Before Judges Baime and Lintner.
The opinion of the court was delivered by: Baime, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from Superior Court of New Jersey, Law Division, Essex County.
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 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 (1999); Brown v. Racket Club of Bricktown, 95 N.J. 280, 288-92 (1984); Vespe v. DiMarco, 43 N.J. 430, 437 (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 (App. Div. 1986), certif. denied, 107 N.J. 114 (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. 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 (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 (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. We said that "there was no evidence that the malfunction of the elevator . . . could have ...