December 8, 2010
MAP INVESTMENT COMPANY, PLAINTIFF-APPELLANT,
LIBERTY ELEVATOR CORPORATION AND JERSEY CENTRAL POWER & LIGHT COMPANY, DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-3134-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 15, 2010
Before Judges Lisa, Reisner and Alvarez.
Plaintiff Map Investment Company appeals from a November 5, 2009 order dismissing its complaint against defendants Liberty Elevator Corporation (Liberty) and Jersey Central Power & Light Company (JCP&L). We affirm.
Plaintiff, the owner of a commercial building in Springfield, New Jersey, sued Liberty and JCP&L, contending that defendants' negligence was responsible for two fires in one of the building's elevators. Plaintiff alleged that Liberty, with which it had a maintenance contract, negligently installed fuses in the elevator, and that JCP&L negligently supplied "too many volts" of electricity to the building.
The record concerning the fires is limited to the following information culled from reports prepared by plaintiff's own in-house maintenance staff and reports from the local fire department. On December 20, 2007, smoke was reported in the #2 elevator's control motor. When the fire department arrived, there was no fire, but smoke remained in the building. According to a December 2007 report made by Map personnel, there was a "possible fire" in the elevator. The report noted: "The building elevator contractor responded and found the motor to be faulty. A new motor was installed the following week and was covered under the maintenance contract." The Springfield Township Fire Department reported that "an overheated elevator motor" caused the smoke.
A fire was reported in the same elevator on January 17, 2008. A project status report for that month, prepared by Map personnel, stated that "[t]he fire was caused by the pump unit from elevator #2." The Fire Department determined that "an overheated elevator motor" caused a "moderate smoke condition" in the building. After obtaining bids from several contractors, plaintiff authorized a third party elevator contractor, Federal Elevator, to "replace the motor and pump unit with a new unit that will be the start of a complete overhaul of both cars mechanical and electrical components."
There was no evidence concerning the type of electrical service JCP&L provided to the building, nor was there any evidence that incorrect voltage was provided.
The complaint was filed on July 30, 2008, and the case was assigned a 150-day discovery schedule. After the case had been pending for more than a year, and the court had granted one discovery extension upon JCP&L's motion, plaintiff had yet to take a single deposition or retain an expert witness on the negligence issues.
Approximately ten months into the discovery period, plaintiff terminated its relationship with its original counsel and retained new counsel. The new counsel did not conduct any additional discovery, although counsel made several motions to the trial court judge to extend the discovery period. Liberty also made two requests to extend the discovery period. All of those motions were denied because the parties did not establish "exceptional circumstances" for their failure to complete discovery earlier.
Both defendants moved for summary judgment. Prior to the scheduled oral argument but after the filing of the summary judgment motions, plaintiff filed another motion seeking a discovery extension in order to conduct fact depositions and retain an expert. That motion was calendared for a date two weeks after oral argument on the summary judgment motions, and plaintiff requested that the trial court adjourn the summary judgment motions so they could be considered simultaneously with its motion for a discovery extension.
Judge Graziano declined to grant the adjournment, and instead granted summary judgment to both defendants. In an oral opinion issued on November 5, 2009, the judge reasoned that plaintiff failed to produce legally competent evidence regarding defendants' alleged breach of duty and causation, and failed to file expert reports to support its contentions:
It is not at all apparent that either defendant breached any duty that it might have owed to the plaintiff. The plaintiff sets forth no testimony, expert or otherwise, indicating the allegedly incorrect fuses installed, and/or maintained by Liberty Elevator Corporation.
There is no standard by which the actions of this particular defendant can be measured. It is clearly not a situation where res ipsa [loquitur] applies, . . . inasmuch as the instrumentality is not in the sole control and possession of the allegedly offending party. Expert testimony would be necessary to establish the correct parameters of operation by that defendant, and no such evidence appears in the record . . . No . . . timely motion for extension of discovery has been filed, although there is a motion pending which appears to have been filed after the close of discovery.
