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About DCA

The New Jersey Department of Community Affairs (DCA) is a State agency


created to provide administrative guidance, financial support and technical
assistance to local governments, community development organizations,
businesses and individuals to improve the quality of life in New Jersey.
DCA offers a wide range of programs and services that respond to issues of
public concern including fire and building safety, housing production,
community planning and development, and local government management
and finance.
DCA's programs and services are provided through the following Divisions:
Division of Codes and Standards
Division of Housing and Community Resources
Division of Fire Safety
Division of Local Government Services
DCA is closely affiliated with the following agencies:
Government Records Council
New Jersey Historic Trust
New Jersey Housing and Mortgage Finance Agency
New Jersey Redevelopment Authority
Urban Enterprise Zone (UEZ) Program
About the Commissioner
RICHARD E. CONSTABLE, III, ESQ.
In November of 2011, Governor Chris Christie nominated Richard E.
Constable, III, Esq. to his cabinet to lead the New Jersey Department of
Community Affairs (DCA). The Department plays a key role in supporting local
and county governments reduce property taxes, improve their operations
through best practices, and advance sensible affordable housing
development. It also offers a wide range of programs and services that
respond to issues of building and fire safety, community planning and
development, and financial assistance for individuals in need.
In addition to overseeing the Department of Community Affairs, Commissioner
Constable serves as Chair of the New Jersey Housing and Mortgage Finance
Agency, the New Jersey Redevelopment Authority, and the New Jersey
Meadowlands Commission.
On Monday, October 29, 2012, Superstorm Sandy caused unprecedented
damage to New Jerseys housing, business, infrastructure, health, social
service and environmental sectors. Immediately following the Storm,
Governor Christie tapped Commissioner Constable and DCA as the lead in
providing Sandy-displaced families with temporary and permanent housing
options. As the State continues to rebuild and recover, the DCA has been
entrusted to administer billions in federal Community Development Block
Grant Disaster Recovery and FEMA funds to support New Jerseys efforts to
rebuild homes, businesses, and infrastructure impacted by Superstorm Sandy.
Prior to leading the Department of Community Affairs, Commissioner
Constable managed the day-to-day operations for the New Jersey Department
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of Labor and Workforce Development as its Deputy Commissioner.


From 2002 to 2010, he worked as a federal prosecutor with the U.S. Attorneys
Office in Newark. There he regularly investigated and prosecuted high-profile
elected and appointed officials, including members of the legislature and
mayors, who were charged with bribery and extortion.
Before his post with the U.S. Attorneys Office, Commissioner Constable
worked as a litigation associate with Sullivan and Cromwell LLP in New York
City.
Raised in East Orange and currently residing in Orange, Commissioner
Constable holds a Juris Doctorate degree and Masters in Government
Administration, both from the University of Pennsylvania. He also graduated
from the University of Michigan, magna cum laude with a degree in political
science, where he was a Harry S. Truman Scholar. After graduating from law
school, he clerked for Minnesota Supreme Court Justice and NFL Hall of Famer
Alan C. Page.
Divisions
Division of Codes and Standards
The Division of Codes and Standards establishes and enforces building codes,
in partnership with the States municipalities, to protect the health and safety
of residents. The Division houses the Bureau of Housing Inspection;
implements construction codes including building, plumbing, fire protection,
radon
codes,
asbestos
and
lead
abatement;
and
oversees
carnival/amusement ride inspections, LP gas installations, rooming and
boarding house licenses, and the States New Home Warranty program.
Division of Fire Safety
The Division of Fire Safety serves as the central fire service agency in the
State. The Division is responsible for the development and enforcement of the
State Uniform Fire Code, as well as for implementing public education and
firefighter training programs.
Division of Housing and Community Resources
The Division of Housing and Community Resources is committed to
strengthening and revitalizing communities through the delivery of affordable
housing, supportive services and the provision of financial and technical
assistance to communities, local government and community based
organizations.
Division of Local Government Services
The Division of Local Government Services works with local governments to
ensure their financial integrity and solvency, and to support their efforts to
comply with State laws and regulations.
Sandy Recovery Division
The Sandy Recovery Division manages the majority of the federal funds that
will be used to assist New Jersey in recovering from Superstorm Sandy. These
funds come from the Community Development Block Grant (CDBG) Disaster
Recovery programs of the U.S. Department of Housing and Urban
Development. The Division is committed to efficiently and effectively
addressing the long-term needs of New Jerseys Sandy-impacted residents and
communities.
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Division of Codes and Standards


To establish and enforce health, welfare and safety standards as are
necessary, for anything built, constructed or erected for use, occupancy or
ornament on, above or below the surface of the earth in New Jersey.
The Division of Codes and Standards establishes and enforces building codes,
in partnership with the State's municipalities, to protect the health and safety
of New Jersey residents. The Division enforces the Hotel and Multiple Dwelling
Law, the Uniform Construction Code implementing the building, electrical,
plumbing, fire protection, energy, mechanical, elevator, radon, asbestos,
rehabilitation and barrier-free subcodes, and lead hazard abatement; it
oversees carnival and amusement ride inspections, LPGas installations,
rooming and boarding house licensing, and the State's New Home Warranty
program.
Division Contact Information
Edward M. Smith, Director
Kevin Luckie, Assistant Director
Phone: (609) 292-7898
(609) 292-7899
Fax: (609)-633-6729
Bureau of Code Services
Michael E. Baier, Supervisor of Enforcement
PO Box 816, Trenton, NJ 08625-0816
Phone: (609) 984-7974
Fax: (609) 984-7084
The Bureau of Code Services encompasses the following programs: Asbestos
and Lead Hazard Safety, Carnival-Amusement Ride Safety, Elevator Safety,
Industrialized Buildings and Liquefied Petroleum Gas.
Bureau of Construction Project Review
David B. Uhaze, Chief of Construction Project Review
PO Box 817, 101 S.Broad St., 4th fl.
Trenton, NJ 08625-0817
Phone: (609) 984-7850
Fax: (609) 633-2525
E-mail: planreviewintake@dca.nj.gov
The Bureau of Construction Project Review provides for plan review where the
review and release of plans by the Department of Community Affairs is
required, pursuant to N.J.A.C. 5:23-3.11 or where requested, for prototype
plans intended for use Statewide.
Office of Local Code Enforcement
PO Box 821, Trenton, NJ 08625-0821
Phone: (609) 633-6209
Fax: (609) 984-7952
The Office of Local Code Enforcement provides mandated State Uniform
Construction Code coverage in municipalities that have requested that the
DCA assume administrative and enforcement authority of the Uniform
Construction Code in those towns.
Office of Regulatory Affairs
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Louis J Mraw, Supervisor of Enforcement


