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Saitta v. Franklin Development Co.


February 13, 2009


On appeal from Superior Court of New Jersey, Law Division, Union County, Docket No. L-2893-03.

Per curiam.


Argued April 21, 2008

Before Judges A. A. Rodríguez, Collester and C. L. Miniman.

These are back-to-back appeals consolidated for purposes of argument and this opinion. In A-2466-06T1 plaintiff Charles Saitta, II, appeals from the dismissal of his tort action pursuant to a directed verdict by Judge Kathryn A. Brock in favor of defendants Franklin Development Co. (Franklin), Zinsser & Co., Inc. (Zinsser), Distributek, LLC (Distributek), and Norsemen Company Mechanical and Electrical Contractors, Inc. (Norsemen), based upon the trial judge's finding that plaintiff had failed to establish the proximate cause of the electrical fire which caused his injuries.

Correspondingly, in A-3662-06T1 third-party defendant Merchants Insurance Company (Merchants) appeals from Judge Brock's ruling in a declaratory judgment action that a settlement agreement obligating it to share in both the defense and indemnification of third-party plaintiff Distributek was valid and enforceable based on the court's finding that Merchants agreed without reservation to pay one-third of any settlement or verdict entered against Distributek in the underlying action.

Initially we address plaintiff Saitta's tort action. Throughout 2002, Saitta was employed as an electrician by Globus Electric, Inc. (Globus) to perform extensive electrical renovation services at a commercial storage facility located in Franklin Township owned by Franklin and leased by Zinsser. Plaintiff, who had over twenty-four years of experience as an electrician, worked on both the main service box that powered the entire facility, as well as various subpanels. While at the site, he reported to Jim Reynolds, an employee of defendant Distributek, the company hired by Zinsser to oversee the project and who engaged Globus to do the work.

Plaintiff was not the only electrical contractor to perform work on the facility's main service box. Between May and July 18, 2002, Victor Holmlund, an electrician employed by defendant Norsemen, installed two 600-amp subpanels. These subpanels supplied power to forklift battery chargers. Holmlund connected these sub panels to the main service box using 350 McM gauge cables. Holmlund said that after initially cutting the cables down to an appropriate size, he and an assistant bent the cables so that the proper connections could be made within the box. Holmlund described the bending of these heavy gauge cables as a "two-man job" requiring a great deal of brute force. After this was completed, the battery chargers were put into use.

On October 1, 2002, Barry Wilbur, Franklin Township's electrical subcode official, performed a site inspection at the facility. He observed the battery chargers in use and noted that the plans did not reflect the installation of battery chargers. Moreover, Norsemen was not identified as the contractor performing the work, and no permits had been issued for this work. Additionally, under the Uniform Construction Code, these chargers should not have been energized until they had undergone final inspection. Wilbur discussed these matters with Saitta and issued a notice of violation, dated October 21, 2002, to Franklin and Distributek.

Although Distributek maintained that the chargers were on the original plans and that they had merely failed to file a notice that Norsemen was performing this work, a new permit application was made on November 4, 2002. A responding permit was not issued until April 2003.

In early November 2002, Saitta discovered that the cables for the battery charger subpanels had been erroneously connected by Holmlund to the 400-amp breaker on the upper right side of the main service box rather than to the 600-amp breaker on the upper left side of the box. Because Saitta needed to tie into the 400-amp breaker in order to complete the next part of his job, he approached Reynolds and explained the problem. Reynolds said he immediately contacted Norsemen and asked them to look into the matter. Holmlund, purportedly an owner of Norsemen, denied ever hearing from Reynolds that he had connected the cables to the wrong breaker.

According to Saitta, a Norsemen electrician returned to the site on November 11 or 12 and switched the cables from the 400-amp breaker to the 600-amp breaker. Saitta said that he knew it was a Norsemen electrician because of the logo on both the truck and the shirt of the worker. He explained that this electrician only had to move six of the eight cables because the other two were ground cables situated behind the other cables and attached to the ground.

