On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-334-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Parker and Lyons.
Plaintiff Bernardino Castano appeals from two orders: an order entered on November 18, 2005 granting summary judgment in favor of defendant Serge Elevator Company (Serge); an order entered on April 28, 2006 denying plaintiff's motion for reconsideration of the November 18, 2005 order. We reverse and remand.
Plaintiff was employed as a freight elevator operator in the Harborside Financial Center on Exchange Place in Jersey City. On February 15, 2002, he was injured while operating a freight elevator manufactured by defendant Otis Elevator Company (Otis), maintained by Serge, and located in a building owned by Mack-Cali Realty Corporation (Mack-Cali). Plaintiff alleges that he entered the elevator on the eighth floor and moved the handle to go down to the sixth floor, but the elevator accelerated upward, striking the ceiling of the elevator framework above the eighth floor. There is no factual dispute about the occurrence of the accident. Rather, the issue is whether plaintiff is required to produce an expert's report as to the defect in the elevator. Plaintiff maintains that he can rely on the res ipsa loquitor doctrine and does not need an expert to proceed against defendants.
At oral argument on Serge's summary judgment motion, plaintiff appeared with an expert report "saying that he ha[d] just told his adversaries about it." The trial court noted that the report was "undated and far beyond the discovery end date, is not presented to the court in a form that could even on short notice be cognizable by the court and any applications for extension of discovery, reopening discovery for the purpose of admitting this report and extending it will have to be made to . . . the presiding judge." The trial court proceeded on the summary judgment motion as if plaintiff had not produced an expert's report. The court determined that because the elevator was operated manually, it was not within the sole control of defendants. Consequently, the court concluded that plaintiff cannot rely on the res ipsa doctrine. Without the expert report, the court found plaintiff unable to carry its burden and establish negligence. The complaint was, therefore, dismissed.
The res ipsa doctrine "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.'"
Whether an accident bespeaks negligence "depends on the balance of probabilities." Buckelew v. Grossboard, 87 N.J. 512, 526 (1981). "[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.
[I]f 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." Because the inference is purely permissive, the factfinder "is free to accept or reject" it.
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 summary judgment. When res ipsa applies the defendant can only win a directed verdict if the defendant's countervailing proofs are so overwhelming that they destroy any reasonable inference of negligence and leave no room for reasonable doubt concerning defendant's lack of negligence. [Jerista v. Murray, 185 N.J. 175, 191-93 (2005) (internal citations omitted).]
The first prong of the res ipsa analysis is that the occurrence "bespeaks negligence." The plaintiff in Jerista was injured when the automatic door in the supermarket she was entering "suddenly swung backwards, striking her right side and briefly pinning her body." Id. at 182. The Supreme Court rejected our holding that expert testimony was required to explain the automatic door's mechanisms and potential malfunctioning in order to trigger res ipsa. Id. at 195. The Court determined that expert testimony was not necessary for a jury to draw an inference of negligence in the case of an automatic door malfunctioning. Id. at 195. In so doing, the Court overruled our decision in Knight v. Essex Plaza, 377 N.J. Super. 562, 578-79 (App. Div. 2005), in which we concluded that expert testimony was necessary to explain the mechanism and potential malfunctioning of a complex instrumentality, such as an automatic door. Ibid.
Here, the trial court focused on plaintiff's manual control of the elevator and concluded that "an expert report would be necessary in order to instruct [the jurors] to assist them and so that they could determine whether or not there was negligence by Serge Elevator in the maintenance or . . . preparation for operation of this elevator." The trial court distinguished this case from Rosenberg v. Otis Elevator Co., 366 N.J. Super. 292 (App. Div. 2004), in which we allowed plaintiff to proceed to the jury without an expert report. In that case, the elevator was automatic, allowing the occupant to push a button to select the desired floor. Here, the elevator was operated manually, requiring the occupant to move a lever in one direction or another. We see no practical difference between an elevator operated by a button or by a lever. Even if plaintiff had pushed the lever in the "up" direction, the elevator should not have proceeded beyond the eighth floor - the top floor of the building - and struck the elevator framework ceiling. It is not whether the instrumentality is so complex as to require an expert witness, but whether the evidence "require[s] expert testimony to explain . . . it in lay language." Rosenberg, supra, 366 N.J. Super. at 305.
In Jerista, the Court expressly noted that it was only considering the first prong of the res ipsa analysis: whether the occurrence itself "bespeaks negligence." 185 N.J. at 192. Nevertheless, the Court discussed expert testimony at length, stating that it "disagree[d] with the Appellate Division's sweeping suggestion . . . that in almost all complex instrumentality cases a res ipsa inference will be conditioned on the production of expert testimony." Id. at 197. The Court noted that the requirement of expert testimony in cases involving complex instrumentalities was based on a misreading of Jimenez v. GNOC Corp., 286 N.J. Super. 533 (App. Div. 1996). Jerista, supra, 185 N.J. at 197-98. The Court stated unequivocally that the complexity of the instrumentality is not the issue, rather it is "whether[,] based on common knowledge[,] the balance of probabilities favors negligence, thus rendering fair the drawing of a res ipsa inference." Id. at 199. "When the average juror can deduce what happened without resort to scientific or ...