PO Box 818, Trenton, NJ 08625-0818
Phone: (609) 984-7672 or (609) 984- 7768
Fax: (609) 984-7718
The Office of Regulatory Affairs is responsible for monitoring local
enforcement of the Uniform Construction Code Act and implementing
regulations.
Bureau of Homeowner Protection
Steve Denenholtz, Chief of Bureau of Homeowner Protection
PO Box 805, Trenton, NJ 08625-0805
Phone: (609) 984-7905
Fax: (609) 292-2839
The Bureau of Homeowner Protection administers programs addressing the
purchase of new homes, units in retirement communities, condominiums and
cooperatives, and provides information on the rights and responsibilities of
residential landlords and tenants in New Jersey.
Bureau of Housing Inspection
Edwin Tomkiewicz, Chief, Bureau of Code Enforcement
PO Box 810, Trenton, NJ 08625-0810
Phone: (609) 633-6216
Fax: (609) 633-6208
The Bureau of Housing Inspection oversees the registration and periodic
inspection of hotels, motels and multiple dwellings as mandated under the
Hotel and Multiple Dwelling Law, to ensure the health, safety and welfare of
residents, guests and the general public.
Bureau of Rooming and Boarding House Standards
Michael T Briant, Supervisor of Enforcement
PO Box 804, Trenton, NJ 08625-0804
Phone: (609) 633-6251 or (609) 984-1706
The Bureau of Rooming and Boarding House Standards is responsible for the
implementation and enforcement of the Rooming and Boarding House Act of
1979, the inspection and licensure of emergency shelters for the homeless
pursuant to Rules Governing Shelters for the Homeless, and the provisions of
the Standards for Licensure of Residential Health Care Facilities.
Home > Divisions > Codes & Standards > Bureaus, Offices & Programs >
Bureau of Code Services > Elevator Safety
Elevator Safety
For further information on Elevator Safety in NJ:
Phone: (609) 984-7833
Fax:
(609) 984-7084
The Elevator Safety unit registers all elevator devices in the State of New
Jersey. Elevator devices consist of elevators (hydraulic, traction, winding
drum, roped hydraulic, rack & pinion and limited use limited access),
escalators, moving walks, dumbwaiters, wheel chair lifts, chair lifts and man
lifts. The elevator subcode is regulated under the Uniform Construction Code
in Subchapter 12.
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There are three choices a NJ municipality may make regarding the jurisdiction
of the elevator subcode in its town. It may give jurisdiction to the State, it may
hire its own local Subcode Official, or it may subcontract to a third party
agency.
If the State has jurisdiction in a town, the Elevator Safety unit coordinates
inspections between the owner, elevator company and the State. The unit
conducts all cyclical and acceptance (inspections under permit) inspections.
Owners are billed for inspections directly by the State.
In all three circumstances, Municipal Construction Officials are expected to
periodically review the list of registered elevator devices in their municipalities
and bring any necessary changes to the Elevator Safety unit's attention via email to ElevatorSafetyUnit@dca.state.nj.us
Click here to view the list of registered elevator devices.
If the State has jurisdiction in a town, this unit also coordinates the Elevator
Subcode portion of Plan Review and Permitting with the municipality and the
applicant/owner. The unit reviews building plans containing elevator devices
(for a partial release) at the municipality's office. All elevator (layouts) plans
are reviewed (for a final release) at the State office, owners/applicants are
billed and releases are completed. The local Construction Official is notified of
the elevator release and permit documentation is coordinated between the
required parties.
Technical assistance is given to all parties requesting help specific to the
Elevator Subcode. Monitoring of Subcode Officials and Inspectors in
municipalities and third party agencies is carried out routinely. A penalty
enforcement process is utilized where violations are not abated timely.
Related Forms and Publications
Forms
lifts pre-approval letter form 7-19-2014
Request for Final Acceptance Inspection For New Work
Elevator Registration Application
Seasonal Application
Application for Transfer of Owner
UCC-F326, Elevator Devices -Accident/Incident Report
UCC-F150, Elevator Subcode Technical Section
UCC-F155, Elevator Subcode Technical Section -Multiple Devices
UCC-F160, Application for Variation
Publications
Bulletin 94-7, Plans for Elevator Devices
Laws, Rules, Regulations
NJAC 5:23-12
Elevator Safety Subcode
NJAC 5:23-12A Optional Elevator Inspection Program

Bureau of Code Services


The Bureau of Code Services is very diversified consisting of several varied
units. The units are as follows: Asbestos/Lead Safety Unit, Carnival
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Amusement Ride Safety Unit, Elevator Safety Unit, Industrialized Buildings


Unit, and Liquefied Petroleum Gas Unit. The bureau mailing address is: PO Box
816, Trenton, NJ 08625 and the building address is: 101 South Broad Street,
4th Floor, Trenton, NJ 08608. For specific information regarding each unit, you
may access the unit's web page.
Asbestos Hazard Abatement
Lead Hazard Evaluation and Abatement
Carnival Amusement Ride Safety
Elevator Safety
Liquefied Petroleum Gas Safety
Modular Program

Court Says No Expert Necessary in Elevator Injury Case


Mary Pat Gallagher, New Jersey Law Journal
December 31, 2014 | 1 Comments
Photo: Vladimir Kolobov/iStockphoto.com.
A commuter who claims she was hurt while trying to board an elevator at a
PATH station has gotten the go-ahead from a New Jersey appeals court to
proceed with her personal injury suit absent any expert testimony, based on
the doctrine of res ipsa loquitur.
We reject defendants argument that the cause of the malfunction was so
complex or specialized that the fact-finder would be unable to understand it
without an expert witness, wrote the two-judge panel in Lazarus v. Port
Authority of New York and New Jersey (PATH) on Dec. 29, 2014. On the
contrary, plaintiff can rely on the common knowledge and experience of the
fact-finder to deduce what happened without an experts opinion.
The per curiam opinion by Appellate Division Judges Margaret Hayden and
Thomas Sumners Jr. reversed a decision by Hudson County Superior Court
Judge Lourdes Santiago, who threw out the case on summary judgment after
excluding the plaintiffs expert report and then finding that the plaintiff could
not prove her case without expert testimony.
The appellate ruling came four years to the day after plaintiff Wendy Lazarus
allegedly injured herself at the Pavonia-Newport PATH train station in Jersey
City, N.J., on Dec. 29, 2010. She was en route to her job in New York City and
had her leg extended to step into an empty elevator when it suddenly rose
three to four inches above the level of the platform, causing her to fall forward
onto her hands and knees, she claimed, according to the opinion.
Lazarus allegedly reported the incident to a security worker at the station and
later that afternoon made a formal report, the opinion said. Knee pain sent her
to the hospital after work that day, where she was diagnosed with a fractured
patella or kneecap, she claimed.
Her negligence suit named the Port Authority, which owns and operates the
station, and Morristown, N.J.-based Schindler Elevator Corp., which maintained
the elevators, according to the opinion. During discovery, she obtained
maintenance records showing recurring problems with the elevator.
In the month leading up to her accident, technicians were summoned to
address problems with it on Nov. 30 and Dec. 6, 2010, the opinion said. In
addition, 12 hours before her accident, they were called to troubleshoot
the controller and valve in response to a reported problem, and the elevator
was returned to service less than an hour before Lazarus entered it.
The defendants moved for summary judgment, arguing that Lazarus expert
report from an engineer saying they were negligent should be stricken as a
net opinion and that, without the opinion, Lazarus claim failed because she
could not rely on the res ipsa doctrine to show negligence. Santiago agreed on
both points and granted the motion.
Santiago said that, in her view, the alleged negligence was beyond the
common knowledge of lay jurors and without an expert opinion, there was no
basis for a jury to find negligence. Further, Lazarus could not go forward under
a theory of res ipsa loquitur because the mechanics of how elevators work
was a complex issue that jurors could not understand without the assistance
of expert testimony, Santiago found.
Lazarus only appealed the res ipsa holding and argued that expert testimony
was not needed to proceed under the doctrine.
In reversing, the appeals court panel said, We reject defendants argument
that the cause of the malfunction was so complex or specialized that the factfinder would be unable to understand it without an expert witness. ... The
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average person does not need to resort to scientific or technical knowledge to


understand that an elevator generally does not abruptly rise off the floor as a
patron is entering it and before the doors have closed.
The court emphasized that res ipsa is not a theory of liability but a method by
which a plaintiff can circumstantially prove negligence by inferring it. It allows
a plaintiff who lacks direct proof of negligence to establish a prima facie case
and shift the burden of production to the defendant to explain why the
malfunction occurred, on the rationale that the defendant is more
knowledgeable and has greater access to such evidence, Hayden and
Sumners said.
The judges cited no case exactly on point, but noted that New Jersey courts
have consistently recognized the doctrine of res ipsa loquitur in cases
involving malfunctioning complex instrumentalities, such as escalators,
falling elevators and automatic sliding doors.
They likened Lazarus case to ones allowing res ipsa where a metal gate at a
Port Authority building fell on a passerby and where the plaintiff was injured
by automatic doors.
They said the prior problems with the elevator bolstered their conclusion and
distinguished the case from the precedential 2000 holding in Gore v. Otis
Elevator, where an appeals court refused to apply the doctrine because there
had been no prior complaints about the elevator.
Lazarus lawyer, Frank Lerner of Lerner, Piermont & Riverol in Jersey City,
called the holding common sense.
James Sonageri of Sonageri & Fallon in Hackensack, N.J., who represents both
defendants, said he disagreed with the ruling but no decision had been made
on whether to appeal.
He said he was unaware of a prior decision allowing a plaintiff to go forward
based on res ipsa after the liability experts report was thrown out.
Sonageri said he saw the case as part of a pattern of New Jersey courts
expanding the use of res ipsa in the aftermath of the 2005 Supreme Court
holding in Jerista v. Murray, which involved automatic doors.
Contact the reporter at mgallagher @alm.com.
Read more: http://www.njlawjournal.com/id=1202713790438/Court-Says-NoExpert-Necessary-in-Elevator-Injury-Case#ixzz3SpjM62cY
WENDY LAZARUS v. PORT AUTHORITY OF NEW YORK & NEW JERSEYAnnotate
this Case
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0
WENDY LAZARUS,
Plaintiff-Appellant,
v.
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PORT AUTHORITY OF NEW YORK &


