On appeal from the Superior Court of New Jersey, Law Division, Essex County, L-11701-02.
The opinion of the court was delivered by: Wecker, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wecker and S. L. Reisner.
Telephonically Reargued April 6, 2005
Decided Before Judges Coburn, Wecker and S.L. Reisner.
This case requires that we consider the relationship between two doctrines: the doctrine of res ipsa loquitur, and the common knowledge doctrine. Res ipsa loquitur permits a plaintiff to satisfy the burden of presenting a prima facie case by allowing an inference of negligence against a defendant in certain circumstances without direct evidence of negligence. The common knowledge doctrine permits a plaintiff to meet the burden of presenting a prima facie case of negligence without an expert, in certain circumstances. Here, the motion judge rejected the applicability of res ipsa and dismissed plaintiff's complaint for lack of an expert. Plaintiff appeals from the summary judgment dismissing her negligence complaint against Essex Plaza, her landlord, and MacKenzie Automatic Doors, Inc., a maintenance company that repaired automatic doors in the senior citizens' apartment building where she lived. We now affirm.
Plaintiff claimed that on May 15, 2001, after the automatic doors at the front entrance of the building opened for her to enter, one door began to close prematurely and hit her, causing her to slip and fall and sustain significant injuries. From the sparse record before us, we note that plaintiff claimed in her deposition testimony that the door had malfunctioned before the day of the accident, but she did not remember how often, and she never complained to the management of Essex Plaza about it.*fn2 We also note that MacKenzie had no ongoing contract for door maintenance at Essex Plaza, but only responded to calls for service. Before plaintiff's accident on May 15, 2001, MacKenzie had last performed maintenance on the door on March 31, 2001.*fn3
There is no direct evidence that MacKenzie failed to properly repair the door on that occasion or any other.
In support of its summary judgment motion, the attorney for Essex Plaza argued: "I don't think there's any dispute that - that the door closed on her." Each defendant addressed the question whether plaintiff needed an expert in order to reach a jury. Essex Plaza's attorney maintained that plaintiff was required to establish a "specific malfunction . . . before we get to an expert opining as to whether there was negligence," adding that "even if there is an expert that doesn't necessarily get over the res ipsa argument." MacKenzie's counsel argued that "operations of the automatic door are very technical, and can really only be proved through an expert opinion." Counsel also argued that "this case does not fall under the three criteria for res ipsa, and [plaintiff has] put forth no affirmative evidence to exclude other probable causes of why this door allegedly malfunctioned."
The motion judge granted defendants' motion for summary judgment on the ground that plaintiff had failed to provide an expert report:
All right, folks, I am going to grant summary judgment to both parties, both Essex Plaza and Mackenzie's Doors. There's been no notice of a defect at all. The last time the doors were serviced was three months prior to the accident, the doors were working fine. They put in new roller guides on the bottom of the door. Even as the testimony of the plaintiff alone, everything she described to in her like 30, 40 page deposition is of a properly operating door. Either she wasn't paying attention probably or the door was closing, but when she interfered with the beam of light it opened right back up again. There is absolutely no expert report against either party, which is definitely mandated in this case, because that's the only way we're going to know if that door wasn't operating and functioning properly.
Thus it appears that the judge rejected the applicability of res ipsa and held that plaintiff was required to produce an expert to describe a specific defect or malfunction of the door. We agree that plaintiff's case required an expert, but disagree that plaintiff could not have relied on res ipsa if she had offered an expert to establish the necessary foundation.
Plaintiff seeks, as she did in the Law Division, to invoke the doctrine of res ipsa loquitur to permit an inference of negligence from the very happening of the accident, without the need for any expert testimony. Plaintiff relies on two cases in support of her contention that expert testimony is unnecessary, and that res ipsa loquitur permits a jury to infer negligence on the part of one or both defendants. Those cases are Anderson v. Somberg, 67 N.J. 291 (1974) (where part of a surgical instrument was left in the body of an unconscious patient, and all potential defendants were named but plaintiff could not prove which defendant was responsible, each had the burden of proof to exculpate itself), and Nopco Chem. Div. v. Blaw-Knox Co., 59 N.J. 274 (1971) (where the buyer who received a damaged machine almost certainly would have had a cause of action against one of the defendants, each of whom had exclusive control over the machine at a different time, but the buyer did not know which one caused the damage, the burden of production shifted to the defendants). The plaintiff in each of those cases had an expert; neither case directly supports plaintiff's position that she needs no expert because res ipsa applies.
Res ipsa loquitur "is not a theory of liability; rather, it is an evidentiary rule that governs the adequacy of evidence in some negligence cases." Myrlak v. Port Auth. of N.Y. and N.J., 157 N.J. 84, 95 (1999). The doctrine "is a method of circumstantially proving the existence of negligence." Ibid. It permits an inference of negligence without direct evidence where three elements are established: (1) the event does not normally happen in the absence of negligence, (2) the instrument of harm was exclusively within the defendant's control, and (3) there is no indication that the plaintiff caused her own injury.*fn4
Ibid. Where applicable, res ipsa allows a plaintiff to establish a prima facie case and to withstand a motion to dismiss for lack of direct proof of negligence. Res ipsa does not shift the burden of proof to the defendant, but only the burden of producing evidence. Id. at 96.
The doctrine turns on an assessment of the probability that the accident, whatever its nature, would not have happened unless the defendant had failed in its duty of due care. Id. at 95-96. It is also based on an assessment that the plaintiff does not have access to the evidence that would tend to prove or disprove a lack of due care, and that such evidence is ...