Saitta claimed that the electrician had only small hand tools with him and made no attempt to shorten the cables even though there was limited space in the box. The cables were in close proximity to the energized bus bars, and it was apparent that there was going to be excess cable. Saitta recalled that the electrician simply disconnected the cables from the right circuit and reconnected them to the left circuit. Saitta described the work by the Norsemen electrician as "sloppy." He said that when cables are too long, they can be pushed into spaces where they do not belong and too close to the bus bars, and that excessive bending can damage the cable insulation. After this work was completed, Saitta noticed that the interior cover which protected the cables and the energy bus bars no longer fit properly over the cables inside. Saitta believed this constituted a code violation and brought it to Reynolds's attention.

On November 15, 2002, Saitta opened the exterior cover of the main panel and prepared to install a ground cable in connection with the tie-in to the 400-amp circuit breaker. As he began his work, Saitta found that it was necessary to unfix a ground cable that had been installed by the Norsemen electrician to an unnecessarily large lug. When he loosened the lug, the ground cable inside dropped approximately one inch and Saitta heard the sound of shooting sparks. As he pulled his hand out, the panel exploded, setting fire to his shirt, which resulted in second and third-degree burns to eleven percent of his body, including his head, neck, right shoulder and upper arm.

At trial Saitta identified the Norsemen cables as well as his own cables in a photo of the main service box taken after the fire. He pointed out that there were other cables in the decades-old box, some of which were twenty to thirty years old. He testified that he did not really know what had caused the fire, he believed that when he loosened the lug and the Norsemen ground cable moved, the upper portion of that cable must have struck something above so that either it or some other cable struck a bus bar. He could not see the cables above since they were covered by the interior cover. Saitta admitted that while the Norsemen cables were bent, he did not observe any insulation failure and conceded that the ill-fitting interior cover did not cause the accident.

Saitta insisted that he did not act inappropriately in working on the box while it was energized since the bus bars were under the interior cover. He said the only way to completely de-energize the box was to have PSE&G turn off the power at the street. He acknowledged that this had been done once before during the job to enable him to safely work outside on the transformer, but not on the main service box.

Saitta believed that Norsemen's work had been properly permitted and inspected prior to the day of the accident. He also noted that the battery chargers were being used that day. He further claimed that he asked Reynolds about Norsemen's work following Wilbur's inspection on October 1, 2002 and that Reynolds told him that the "work was permitted" but that the paperwork "hadn't come back as of yet."

Wilbur denied that he inspected the battery chargers on October 1, 2002, although he acknowledged that he could have shut the chargers down if he felt they were unsafe. Wilbur further stated that he could not tell from the photos taken after the fire whether Norsemen's work was code compliant.

Saitta's expert was Daryl Ebersole, an electrical engineer. He opined to a reasonable degree of electrical engineering probability that the fire occurred because an improperly installed and compromised Norsemen ground cable came into contact with one or more of the electrified bus bars. He explained that the large copper cables installed by Norsemen extended downward from an opening in the top of the main panel box left of center above the three electrified bus bars. He stated that these cables had to make a tight left turn to reach the 600-amp circuit breaker on the upper left-hand side of the box.

According to Ebersole, Norsemen was required under the National Electrical Code to size the cables correctly so that they fit easily in the box and remained clear of the bus bars. However, the stiff metal cables here, which had previously been sized to reach the 400-amp circuit breaker on the upper right hand side of the box, had not, in Ebersole's opinion, been properly cut down to size before they were reconnected with the closer 600-amp circuit breaker. Instead they were excessively bent and placed under great stress. Because the cables were too long and improperly jammed in, as evidenced by the ill-fitting interior cover reported by Saitta, they ended up in close proximity to the electrified bus bars. This stress compromised the insulation of one of the two Norsemen copper ground cables which were connected to the box's ground bar located at ground level on the lower left side of the box.

Ebersole maintained that as Saitta loosened a lug on the ground bar in order to move this cable, which he had no way of knowing was compromised since it was hidden behind the closed interior cover, the cable shifted downward due to the pressure placed on it from above. The compromised upper portion of the ground cable ended up touching one or more of the electrified bus bars, and its insulation failed, sparking the fire.

Ebersole acknowledged that when he inspected the main service box in April 2004, the cables had been removed and that he only viewed post-fire photos of the cables as they had been installed. He further stated that he was able to see only one Norsemen ground cable in the photos and that this cable was not the one that hit the bus bar and caused the fire. He admitted that he never actually observed the cable in question. Ebersole also acknowledged that Saitta never told him that the cables were strained or exhibited frayed or otherwise compromised insulation.