NEW JERSEY, PORT AUTHORITY
TRANS-HUDSON CORPORATION, AND SCHINDLER
ELEVATOR CORPORATION,
Defendants-Respondents.
__________________________________________________________
December 29, 2014
Argued October 21, 2014 Decided
Before Judges Hayden and Sumners.
On appeal from Superior Court of New Jersey, Law Division, Hudson County,
Docket No. L-5670-11.
Jeffrey J. Brookner argued the cause for appellant (Lerner, Piermont & Riverol
and Brookner Law Offices, LLC, attorneys; Frank Lerner, of counsel; Mr.
Brookner, on the brief).
James L. Sonageri argued the cause for respondents (Sonageri & Fallon, LLC,
attorneys; Mr. Sonageri, on the brief).
PER CURIAM
Plaintiff Wendy Lazarus appeals from the August 9, 2013 Law Division order
granting summary judgment to defendants Port Authority of New York and
New Jersey (Port Authority) and Schindler Elevator Corporation (Schindler),
and dismissing plaintiff's personal injury complaint. On appeal, plaintiff
contends that she did not need an expert witness as she had demonstrated a
prima facie case of negligence under the doctrine of res ipsa loquitur. After
reviewing the facts and applicable legal principles, we reverse and remand for
further proceedings.
Viewed in the light favorable to the non-moving party, Brill v. Guardian Life
Ins. Co. of Am., 142 N.J. 520, 540 (1995), the facts reveal that on December
29, 2010, plaintiff was on her way to work when she entered an elevator at
the Pavonia-Newport PATH train station. At the time the elevator doors were
open, the floor appeared level with the platform, and no one was in the
elevator. As she put her leg into the open elevator, the elevator abruptly rose
three to four inches above the platform level, causing plaintiff to fall forward
onto her hands and knees. The doors closed immediately. Plaintiff reported
the incident to a security worker at the station and later that afternoon made
a formal report. Plaintiff went to a hospital after work due to knee pain, where
she learned that she had a fractured patella.
On November 2, 2011, plaintiff filed a civil complaint against the defendants,
alleging that the Port Authority was liable as the owner and operator of the
facility and that Schindler was liable as the maintenance company for
negligently maintaining the elevator. Defendants' maintenance records show
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that prior to the event, the elevator in question had recurring problems.
Specifically, in the month before her accident, on November 30 and December
6, 2010, repair technicians addressed issues with the elevator. Plaintiff also
argued that about twelve hours prior to her accident, technicians were called
to "troubleshoot [the] controller and valve" on the elevator in response to a
reported problem. The technician returned the elevator to service less than an
hour before plaintiff entered it.
After discovery ended, defendants filed a motion for summary judgment
dismissing the case contending that plaintiff's expert's report should be
stricken as a net opinion, and that the doctrine of res ipsa loquitur did not
apply in the case. After hearing oral argument, the trial judge granted
defendants' motion. The trial judge first struck plaintiff's expert's report as a
net opinion. The trial court then concluded that, without an expert opinion
establishing negligence, summary judgment was appropriate because "the
common knowledge of lay jurors is incapable of assessing negligence of both
defendants" and thus, "there [was] no basis for a reasonable jury to find in
favor of the plaintiff[.]"
The trial court also found that plaintiff could not proceed under a theory of res
ipsa loquitur since an expert's testimony was still required to determine
whether defendants were negligent in maintaining and operating the elevator.
The trial court reasoned that the mechanics of how elevators work was a
complex issue that jurors could not understand without the assistance of
expert testimony. This appeal followed.
On appeal, plaintiff's sole contention is that the trial court erred in granting
summary judgment as expert testimony was not required for plaintiff to
proceed under a theory of res ipsa loquitur.1 We agree.
We review a trial court's decision to grant or deny summary judgment de
novo, Heyert v. Taddese, 431 N.J. Super. 388, 411 (App. Div. 2013), utilizing
"'the same standard [of review] that governs the trial court.'" Mem'l Props.,
LLC v. Zurich Am. Ins. Co., 210 N.J. 512, 524 (2012) (quoting Henry v. N.J.
Dep't of Human Servs., 204 N.J. 320, 330 (2010)). Because our review is de
novo, we "accord no deference to the trial judge's conclusions on issues of
law." Depolink Court Reporting & Litig. Servs. v. Rochman, 430 N.J. Super. 325,
333 (App. Div. 2013). Thus, the evidence must be viewed "in the light most
favorable to the non-moving party" and must be analyzed to determine
"whether the moving party was entitled to judgment as a matter of law."
Mem'l Props., supra, 210 N.J. at 524 (citing Brill, supra, 142 N.J. at 523); see
also R. 4:46-2(c).
The doctrine of res ipsa loquitur arose from public policy concerns in order to
allow "a blameless injured plaintiff to obtain an inference of negligence where
certain required factors are present." Mayer v. Once Upon A Rose, Inc., 429
N.J. Super. 365, 374 (App. Div. 2013). The doctrine creates a permissive
inference, which may be accepted or rejected by a jury, that "if due care had
been exercised by the person having control of the instrumentality causing
the injury, the mishap would not have occurred." Ibid. (citations omitted).
Res ipsa loquitur "permits an inference of defendant's negligence where (a)
the occurrence itself ordinarily bespeaks negligence; (b) the instrumentality
was within defendant's exclusive control; and (c) there is no indication in the
circumstances that the injury was the result of the plaintiff's voluntary act or
neglect." Jerista v. Murray, 185 N.J. 175, 192 (2005) (internal citations and
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quotation marks omitted). While the doctrine does not shift the burden of
proof, the presentation of a prima facie case based on res ipsa generally
assures that a plaintiff "will survive summary judgment." Id. at 193.
"Whether an occurrence 'ordinarily bespeaks negligence' depends on the
balancing of probabilities being in favor of negligence." Buckelew v.
Grossbard, 87 N.J. 512, 526 (1981). It follows that a plaintiff has demonstrated
the doctrine of res ipsa loquitur "if it is more probable than not that the
defendant has been negligent." Myrlak v. Port Auth. of N.Y. & N.J., 157 N.J. 84,
95 (1999) (citing Buckelew, supra, 87 N.J. at 526).
New Jersey courts have consistently recognized the doctrine of res ipsa
loquitur in cases involving malfunctioning complex instrumentalities such as
escalators, elevators, and automatic sliding doors. See, e.g., Rose v. Port of
N.Y. Auth., 61 N.J. 129, 136-37 (1972) (holding that res ipsa loquitur could be
invoked where the plaintiff was injured by an automatic sliding door);
Rosenberg v. Otis Elevator Co., 366 N.J. Super. 292, 298, 300-03 (App. Div.
2004) (finding that res ipsa loquitur applies where the plaintiffs were injured
after an elevator dropped three floors); Pisano v. S. Klein on the Square, 78
N.J. Super. 375, 379, 395-97 (App. Div.), certif. denied, 40 N.J. 220 (1963)
(holding that res ipsa loquitur could be used to show negligence with respect
to the defendant's escalators).
It is important to note that res ipsa loquitur "is not a theory of liability[.]"
Myrlak, supra, 157 N.J. at 95. Rather, it is a method by which plaintiffs can
circumstantially prove the existence of negligence by permitting the factfinder to infer that the defendants were negligent or failed to act with due
care. See Rosenberg, supra, 366 N.J. Super. at 301 (internal citations omitted).
"Where applicable, res ipsa allows a plaintiff to establish a prima facie case
and to withstand a motion to dismiss for lack of direct proof of negligence. Res
ipsa does not shift the burden of proof to the defendant, but only the burden
of producing evidence." Knight v. Essex Plaza, 377 N.J. Super. 562, 569 (App.
Div. 2005), overruled on other grounds by Jerista, supra, 185 N.J. at 195 (citing
Myrlak, supra, 157 N.J. at 96).
Under the first element of res ipsa loquitur, courts have concentrated
primarily on two factors: (1) whether it is more probable than not that the
defendant was negligent in causing the accident2 and (2) whether plaintiff
must present expert testimony. This first factor focuses on whether the
accident is of the type that would not ordinarily occur absent negligence.
Buckelew, supra, 87 N.J. at 526. Plaintiffs are not required to explain all of the
reasons why an instrument has malfunctioned or to eliminate each of these as
the true cause of the malfunction. Rather,
[t]he requirement as it is generally applied is more accurately stated as one
that the evidence must afford a rational basis for concluding that the cause of
the accident was probably "such that the defendant would be responsible for
any negligence connected with it." That does not mean that the possibility of
other causes must be altogether eliminated, but only that their likelihood
must be so reduced that the greater probability lies at defendant's door.
[Brown v. Racquet Club of Bricktown, 95 N.J. 280, 292 (1984) (internal
citations omitted).]
Moreover, instead of requiring the plaintiff to eliminate these other causes, res
ipsa shifts the burden to the defendant to explain why the instrumentality
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malfunctioned. The rationale behind this burden-shifting is that the defendant


