July 5, 2007
NICOLE ALBANESE, PLAINTIFF-RESPONDENT,
WILLIAM TRIANTOS AND GEORGE LAZOS TRUCKING, DEFENDANTS-APPELLANTS.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-003779-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 12, 2007
Before Judges Stern and Coburn.
Plaintiff appeals from an "order of judgment," entered on June 13, 2006, which awarded plaintiff $30,000 based on a directed verdict. We reverse the judgment and remand for a new trial.
Defendants' motion for summary judgment based on the absence of an expert report was denied without prejudice to renewal at trial. There is no dispute that plaintiff sustained injuries when the drive shaft of defendants' truck fell onto the road on which both vehicles were riding. Damages were stipulated at trial, and defendants' motion for judgment at the end of plaintiff's case was again denied without prejudice. The trial judge concluded that the doctrine of res ipsa loquitur applied to preclude dismissal of her case.
Defendants thereafter rested without presenting a case, and the trial court entered judgment for plaintiff on her motion for a directed verdict. The judge gave the following reasons:
[U]nder the circumstances that were in the ordinary course of events would not have occurred if the defendant had exercised reasonable care. Certainly if the defendant had properly maintained this truck, inspected it, caused inspections to be done and repairs to be done, a drive train on a commercial vehicle is not going to drop out onto the roadway and cause someone else injury and damage. And here I find that there was no negligence or voluntary acts on the part of the plaintiff that would contribute to the happening of the accident. She simply was going down the roadway at a reasonable distance from the truck and no indication of any excessive speed or anything else that would prevent the application of the concept of res ipsa loquitur.
Accordingly, I find that there are no material issues of fact which would prevent this Court from deciding as a matter of law the issue of negligence between the parties, and at this juncture there's only the testimony of the plaintiff.
The issue before us is whether the res ipsa doctrine applies and whether expert testimony was required to prove a prima facie case.
Plaintiff was her only witness. The accident occurred on October 21, 2003, on Interstate Route 95 in Bucks County, Pennsylvania. Defendant William Triantos was driving the truck owned by defendant George Lazos Trucking when the driveshaft fell out of the undercarriage of the truck. Because we agree with the trial judge on his ruling as to the res ipsa doctrine, we quote the statement of facts in defendants' brief:
Plaintiff-respondent testified that as she was driving her vehicle on 95 south, suddenly she noticed a white dump truck approximately six (6) car-lengths ahead of her. Suddenly, without any warning, her whole car went all over the place and she did not know what happened. She then looked around and saw the dump truck going off the side of the road. At the same time, her girlfriend said that there was something big in the back. She didn't realize until after the occurrence that her car went up and down over the driveshaft.
Plaintiff claimed she could not produce an expert report because defendants produced no maintenance records in discovery. In granting the directed verdict, the judge noted that "[t]he Notice to Produce and response to Notice to Produce indicate that there's no records that the defendants could provide with regard to any maintenance records of the defendant." He further concluded, as he had on the motion at the end of plaintiff's case, that expert testimony was not necessary, and that defendants were negligent in not properly maintaining the truck under their control and that a directed verdict was warranted because "in the ordinary course of events drive trains, large pieces of the truck don't fall out absent some sort of negligence on the part of the owner."
The doctrine of res ipsa loquitur permits an inference of 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." [Buckelew v. Grossbard, 87 N.J. 512, 525 (1981) (quoting Bornstein v. Metro. Bottling Co., 26 N.J. 263, 269 (1958)).]
See also Jerista v. Murray, 185 N.J. 175, 192 (2005); Myrlak v. Port Authority, 157 N.J. 84, 95 (1999).
"Whether an accident bespeaks negligence 'depends on the balance of probabilities.'" Jerista v. Murray, supra, 185 N.J. at 192 (citing Buckelew, supra, 87 N.J. at 526). "'[A] plaintiff need not exclude all other possible causes of an accident' to invoke the res ipsa doctrine, provided that the circumstances establish 'that it is more probable than not that the defendant's negligence was a proximate cause of the mishap.'" Jerista, supra, 185 N.J. at 192 (quoting Brown v. Racquet Club of Bricktown, 95 N.J. 280, 291-92 (1984)). "Thus, if res ipsa applies, the factfinder may draw 'the inference that if due care had been exercised by the person having control of the instrumentality causing the injury, the mishap would not have occurred.'" Jerista, supra, 185 N.J. at 193 (citing Brown, supra, 95 N.J. at 288-89).
Moreover, "[o]nly when the res ipsa inference falls outside of the common knowledge of the fact finder and depends on scientific, technical, or other specialized knowledge is expert testimony required." Jerista, supra, 185 N.J. at 199 (citing Buckelew, supra, 87 N.J. at 527-29 and cf. N.J.R.E. 702). "When the average juror can deduce what happened without resort to scientific or technical knowledge, expert testimony is not mandated." Jerista, supra, 185 N.J. at 200.
We agree with the trial judge that the res ipsa doctrine applies. While driving along the highway, the drive shaft fell from the undercarriage of the truck and caused injury to plaintiff. In the absence of other proofs, a juror could conclude that the most likely explanation of the fact that the drive shaft fell off of the truck was that defendants were in some way negligent. As we have already noted, the plaintiff need not exclude all other possible non-negligent causes for res ipsa to apply, so long as "it is more probable than not that defendant's negligence was a proximate cause of the mishap." Jerista, supra, 185 N.J. at 192 (quoting Brown v. Racquet Club of Bricktown, 95 N.J. 280, 287 (1984)). Furthermore, defendants had exclusive knowledge of the maintenance, condition and repairs of the truck. Id. at 194-96 (regarding need for expert testimony). See also Apuzzio v. J. Fede Trucking Co., 355 N.J. Super. 122, 130 (App. Div. 2002) (burden on "defendants to come forward with facts uniquely within their possession"). In Apuzzio we reversed a summary judgment and concluded the case could go forward without expert testimony. Id. at 131.*fn1
The truck was in defendants' exclusive possession and control, and the fact the drive shaft fell off the truck bespeaks negligence in the absence of some other explanation. However, the res ipsa doctrine does not switch the burden of proof to defendant. Rather, it permits the plaintiff to have her case submitted to the jury absent proofs from defendants that disprove their negligence. Myrlak, supra, 157 N.J. at 96. "Because the inference is purely permissive, the factfinder 'is free to accept or reject' it." Jerista, supra, 185 N.J. at 193 (quoting Buckelew, supra, 87 N.J. at 526). Thus, defendants do not claim entitlement to an involuntary dismissal. They assert only that a directed verdict was improper as the jury had to decide the matter based on plaintiff's burden of proof.
We reverse for a new trial. We do not preclude the trial judge from giving the parties further opportunity for discovery and affording plaintiff further opportunity to retain an expert and provide a report if the vehicle is still available for inspection or an expert can give an opinion based on reconstruction of the accident records.
Remanded for a new trial consistent herewith.