish under res ipsa that the accident was more likely than not the result of defendants' negligence). 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.

We also reject defendant's argument that plaintiff bears the initial burden of explaining what caused the elevator to malfunction. Such an argument miscomprehends Jerista, which explicitly found that the burden of explaining why an instrumentality malfunctioned is squarely on defendants because of their superior knowledge and access to the relevant information. See Jerista, supra, 185 N.J. at 192; see also Rose, supra, 61 N.J. at 137 (citing Wollerman v. Grand Union Stores, Inc., 47 N.J. 426, 430 (1966) ("The situation being peculiarly in the defendant's hands, it is fair to call upon the defendant to explain, if he wishes to avoid an inference by the trier of the facts that the fault probably was his.")).

We also note that the plaintiff has established that the defendants were in exclusive control of

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the elevator. The Port Authority owned and operated the PATH station where the accident occurred and contracted with Schindler to inspect, maintain, and repair the elevators at this particular train station. Nothing in the record suggests that the Port Authority relinquished complete control to Schindler, that only Schindler had access to the elevator in question, or that third parties had access to the inner workings of the elevator. Additionally, we note that neither defendant has presented evidence that would suggest that plaintiff or a third party was at fault or contributed to the accident.

In sum, the record viewed in the light most favorable to plaintiff showed that the occurrence here bespeaks negligence, the instrumentality was in the exclusive control of defendants, and plaintiff did not contribute to the accident. Accordingly, we are satisfied that plaintiff may proceed in reliance on the res ipsa loquitur doctrine without expert testimony. Of course, defendants are free to produce evidence that it was not negligent as the res ipsa inference is merely permissive. Jerista, 185 N.J. at 193.

Reversed and remanded. We do not retain jurisdiction.

1 Plaintiff is not appealing the part of the order striking her expert's report.

2 Some cases examine this factor under the first element whereas other cases consider this a factor under the second element of res ipsa loquitur. See Szalontai v. Yazbo's Sports Caf , 183 N.J. 386 (2005) (noting that "[w]hether an occurrence ordinarily bespeaks negligence is based on the probabilities in favor of negligence.") (quoting Myrlak, supra, 157 N.J. at 95). Cf. Luciano v. Port Auth. Trans-Hudson Corp., 306 N.J. Super. 310, 313 (App. Div. 1997)

Gore v. Otis Elevator Co. 762 A.2d 292 (2000)335 N.J. Super. 296Gerald Edward GORE, Plaintiff-Appellant,v.OTIS ELEVATOR COMPANY, Defendant-Respondent, andCushman and Wakefield, ABC Corp. (1-5 fictitious names) and John Doe/Jane Doe (1-5 fictitious names), Defendants.Superior Court of New Jersey, Appellate Division.

Argued November 1, 2000.Decided December 4, 2000.*294 Irwin B. Seligsohn, West Orange, argued the cause for appellant (Goldberger, Seligsohn & Shinrod, attorneys; Mr. Seligsohn, on the brief).

Richard B. Livingston, Springfield, argued the cause for respondent.

Before Judges BAIME and LINTNER.

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*293 The opinion of the court was delivered by BAIME, P.J.A.D.

Plaintiff appeals from a summary judgment dismissing his complaint against defendant Otis Elevator Company. He asserts that the Law Division judge erred by failing to apply the doctrine of res ipsa loquitur. We disagree and affirm the judgment entered.

Plaintiff alleged that he was injured while entering an elevator. He claimed that the elevator doors closed on him with such force as to cause his keys to tear the lining of his pants. Plaintiff did not contend that the elevator was defectively designed. He asserted, instead, that defendant negligently maintained the doors.

The doors had two safety devices: (1) a rubber safety edge running along the side of the doors, which was designed to retract upon contact, and (2) electric eyes in the top and bottom sides of the doors which would reopen them if the beam was broken by an object in its path. The evidence indicated that these safety devices were not foolproof. Both safety devices were functional only if an individual or object was located between the elevator doors. The hard edge of the exterior portion of the door could come in contact with an object or person without activating either the electronic eye or the safety edge.