is more knowledgeable about the instrument and has greater access to the
evidence. See Jerista, supra, 185 N.J. at 192; see also Rose, supra, 61 N.J. at
137.
With respect to the second res ipsa element, "[e]xclusive control of the
instrumentality by the defendant is . . . the essence of this rule of evidence."
Bornstein v. Metro. Bottling Co., Inc., 26 N.J. 263, 271 (1958). This element
does not mandate that "a plaintiff exclude all other possible causes of an
accident, only that it is more probable than not that defendant's negligence
was a proximate cause of the mishap." Luciano, supra, 306 N.J. Super. at 313.
In holding that the exclusive control element of the res ipsa doctrine was met
when a metal gate in Port Authority building fell on a passerby, we pointed out
that
Given the Authority's well-established duty to provide a reasonably safe place
for its patrons to do that which is within the scope of the invitation, it was
error to require [plaintiff] to establish that prior unknown conduct by a
member or members of the public did not cause the gate to fall upon him. To
the contrary, the 'duty to maintain safe premises and protect invitees includes
an affirmative obligation upon the proprietor to inspect the premises 'to
discover their actual condition and any latent defects,' . . . as well as 'possible
dangerous conditions of which he does not know.'"
[Id. at 313-14 (citing Brown, supra, 95 N.J. at 290-91).]
Moreover, exclusive control is not limited to a single defendant. See Apuzzio v.
J. Fede Trucking, Inc., 355 N.J. Super. 122, 128 (App. Div. 2002). Rather, "an
instrumentality causing injury may be in joint control of two defendants in
which event the doctrine of res ipsa loquitur will apply against both of said
defendants." Id. at 129 (citing Meny v. Carlson, 6 N.J. 82, 94 (1950)).
Having reviewed the evidence and drawn all reasonable inferences in favor of
plaintiff, Brill, supra, 142 N.J. at 523, we find that plaintiff has established a
prima facie case for negligence through the doctrine of res ipsa loquitur. Here,
plaintiff, a business invitee, entered the open and apparently stationary
elevator at the PATH station, which abruptly rose several inches, causing
plaintiff to fall forward, injuring her knee. Common knowledge suggests that
elevators do not usually operate in the manner reported by plaintiff and that
such an accident does not normally occur absent negligence. Thus, the trial
court erred in finding that plaintiff could not proceed under this theory.
We view the circumstances present here as analogous to those in Rose and
Luciano, where res ipsa loquitur was found to be applicable. See Rose, supra,
61 N.J. at 136-37 ("Members of the public passing through automatic
doors . . . do so generally without sustaining injury[]" and when such injury
does occur, "[i]t strongly suggests a malfunction which in turn suggests
neglect."). Our conclusion is further bolstered by the fact that there had been
several prior complaints made to defendants regarding the particular elevator
that injured plaintiff. Indeed, the last reported problem occurred less than
twenty-four hours before plaintiff's accident. Cf. Gore v. Otis Elevator Co., 335
N.J. Super. 296, 302 (App. Div. 2000) (reasoning that res ipsa loquitur did not
apply because there was no evidence that defendant had made any repairs or
received any complaints about the elevator prior to the accident).
We reject defendants' argument that the cause of the malfunction was so
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complex or specialized that the fact-finder would be unable to understand it


without an expert witness. On the contrary, plaintiff can rely on the common
knowledge and experience of the fact-finder to deduce what happened
without an expert's opinion. See Jerista, supra, 185 N.J. at 195, 197 (expert
testimony not required to establish under res ipsa that the accident was more
likely than not the result of defendants' negligence). Consequently, although
this case involves a complex instrumentality, scientific or technical knowledge
is not essential to the fact-finder understanding what happened and
determining whether defendants were negligent. The average person does
not need to resort to scientific or technical knowledge to understand that an
elevator generally does not abruptly rise off the floor as a patron is entering it
and before the doors have closed.
We also reject defendant's argument that plaintiff bears the initial burden of
explaining what caused the elevator to malfunction. Such an argument
miscomprehends Jerista, which explicitly found that the burden of explaining
why an instrumentality malfunctioned is squarely on defendants because of
their superior knowledge and access to the relevant information. See Jerista,
supra, 185 N.J. at 192; see also Rose, supra, 61 N.J. at 137 (citing Wollerman v.
Grand Union Stores, Inc., 47 N.J. 426, 430 (1966) ("The situation being
peculiarly in the defendant's hands, it is fair to call upon the defendant to
explain, if he wishes to avoid an inference by the trier of the facts that the
fault probably was his.")).
We also note that the plaintiff has established that the defendants were in
exclusive control of the elevator. The Port Authority owned and operated the
PATH station where the accident occurred and contracted with Schindler to
inspect, maintain, and repair the elevators at this particular train station.
Nothing in the record suggests that the Port Authority relinquished complete
control to Schindler, that only Schindler had access to the elevator in
question, or that third parties had access to the inner workings of the elevator.
Additionally, we note that neither defendant has presented evidence that
would suggest that plaintiff or a third party was at fault or contributed to the
accident.
In sum, the record viewed in the light most favorable to plaintiff showed that
the occurrence here bespeaks negligence, the instrumentality was in the
exclusive control of defendants, and plaintiff did not contribute to the
accident. Accordingly, we are satisfied that plaintiff may proceed in reliance
on the res ipsa loquitur doctrine without expert testimony. Of course,
defendants are free to produce evidence that it was not negligent as the res
ipsa inference is merely permissive. Jerista, 185 N.J. at 193.
Reversed and remanded. We do not retain jurisdiction.
1 Plaintiff is not appealing the part of the order striking her expert's report.
2 Some cases examine this factor under the first element whereas other cases
consider this a factor under the second element of res ipsa loquitur. See
Szalontai v. Yazbo's Sports Caf , 183 N.J. 386 (2005) (noting that "[w]hether an
occurrence ordinarily bespeaks negligence is based on the probabilities in
favor of negligence.") (quoting Myrlak, supra, 157 N.J. at 95). Cf. Luciano v.
Port Auth. Trans-Hudson Corp., 306 N.J. Super. 310, 313 (App. Div. 1997)
Gore v. Otis Elevator Co.
762 A.2d 292 (2000)
13

335 N.J. Super. 296


Gerald Edward GORE, Plaintiff-Appellant,
v.
OTIS ELEVATOR COMPANY, Defendant-Respondent, and
Cushman and Wakefield, ABC Corp. (1-5 fictitious names) and John Doe/Jane
Doe (1-5 fictitious names), Defendants.
Superior Court of New Jersey, Appellate Division.
Argued November 1, 2000.
Decided December 4, 2000.
*294 Irwin B. Seligsohn, West Orange, argued the cause for appellant
(Goldberger, Seligsohn & Shinrod, attorneys; Mr. Seligsohn, on the brief).
Richard B. Livingston, Springfield, argued the cause for respondent.
Before Judges BAIME and LINTNER.
*293 The opinion of the court was delivered by BAIME, P.J.A.D.
Plaintiff appeals from a summary judgment dismissing his complaint against
defendant Otis Elevator Company. He asserts that the Law Division judge
erred by failing to apply the doctrine of res ipsa loquitur. We disagree and
affirm the judgment entered.
Plaintiff alleged that he was injured while entering an elevator. He claimed
that the elevator doors closed on him with such force as to cause his keys to
tear the lining of his pants. Plaintiff did not contend that the elevator was
defectively designed. He asserted, instead, that defendant negligently
maintained the doors.
The doors had two safety devices: (1) a rubber safety edge running along the
side of the doors, which was designed to retract upon contact, and (2) electric
eyes in the top and bottom sides of the doors which would reopen them if the
beam was broken by an object in its path. The evidence indicated that these
safety devices were not foolproof. Both safety devices were functional only if
an individual or object was located between the elevator doors. The hard edge
of the exterior portion of the door could come in contact with an object or
person without activating either the electronic eye or the safety edge.
Thomas Farrell, one of defendant's elevator mechanics permanently stationed
in the office building in which the accident occurred, testified that he tested
the elevators on a weekly basis. Although he did not know the exact force
required to be exerted to cause the doors to retract, Farrell indicated that the
elevator was safe for both an "eighty-five year old" person and a "three year
old" person. In testing the elevators, Farrell would exert pressure on the safety
edge to ensure that the doors would retract. In addition, he would periodically
check the electric beams by using a voltage meter. The elevator in question
was checked shortly before and shortly after the accident and was found to be
in proper working order. So too, municipal inspectors had tested the elevator
two weeks prior to the accident and had issued a certificate of compliance.
Plaintiff's expert, Louis Howarth, submitted a report which was supplemented
by his deposition testimony. He asserted that "the force necessary to prevent
the closing of the hoistway doors, and power operating doors from rest
[should] not be more than thirty pounds." Although Howarth never visited the
site or inspected the elevators, he surmised that "the closing force was in
14

