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Jerista v. Murray

October 12, 2005

TERRY JERISTA AND MICHAEL JERISTA, HER HUSBAND, PLAINTIFFS-APPELLANTS,
v.
THOMAS M. MURRAY, JR., ESQ., AN ATTORNEY AT LAW OF THE STATE OF NEW JERSEY, DEFENDANT-RESPONDENT.



On appeal from the Superior Court, Appellate Division, whose opinion is reported at 367 N.J. Super. 292 (2004).

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

The Court considers whether the doctrine of res ipsa loquitur permits a jury to infer, based on common knowledge, that a supermarket's automatic doors ordinarily do not malfunction and close on a customer unless negligently maintained by the store owner, or whether the res ipsa inference is preconditioned on expert testimony first explaining the door's mechanics.

This appeal arose from an attorney malpractice action in which the attorney was granted summary judgment. In the underlying matter, plaintiff Terry Jerista was injured in August 1987 when an automatic door in a Shop Rite store suddenly swung backward striking her right side and pinning her body. In April 1989, defendant Thomas M. Murray, Jr., Esquire, filed a complaint alleging that Shop Rite's negligent maintenance of its premises caused Mrs. Jerista's injuries. Shop Rite filed a third-party complaint against New Jersey Automatic Door, Inc., (NJAD), alleging that it negligently serviced the door. Ultimately, the trial court dismissed the complaint for failure to respond to discovery requests. Murray never informed the plaintiffs that their case had been dismissed, and for years he responded to the Jeristas' requests for information by contending that everything was under control.

Finally, in 1999, the Jeristas retained new counsel, Jack L. Wolff, Esquire. When Wolff was unable to obtain the file from Murray, he secured from the Clerk of the Superior Court the case pleadings, which revealed that the lawsuit had been dismissed in 1990. Wolff then filed a motion to reinstate the case. In opposing the motion, Shop Rite's counsel stated that both her firm's file and the store's file had been destroyed, witnesses and relevant information were no longer available, and it would be impossible to defend Shop Rite against a lawsuit involving an accident that occurred twelve years earlier. NJAD opposed the motion for similar reasons, and included that it believed the door at issue was no longer present in the store. The trial court denied the Jeristas' motion to reinstate the case.

In July 1999, the Jeristas filed a malpractice action against Murray, alleging that he negligently failed to prosecute their personal injury action. The Jeristas retained a liability expert witness who concluded that Murray deviated from the standard of care in the practice of law by failing to prosecute "an excellent liability case." Murray's expert, on the other hand, contended that although there were deficiencies in Murray's representation of the Jeristas, they could not prove that he was the proximate cause of the loss of their case without presenting a liability expert to establish that there was some defective condition that resulted in the door malfunctioning and causing injury to Mrs. Jerista.

Murray moved for summary judgment, contending that the Jeristas could not prove proximate cause in the legal malpractice case without an expert who could testify about the operation of the automatic doors. He also disputed the Jeristas' contention that the door that injured Mrs. Jerista had been replaced and was unavailable as evidence. The Jeristas filed a cross-motion for summary judgment, explaining that they could not retain an expert's opinion because of the lack of available records and because the door probably had been replaced when the store was renovated in 1989 or 1990. They also argued that they did not need an expert and that Murray should bear the burden of proving that their suit against Shop Rite would not have succeeded because it was his derelictions and cover-up that resulted in the loss of evidence needed to prosecute the case.

The trial court granted Murray's motion and rejected the Jeristas' argument that their personal injury case would have proceeded without an expert's opinion under the doctrine of res ipsa loquitur. The court also chided the Jeristas for not making sufficient efforts to identify the door in operation on the day of the accident, therefore it was disinclined to shift the burden of proof to Murray or allow an adverse inference from the supposed loss of evidence.

A divided panel of the Appellate Division affirmed. 367 N.J. Super. 292 (2004). The majority determined that the Jeristas had the burden of proving both that Murray breached his duty of care and that they would have succeeded if the Shop Rite case had been pursued. The majority also reasoned that because the automatic door was a complex instrumentality, the Jeristas were required to produce expert testimony to explain the normal functioning of the door or a theory as to how it malfunctioned. Judge Kestin, dissenting, contended that it would be proper in a situation like this one, in which an attorney was benefiting from his transgressions, to apply a legal-malpractice version of the "increased risk of harm" standard that is available in certain medical malpractice actions.

HELD: An automatic door that closes onto and injures a customer entering a supermarket is an occurrence bespeaking negligence that falls within jurors' common knowledge, therefore the Jeristas were entitled to a res ipsa inference that would have enabled them to make out a prima facie case against Shop Rite.

1. In this malpractice action, the Jeristas proceeded in the conventional way by presenting evidence that they would have submitted at a trial in the personal injury case had no malpractice occurred. In order to survive a summary judgment motion in the malpractice action, the Jeristas had to show that they could have presented a prima facie case in the Shop Rite action. In that case, they would have benefited from the higher duty of care that landowners owe to business invitees, i.e., a duty to discover and eliminate dangerous conditions. (Pp. 15-18).

2. The plaintiff bears the burden of proving that a storeowner breached the duty of care owed to a business invitee. The doctrine of res ipsa loquitur allows the factfinder to draw a permissive inference of the defendant's negligence where (a) the occurrence itself ordinarily bespeaks negligence; (b) the instrumentality was within the defendant's exclusive control; and (c) there is no indication in the circumstances that the injury was the result of the plaintiff's own voluntary act or neglect. Here, only the first prong of the test is at issue, i.e. whether the closing of a supermarket's automatic door onto a customer is the sort of occurrence that typically bespeaks negligence. The circumstances must establish that it is more probable than not that the defendant's negligence was a proximate cause of the mishap. Although res ipsa does not shift the burden of proof to the defendant, it ordinarily assures the plaintiff a prima facie case that will survive a motion for summary judgment. (Pp. 18-20).