Ebersole discounted the fire department's conclusion that the cause of the fire was "undetermined" since they had never spoken to Saitta. He acknowledged that the fire report noted a piece of scrap wire was hanging down in front of the panel, but he maintained the wire could not have caused the fire since it would have completely melted. Ebersole also conceded that he did not independently confirm that Norsemen moved cables in the box several days prior to the fire, as asserted by Saitta.

Ebersole insisted that Saitta's action in loosening the lug nut would not have resulted in the fire had it not been for Norsemen's improper work. He maintained that there was no reason for Saitta to have de-energized the panel since he was not working near the bus bars. He said that while his company employed a metallurgist, he elected not to have the copper-colored material on the right-most bus bar tested to confirm that it was, in fact, copper. He maintained that such testing was not necessary since the color of the melted metal was unmistakable, and copper is commonly identified by color alone. Although he conceded that other metals have copper coloration and that there were other items in the box made of copper, he insisted that nothing else made of copper was in the area of the explosion.

In a separate portion of his opinion Ebersole concluded that Norsemen was also negligent in failing to ensure that proper permits were obtained before it began working on the main service box and that this negligence caused the accident because, without the permits, the work should never have taken place. Additionally, Ebersole opined that Distributek was negligent in failing to ensure that the proper permits were obtained, in permitting Norsemen to continue working at the site after the permit situation was discovered, and in failing to de-energize the bus bars to which the unauthorized and uninspected work was connected. He conceded that the absence of a permit did not mean that a hazardous situation would necessarily result.

At the close of Saitta's proofs, all four defendants moved to strike Ebersole's opinion of the cause of the fire as a net opinion. They argued that his identified cause was nothing more than an unsubstantiated possibility. Counsel for Franklin pointed out that there was no testimony that the ground cable Ebersole claimed caused the fire had ever been moved, over-bent or compromised. Defense counsel also noted that there was no evidence that the ground cable that allegedly caused the accident completely disintegrated or that any of the cables could have sustained insulation failure within two or three days of placement.

Judge Brock focused on whether Ebersole provided any "testable" support for his theory that the explosion was caused by cable insulation failure, such that his opinion could be deemed reliable and not a bare net opinion. She first discussed Ebersole's finding that the Norseman cable had been improperly stressed:

[Ebersole] described [the allegedly stressed cable] as . . . loop[ed] as opposed to . . . ben[t] and there really isn't any testimony about any kind of standard . . . [as to] when the loop becomes inappropriately stressed.

And then we have . . . [the fact that] Ebersole . . . did not ask to see any of the cables. . . just looked at the empty panel and made his, his conclusions based on looking at that and also looking at the pictures that were taken and all the other information that he gathered from people. But he . . . never saw any pictures or heard from anybody else that there was any kinking, tearing, fraying or any other observed signs of cable insulation failure.

So with respect to insulation failure, as I said, he didn't ask for the cables so he could examine them or test them in any kind of scientific way. And [while] he does have experience installing the type of cable, . . . he never had bent that cable to the point of . . . what it would take to compromise the cable and have the . . . insulation wear through so that it could actually cause the accident that he says it did in this case. And it's true that he . . . doesn't necessarily have to rely on his experience, . . . but the point here is that's all he's relying on is his experience. He's not doing any testing and he's not looking at any literature. So he's only relying on his . . . his experience and his experience is that he . . . had no notion from his experience what it would take to compromise the particular cable . . . so that it would result in . . . this explosion. So, yes, it's his experience that he's relying on and, no, he doesn't have the requisite experience.

And then, he didn't check with the manufacturer or any other kind of literature anywhere to see about that particular cable and what might cause it to stress or ultimately fail from a source like that as opposed to testing it himself.

So basically he doesn't have anything but his experience on the, on the insulation failure issue and his experience, the experience he has i[s] not how to make a cable like that fail. So basically he doesn't have a basis from experience . . . that would cover insulation failure in this case.