excess of the allowable thirty pounds." Noting that Farrell did not know "the
force that the doors exerted on closing," Howarth concluded, "if the
retractable safety edge and electric eye [had] worked properly the accident
would not have occurred." Assigning blame to Farrell, Howarth asserted,
"without properly testing the doors' closing force it is entirely probable they
could have malfunctioned...."
We agree with the Law Division judge that this evidence was too slim a reed
to support application of the res ipsa loquitur doctrine. The Latin phrase
means "the thing speaks for itself." The rule creates an allowable inference of
negligence when the following three conditions have been met: "(1) the
occurrence itself ordinarily bespeaks negligence, (2) the instrumentality was
within the defendant's exclusive control, and (3) there is no indication in the
circumstances that the injury was the result of the plaintiff's own voluntary act
or neglect." Myrlak v. Port Auth. of N.Y. and N.J., 157 N.J. 84, 95, 723 A.2d *295
45 (1999); Brown v. Racquet Club of Bricktown, 95 N.J. 280, 288-92, 471 A.2d
25 (1984); Vespe v. DiMarco, 43 N.J. 430, 437, 204 A.2d 874 (1964). Where
applicable, the doctrine is a method of circumstantially proving the
commission of a negligent act. Tierney v. St. Michael's Medical Center, 214
N.J.Super. 27, 30, 518 A.2d 242 (App.Div.1986), certif. denied, 107 N.J. 114,
526 A.2d 184 (1987).
Whether an occurrence ordinarily bespeaks negligence is based on the
probabilities a party acted without the exercise of due care. Thus, res ipsa
loquitur is available "if it is more probable than not that the defendant has
been negligent." Myrlak v. Port Auth. of N.Y. and N.J., 157 N.J. at 95, 723 A.2d
45. Stated somewhat differently, the proper test of the applicability of the
doctrine is whether there is evidence from which the court can find that in the
ordinary course of things, the mishap, more likely than not, was the result of
the defendant's negligence. Hillas v. Westinghouse Electric Corp., 120
N.J.Super. 105, 113, 293 A.2d 419 (App. Div.1972).
We agree that an automatic door closing like a vice upon a person attempting
to enter an elevator is an occurrence that bespeaks negligence or a product
defect. But more is required under the res ipsa loquitur doctrine. Specifically,
the evidence must support a reasonable inference that it was the defendant
who was at fault.
This qualification can best be illustrated by comparing the facts of this case
with those present in Allendorf v. Kaiserman Enterprises, 266 N.J.Super. 662,
630 A.2d 402 (App.Div.1993). There, the plaintiff sued an elevator
maintenance company for injuries sustained when the elevator doors closed
as she was attempting to enter the unit. Several weeks before the accident,
the defendant received a report that an "anti-skid" device had been wedged
under the bottom of the elevator door. The defendant's mechanic removed
the device, but discovered that the safety edge on the elevator door had been
bent. The mechanic straightened the safety edge "as best [he] could." He also
tried to readjust the electric eye so that it would not be activated by the bend
in the safety edge, but it was unclear whether he was successful in this
endeavor. Early on the day of the accident, the defendant received a report
that the elevator door was sticking. A mechanic was sent to fix the problem.
Exactly what repair work was done was not known. Plaintiff's expert concluded
that the electric eye safety device was known to be out of service for a long
enough time prior to the accident to have been repaired. He also found that
the elevator was generally in a poor state of repair during the period prior to
plaintiff's accident.
15

Under these circumstances, we held that the evidence "provided a sufficient


basis for the court to submit a res ipsa loquitur instruction to the jury." Id. at
668, 630 A.2d 402. We said that "there was no evidence that the malfunction
of the elevator... could have been caused by any party other than the
defendants." Id. at 671, 630 A.2d 402.
The facts here are in stark contrast to those in Allendorf. Unlike Allendorf, the
evidence did not support an inference that the elevator was poorly
maintained. In contrast to Allendorf, the evidence did not indicate that
defendant had completed a major repair pertaining to the safety edge and the
electric eye shortly before the accident. Nor was there evidence indicating
that the electric eye was out of service prior to the accident. Nor do the facts
indicate that defendant received a complaint concerning the retractable doors
immediately prior to the accident, and actually performed repairs at that time.
Rather, the uncontradicted evidence disclosed: (1) the elevator had been
inspected by municipal officials and a certificate of compliance had been
issued two weeks before the incident, (2) the doors had been examined by
defendant's mechanic shortly before *296 and shortly after the accident and
no defect had been found, (3) no complaint had been received concerning the
elevator prior to the incident, and (4) no complaints, other than that of
plaintiff, were reported after the accident.
We also have occasion to comment on the report and deposition testimony of
plaintiff's expert. The requirement for expert testimony in complex
instrumentality cases results logically from New Jersey law that res ipsa
loquitur is inapplicable where the injured party fails to exclude other possible
causes of the injury. Jimenez v. GNOC Corp., 286 N.J.Super. 533, 544, 670 A.2d
24 (App.Div.1996). While the plaintiff need not reduce altogether the
possibility of other causes, he must bring forth affirmative evidence that tends
to "`exclude other possible causes of the injury'." Ibid. (quoting Hillas v.
Westinghouse Electric Corp., 120 N.J.Super. at 114, 293 A.2d 419). Clearly
then, "a plaintiff is not entitled to bring his case to a jury under res ipsa
loquitur any time there is an unexplained accident for which a defendant
might plausibly be responsible." Id. at 545, 293 A.2d 419. Rather, "a plaintiff
has the burden of producing evidence that reduces the likelihood of other
causes so `that the greater probability [of fault] lies at defendants's door.'"
Ibid. (quoting Eaton v. Eaton, 119 N.J. 628, 640, 575 A.2d 858 (1990)).
"Without an expert, or even with an expert whose testimony constitutes a net
opinion, the plaintiff has not excluded possible causes of the alleged incident
and thus cannot take advantage of res ipsa loquitur." Ibid.
Applying these principles, we are convinced that plaintiff did not produce
expert testimony that could reasonably "guide [a] jury in determining whether
the incident occurred, more likely than not, as a result of defendant's
negligence." Ibid. Indeed, a substantial portion of Howarth's report concerned
the possibility that the elevator doors were defectively designed because the
placement of the electric eyes would not cause the doors to retract if the
individual attempting to enter the elevator bent down and straddled the
entranceway. We need not comment on the permutations of bodily contortions
envisioned by Howarth that could produce such a result. Suffice it to say that
the Law Division was clearly befuddled by some of Howarth's statements, and
for good reason. The point to be stressed here is that plaintiff's claim against
defendant did not rest on the thesis of defective design, but rather on the
thesis of negligent maintenance. To the extent that Howarth's criticisms
pertained to the design of the elevator, they detracted from the possibility
16

that the elevator


maintenance.