Thomas Farrell, one of defendant's elevator mechanics permanently stationed in the office building in which the accident occurred, testified that he tested the elevators on a weekly basis. Although he did not know the exact force required to be exerted to cause the doors to retract, Farrell indicated that the elevator was safe for both an "eighty-five year old" person and a "three year old" person. In testing the elevators, Farrell would exert pressure on the safety edge to ensure that the doors would retract. In addition, he would periodically check the electric beams by using a voltage meter. The elevator in question was checked shortly before and shortly after the accident and was found to be in proper working order. So too, municipal inspectors had tested the elevator two weeks prior to the accident and had issued a certificate of compliance.

Plaintiff's expert, Louis Howarth, submitted a report which was supplemented by his deposition testimony. He asserted that "the force necessary to prevent the closing of the hoistway doors, and power operating doors from rest [should] not be more than thirty pounds." Although Howarth never visited the site or inspected the elevators, he surmised that "the closing force was in 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

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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.

Under these circumstances, we held that the evidence "provided a sufficient basis for the court to submit a res ipsa loquitur instruction to the jury." Id. at 668, 630 A.2d 402. We said that "there was no evidence that the malfunction of the elevator... could have been caused by any party other than the defendants." Id. at 671, 630 A.2d 402.

The facts here are in stark contrast to those in Allendorf. Unlike Allendorf, the evidence did not support an inference that the elevator was poorly maintained. In contrast to Allendorf, the evidence did not indicate that defendant had completed a major repair pertaining to the safety edge and the electric eye shortly before the accident. Nor was there evidence indicating that the

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electric eye was out of service prior to the accident. Nor do the facts indicate that defendant received a complaint concerning the retractable doors immediately prior to the accident, and actually performed repairs at that time. Rather, the uncontradicted evidence disclosed: (1) the elevator had been inspected by municipal officials and a certificate of compliance had been issued two weeks before the incident, (2) the doors had been examined by defendant's mechanic shortly before *296 and shortly after the accident and no defect had been found, (3) no complaint had been received concerning the elevator prior to the incident, and (4) no complaints, other than that of plaintiff, were reported after the accident.

We also have occasion to comment on the report and deposition testimony of plaintiff's expert. 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. Jimenez v. GNOC Corp., 286 N.J.Super. 533, 544, 670 A.2d 24 (App.Div.1996). While the plaintiff need not reduce altogether the possibility of other causes, he must bring forth affirmative evidence that tends to "`exclude other possible causes of the injury'." Ibid. (quoting Hillas v. Westinghouse Electric Corp., 120 N.J.Super. at 114, 293 A.2d 419). Clearly then, "a plaintiff is not entitled to bring his case to a jury under res ipsa loquitur any time there is an unexplained accident for which a defendant might plausibly be responsible." Id. at 545, 293 A.2d 419. 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 defendants's door.'" Ibid. (quoting Eaton v. Eaton, 119 N.J. 628, 640, 575 A.2d 858 (1990)). "Without an expert, or even with an expert whose testimony constitutes a net opinion, the plaintiff has not excluded possible causes of the alleged incident and thus cannot take advantage of res ipsa loquitur." Ibid.

Applying these principles, we are convinced that plaintiff did not produce expert testimony that could reasonably "guide [a] jury in determining whether the incident occurred, more likely than not, as a result of defendant's negligence." Ibid. Indeed, a substantial portion of Howarth's report concerned the possibility that the elevator doors were defectively designed because the placement of the electric eyes would not cause the doors to retract if the individual attempting to enter the elevator bent down and straddled the entranceway. We need not comment on the permutations of bodily contortions envisioned by Howarth that could produce such a result. Suffice it to say that the Law Division was clearly befuddled by some of Howarth's statements, and for good reason. The point to be stressed here is that plaintiff's claim against defendant did not rest on the thesis of defective design, but rather on the thesis of negligent maintenance. To the extent that Howarth's criticisms pertained to the design of the elevator, they detracted from the possibility that the elevator malfunctioned by reason of defendant's negligent maintenance.

