Before Judges Carchman, Lefelt and Lintner.
The opinion of the court was delivered by: Lintner, J.S.C. (temporarily assigned).
On appeal from the Superior Court of New Jersey, Law Division, Camden County.
This appeal requires us to determine several issues, including whether the doctrine of res ipsa loquitur can be used in a personal injury claim against a public entity based upon the existence of an alleged dangerous condition of public property. We hold that the doctrine does not apply to such claims. This case has a complex procedural history climaxing in an order denying plaintiffs' requested adjournment to obtain an expert witness and multiple orders entering summary judgment in favor of all defendants dismissing plaintiffs' complaint in its entirety. We reverse the summary judgment order dismissing plaintiffs' complaint for economic loss damages in favor of New Jersey Transit Railroad Operations, Inc. (NJT). We affirm the entry of the remaining summary judgment orders of dismissal in favor of defendants and remand the matter for trial on plaintiffs' claim for economic loss and NJT's third party actions against both manufacturer defendants.
On September 6, 1994, plaintiffs, Victor and Sandra Rocco, filed a complaint against NJT for personal injuries sustained by Victor Rocco. The complaint alleged that NJT negligently maintained and inspected its train and was vicariously responsible for the negligent actions of its conductor. The complaint included a count against a fictitious manufacturer for negligent design and construction of the emergency unlock mechanism utilized on the exterior doors of NJT's railroad cars. After answering, NJT filed a third party complaint against Bombardier, Inc. (Bombardier), the manufacturer of the railroad car, alleging negligence, defective manufacture and design, breach of warranty and breach of contract, seeking contribution and indemnification.
Plaintiffs amended their complaint naming Bombardier as a defendant. Thereafter, with leave of court, Bombardier filed a fourth party complaint against Faiveley Inc. (Faiveley) and its successors in interest, the manufacturer of the emergency unlock mechanism, seeking contribution and indemnification based upon negligent manufacture and design, breach of warranty and design defect. Plaintiffs filed a second amended complaint naming Faiveley as a direct defendant.
On December 17, 1997, NJT moved for summary judgment. Bombardier and Faiveley followed, filing cross motions for summary judgment. In a letter brief filed in opposition to the motions for summary judgment, plaintiffs' counsel advised the motion judge that, on the return date of the motion, he would argue that plaintiffs were entitled to a res ipsa loquitur charge prior to the taking of any testimony. The motions were returnable January 23, 1998, and the trial scheduled to start on January 26, 1998. On the return date, the motion judge denied plaintiffs' request for a res ipsa loquitur charge prior to the taking of testimony, indicating that counsel could renew the request at the close of plaintiffs' case. While denying NJT's motion for summary judgment based upon design immunity, the judge reserved on NJT's alternative theories for summary judgment, as well as Bombardier's and Faiveley's motions for summary judgment. The trial was adjourned, and the judge issued a letter opinion on February 3, 1998, granting NJT's remaining motions for summary judgment and reserving on the motions filed by Bombardier and Faiveley.
On February 6, 1998, the parties held a telephone conference with the Presiding Judge, who, based upon the age of the case, denied plaintiffs' request for an adjournment in order to obtain the services of an expert witness on the products liability claim against the manufacturer defendants. On February 23, 1998, the parties appeared for trial and the motion judge granted the manufacturer defendants' motions for summary judgment, dismissing all remaining aspects of the complaint. Plaintiffs' subsequent motions for reconsideration and to supplement the record were denied.
Plaintiffs appeal from the order granting summary judgment to defendants and dismissing their complaint. Additionally, plaintiffs appeal the denial of their motion to proceed, based upon res ipsa loquitur, as well as the Presiding Judge's refusal to grant plaintiffs' subsequent request for adjournment of the trial to acquire an expert witness.
In reaching the conclusion that NJT was entitled to summary judgment, the motion judge found: (1) plaintiffs' proofs were insufficient to establish that there existed a dangerous condition of public property as required by N.J.S.A. 59:4-2; and (2) plaintiff Victor Rocco was unable to show that he sustained a substantial permanent loss of bodily function as required by N.J.S.A. 59:9-2(d), to support his claim for pain and suffering. The dismissal of plaintiffs' complaint against the manufacturer defendants, Bombardier and Faiveley, was based upon the motion judge's conclusion that summary judgment was appropriate, given plaintiffs' failure to retain an expert witness on the issue of defective design.
In October 1992, plaintiff boarded an NJT train in Atlantic City intending to disembark at the Lindenwold station to catch the high-speed line to Philadelphia. Upon stopping at Lindenwold, the conductor, Philip Ciaravino, opened the door with his key and stepped out onto the platform along with approximately six passengers. The conductor left his key in the door. Suddenly the door closed. Panic ensued. A number of passengers who had intended to disembark began to scream, as a result of being trapped on the train. The conductor told them to calm down and inquired whether or not there was anybody in the train who could get to the access panel to open the door.