malfunctioned

by

reason

of

defendant's

negligent

We do not suggest that plaintiff's expert was required to "pinpoint the causal
negligent act." Ibid. To serve as the foundation for application of res ipsa
loquitur, however, such expert testimony should have provided an explanation
in lay terms of the possible ways in which the accident could have occurred
that would more likely than not point to defendant's negligence as a
substantial contributing cause. Id. at 546, 575 A.2d 858. Howarth's report and
deposition testimony did not satisfy this foundational requisite. The conclusion
ultimately drawn by Howarth constituted a net opinion. Buckelew v.
Grossbard, 87 N.J. 512, 524, 435 A.2d 1150 (1981).
Accordingly, the summary judgment is affirmed.
JERISTA v. MURRAY
842 A.2d 840 (2004)
367 N.J. Super. 292
Terry JERISTA and Michael Jerista, her husband, Plaintiffs-Appellants, v. Thomas
M. MURRAY, Jr., Esq., Defendant-Respondent.
Superior Court of New Jersey, Appellate Division.
Decided February 17, 2004.
Jack L. Wolff, Morristown, argued the cause for appellants (Mr. Wolff, of
counsel; Marc J. Friedman, Parsippany, on the brief).
Mark M. Tallmadge argued the cause for respondent (Bressler, Amery & Ross,
attorneys; Mr. Tallmadge and Diana C. Manning, on the brief).
Before Judges KESTIN, AXELRAD and LARIO.
[842 A.2d 841]
The opinion of the court was delivered by AXELRAD, J.T.C. (temporarily
assigned).
In this legal malpractice action, plaintiffs, Terry Jerista1 and Michael Jerista,
appeal from summary judgment in favor of their former attorney, defendant,
Thomas J. Murray, Jr. We affirm.
On August 30 or 31, 1987, plaintiff was injured on the premises of the Shop
Rite supermarket in Hasbrouck Heights. The facts surrounding the accident
are sketchy. According to plaintiff's deposition in the current action, her
husband, pushing their child in a shopping cart ahead of her, entered the
store uneventfully. As plaintiff entered, the automatic door suddenly swung
back and closed on her, causing injury to her wrist, forearm, and back.
Plaintiffs retained defendant, and on April 7, 1989, he filed suit on their behalf
against Shop Rite. Shop Rite filed a third-party complaint against New Jersey
Automatic Door, Inc., the company responsible for installation and
maintenance of the door. Defendant did not obtain any photographs or hire
any expert to inspect the door. On June 22, 1990, plaintiffs' complaint against
Shop Rite was dismissed for failure to answer interrogatories. Defendant did
not move to reinstate his clients'
[842 A.2d 843]
claim. Plaintiffs allege they had no knowledge of the dismissal until ten years
later, at which time they filed suit against defendant for legal malpractice.
In the current action, plaintiffs retained an expert, Daniel M. Hurley, Esquire,
who opined as to defendant's malpractice. Plaintiffs also provided a report
from a medical expert regarding Terry's injuries. Plaintiffs provided no expert
report regarding the alleged malfunction of the door.
In his report, Hurley asserts malpractice in defendant's failure to properly
investigate the accident, in failing to determine who manufactured and
17

installed the door and the door-operating mechanism, and in failing to realize
that the case was both a "Negligence and Product Liability case." Hurley also
found negligence in defendant's failure to prepare draft answers to
interrogatories served upon his clients, failure to prevent the case from being
dismissed, and failure to advise his clients of the dismissal.
Defendant's legal malpractice expert, Diane Marie Acciavatti, opined that
plaintiff could not prove causation in her claim against defendant because she
did not offer an expert to testify as to any defective condition of the door,
plaintiff was comparatively negligent in proceeding through an automatic
door, which had opened in the wrong direction, and plaintiff would be unable
to prove that her injuries resulted from the incident at Shop Rite rather than
numerous unrelated medical conditions.
Defendant moved for summary judgment, claiming that even if there were a
breach of duty by defendant-attorney, plaintiff failed to demonstrate a
proximate link of damages to the breach. Plaintiff responded that, because of
the passage of time, she was unable to produce any proof that the door
presently on the Shop Rite premises was the same door that caused her
injuries. Therefore, she could not obtain an expert who would establish a
manufacturing, design, or installation defect of the door that was involved in
the accident.
The Law Division judge granted summary judgment to defendant because of
plaintiffs' failure to produce an expert regarding the liability of the
manufacturer or installer of the door or of Shop Rite. More specifically,
plaintiffs failed to establish a "case within a case", i.e., had the initial action
been pursued, it would have resulted in a favorable recovery. Conklin v.
Hannoch Weisman, 145 N.J. 395, 417, 678 A.2d 1060 (1996). The court
determined that plaintiffs' "case within a case" was grounded upon products
liability and governed by the Products Liability Act, N.J.S.A. 2A:58C-1 to -11.
The court rejected plaintiffs' res ipsa loquitur argument, and held that, without
an expert, plaintiffs were unable to establish a prima facie showing of
causation. Although the record is unclear, it appears the court also concluded
that the Products Liability Act subsumed plaintiffs' premises liability claim
against Shop Rite.
Plaintiffs argued before the trial court and on appeal that Terry had a viable
premises liability negligence case against Shop Rite, which did not require
expert testimony. According to plaintiffs, the supermarket's breach of duty
could be inferred using the doctrine of res ipsa loquitur, and that was
sufficient to defeat defendant's summary judgment motion.
We do not necessarily agree that plaintiff's products liability claim subsumed
her negligence claim. We need not address that issue, however, in view of our
determination that, as a matter of law, plaintiff is not entitled to a res ipsa
loquitur inference on her underlying negligence action against Shop Rite. Nor
do the dynamics of this case merit relieving plaintiff from the
[842 A.2d 844]
requirement of having to prove a "suit within a suit" in order to sustain her
legal malpractice claim. See Lieberman v. Employers Ins. of Wausau, 84 N.J.
325, 342, 419 A.2d 417 (1980) (holding, that under certain limited
circumstances, a "plaintiff should not be restricted to the more or less
conventional mode of trying a `suit within a suit' to establish entitlement to
damages in a malpractice action.")
In a negligence case, a plaintiff must establish that the defendant breached a
duty of reasonable care, which was a proximate cause of the plaintiff's
injuries. Brown v. Racquet Club of Bricktown, 95 N.J. 280, 288, 471 A.2d 25
(1984) (citing Hansen v. Eagle-Picher Lead Co., 8 N.J. 133, 139-40, 84 A.2d
281 (1951)). Res ipsa loquitur is a method of circumstantially proving the
existence of negligence. Myrlak v. Port Authority of N.Y. and N.J., 157 N.J. 84,
18

95, 723 A.2d 45 (1999), (citing Tierney v. St. Michael's Medical Ctr., 214
N.J.Super. 27, 30, 518 A.2d 242 (App.Div.1986), certif. denied, 107 N.J. 114,
526 A.2d 184 (1987)). Res ipsa loquitur is not a theory of liability; rather, it is
an evidentiary rule that governs the adequacy of evidence in some negligence
cases. Id. at 95, 723 A.2d 45. "The rule in effect creates a `permissive
presumption' that a set of facts `furnish reasonable grounds for 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.' "
Brown, supra, 95 N.J. at 288-89, 471 A.2d 25 (quoting Bornstein v. Metro.
Bottling Co., 26 N.J. 263, 269, 139 A.2d 404 (1958)). Thus, the rule permits a
plaintiff "the advantage of the inference of negligence to discharge the burden
of proving negligence." Jimenez v. GNOC, Corp., 286 N.J.Super. 533, 543, 670
A.2d 24 (App.Div.) (quoting Vespe v. DiMarco, 43 N.J. 430, 436-37, 204 A.2d
874 (1964)), certif. denied, 145 N.J. 374, 678 A.2d 714 (1996). However, the
inference does not shift the burden of proof to defendant. Eaton v. Eaton, 119
N.J. 628, 639, 575 A.2d 858 (1990); Buckelew v. Grossbard, 87 N.J. 512, 526,
435 A.2d 1150 (1981). The doctrine confers upon the plaintiff an inference of
negligence sufficient to establish a prima facie case at the close of plaintiff's
evidence. Buckelew, supra, 87 N.J. at 526, 435 A.2d 1150; see also Vespe,
supra, 43 N.J. at 436-37, 204 A.2d 874.
The doctrine of res ipsa loquitur permits an inference of defendant's want of
due care when: "(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." Myrlak, supra, 157 N.J. at 95, 723
A.2d 45 (quoting Bornstein, supra, 26 N.J. at 269, 139 A.2d 404).
In opposition to defendant's summary judgment motion, plaintiff presented
evidence that her husband and baby entered through the automatic doors
without incident, and when she followed, the doors closed on her. Plaintiff
produced two service reports pertaining to a Stanley Magic Swing door at
Shop Rite's premises. One, dated a few days prior to the accident, indicated
the "operator [was] internally damaged" and a part was to be ordered and
installed. The other, dated September 9, 1987, about ten days after the
accident, stated that the "damaged operator" was replaced.
When an injury is caused by a piece of complex machinery, the plaintiff must
typically provide expert testimony regarding that machinery. Gore v. Otis
Elevator Co., 335 N.J.Super. 296, 302-03, 762 A.2d 292 (App.Div.2000);
Jimenez, supra, 286 N.J.Super. at 544, 670 A.2d 24.
[842 A.2d 845]
The requirement for expert testimony in complex instrumentality cases results
logically from New Jersey law that res ipsa loquitur is inapplicable where the
injured party fails to exclude other possible causes of the injury. While the
plaintiff need not reduce altogether the possibility of other causes, she must
bring forth affirmative evidence that tends to "exclude other possible causes
of the injury."
Clearly, then, a plaintiff is not entitled to bring her case to a jury under res
ipsa loquitur any time there is an unexplained accident for which a defendant
might plausibly be responsible. Rather, a plaintiff has the burden of producing
evidence that reduces the likelihood of other causes so "that the greater
probability [of fault] lies at defendant's door." Only then may a jury properly
draw an inference of negligence. Without an expert... the plaintiff has not
excluded possible causes of the alleged incident and thus cannot take
advantage of res ipsa loquitur.
[Jimenez, supra, 286 N.J.Super. at 544-45, 670 A.2d 24 (internal quotations
and citations omitted).]
The cases of Rose v. Port of New York Auth., 61 N.J. 129, 293 A.2d 371 (1972)
19