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).

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Accordingly, the summary judgment is affirmed.

JERISTA v. MURRAY842 A.2d 840 (2004)367 N.J. Super. 292Terry 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 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.

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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, 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,

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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) and Allendorf v. Kaiserman Enterprises, 266 N.J.Super. 662, 630 A.2d 402 (App.Div. 1993), relied upon by

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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

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case. Plaintiff provides no explanation of the operation of the door mechanism, which is beyond the ken of a lay person. With no expert to provide the court with a basis upon which to find sufficient evidence of improper operation and proximate cause, the doctrine of res ipsa loquitur cannot be invoked to establish premises liability against Shop Rite.We do not countenance in any way defendant's handling of plaintiffs' underlying case. However, defendant's breach of duty is but one element of a viable legal malpractice action. Plaintiff must also establish proximate cause by way of a "case within a case"—had her initial suit been pursued, she would have been successful. Conklin, supra, 145 N.J. at 417, 678 A.2d 1060. Our Supreme Court has opened the door, when necessary in the interests of justice, to alternative approaches to proving a legal malpractice claim where the conventional mode of trying a "suit within a suit" would not be feasible. Lieberman, supra, 84 N.J. at 342-44, 419 A.2d 417. The Court identified the presence in that case of three extraordinary factors. Id. at 342-43, 419 A.2d 417. The plaintiff there proceeded against dual defendants on different theories; one was a malpractice claim against an attorney, and the other was a breach of contract claim against an insurer. Id. at 343, 419 A.2d 417. Additionally, there was a reversal of roles in which the plaintiff in the malpractice action was a defendant in the underlying negligence action so that a "suit within a suit" framework would be "awkward and impracticable" and "could well skew the proofs." Ibid. These factors are not present here. The only claim is one of professional negligence. Additionally, we have a traditional "plaintiff-plaintiff" paradigm where "there might well be a parallel between the two actions as to the identity of witnesses and the nature of the evidence so that a ... `suit within a suit' would not be inconvenient or difficult." Ibid.The third Lieberman factor was the passage of time. Ibid. This factor causes us some concern. Because of defendant's dereliction, a substantial period of time elapsed, which has inured to the detriment[842 A.2d 847]of plaintiffs and may impede their ability to follow the "suit within a suit" approach. However, plaintiff has not demonstrated that the passage of time has created an insurmountable proof problem, rendering her unable to prove her underlying negligence case within the conventional framework.Even if defendant's acts in refusing to disclose the dismissal of the action against Shop Rite caused the evidence to be lost, and precluded inspection of the actual automatic door, plaintiff still could have utilized an expert, as was done in Rose and Allendorf, to rule out other possible causes of the incident. For example, plaintiff could have offered an expert to testify generally about Stanley Magic Swing doors and the possible ways they could malfunction to cause an accident similar to hers. This she failed to do. Alternatively, if plaintiff had produced an expert who opined that, without examination of the exact door that closed on her, it would be impossible to render an opinion on causation, we might be impelled to seek a more flexible alternative to the conventional framework so as to avoid an injustice.Under the circumstances present in this case, the legal principles upon which we base our decision are well settled. Neither the Lieberman factors nor their underlying rationale are present here. Accordingly, we discern no basis to craft an alternative procedure by which plaintiff can prove her legal malpractice claim. Plaintiff has advanced no justification in law, or even on broad public policy grounds, to relieve her from her obligation to prove a "case within a case" in order to sustain her malpractice claim against defendant.

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The mere fact an accident occurred does not establish negligence. Plaintiff made no showing that "but for" the lack of due care by Shop Rite, the 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 remarkable—and paradoxical—that 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 concludedthat 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

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— 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 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, 84N.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.