Next, Judge Brock discussed Ebersole's finding that copper from Norseman's melted cable was evident on the melted ground bar. She noted that Ebersole had failed to point to any industry standard confirming that melted cooper could be identified purely on the basis of color without testing by a metallurgist. Additionally, she pointed out that Ebersole admitted that there were other possible sources of the copper he identified and had failed to rule out any or all of these other possible sources. Judge Brock also observed that in concluding that a Norseman cable was involved Ebersole had simply accepted plaintiff's statements regarding the location of these cables. She then stated:

And the point was made this morning that the ground [cable] was already there and that when these things were moved . . . the most days it could have been, anything could have stressed the ground [cable][,] was about three days[.] . . . I . . . note from looking at the type of [cable] that it is heavy duty [cable] and, although I . . . really would rather not get my own weighing into what it would take to go through there because that's the point of the expert[,] [t]he jury could draw the same conclusion I do about how heavy duty the . . . cable looks. The point of the expert is to help them out and tell them something they can't figure out themselves.

And I do think [defense counsel's] point this morning about the ground [cable] having been set up to put the, put the cables on the right side and it's still there when the cables were moved to the left side, is a good one. And also that the distances are about the same. Now maybe the wires were just too long to begin with. I don't know. But . . . I mean the, the idea that they were stuffed in there is not hard to tell as a . . . lay person, they looked stuffed. But the point made this morning that basically the distance to one side is not all that different from the, the distance to the other side visually, but it wasn't measured by, by the expert seems to be appropriate.

And the concept that somehow that ground [cable] was moved, Norseman's was moved, there really isn't [anybody] testifying to that. I think if, if [plaintiff] would have made a point about the ground [cable] moving, if he, if he thought that, he would have said it. He was . . . talking about watching them move from left to right, left, right, right to left. I'm sorry. But I think if he saw them move a ground [cable] that he then was gonna [sic] use, he, he'd have recalled that.

Common knowledge is not enough here. Everybody agrees that it isn't. And we actually have a plaintiff with a whole lot of experience of his own as an electrician, not as an engineer, but as an electrician. But even while all of his experience and the obvious attention that he pays to his work, he didn't know what caused the accident and the fire inspector did not either. The [plaintiff] points out that Mr. Ebersol[e] took more time than the fire inspector did.

But the point is really not that he took more time, but what did he do and how reliable is what he did. And in the end, that's the real problem with his testimony is that it's not reliable. And that is why I'm going to grant the motion to strike his opinion.

Saitta argues that the trial judge abused her discretion in excluding Ebersole's opinion based upon: (1) her erroneous finding that Ebersole did not provide a proper basis for his opinion; (2) her erroneous finding that Ebersole did not properly rule out all other causes of the accident; and (3) her negative impressions as to the weight of Ebersole's testimony.

We will review trial court decisions regarding the admission or exclusion of expert testimony in accordance with an abuse of discretion standard. C.W. v. Cooper Health System, 388 N.J. Super. 42, 64 (App. Div. 2006). Pursuant to N.J.R.E. 703, an expert's opinion must be based on "facts, data, or another expert's opinion, either perceived or made known to the expert, at or before trial." Rosenberg v. Tavorath, 352 N.J. Super. 385, 401 (App. Div. 2002). An opinion lacking in such foundation and consisting of bare conclusions unsupported by factual evidence is inadmissible as a net opinion. Johnson v. Salem Corp., 97 N.J. 78, 91 (1984). The net opinion rule requires the expert "to give the why and wherefore" of his or her opinion. Jiminez v. GNOC, Corp., 286 N.J. Super. 533, 540 (App. Div.), certif. denied, 145 N.J. 374 (1996).

Accordingly, courts will not admit expert testimony "if it appears the witness is not in possession of such facts as will enable him [or her] to express a reasonably accurate conclusion as distinguished from a mere guess or conjecture." Vuocolo v. Diamond Shamrock Chems. Co., 240 N.J. Super. 289, 299 (App. Div.) (quoting Clearwater Corp. v. City of Lincoln, 277 N.W.2d 236, 241 (Neb. 1979)), certif. denied, 122 N.J. 333 (1990). Proffered expert testimony must be excluded if it is based solely on "mere speculation or possibility, unsupported by the evidence." Vuocolo, supra, 240 N.J. Super. at 299. The requirement that the opinion of an expert have a proper factual foundation is especially important where the opinion purports to establish a cause and effect relationship. Gardner v. Pawliw, 285 N.J. Super. 113, 121 (App. Div. 1995), rev'd on other grounds, 150 N.J. 359 (1997).

