On appeal from Superior Court of New Jersey, Law Division, Ocean County, L-1861-98.
Before Judges Lintner, Lisa and Landau.
The opinion of the court was delivered by: Landau, J.A.D. (Retired and temporarily assigned on Recall)
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Plaintiffs Joseph Rosenberg and his wife, Sandra Rosenberg, and plaintiffs Corrado Gigante and his wife, Mary Gigante, appeal from a summary judgment, rendered to defendants Otis Elevator Company (Otis), Bellemead Urban Renewal Corporation and Bellemead-Seton Hall Urban Renewal Association, L.P. (hereafter referred to in the singular as Bellemead). The judgment dismissed their consolidated complaints asserting tort claims arising out of the alleged precipitous three-story fall of a passenger elevator manufactured and maintained by Otis in a large office building owned and operated by Bellemead.
Upon careful review of the record, we conclude for the reasons stated below that the order granting summary judgment to defendants must be reversed.
The consolidated cases were sent out for trial in Ocean County on August 6, 2002. Prior to arranging for a panel of prospective jurors, the trial judge was advised by defendants' counsel of their intent to move for dismissal of the complaints on the grounds that, without expert testimony, plaintiffs could not establish a prima facie case of negligence based upon res ipsa loquitur. Supporting briefs were handed up by defendants.
Plaintiffs appear to have been surprised by this procedure. Two years earlier, the defendants had each moved for summary judgment on the same theory, namely that defendants' negligence could not be established absent presentation of evidence from an elevator expert. Those motions were denied by the first motion judge, who rendered separate opinions as to Otis and Bellemead. The judge concluded that summary judgment for defendants was not warranted because the three-pronged principle of res ipsa loquitur was applicable, allowing an inference of negligence because: (1) the occurrence of such an elevator fall itself ordinarily bespeaks negligence; (2) the instrumentality was within the defendants' exclusive control and; (3) there was no indication that the injury was attributable to negligence of the plaintiffs.
Those findings were unchallenged and undisturbed until the day of trial when defendants again raised the res ipsa issue. The trial judge elected to revisit the question, and to consider it as though raised upon motions for summary judgment, reasoning that it would be unwise to go through the cumbersome procedure of empanelling a jury and proceeding with the trial, if expert testimony supporting plaintiffs' complaints were to be deemed necessary.
Plaintiffs argued that, relying on the prior rulings as the law of the case, they came to trial understanding that an expert would not be required in order to establish a prima facie case. The trial judge pointed out that the law of the case doctrine was not mandatory, and that it does not provide a precluding effect to an interlocutory order denying summary judgment. Exercising his discretion, he concluded that our then recent decision in Gore v. Otis Elevator Co., 335 N.J. Super. 296 (App. Div. 2000), compelled the conclusion that, because an elevator is a complex instrumentality, plaintiffs could not possibly establish a prima facie case without expert testimony. He ruled:
The facts here are insufficient to create a genuine issue of material fact as to whether the elevator dropping occurred more likely than not as a result of the elevator company's negligence in maintaining the elevator. To serve as the foundation for the application of res ipsa loquitur, expert testimony should provide an explanation in lay terms of the possible ways in which the accident could have occurred that would, more likely than not, point to the defendants' negligence as a substantial contributing cause.
Plaintiffs did not, at that time, request a postponement of trial in order to secure an expert. In the brief supporting Gigante's motion for reconsideration, it was argued:
In the alternative and without prejudice to [its reconsideration argument]... the interests of justice mandate that [the] Summary Judgment Order in favor of defendants be vacated and that plaintiffs be granted leave to present an expert report and expert testimony at trial. The motion, and with it the request to present expert opinion, was denied.
The standard for summary judgment expressed in Brill v. Guardian Life Ins. Co. of America, 142 N.J. 520 (1995), has been summarized in Pressler, Current N.J. ...