On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-8593-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Sabatino and Fasciale.
Plaintiff Jason Malice, a Port Authority police officer, was injured when a door in a PATH Station closed on him as he was rushing to assist another officer. He and his wife sued the maintenance company and the janitorial services company that were under contract to the Port Authority for the premises, contending that they were each responsible for the alleged door malfunction. The trial court granted summary judgment to both defendants, which plaintiffs now appeal.
For the reasons explained in this opinion, we affirm the entry of summary judgment as to the janitorial services company but reverse summary judgment and remand for a trial as to the maintenance company. We also affirm the trial court's rejection of plaintiffs' res ipsa loquitur argument. Finally, we vacate certain aspects of the court's exclusion of testimony by plaintiffs' liability expert, and remand for a Rule 104 hearing as to other aspects of his proposed testimony.
We summarize the facts presented by the current record in a light most favorable to plaintiffs, against whom summary judgment was entered. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
On January 14, 2008, plaintiff,*fn1 who was then on duty as a Port Authority police officer, injured his right arm when a steel and glass compression spring-powered door closed on his arm. The door was located near a newsstand on the concourse level of the Journal Square PATH Station in Jersey City.
Defendant, Laro Service Systems, Inc. ("Laro"), is a maintenance company that was under contract to the Port Authority covering, among other locations, the Journal Square PATH Station. The other defendant, Modern Facilities Services, Inc. ("Modern"), provides janitorial services at the PATH facility, also pursuant to a contract with the Port Authority.
The door that injured plaintiff is manually operated, but it closes using the power of a compression spring. The compression spring causes the door to close, and hydraulic tension counteracts the spring to prevent the door from closing too quickly. The hydraulic system functions by accepting hydraulic fluid through two adjustable needle valves. If the diameter of the valve holes are increased, fluid is passed through the valves at a faster rate, and the door will close more quickly. From a fully open position, a properly working door system should close in approximately four to six seconds.
When the accident occurred, plaintiff and several other officers including Officer Larry Gisulo, were rushing to assist another officer who was near the train platform. Gisulo, who was in front of plaintiff, had run to the door and had pushed it open.
As plaintiff was attempting to pass through the door after Gisulo, the door slammed shut on his right arm. As plaintiff described the incident at his deposition:
PLAINTIFF: Well, when I was going through the door after Officer Gisulo went through, the door came back at me at a high rate of speed, like there was absolutely no tension on the door whatsoever and it stopped me dead in my tracks. Before the door hit me, I was able to get my arm up to block my face and it kind of compressed me. I would say my arm was around my face level and the door struck me across my forearm, my hand, my elbow and stopped me dead, or stopped me in my tracks.
Q.: What was the position of the door when you came into contact with it?
PLAINTIFF: As I was crossing into the threshold of the door, the door had already opened up out towards the escalator area and came back at a very quick speed into me . . . [a]nd I was in the threshold as the door came back right into me.
Plaintiff estimated at his deposition that approximately one second passed between the time that Gisulo touched the door, and when the door struck him.
After the door hit plaintiff, he thought he "had broken [his] arm because it just went completely numb[.]" He "had throbbing pain pretty much from [his] elbow down to [his] hand . . . [he] couldn't feel [his] fingers, like a tingly kind of sensation like [he was] sleeping on [his] arm."
After the collision, two other police officers, who had been immediately behind plaintiff, provided him with assistance. Plaintiff and the other officers then went down to the tracks to aid the officer who had requested their intervention.
At his deposition, plaintiff did not recall ever personally having problems in the past with the door. He stated that he "never had it snap back that quickly . . . before[.]" He had never heard of another officer who had been injured by the doors in the same manner, nor had he responded to a complaint from a pedestrian who had been injured by a door. However, plaintiff did note that he had previously observed the doors on the premises "sometimes being taped off and tied off so you couldn't use them because they had problems with them." Additionally, after his injury, plaintiff had asked other officers about the doors, and they informed him that the doors sometimes had general problems.
As a result of the door-closing incident, plaintiff suffered a torn rotator cuff and impingement of the acromioclavicular joint, requiring surgery. He also sustained a right elbow injury, and a cervical sprain and strain.
During the course of discovery, plaintiffs offered the expert report and testimony of Frank J. Rubino, P.E. Rubino is a licensed engineer in New Jersey, with a B.S. in mechanical engineering, and a Master's Degree in Engineering from Cooper Union School of Engineering.
Rubino issued an eight-page expert report. In that report, Rubino stated that at the time of the incident the door that injured plaintiff was located in a row of sixteen "Blumcraft 1200 series" doors, known as the "newsstand doors." He noted the doors were manually operated, and that each door weighed approximately 250 pounds. The doors were installed in the late 1990s or early 2000s. According to Rubino, the doors used either Jackson or Dorma closers. Such closers "utilized compression spring energy to close the doors. Hydraulic tension was in place to counteract the spring closing force and allow the doors to close at a slow, controlled pace."
The Dorma closers that had originally been installed allowed the doors to open to 180 degrees. To prevent the doors from opening that wide, door stops were installed to stop the doors at ninety degrees. After reviewing photographs of the doors, Rubino noted that the door stops were circular bumpers and about five to six inches in diameter. The door stops were mounted on the ceiling. The door, door closer, and door stop that injured plaintiff were removed after the accident and were not available for Rubino to inspect.*fn2
According to Rubino's report, the Dorma closers apparently had been failing since the time they were installed. As a result, the Dorma closers were being replaced at the site with Jackson closers. Rubino assumed that a Dorma closer still was being used on the door that injured plaintiff, because he had not seen documentation that the closer had been replaced.
Rubino opined that "the cause of the failure of the door closer to close at a controlled (4 to 6 second) closing speed was a failure in the door closer's hydraulic system, specifically leakage in a seal within the hydraulic needle valve." He described that the seals in hydraulic door closers routinely fail and will cause oil to leak up to the floor at the door's base. Once the door stops were installed to prevent the doors from opening beyond ninety degrees, the rubber bumpers essentially pushed the doors closed, thereby causing stress to the hydraulic system. Based on this analysis, Rubino concluded that the Dorma ...