On appeal from Superior Court of New Jersey, Law Division, Hudson County.
Approved for Publication December 19, 1997.
Before Judges Havey, Landau and Newman. The opinion of the court was delivered by Landau, J.A.D.
The opinion of the court was delivered by: Landau
The opinion of the court was delivered by
Plaintiff Thomas Luciano appeals from the dismissal of his Law Division complaint against The Port Authority of New York and New Jersey (Authority). Prior to jury trial, Luciano's attorney requested a ruling in limine that a res ipsa loquitur charge be given. That motion was denied. Upon a proffer of the proofs to be submitted on Luciano's behalf, the Judge dismissed the complaint for failure to establish a prima facie case of negligence, reasoning that one of the requisite res ipsa elements, exclusive control, was not met.
The proffer showed that Luciano was struck on the head and injured by a metal roll-style gate as he was walking down the stairs leading from the Authority's Harrison PATH station platform to the street below. The gate is kept in a rolled up position when the station is active, and rolled down to close off the stairway from the street when the station is not open for business. Along with members of his family, Luciano had been returning from a New York trip on a PATH train. The roll gate which struck him is supposed to remain in the up position until pulled down by application of pressure. After striking Luciano, it remained about halfway to the down, or closed, position.
Although the Authority owns and maintains the gate, it opens to a heavily used public sidewalk.
The Judge concluded that the gate is "in the public domain," accessible to "untold numbers of people," and found nothing in the fact pattern which "shows that the defendant's control over the instrumentality was such that it basically balances the probabilities to the fact that something they did or they didn't do caused the gate to fall."
The Judge also considered the absence of expert testimony on behalf of Luciano or any proof that "the mechanism that caused the gate to move was inaccessible to the public," noting that, "in fact, the only proffer I have is that anybody with a sufficient amount of strength can reach up and move that gate in this case." In concluding that the matter must be dismissed, reliance was placed upon Bornstein v. Metropolitan Bottling Co., 26 N.J. 263, 139 A.2d 404 (1958); Jimenez v. GNOC, Corp., 286 N.J. Super. 533, 670 A.2d 24 (App. Div.), certif. denied, 145 N.J. 374 (1996); Allendorf v. Kaiserman Enters., 266 N.J. Super. 662, 630 A.2d 402 (App. Div. 1993); and, Hillas v. Westinghouse Electric Corp., 120 N.J. Super. 105, 293 A.2d 419 (App. Div.), certif. denied, 62 N.J. 82 (1972). The Judge also endeavored to distinguish the instant facts from those in Brown v. Racquet Club of Bricktown, 95 N.J. 280, 471 A.2d 25 (1984); Rose v. Port of New York Auth., 61 N.J. 129, 293 A.2d 371 (1972); Benton v. Stichman, 49 N.J. Super. 251, 139 A.2d 412 (App. Div. 1958); and, Van Staveren v. F. W. Woolworth Co., 29 N.J. Super. 197, 102 A.2d 59 (App. Div. 1954).
The three elements which must be established in order to apply the doctrine of res ipsa loquitur have been described as follows:
(1) the accident which produced a person's injury was one which ordinarily does not happen unless someone was negligent, (2) the instrumentality or agent which caused the accident was under the exclusive control of the defendant, and (3) the circumstances indicated that the untoward event was not caused or contributed to by any act or neglect on the part of the injured person.
The record makes clear that the Judge diligently considered pertinent authority and recognized this three-pronged test for application of the res ipsa doctrine. Nonetheless, we must differ with the balance of probabilities which was drawn and with the Judge's Conclusion that, although the first and third prongs (occurrence bespeaks negligence and no indication that plaintiff contributed ...