Plaintiff Saitta argues while Ebersole admittedly did not perform stress tests on similar cables or contact the cable manufacturer to discuss the durability of the cables, his opinion was properly predicated upon the copper residue found on the bus bar as well as Saitta's testimony regarding the location of the Norsemen cables, the failure of the Norsemen electrician to properly shorten the cables before reconnecting them to the 600-amp breaker, and the resulting strain on the cables as evidenced by the ill-fitting interior cover.

However, as noted by Judge Brock, the ground cable that allegedly caused the fire could not have suffered insulation failure due to excessive strain since it was never relocated and, thus, was never in need of shortening or subjected to overbending. As described by Saitta, who was the only witness to the relocation of the cables, the Norsemen electrician merely disconnected the current-carrying cables from the breaker on the right side of the box and reconnected them to the breaker on the left side of the box. The two Norsemen ground cables were never attached to the breakers. Instead they were attached to the single ground bar, located in the lower left side of the box. Because Saitta did not observe any cable insulation failure, and Ebersole was unable to identify the allegedly offending ground cable in post-fire photos and never testified that the cable would have completely disintegrated in the fire, Ebersole's opinion was without factual support and rightly excluded as a net opinion.

Saitta next contends that Judge Brock erred in dismissing his case based upon her finding that plaintiff could not rely upon either the permit violation or the doctrine of res ipsa loquitur to make out a prima facie case of negligence. After Ebersole's opinion regarding proximate causation was struck from the record, Saitta's attorney argued that the case should nonetheless go to the jury because of the negligence of both Norsemen and Distributek in failing to obtain the work permit. Counsel also argued that, because the accident could not have occurred without negligence on someone's part, the doctrine of res ipsa loquitur could be applied.

First, as noted by the judge, even assuming that the absence of a permit was evidence of negligence, Saitta still could not make out a prima facie case without Ebersole's causation opinion. All Saitta had was a notice of violation for failing to obtain a permit for work he could not prove caused the accident. Second, the doctrine of res ipsa loquitur did not enable Saitta to get past the lack of acceptable proof of causation because he could not demonstrate that any of the defendants had control over the box so as to warrant the application. Judge Brock ruled as follows:

I don't believe there's any evidence there that the plaintiff can show that it's more probable than not that the defendant[s'] negligence was a proximate cause of the mishap.

And then . . . this issue about the defendant[s'] control it's true that the plaintiff was only working on the bottom of the box and supposedly if . . . the certain part of it wasn't energized, it couldn't have happened, but then again if he hadn't come to work that day, it wouldn't have happened either. I think he made the point that it would have happened, the accident probably would have happened to somebody some other time. But, again, that's speculation. We don't really know that.

. . . [N]o agent of the four defendants was actually near the panel when the . . . accident happened. So the idea that they're exercising control over it in the sense of the plaintiff . . . isn't true. I mean he was there using it. He was in it . . . .

[Y]ou can't use the doctrine [of res ipsa loquitur] if you can't show that it was more probable than not that the defendant's negligence was a proximate cause and that the defendants were in control of the instrumentality.

When reviewing a ruling by a trial judge on a motion for an involuntary dismissal pursuant to Rule 4:37-2(b), we "accept as true all the evidence which supports the position of the party defending against the motion and must accord him the benefit of all legitimate inferences which can be deduced therefrom," in determining whether a cause of action has been made out. Dolson v. Anastasia, 55 N.J. 2, 5 (1969). Like the trial court, we are not concerned with the weight, worth, nature or extent of the evidence. Id. at 5-6.

Saitta argues first that Judge Brock erred in refusing to permit the case to go to the jury without expert testimony on proximate causation. He claims that the proven permit violation in this case can be construed as evidence of negligence from which the jury could find proximately caused the accident. Saitta reasons that "[i]f [d]efendants had obtained a permit for Norsemen's work on the battery chargers and tie-in to the main service panel, then the panel would have been inspected and the hazard it created with the reinstallation and relocation of its [cables] from the right to the left side of the main service panel would have been discovered and the issue either rectified or the work non-electrified."