With regard to Jersey Central Power and Light, there was also an absence of any testimony, expert or otherwise, indicating the standards by which that defendant would have operated or conducted itself in its relations to the plaintiff in supplying electricity. There is no expert testimony indicating that its activity was incorrect in any way.
The present state of the evidence, as it appears in the moving papers and opposing papers, [provides] no basis on which to hold either defendant liable.
Our review of the trial court's decision is de novo.
In deciding a motion for summary judgment, the trial court must determine whether the evidence, when viewed in a light most favorable to the non-moving party, would permit a rational fact-finder to resolve the dispute in the non-moving party's favor.
Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). The trial court cannot decide issues of fact but must decide whether there are any such issues of fact. Ibid.; R. 4:46-2(c). Our review of a trial court's summary judgment decision is de novo, applying the Brill standard. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). [Agurto v. Guhr, 381 N.J. Super. 519, 525 (App. Div. 2005).]
It is fundamental that opposition to a summary judgment motion must take the form of "competent evidential materials" and not mere hearsay. See Brill, supra, 142 N.J. at 540; R. 4:46-5(a). Based on our review of the record presented to us, we conclude that, even viewed in the light most favorable to plaintiff, the record cannot possibly support a cause of action against either defendant.
On this appeal, plaintiff argues that its summary judgment opposition was properly based on hearsay assertions that third-party contractors told Map's representatives about problems with the fuses and the alleged over-voltage issue. Plaintiff also contends that it was entitled to rely on res ipsa loquitur to fill in the gaps in its proofs. Finally, without specifying what discovery it still needed, plaintiff contends that the trial court should have extended the discovery period. We find all of these contentions to be patently without merit, R. 2:11- 3(e)(1)(E), and we affirm substantially for the reasons stated in Judge Graziano's opinion. We add the following comments.
To successfully invoke the doctrine of res ipsa loquitur, a plaintiff must show that the occurrence was of a type that "ordinarily bespeaks negligence"; the machinery was exclusively within defendant's control; and there is no evidence that plaintiff's "voluntary acts or neglect" caused the injury. Brown v. Racquet Club of Bricktown, 95 N.J. 280, 288 (1984).
We agree with Judge Graziano that there was no basis for a res ipsa instruction, where neither Liberty nor JCP&L was exclusively in control of the elevator. See Szalontai v. Yazbo's Sports Cafe, 183 N.J. 386, 389-90 (2005) (failure to prove any of the elements of res ipsa precludes application of the doctrine). While Liberty was responsible for basic elevator maintenance, its contract specifically excluded electrical voltage issues, and the contract required plaintiff to control the temperature in the elevator pit and motor room to prevent the elevator equipment from overheating. Further, while there was some evidence suggesting that the motor in question was faulty, there was no legally competent evidence as to the nature of the problem. Clearly expert reports were needed to establish why the motor was overheating and what, if anything, either defendant did to breach a duty to plaintiff and to cause the damage.
We also find no abuse of discretion in the trial court denying a further discovery extension. See Bender v. Adelson, 187 N.J. 411, 428 (2006). We agree with the trial court that none of the parties, including plaintiff, provided sufficient justification to extend discovery. Moreover, in pursuing this appeal, plaintiff has not explained how further discovery from defendants would have assisted its case. See Auster v. Kinoian, 153 N.J. Super. 52, 56 (App. Div. 1977).
Plaintiff did not need discovery from defendants to obtain evidence from its own third-party contractors. Yet plaintiff did not file an affidavit or certification from representatives of Federal Elevator and Cioffi Electric, the contractors that allegedly advised plaintiff of an "over voltage problem at the building" and problems with the fuses. Nor did plaintiff obtain a certification from the fire inspector explaining that the smoke and fire were due to an overheated motor, or even authenticating the inspection reports as business records.
Further, although the elevator and its components were located in plaintiff's building, plaintiff did not retain an expert to examine the elevator and provide a report as to what caused, or could have caused, the motor to overheat. Defendants answered plaintiff's interrogatories before moving for summary judgment, and plaintiff has not shown how additional discovery from these defendants could have addressed the deficiencies in plaintiff's case. See Szalontai, supra, 183 N.J. at 396-97.
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