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Flis v. Mainco Elevator Co.

December 1, 2009

JOANNE FLIS AND RAYMOND FLIS, PLAINTIFFS-RESPONDENTS,
v.
MAINCO ELEVATOR COMPANY T/A MAINCO ELEVATOR SERVICE COMPANY, A NEW YORK CORPORATION, DEFENDANT-APPELLANT, AND TAUBMAN CENTERS, INC., TRADING AS AND/OR DOING BUSINESS AS THE TAUBMAN COMPANY, A MICHIGAN CORPORATION; TAUBMAN REALTY GROUP LTD. PARTNERSHIP, INDIVIDUALLY AND/OR AS A SUBSIDIARY EMPLOYEE, AGENT AND/OR SERVANT OF TAUBMAN CENTERS, INC.; FEDERATED DEPARTMENT STORES, INC., A OHIO CORPORATION; BLOOMINGDALES, INC., A NEW YORK CORPORATION AND SUBSIDIARY CORPORATION OF FEDERATED DEPARTMENT STORES, INC., DEFENDANTS.
BEVERLEE ROLLERI AND RONALD ROLLERI, PLAINTIFFS-RESPONDENTS,
v.
MAINCO ELEVATOR COMPANY T/A MAINCO ELEVATOR SERVICE COMPANY, A NEW YORK CORPORATION, DEFENDANT-APPELLANT, AND TAUBMAN CENTERS, INC. TRADING AS AND/OR DOING BUSINESS AS THE TAUBMAN COMPANY, A MICHIGAN CORPORATION; TAUBMAN REALTY GROUP LTD. PARTNERSHIP, INDIVIDUALLY AND/OR AS A SUBSIDIARY, EMPLOYEE, AGENT AND/OR SERVANT OF TAUBMAN CENTERS, INC.; FEDERATED DEPARTMENT STORES, INC., A OHIO CORPORATION; BLOOMINGDALES, INC., A NEW YORK CORPORATION AND SUBSIDIARY CORPORATION OF FEDERATED DEPARTMENT STORES, INC., DEFENDANTS.



On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket Nos. L-5855-03 & L-5858-03.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: October 15, 2009

Before Judges Axelrad, Fisher and Espinosa.

Following a remand after we reversed summary judgment dismissal of plaintiffs' action seeking damages for injuries sustained as a result of the female plaintiffs being trapped in a runaway elevator maintained and serviced by defendant, a jury verdict was entered in plaintiffs' favor. Defendant Mainco Elevator and Electrical Corp. (Mainco) appeals from the judgment, arguing, among other things, that the trial judge erred in charging res ipsa loquitur and in several evidentiary rulings, and that the verdict was excessive and against the weight of the evidence. We affirm.

This is a consolidated personal injury action brought by plaintiffs Joanne Flis and her husband Raymond, and Beverlee Rolleri and her husband Ronald, arising from an elevator incident occurring in Bloomingdale's at the Short Hills Mall on October 8, 2001.*fn1 The doors failed to open to let plaintiffs out and the elevator repeatedly jerked up and down between the fourth floor and basement for over two hours before security personnel were able to release the trapped plaintiffs. Suit was instituted against the corporate owner of Bloomingdale's, who settled prior to trial, and Mainco. At the time of the accident, Mainco was party to a contract requiring it to provide elevator maintenance services to Bloomingdale's. Plaintiffs contended they sustained physical and psychological injuries and lost earnings, and their husbands asserted losses of consortium, resulting from Mainco's negligent maintenance of the malfunctioning elevator.

The action was originally dismissed by way of summary judgment on the ground that the liability report of plaintiffs' expert was a net opinion, the doctrine of res ipsa loquitur did not apply, and thus plaintiffs could not establish their claims without an expert opinion. Plaintiffs' motion for reconsideration was denied. A panel of our court reversed by way of an unpublished opinion. Flis v. Mainco Elevator Co., No. A-1674-05T2 (App. Div. Nov. 6, 2006). Although agreeing with the trial court that Patrick Carrajat, plaintiffs' vertical transportation expert, had rendered only a net opinion, the panel concluded that the expert should still have been permitted to testify about the maintenance records and what Mainco's obligations were under the service contract, as a basis for suggesting Mainco's negligence. We stated:

Although we agree that the expert's opinion was a net opinion, we believe, nevertheless, the trial judge should have allowed plaintiffs' expert to testify at trial as to what his review of the maintenance records disclosed, i.e., Mainco's obligations under the service contract, the lack of monthly maintenance as required thereunder, the elevator's "running wild" the day of the incident, and the replacement of the relay switch by Mainco's mechanic the following day, properly limited so as not to include net opinion statements about negligence or fault. Plaintiffs would thus be able to present testimony that by virtue of its contract, Mainco had a duty to perform maintenance in accordance with its contractual obligations and exercised exclusive control over the elevator. [Id. (slip op. at 8-9)].

