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Allendorf v. Kaiserman Enterprises

Decided: August 4, 1993.

ELIZABETH L. ALLENDORF, PLAINTIFF-APPELLANT-CROSS-RESPONDENT,
v.
KAISERMAN ENTERPRISES, DEFENDANT-RESPONDENT, AND AMTECH RELIABLE ELEVATOR COMPANY AND AMERICAN BUILDING MAINTENANCE INDUSTRIES, INC., DEFENDANTS-RESPONDENTS-CROSS-APPELLANTS, AND DOVER ELEVATOR COMPANY, ET AL., DEFENDANTS



On appeal from Superior Court of New Jersey, Law Division, Camden County.

Antell, Dreier and Skillman. The opinion of the court was delivered by Skillman, J.A.D.

Skillman

In this personal injury negligence action, Elizabeth L. Allendorf (plaintiff) was struck and injured by the automatic door of a self-service elevator in an office building owned and operated by defendant Kaiserman Enterprises (Kaiserman), which contracted with defendant Amtech Reliable Elevator Company/American Building Maintenance Industries, Inc. (Amtech) for the maintenance and repair of its elevators. Before trial, the trial court dismissed plaintiff's punitive damage claims against Kaiserman and Amtech. Subsequently, the court bifurcated the issues of liability and damages. In the liability trial, a jury found Amtech negligent and Kaiserman and plaintiff not negligent. In the damages trial, a second jury returned a verdict of $25,000 in plaintiff's favor.

Amtech appeals from the order memorializing the verdict in the liability trial and plaintiff appeals from the court's order dismissing her claims for punitive damages and from the jury verdict in the damages trial.

I

On its appeal, Amtech argues that the trial court erred in submitting a res ipsa loquitur instruction to the jury. To place this issue in context, it is necessary to outline briefly the relevant evidence presented at the liability trial.

The elevator in which plaintiff was injured had two door safety devices: (1) a rubber safety edge running along the side of the door, which was designed to immediately reopen the door if it contacted any object while the door was closing, and (2) an electric eye in the side of the door, which was designed to immediately reopen the door if the electric beam emitting from the eye was broken by any object in the beam's path while the door was closing.

On July 5, 1986, an Amtech service mechanic was dispatched to Kaiserman's building because a moving company left a large

rubber "anti-skid device" wedged under the bottom of the elevator door, which was not allowing it to close. The service mechanic discovered that the rubber safety edge on the elevator door had been bent by an object wedged underneath it. Therefore, he straightened out the safety edge "as best as [he] could." At the same time, he tried to readjust the electric eye so that it would not be activated by the bend in the rubber safety edge. The service mechanic felt that both safety devices were "functional" when he left Kaiserman's building on July 5, 1986.

Around 9 a.m. on July 24, 1986, the day of the accident, Amtech received a call from Kaiserman reporting that the elevator door "keeps getting stuck." Consequently, Amtech dispatched a service mechanic to the Kaiserman building. However, the service mechanic's work sheet indicated that he had been sent to the Kaiserman building to perform "routine maintenance" rather than in response to a "trouble call." Although the service mechanic had no specific recollection of this assignment, he asserted that routine maintenance would include a check of the elevator door's safety systems and that if there had been a problem with either system he would have recorded it on his work sheet. Moreover, he would have taken the elevator out of service if he could not repair the system. The service mechanic's work sheet did not indicate a problem with any of the elevator's systems.

Plaintiff's accident occurred only a few hours later, around 2 p.m. According to plaintiff, she was entering the elevator behind her two-year-old daughter when the door "closed" upon her and "pinned" her against the door frame, half in and half out of the elevator. The door did not give at all, pushing her with increasing pressure against the wall. Finally, as the elevator made a grinding noise indicating that it was about to move, plaintiff was able to push through the door into the elevator.

Amtech sent another service mechanic back to the Kaiserman building shortly after the accident. He reported that the rubber safety edge was operating but that the electric eye was inoperative.

Plaintiff presented an expert in the field of professional engineering who expressed an opinion based on his review of Amtech's service records and other evidence developed in discovery 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 further testified that the elevator was generally in a poor state of repair during the period prior to plaintiff's accident.

We are satisfied that this evidence provided a sufficient foundation for the court to submit a res ipsa loquitur instruction to the jury. In Brown v. Racquet Club of Bricktown, 95 N.J. 280, 288-92, 471 A.2d 25 (1984), the Court explained the res ipsa loquitur doctrine as follows:

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."

[A] plaintiff need not exclude all other possible causes of an accident as a condition of entitlement to the doctrine, provided he can show that it is more probable than not that the defendant's negligence was a proximate cause of the mishap. As long as the facts permit a reasonable inference that defendant's control over the instrumentality under the circumstances was such that some act of negligence on its part was a contributing cause of the resulting accident, an explanation dissipating separate inferences of different acts of negligence by defendant or others does not defeat the application of res ipsa loquitur.

[Citations omitted.]

To the same effect, the Court in Vespe v. DiMarco, 43 N.J. 430, 437, 204 A.2d 874 (1964), quoting Rose v. Melody Lane of Wilshire, 39 Cal. 2d 481, 247 P. 2d 335, 339 (1952), stated that "[t]he doctrine of res ipsa loquitur concerns a type of circumstantial evidence upon which plaintiff may rely to discharge his burden of proving defendant's negligence." See also Eaton v. Eaton, 119 N.J. 628, 637-42, 575 A.2d 858 (1990).

The condition for application of the res ipsa loquitur doctrine that the "instrumentality" causing the injury must have been within the defendant's "exclusive control" can be satisfied even though the instrumentality was "in joint control of two defendants in which event the doctrine of res ipsa loquitur will apply against both of said defendants." Meny v. Carlson, 6 N.J. 82, 94, 77 A.2d 245 (1950). "The word 'exclusive' when used to define the nature of the control necessary to invoke the doctrine of res ipsa loquitur does not connote that such control must be several and the defendant singular and never plural." Id. at 93, 77 A.2d 245; accord Hillas v. Westinghouse Electric Corp., 120 N.J. Super. 105, 113, 293 A.2d 419 (App.Div.), certif. denied, 62 N.J. 82, 299 A.2d 80 (1972); see Smith v. Claude Neon Lights, Inc., 110 N.J.L. 326, 330-32, 164 A. 423 (E. & A. 1933) (application of res ipsa loquitur warranted in a situation where both ...


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