and Allendorf v. Kaiserman Enterprises, 266 N.J.Super. 662, 630 A.2d 402
(App.Div. 1993), relied upon by plaintiffs, do not support the application of res
ipsa loquitur in this case. In Rose, the plaintiff was struck in the face by an
automatic glass door at the airport when he came into close proximity with it.
Rose, supra, 61 N.J. at 133, 293 A.2d 371. In Allendorf, as the plaintiff was
entering a self-service elevator in an office building behind her two-year old
daughter, the automatic door closed on her and pinned her against the door
frame, pushing her with increasing pressure against the wall. Allendorf, supra,
266 N.J.Super. at 667, 630 A.2d 402.
Although these cases may, arguably, be factually similar to the case before
us, they differ significantly in the quantum of proof presented by each of the
plaintiffs. In Rose, the plaintiff offered two experts, one who testified regarding
the normal operation of the automatic door, and one who opined that four
possible defects in design or operation may have caused the accident. Rose,
supra, 61 N.J. at 135-36, 293 A.2d 371. The Court held that the experts'
opinions as to possible malfunctions of the door were sufficient to withstand a
Rule 4:37-2(b) motion for involuntary dismissal under a res ipsa loquitur
theory, even though the experts were unable to pinpoint the actual
operational failure that did occur. Id. at 136-37, 293 A.2d 371.
In Allendorf, the plaintiff offered an engineering expert who testified that the
elevator was generally in a poor state of repair and that, according to service
records, the elevator's electronic eye safety device was known to have been
out of service for a sufficient period prior to the accident to have been
repaired. Allendorf, supra, 266 N.J.Super. at 668, 630 A.2d 402. The evidence
presented to the jury pointed to the electronic eye safety device as the
probable malfunctioning part, and showed that similar malfunctions had
occurred within hours of the plaintiff's accident. Id. at 667, 630 A.2d 402.
Moreover, the maintenance company had sent an employee to service the
specific elevator that caused plaintiff's injuries during that time. Id. at 671,
630 A.2d 402. Accordingly, the evidence presented by the plaintiff supported
a sufficient foundation for a jury instruction on res ipsa loquitur. Id. at 668,
630 A.2d 402.
Plaintiff in this case did not offer a similar quantum of evidence in support of
her claim of negligent maintenance. The
[842 A.2d 846]
only evidence she presented was that an "operator" of the automatic door
was internally damaged and a part required replacement a few days prior to
her accident. She offered no proof, or even a theory, as to which part it was.
Nor did she offer any connection between the part needing replacement and
her injury. Moreover, plaintiff offered no evidence whatsoever reducing the
likelihood of other possible causes of her injury. She provided no evidence as
to whether the door had been operating safely between the time the part was
ordered and her traumatic entry. Nor did she provide the court with any expert
testimony as to the normal operation of the automatic door or a theory as to
how or why the automatic door malfunctioned when she entered but did not
when her husband and child preceded her. The only expert she presented was
an attorney who opined as to defendant's malpractice.
We recognize that in some circumstances involving complex instrumentalities,
an expert may not be required to satisfy res ipsa. Rosenberg v. Otis Elevator
Co., 366 N.J.Super. 292, 306, 841 A.2d 99 (App.Div.2004). The focus must
center on "the sufficiency of the evidence tending to reduce or rule out the
likelihood of causes other than those attributable to the defendant(s)." Ibid. In
determining whether an expert is required, consideration must be given to the
manner in which the accident occurred, regardless of whether it involves a
complex instrumentality, and whether it would be capable of bespeaking
negligence by defendant to a lay person. Ibid. This is not such a case. Plaintiff
20

provides no explanation of the operation of the door mechanism, which is


beyond the ken of a lay person. With no expert to provide the court with a
basis upon which to find sufficient evidence of improper operation and
proximate cause, the doctrine of res ipsa loquitur cannot be invoked to
establish premises liability against Shop Rite.
We do not countenance in any way defendant's handling of plaintiffs'
underlying case. However, defendant's breach of duty is but one element of a
viable legal malpractice action. Plaintiff must also establish proximate cause
by way of a "case within a case"had her initial suit been pursued, she would
have been successful. Conklin, supra, 145 N.J. at 417, 678 A.2d 1060. Our
Supreme Court has opened the door, when necessary in the interests of
justice, to alternative approaches to proving a legal malpractice claim where
the conventional mode of trying a "suit within a suit" would not be feasible.
Lieberman, supra, 84 N.J. at 342-44, 419 A.2d 417. The Court identified the
presence in that case of three extraordinary factors. Id. at 342-43, 419 A.2d
417. The plaintiff there proceeded against dual defendants on different
theories; one was a malpractice claim against an attorney, and the other was
a breach of contract claim against an insurer. Id. at 343, 419 A.2d 417.
Additionally, there was a reversal of roles in which the plaintiff in the
malpractice action was a defendant in the underlying negligence action so
that a "suit within a suit" framework would be "awkward and impracticable"
and "could well skew the proofs." Ibid. These factors are not present here. The
only claim is one of professional negligence. Additionally, we have a
traditional "plaintiff-plaintiff" paradigm where "there might well be a parallel
between the two actions as to the identity of witnesses and the nature of the
evidence so that a ... `suit within a suit' would not be inconvenient or
difficult." Ibid.
The third Lieberman factor was the passage of time. Ibid. This factor causes
us some concern. Because of defendant's dereliction, a substantial period of
time elapsed, which has inured to the detriment
[842 A.2d 847]
of plaintiffs and may impede their ability to follow the "suit within a suit"
approach. However, plaintiff has not demonstrated that the passage of time
has created an insurmountable proof problem, rendering her unable to prove
her underlying negligence case within the conventional framework.
Even if defendant's acts in refusing to disclose the dismissal of the action
against Shop Rite caused the evidence to be lost, and precluded inspection of
the actual automatic door, plaintiff still could have utilized an expert, as was
done in Rose and Allendorf, to rule out other possible causes of the incident.
For example, plaintiff could have offered an expert to testify generally about
Stanley Magic Swing doors and the possible ways they could malfunction to
cause an accident similar to hers. This she failed to do. Alternatively, if
plaintiff had produced an expert who opined that, without examination of the
exact door that closed on her, it would be impossible to render an opinion on
causation, we might be impelled to seek a more flexible alternative to the
conventional framework so as to avoid an injustice.
Under the circumstances present in this case, the legal principles upon which
we base our decision are well settled. Neither the Lieberman factors nor their
underlying rationale are present here. Accordingly, we discern no basis to
craft an alternative procedure by which plaintiff can prove her legal
malpractice claim. Plaintiff has advanced no justification in law, or even on
broad public policy grounds, to relieve her from her obligation to prove a
"case within a case" in order to sustain her malpractice claim against
defendant.
The mere fact an accident occurred does not establish negligence. Plaintiff
made no showing that "but for" the lack of due care by Shop Rite, the
21