The panel also noted the likely applicability of a res ipsa loquitur theory against Mainco for injuries incurred by the malfunctioning of the elevator.

In discovery following the remand, Carrajat fleshed out his report. In his deposition and de bene esse deposition presented at trial in January 2008, Carrajat testified that a review of Mainco's records disclosed the elevator had not been serviced for at least three months before the incident despite the service agreement between Mainco and Bloomingdale's which required monthly maintenance, and that the day after the accident the "LR" (late call response) relay was replaced and the elevator was placed back in service without further incident. Thus identifying the source of the malfunction as an LR relay that had "burned out" or otherwise gone bad, Carrajat was of the opinion that Mainco's faulty or non-existent maintenance was the cause of the erratic behavior of the elevator and plaintiffs' resulting injuries. Carrajat's testimony also included in cross-examination the acknowledgement that a relay failure could occur spontaneously and in the absence of negligence. The trial court permitted the testimony that spontaneous failure could occur but ruled that the statement referencing "absence of negligence" would be deleted from Carrajat's trial testimony. The court's ruling was based on its interpretation of our remand opinion as precluding Carrajat from mentioning negligence or its inherent counterpart, absence of negligence. However, the entire section was inadvertently played to the jury. Accordingly, the court informed the jurors of the error and instructed that the phrase "absence of negligence" be stricken from the record and they were not to consider that testimony in their deliberations.

Mainco presented two of its servicemen as fact witnesses and did not present any expert testimony on the issue of liability. Daniel Donlin, Mainco's mechanic who inspected the elevator the day after the incident, testified that he traced the problem to a burnt out or bad coil in the LR relay by use of a fault meter, replaced the part, and threw out the failed relay. He could not recall seeing any evidence of malfunctioning contacts, broken shunt or discolored wiring insulation on any of the relays during his inspection. Nor did he observe any physical abnormalities or obvious burn marks, noting that "[m]ost of the time those things are not visible."

On the issue of damages, plaintiffs testified, as did their husbands. They also produced examining medical providers, including physicians, a psychologist, a psychiatrist, and an economist, by live and de bene esse deposition testimony. Plaintiffs presented evidence of injuries resulting from the accident; Flis presented proof of an injury to her left big toe requiring surgery and Rolleri claimed a compression fracture of her thoracic spine. Both plaintiffs also presented evidence of psychological injuries, and Rolleri presented evidence of lost earnings. The jury awarded Flis $415,000 and Rolleri $615,000, and Raymond and Ronald $30,000 and $185,000 on their respective per quod claims; and apportioned negligence as 33% against Mainco and 67% against Bloomingdale's. The final judgment order was entered on March 28, 2008. Following denial of its motion for a new trial, Mainco appealed, challenging rulings affecting the liability verdict and challenging the amount of the damages verdict.

I.

Plaintiffs, who were fifty-five years old at the time of the incident, testified that they were shopping at Bloomingdale's on October 8, 2001. Between 7:00 and 7:15 p.m., they entered the elevator on the lower level as the sole occupants and pressed the button for the fourth floor. The elevator stopped at the fourth floor but the doors did not open. Flis testified that "all of a sudden the floor just collapsed" beneath them as the elevator began descending and stopping in a jerky motion. She explained that the second time the elevator jerked, she fell backwards and hit her back and head, and also jammed her foot where the doors closed to keep from falling as the elevator continued to drop again and again. Rolleri testified that when the elevator first ascended and came to a halt with a "violent jolt," it caused her to fall to the floor, and the continuous erratic descending and stopping caused her to fall repeatedly, striking her back and head. Rolleri described the force of the impact as "being in a car accident and somebody hitting your car... with their car, again and again and again," and it felt as if the elevator were "running wild."

During this time, the women pressed the alarm button, which they could hear ringing outside of the elevator, and used the emergency telephone contained in the elevator, but they received no response. Flis also tried using her cell phone but had no signal. In addition, Rolleri tried to pry the door open but it was too heavy. After about an hour in the elevator, Flis was able to speak on her cell phone with Bloomingdale's security staff who said they would send someone over. In the interim, the elevator continued to move up and down between the fourth floor and the basement. At 9:45 p.m., security staff was able to open the elevator doors and release plaintiffs after about two and a half hours of confinement. According to Rolleri, they felt dehydrated from screaming, were in shock, and were generally a ...


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