Plaintiff went to the access panel and pulled the handle as directed by the conductor. The door opened about an inch and stopped. One of the other passengers, in an attempt to get off the train, pressed against the door pushing it open the rest of the way and ran off the train. As a result, the sliding door jammed plaintiff's hand against the unlock mechanism handle.
Plaintiff sustained a laceration of the right thumb. The thumb was sutured, and he was placed in a short arm cast. He also complained of pain in the area of his right shoulder, as well as his middle and lower back. In the summer of 1992, x-rays showed a healed fracture over the "tubercle of the scaphoid." Dr. John Bannon, plaintiff's treating orthopedic surgeon, recommended that plaintiff go to the Hand Center at Jefferson Hospital. Plaintiff did not follow Bannon's recommendation but instead sought treatment from Dr. Robert Carabelli at the Back Rehab Institute for pain management. Plaintiff was also seen by a psychologist, Dr. John McGowan, at the Institute. McGowan diagnosed "chronic pain syndrome with significant personal, interpersonal and vocational impairments and evidence of some anxious and depressive symptomology."
Plaintiff, who was fifty-one years old at the time of the accident, claims that, as a result of the injuries sustained, he suffers from pain, depression and the need to take medication, forcing him to take early retirement. Plaintiff's psychiatrist, Dr. Norman Chazin, diagnosed "Mood Disorder Secondary to Medical Condition and probable Post Traumatic Stress Disorder." Dr. John Rushton, a neuro-psychiatrist retained by Bombardier, examined plaintiff and found that he was severely depressed and totally disabled as a result of his injury. Dr. Ian Blair Fries, the orthopedic surgeon hired by NJT, indicated that the only orthopedic residual was a small scar on the right thumb and that his "remaining residuals are entirely in the psychologic arena." NJT also retained a forensic psychiatrist, Dr. Kenneth Weiss, who described plaintiff's depression as treatable and found that plaintiff had resisted taking the antidepressant medication that would have helped him.
The railroad car, known as a Comet IIB, was manufactured for NJT by Bombardier. After contracting for the supply of twenty cars, Bombardier submitted a request to change the supplier of the door operating mechanism, including the emergency unlock mechanism. NJT approved the change, and equipment manufactured and supplied by Faiveley was substituted for equipment previously manufactured and supplied by a company known as "Vapor."
NJT's expert on train design, Norman S. Marcus, P.E., rendered a report indicating that the unlock mechanism supplied by Faiveley did not conform to the specifications of the original supplier. He reported that the Faiveley mechanism "uniquely allowed Mr. Rocco to be able to place his thumb and fingers in proximity to the closing door panel while he was operating the emergency release lever, such that the door could reach his hand before he would have had sufficient time to remove it from the lever." He added that the NJT specification would have "precluded the ability for this to have occurred had Bombardier followed that specification explicitly."
NJT's conductor, who was not named as a defendant, testified at depositions that, when he was being trained in the operation of the Comet IIB emergency unlock mechanism, he learned there was a danger of his hand being jammed if someone else opened the door at the time he operated the handle. He described the mechanism and door-opening procedure as being a one-person operation. According to David Carter, NJT's director of Capital Projects, Locomotive Equipment Department, conductors were supposed to have a key that opened the train doors from the outside on them at all times.
Plaintiffs contend that medical reports concerning Victor Rocco's psychiatric and orthopedic injuries were sufficient to present a prima facie case to meet the threshold required by the Tort Claims Act, N.J.S.A. 59:1-1 to 12-3 to present a claim for pain and suffering. We disagree. In Brooks v. Odom, 150 N.J. 395 (1997), the plaintiff suffered from post-traumatic headaches and soft tissue injury to the neck and back. The treating doctor concluded that plaintiff, who suffered from chronic pain, had sustained a significant and permanent loss of function with an overall poor prognosis. Id. at 400. In holding that the proofs presented were not sufficient to meet the threshold required by N.J.S.A. 59:9-2(d), for an award of pain and suffering damages, the Supreme Court held that a plaintiff must sustain a permanent loss of the use of a bodily function that is "substantial." Id. at 406.
In Collins v. Union County Jail, 150 N.J. 407 (1997), the plaintiff, an inmate in the Union County Jail, was fondled by a corrections officer and thereafter fondled and forcibly sodomized on a second occasion. Id. at 410. The inmate brought suit alleging that, as a result of the sexual assault, he sustained a permanent post-traumatic stress disorder as diagnosed by his treating psychologist. Ibid. The Supreme Court distinguished other cases involving psychological injuries where there had been no physical injury claimed,*fn1 finding the missing link to be the "aggravating and intrusive assault" that allegedly caused the plaintiff to sustain permanent psychological injuries. Id. at 420. Soft tissue injuries claimed to ...