Preliminarily, Saitta disregards the fact that his counsel conceded during oral argument on the admissibility of Ebersole's expert opinion that expert testimony on the issue of causation was needed in this case. Leaving that aside, the need for expert testimony in this case is obvious, for it involves the inner workings of an electrical power box and the cause of an arc flash fire, esoteric matters not within the general experience or knowledge of the average juror. See Wyatt v. Wyatt, 217 N.J. Super. 580, 591 (App. Div. 1987). As we stated in Kelly v. Berlin, 300 N.J. Super. 256, 267 (App. Div. 1997), when expert testimony is necessary to plaintiff's case but no such testimony appears in the record, the trial court must grant involuntary dismissal.

Furthermore, while Saitta is correct that a violation of a statute or regulation "may be considered by a jury together with all of the evidence in determining issues of negligence," Mattero v. Silverman, 71 N.J. Super. 1, 9 (App. Div. 1961), certif. denied, 36 N.J. 305 (1962), this proposition is "subsumed by the overriding principle that the . . . violation, to be evidential, must be causally related to the happening of the accident. . . ." Mattero v. Silverman, supra, 71 N.J. Super. at 9. In other words,

[t]he issue of a defendant's liability is not entitled to be presented to a jury simply because there is some evidence of negligence; there must be evidence or reasonable inferences therefrom showing a proximate causal relationship between defendant's negligence, if found by the jury, and the resulting injury.

[Sanchez v. Indep. Bus Co., Inc., 358 N.J. Super. 74, 84 (App. Div. 2003).]

The permit violation in this case was due to incomplete paperwork, not safety issues. This case is unlike Rodgers v. Reid Oldsmobile, Inc., 58 N.J. Super. 375 (App. Div. 1959), and Hoagland v. Gomez, 290 N.J. Super. 550 (App. Div. 1996), both of which involved safety-based code and ordinance violations that were deemed sufficient to support jury findings of negligence and proximate cause.

Furthermore, in making the argument that the failure to obtain a permit was causally related to the accident, Saitta assumes that Norsemen created the hazard that caused the fire that injured him - a fact not in evidence once Ebersole's net opinion was stricken from the record. Without this essential link, it is of no moment that the proper permit was not obtained, that there was no timely inspection of Norsemen's work, or that Norsemen's work was not de-energized. Because there was no identified hidden hazard which an inspection would have revealed, this case is also distinguishable from Mississippi Power Co. v. Jones, 369 So. 2d 1381, 1384-385 (Miss. 1979), relied upon by plaintiff, in which the power company was held liable for injuries sustained by the plaintiff electrician when the company prematurely energized an incomplete electrical system in violation of the local ordinance. Since Saitta failed to demonstrate that the accident was causally related to the permit violation, plaintiff's argument fails.

Plaintiff next argues that Judge Brock erred in ruling that the doctrine of res ipsa loquitur was inapplicable. Res ipsa loquitur is a way of circumstantially proving the existence of negligence. Szalontai v. Yazbo's Sports Café, 183 N.J. 386, 400 (2005). It allows the fact finder to draw an inference of negligence against the party who was in exclusive control of the object or means that caused the accident. Jerista v. Murray, 185 N.J. 175, 192 (2005). It places a strong incentive on the party with superior knowledge to explain the cause of an accident and to come forward with evidence in its defense.

Ibid. Res ipsa loquitur may be invoked "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)).

Although the doctrine does not shift the burden of proof to the defendant, it "ordinarily assures the plaintiff a prima facie case that will survive summary judgment." Murray, supra, 185 N.J. at 193. When the doctrine applies, a defendant can secure a directed verdict only if his or her 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." Ibid.

Plaintiff argues that Judge Brock erred in refusing to allow the invocation of the doctrine of res ipsa loquitur based upon her finding that there was no showing of exclusive control by any of the defendants. However, the judge's finding regarding the exclusive control prong was premised on the fact that with the exception of the single day when a Norsemen electrician allegedly reconnected the misplaced cables, it was Saitta or some other Globus electrician who was in exclusive control of the box since July when Norsemen completed its work. Saitta performed work in the box since the summer, and he was working alone in the box on the day of the accident. Therefore, we agree with Judge Brock that the instrumentality from which the accident arose was not within the exclusive control of any of the defendants, and her decision not to allow plaintiff to invoke res ipsa loquitur was correct.

Plaintiff's remaining arguments are without sufficient merit to warrant discussion in a written opinion. See R. 2:11-3(e)(1). In light of our decision the companion appeal is rendered moot.

Affirmed as to A-2466-06T1. A-3662-06T1 is dismissed as moot.


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