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The doctrine of res ipsa loquiturPosted on March 5, 2013 by PaulKostro

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 plaintiff’s 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 defendant’s 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 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.

[Szalontai v. Yazbo’s Sports Café, 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 defendant’s motion for a directed verdict. “Once res ipsa loquitur is established, the case should go to the jury unless defendant’s 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

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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 court’s “sweeping suggesti[on] . . . that in almost all complex instrumentality cases a res ipsa inference will be conditioned on the production of expert testimony.” 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 plaintiff’s 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 plaintiff’s bladder raises an inference of negligence.” Ibid.

Stadium Owners Beware: Experts No Longer Needed in NJ Elevator/Escalator Injury LawsuitsPosted 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.

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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.

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-0519-13T3).

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 plaintiff’s expert’s 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 plaintiff’s expert’s 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 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. Plaintiff naturally appealed.

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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 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). 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.

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

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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 expert’s 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 Court’s 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 Court’s decision places defendants at a huge disadvantage. Think of how many people ride elevators and escalators at arenas and stadiums every weekend. The potential liability is enormous. Now throw in the fact that an injured plaintiff does not need to hire an expert and that he or she can rely on res ipsa. The defense bar is likely reeling.

However, two groups of people should be celebrating — Jets and Giants fans. If they get hurt on an elevator or escalator their path to victory in the courtroom just became a lot easier because their stadium is in New Jersey and not New York. Then again, they are Jets and Giants fans. Getting hurt on an elevator is the least of their problems.

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No Expert Necessary in Elevator Injury CasePosted on January 6, 2015 by adminA commuter who claims she was hurt while trying to board an elevator at a PATH station has gotten the go-ahead from a New Jersey appeals court to proceed with her personal injury suit absent any expert testimony, based on the doctrine of res ipsa loquitur.

“We reject 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,” wrote the two-judge panel in Lazarus v. Port Authority of New York and New Jersey (PATH) on Dec. 29, 2014. “On the contrary, plaintiff can rely on the common knowledge and experience of the fact-finder to deduce what happened without an expert’s opinion.”

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The opinion by Appellate Division Judges Margaret Hayden and Thomas Sumners Jr. reversed a decision by Hudson County Superior Court Judge Lourdes Santiago, who threw out the case on summary judgment after excluding the plaintiff’s expert report and then finding that the plaintiff could not prove her case without expert testimony.

The court emphasized that res ipsa is not a theory of liability but a method by which a plaintiff can circumstantially prove negligence by inferring it. It allows a plaintiff who lacks direct proof of negligence to establish a prima facie case and shift the burden of production to the defendant to explain why the malfunction occurred, on the rationale that the defendant is more knowledgeable and has greater access to such evidence, Hayden and Sumners said.

The judges cited no case exactly on point, but noted that “New Jersey courts have consistently recognized the doctrine of res ipsa loquitur in cases involving malfunctioning complex instrumentalities,” such as escalators, falling elevators and automatic sliding doors.

Reported By: New Jersey Law Journal, 12/31/14

Doctrine of Res Ipsa Loquitor Saves Plaintiff’s Case from Dismissal

Betsy G. Ramos January 30, 2015 Blog 0 CommentsPlaintiff, Wendy Lazarus, was injured as she tried to enter the elevator at the 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 defendant’s 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.

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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 court’s 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 defendant’s negligence if the following is established: (1) the occurrence itself ordinarily bespeaks negligence: (2) the instrumentality was within defendant’s exclusive control; and (3) there is no indication in the circumstances that the injury was the result of plaintiff’s 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.

The court’s conclusion was further supported by the prior complaints as to this elevator. Although this case involved a complex instrumentality, technical knowledge is not essential for jury to understand what happened and to determine if the defendant was negligent. Hence, the Appellate Division held that the plaintiff may proceed with her case without expert testimony.

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