On appeal from the Superior Court of New Jersey, Law Division, Bergen County, L-6060-99.
Before Judges Kestin, Axelrad and Lario.
The opinion of the court was delivered by: Axelrad, J.T.C. (temporarily assigned)
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
In this legal malpractice action, plaintiffs, Terry Jerista*fn1 and Michael Jerista, appeal from summary judgment in favor of their former attorney, defendant, Thomas J. Murray, Jr. We affirm.
On August 30 or 31, 1987, plaintiff was injured on the premises of the Shop Rite supermarket in Hasbrouck Heights. The facts surrounding the accident are sketchy. According to plaintiff's deposition in the current action, her husband, pushing their child in a shopping cart ahead of her, entered the store uneventfully. As plaintiff entered, the automatic door suddenly swung back and closed on her, causing injury to her wrist, forearm, and back.
Plaintiffs retained defendant, and on April 7, 1989, he filed suit on their behalf against Shop Rite. Shop Rite filed a third-party complaint against New Jersey Automatic Door, Inc., the company responsible for installation and maintenance of the door. Defendant did not obtain any photographs or hire any expert to inspect the door. On June 22, 1990, plaintiffs' complaint against Shop Rite was dismissed for failure to answer interrogatories. Defendant did not move to reinstate his clients' claim. Plaintiffs allege they had no knowledge of the dismissal until ten years later, at which time they filed suit against defendant for legal malpractice.
In the current action, plaintiffs retained an expert, Daniel M. Hurley, Esquire, who opined as to defendant's malpractice. Plaintiffs also provided a report from a medical expert regarding Terry's injuries. Plaintiffs provided no expert report regarding the alleged malfunction of the door.
In his report, Hurley asserts malpractice in defendant's failure to properly investigate the accident, in failing to determine who manufactured and installed the door and the door-operating mechanism, and in failing to realize that the case was both a"Negligence and Product Liability case." Hurley also found negligence in defendant's failure to prepare draft answers to interrogatories served upon his clients, failure to prevent the case from being dismissed, and failure to advise his clients of the dismissal.
Defendant's legal malpractice expert, Diane Marie Acciavatti, opined that plaintiff could not prove causation in her claim against defendant because she did not offer an expert to testify as to any defective condition of the door, plaintiff was comparatively negligent in proceeding through an automatic door, which had opened in the wrong direction, and plaintiff would be unable to prove that her injuries resulted from the incident at Shop Rite rather than numerous unrelated medical conditions.
Defendant moved for summary judgment, claiming that even if there were a breach of duty by defendant-attorney, plaintiff failed to demonstrate a proximate link of damages to the breach. Plaintiff responded that, because of the passage of time, she was unable to produce any proof that the door presently on the Shop Rite premises was the same door that caused her injuries. Therefore, she could not obtain an expert who would establish a manufacturing, design, or installation defect of the door that was involved in the accident.
The Law Division judge granted summary judgment to defendant because of plaintiffs' failure to produce an expert regarding the liability of the manufacturer or installer of the door or of Shop Rite. More specifically, plaintiffs failed to establish a"case within a case", i.e., had the initial action been pursued, it would have resulted in a favorable recovery. Conklin v. Hannoch Weisman, 145 N.J. 395, 417 (1996). The court determined that plaintiffs'"case within a case" was grounded upon products liability and governed by the Products Liability Act, N.J.S.A. 2A:58C-1 to -11. The court rejected plaintiffs' res ipsa loquitur argument, and held that, without an expert, plaintiffs were unable to establish a prima facie showing of causation. Although the record is unclear, it appears the court also concluded that the Products Liability Act subsumed plaintiffs' premises liability claim against Shop Rite.
Plaintiffs argued before the trial court and on appeal that Terry had a viable premises liability negligence case against Shop Rite, which did not require expert testimony. According to plaintiffs, the supermarket's breach of duty could be inferred using the doctrine of res ipsa loquitur, and that was sufficient to defeat defendant's summary judgment motion.
We do not necessarily agree that plaintiff's products liability claim subsumed her negligence claim. We need not address that issue, however, in view of our determination that, as a matter of law, plaintiff is not entitled to a res ipsa loquitur inference on her underlying negligence action against Shop Rite. Nor do the dynamics of this case merit relieving plaintiff from the requirement of having to prove a"suit within a suit" in order to sustain her legal malpractice claim. See Lieberman v. Employers Ins. Co. of Wausau, 84 N.J. 325, 342 (1980) (holding, that under certain limited circumstances, a"plaintiff ...