On appeal from Superior Court of New Jersey, Law Division, Bergen County.
Approved for Publication January 16, 1996.
Before Judges Michels and Villanueva. The opinion of the court was delivered by VILLANUEVA, J.A.D.
The opinion of the court was delivered by: VILLANUEVA
The opinion of the court was delivered by VILLANUEVA, J.A.D.
Plaintiff Angelica Jimenez appeals from a judgment of involuntary dismissal entered at the Conclusion of her proofs in this personal injury negligence/product liability action instituted against defendants GNOC, Corp., t/a Bally's Grand Hotel and Casino (Bally's), and Westinghouse Electric Corporation (Westinghouse). We affirm.
On March 28, 1989, plaintiff and her daughter decided to leave Bally's casino floor where they had been gambling and go upstairs to get coffee. Plaintiff boarded upward escalator #1 behind her daughter and grasped the right handrail. According to plaintiff, after the escalator advanced four or five steps the right handrail stopped, and she was thrown backwards as the steps continued to rise. Plaintiff's body twisted, and she lost her balance and screamed for help. Two men, Henry Dumas and Walter Jenkens, who were standing behind her, caught and supported plaintiff while they rode to the top of the escalator. After receiving minor medical aid from the casino staff for a small cut, plaintiff went home. Thereafter, she experienced intermittent lower back pain.
Jenkens' attention was concentrated on plaintiff after she lost her balance, and he noticed nothing out of the ordinary about the handrail. Dumas, who was behind Jenkens on the escalator, didnot notice anything amiss with the right handrail which he, too, used during his ascent. Dumas said he did not hear plaintiff scream or call for help.
The incident was captured by Bally's on a videotape which was viewed by the trial Judge and jury. An accident report completed by the responding security personnel states, in part:
Sgt. DiEva and this officer checked the escalator. The handrail on the right side of Escalator #1 was not working at all. Engineering Shift Superv. John DiDonato responded and the escalator was shut down. S/O Lyons and S/O Miller were posted at different times to re-direct patrons away from that section. Left handrail working properly. Escalator #2's handrails working properly also.
At trial, plaintiff called Theodore Moss, a licensed New Jersey civil engineer, as an expert in safety engineering. Moss gave his explanation of the videotape to the jury:
She's going up, okay. She's still here on the handrail. Her body turns just like mine did. She comes over it. Her feet kept going up. Oh, she's stumbling backwards, moving backwards because the feet have to come back to where the hand was. Okay.
So, the escalator is moving up and the handrail has definitely stopped. It's stopped before the accident. It stopped as a function of the escalator itself, not as a function of her weight or her doing anything, because it stopped before she did anything. The only thing she's got is her hand and maybe a tiny bit of leaning here, but basically that's all she's doing, right. She's not balancing herself on the handrail, but when it stopped, it stopped before that.
According to Westinghouse's account of the videotape, it shows that
Ms. Jimenez reached down before she boarded the escalator to pick up something on the floor. Then, after boarding the escalator, she turned to face the right handrail, her left foot one stair higher than her right. She then reached over the right side of the escalator in an apparent effort to pick up effort to pick up something else. Ms. Jimenez, who is 5-foot-5 and weighed 235 pounds in March, 1989, was thus positioned so that her waist met the handrail. Her torso was extended over the right side of the escalator so that the handrail bore the entire weight of her upper body. Having placed herself in this precarious position, the tape shows that Ms. Jimenez lost her balance and fell backwards in [sic] the arms of a man riding the escalator behind her.
From our review of the videotape we cannot determine whether the right handrail was stopped before plaintiff started to turn and fall backwards or whether the handrail stopped when plaintiff leaned over it.
Moss testified that the "ultimate cause" of the accident was "that the preventive maintenance wasn't properly done." He opined that, had there been proper preventive maintenance the handrail would not have stopped, nor would escalator #1 have had three other recent problems involving the handrail. He concluded that the stopping of a handrail in normal operation while the steps continue to rise would not occur if there was due care in the maintenance. Moss could not, however, specifically articulate any mechanical root problems which caused the handrail failure, nor could he describe what type of work would be required to correct this so-called mechanical problem. Moss did not ask plaintiff for her version of the accident, and he did not view the accident scene. His entire expert opinion was based on his experience, the repair record of the escalator, the testimony of the people who worked on the escalator, and the videotape.
At the close of plaintiff's case before a jury, the trial court granted Bally's motion for an involuntary dismissal on the grounds that Bally's duty was only to exercise reasonable care toward its casino guests and plaintiff had demonstrated no negligence or breach of that standard. The trial court also granted Westinghouse's motion to strike the testimony of plaintiff's expert because it constituted a net opinion. As a result, the trial court granted Westinghouse's motion for an ...