3. Common knowledge is sufficient to entitle the Jeristas to the res ipsa inference. Equitable principles suggest that a business that invites a plaintiff onto its property for financial gain and that has exclusive control of an automatic door and superior knowledge about its maintenance should give an account of what went wrong. An automatic door may be a sophisticated piece of machinery, but it probably does not close on an innocent patron unless the premises' owner negligently maintained it. That conclusion can be reached without resort to expert testimony. If someone other than the premises' owner is at fault, the owner is in the best position to demonstrate that fact. (Pp. 20-27).

4. The Court disagrees with the Appellate Division's suggestion that in almost all complex instrumentality cases a res ipsa inference will be conditioned on the production of expert testimony. The question is not whether the instrumentality is complex or simple, but whether based on common knowledge the balance of probabilities favors negligence, thus rendering fair the drawing of a res ipsa inference. Only when the inference falls outside of the common knowledge of the factfinder and depends on scientific, technical, or other specialized knowledge is expert testimony required. Here, the automatic doors were under Shop Rite's exclusive control and there was no indication that the accident was Mrs. Jerista's fault. The circumstances in this case invited a res ipsa inference, which means that the plaintiffs could have made out a prima facie case against Shop Rite. Therefore, the Court reverses and remands the malpractice action for trial. (Pp. 27-31).

5. At trial, if the jury finds that Murray's professional defaults caused the dismissal of the Jeristas' lawsuit against Shop Rite, it should also consider whether his conduct led to the spoliation of evidence. Assuming arguendo that Murray deceived the Jeristas for nine years about the status of their case, Murray could be said to have consciously disregarded a substantial risk that key evidence would not be available when needed. If the Jeristas can make a threshold showing that Murray's recklessness caused the loss or destruction of relevant evidence, the jury should be instructed that it may infer that the missing evidence would have been helpful to the Jeristas' case. The jury is free to accept or reject that inference-just like the permissive inference of negligence that jurors may draw under the doctrine of res ipsa loquitur. (Pp. 32-36).

The judgment of the Appellate Division is REVERSED and the matter is REMANDED to the trial court for proceedings consistent with this opinion.

CHIEF JUSTICE PORITZ and JUSTICES LONG, LaVECCHIA, ZAZZALI, WALLACE and RIVERASOTO join in JUSTICE ALBIN's opinion.

The opinion of the court was delivered by: Justice Albin

Argued January 3, 2005

This case concerns the application of the doctrine of res ipsa loquitur when a supermarket's automatic door unexpectedly closes on and injures a customer. The central issue is whether res ipsa loquitur permits a jury to infer, based on common knowledge, that automatic doors ordinarily do not malfunction unless negligently maintained by the store owner or whether the res ipsa inference is preconditioned on expert testimony first explaining the door's mechanics.

The issue arises in a malpractice action against an attorney, who represented the injured customer and her husband in a negligence lawsuit against the supermarket. The attorney allegedly failed to respond to discovery requests, leading to dismissal of the complaint. Over the course of nine years, he then concealed from his clients the complaint's dismissal, resulting in the loss of evidence necessary to prosecute the malpractice claim against him. Plaintiffs in the malpractice action contend that but for the attorney's derelictions, they had a strong negligence case against the supermarket based on the res ipsa doctrine.

The attorney charged with malpractice moved for summary judgment, claiming that his former clients failed to present expert testimony explaining what went wrong with the supermarket's automatic door and therefore were not entitled to the res ipsa inference. The attorney argues that without the res ipsa inference, plaintiffs could not make out a prima facie case that the supermarket's negligence was the proximate cause of their damages. It follows from that argument that the lawyer caused his clients no harm because the clients had no provable claim in the underlying suit.

Plaintiffs, however, respond by asserting that they did not need an expert to survive the attorney's summary judgment motion because the res ipsa inference was triggered by common knowledge that automatic doors, unless negligently maintained, do not and should not generally close on customers causing injury. By that logic, the attorney's default resulted in plaintiffs losing a sustainable claim against the supermarket.

In granting summary judgment for the attorney, the trial court ruled that the automatic door was a complex instrumentality, requiring expert testimony before res ipsa loquitur could be invoked. The Appellate Division affirmed. We now reverse.

I.

A.

The facts underlying this attorney malpractice action stem from an accident dating back almost twenty years.*fn1 In August 1987, plaintiff Terry Jerista and her husband plaintiff Michael Jerista went food shopping at a Shop Rite supermarket in Hasbrouck Heights. Mr. Jerista pushed their three-year-old child in a shopping cart through the supermarket's automatic door, which swung into the store. As Mrs. Jerista began to enter, closely behind her husband, the automatic door suddenly swung backwards, striking her right side and briefly pinning her body, causing significant injuries.

That same day, Shop Rite completed an incident report, indicating that the "automatic (in) door closed on [Mrs. Jerista's] right wrist" and that she had pain and some redness in her wrist. Mrs. Jerista sought medical attention the next day at Holy Name Hospital Emergency Room, where she was treated for a contusion to her right wrist and for cervical (neck) strain. In September, a CT scan of her cervical spine was "remarkable" for a "central disc bulge." Over the course of a year, Mrs. Jerista consulted with two neurologists and an orthopedist. During that period, she also received physical therapy treatments. In 1996, Mrs. Jerista underwent surgeries to address disc-related problems. Dr. Michael Wujciak, plaintiffs' expert in the malpractice action, rendered an opinion that Mrs. Jerista had "sustained significant partial whole body permanent impairment consequent to the [Shop Rite accident]." Dr. Wujciak diagnosed the impairment as a "significant anatomical disc disruption ...


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