accident would not have occurred. Plaintiff failed to present evidence that
Shop Rite failed to properly maintain the automatic doors, warn of any
defective equipment, and adequately maintain the premises so as to prevent
injury to its customers-invitees. See, e.g., Butler v. Acme Markets, Inc., 89 N.J.
270, 445 A.2d 1141 (1982). Plaintiff's evidence, considered in the light most
favorable to her, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540, 666
A.2d 146 (1995), is insufficient to raise a debatable question and get to a jury
on her negligence action against Shop Rite for failing to maintain safe
premises for its patrons. Accordingly, summary judgment was properly
granted to defendant. We affirm a judgment on appeal if it is correct, even
though the judge gave different reasons for it. Isko v. Planning Bd. of Tp. of
Livingston, 51 N.J. 162, 175, 238 A.2d 457 (1968).
Affirmed.
KESTIN, P.J.A.D., dissenting.
Viewing the facts indulgently in favor of plaintiffs at this stage of the
proceedings, as we must, see Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540,
666 A.2d 146 (1995), it is remarkableand paradoxicalthat an attorney who
so clearly breached his duties of due care and diligence in handling his clients'
cause, and so completely defaulted on his duty of fidelity and full disclosure
as this defendant is alleged to have done, should benefit from his own
transgressions when finally called to account in a lawsuit for professional
malpractice. We ought not to permit a sterile adherence to processes crafted
to achieve just results in most cases to apply in this matter in a way that
perverts good sense and the requirements of justice. I am not content to allow
the outrageously patent and pervasive derelictions of duty allegedly
[842 A.2d 848]
perpetrated by this defendant to pass without an appropriate response.
The "case within a case" rubric, so unremittingly applied by the trial court and
the majority in this appeal to non-suit plaintiffs, is not an unvarying rule of
liability or damages in all legal malpractice suits. Thus, whether or not
plaintiffs were entitled to the benefit of a res ipsa loquitur presumption in their
underlying negligence action is not dispositive of their claim against the
defendant herein.
In Lieberman v. Employers Ins. of Wausau, 84 N.J. 325, 419 A.2d 417 (1980),
the Supreme Court held that the "suit within a suit" approach is but one way
to prove a legal malpractice claim, not the exclusive mode. The Court
concluded
that it should be within the discretion of the trial judge as to the manner in
which the plaintiff may proceed to prove his claim for damages and that the
appropriate procedure should, if not otherwise agreed upon between the
parties, be settled through pretrial proceedings. We need not here delineate in
final detail what alternatives must be considered except to observe that they
include the "suit within a suit" approach or any reasonable modification
thereof.
[ID. AT 343-44, 419 A.2D 417.]
In determining how the claim may best be presented in order to promote a
just adjudication, the trial judge must evaluate the dynamics of the particular
case instead of proceeding by rote. All applicable factors must be realistically
considered, including the theories advanced in the instant action and those
that were and could have been developed in the underlying suit, see id. at
342-43, 419 A.2d 417, the nature and extent of the alleged "professional
mishandling" that gave rise to the malpractice suit, see id. at 343, 419 A.2d
417, and the degree to which the passage of time especially where the
defendant bears the responsibility for it "skew the proofs" or otherwise
defeat the claimants' ability to prove their claim in a "trial within a trial." Ibid.
It is singularly inappropriate to apply a high standard of proof to plaintiffs at
22

the summary judgment stage. See Vahila v. Hall, 77 Ohio St.3d 421, 674
N.E.2d 1164, 1171 (1997).
Especially where the claims if established, bespeak such patent departures
from accepted standards of attorney conduct as are alleged here, the trial
judge should not hold the plaintiffs to modes of proceeding that would be
"awkward and impracticable." Ibid. "[T]he "suit within a suit" rule may well
suffer from an undue rigidity." Gautam v. De Luca, 215 N.J.Super. 388, 398,
521 A.2d 1343 (App. Div.1987). "A standard of proof that requires a plaintiff to
prove a virtual certainty that, but for defendant's negligence, the plaintiff
would have prevailed in the underlying action, in effect immunizes most
negligent attorneys from liability." Erik M. Jensen, The Standard of Proof of
Causation in Legal Malpractice Cases, 63 Cornell L.Rev. 666, 670 (1978).
Defendant ought not to be immune from liability for his omissions to plan and
plead the underlying case properly; for his failures to prepare the case in an
acceptable fashion, including conducting discovery in a professionally
responsible way; for his breaches of the duty to protect plaintiffs' claims
procedurally; or for his intentional acts in deceiving them about the posture of
their suit. Assuming the truth of the factual allegations plaintiffs make, as we
must at this stage of the proceedings, defendant earned no indulgence from
the court in this malpractice action. Instead of hewing to a formalistic line and
dismissing the instant claim on "case within a case" grounds, the trial court
and we, as custodians of the legal and professional standards the breach of
which so victimized these
[842 A.2d 849]
claimants, owe plaintiffs a creative treatment of the issues so as not to
deprive them of an opportunity to establish the truth of their allegations and
the extent of the damages they suffered by reason of the derelictions claimed.
This defendant's own conduct, as alleged, may well have been responsible, in
whole or in large part, for any present limitations on plaintiffs' capacity to
prove their "case within a case."
In addition to fashioning a more flexible view of how plaintiffs might proceed
on issues of liability, see Lieberman, supra, 84
N.J. at 343, 419 A.2d 417, it would be appropriate to consider applying, as
well, in cases of this type, a legal-malpractice version of the "increased risk of
harm" standard available in certain medical malpractice actions. See Evers v.
Dollinger, 95 N.J. 399, 471 A.2d 405 (1984); see also Jensen, supra, 63 Cornell
L.Rev. at 679-81 (proposing "[a] new standard: `lost substantial possibility of
recovery'"). In terms of damages, it should be no less difficult to calculate in a
legal malpractice action than in a medical malpractice action, with
appropriate regard for the uncertainties involved, the value of the loss
claimants experienced by reason of the professional defendant's errors,
omissions, and intentional disregard of professional standards.
With these thoughts in mind, I would reverse the trial court's summary
judgment order dismissing the complaint; and remand for further
consideration, including the crafting of a procedure that deals justly and
realistically with the issues involved.
FOOTNOTES
1. Because Terry Jerista was injured by the automatic door, and her husband
Michael asserted a per quod claim, we will use the singular term "plaintiff" in
this opinion when we refer to Terry.
The doctrine of res ipsa loquitur
Posted on March 5, 2013 by PaulKostro
23

Law Lessons from MARTIN MAYER v. ONCE UPON A ROSE, INC., and SAMUEL
GRUNWALD, __ N.J. Super. __ (App. Div. 2013), A-2922-11T3, January 30, 2013:
Our Supreme Court has described the doctrine of res ipsa loquitur as follows:
In any case founded upon negligence, the proofs ultimately must establish
that defendant breached a duty of reasonable care, which constituted a
proximate cause of the plaintiffs injuries. Res ipsa loquitur, a Latin phrase
meaning the thing speaks for itself, is a rule that governs the availability
and adequacy of evidence of negligence in special circumstances. The rule
creates an allowable inference of the defendants want of due care when the
following conditions have been shown: (a) the occurrence itself ordinarily
bespeaks negligence; (b) the instrumentality [causing the injury] was within
the defendants exclusive control; and (c) there is no indication in the
circumstances that the injury was the result of the plaintiffs own voluntary
act or neglect.
[Szalontai v. Yazbos Sports Caf, 183 N.J. 386, 398 (2005) (quoting Brown v.
Racquet Club of Bricktown, 95 N.J. 280, 288-89 (1984)).]
The res ipsa loquitur doctrine is based upon considerations of public policy,
allowing a blameless injured plaintiff to obtain an inference of negligence
where certain required factors are present. In essence, the doctrine plac[es]
the duty of producing evidence on the party who has superior knowledge or
opportunity for explanation of the causative circumstances. Buckelew v.
Grossbard, 87 N.J. 512, 526 (1981). Res ipsa loquitur in effect creates a
permissive presumption that a set of facts furnish reasonable grounds for 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.
Szalontai, supra, 183 N.J. at 398 (quoting Brown, supra, 95 N.J. at 288-89). The
jury is free to accept or reject that permissible inference. Ibid.
An important aspect of the res ipsa loquitur doctrine is its role at trial in
repelling a defendants motion for a directed verdict. Once res ipsa loquitur is
established, the case should go to the jury unless defendants countervailing
proof is so strong as to admit of no reasonable doubt as to the absence of
negligence. Id. at 398 (quoting Brown, supra, 95 N.J. at 289). In a case in
which res ipsa loquitur applies, a directed verdict against the plaintiff can
occur only if the defendant produces evidence which will destroy any
reasonable inference of negligence, or so completely contradict it that
reasonable men could no longer accept it. Id. at 399 (quoting Brown, supra,
95 N.J. at 289).
In Jerista v. Murray, 185 N.J. 175, 195 (2005), a leading case in which the
plaintiff invoked the res ipsa loquitur doctrine, the Supreme Court concluded
that expert testimony was not required for a res ipsa inference to be made
with respect to injuries caused by an automatic door. The plaintiffs in Jerista
brought a malpractice claim against their prior attorney, whose inaction had
allegedly led to the dismissal of their negligence complaint against a
supermarket. Id. at 180. The defendant attorney argued that he had not
caused his former clients harm, because their lack of supporting expert
testimony on liability would have prevented them anyway from obtaining a
res ipsa inference, and consequently they did not have a provable claim in the
underlying suit. Id. at 180-81. The Supreme Court rejected this courts
sweeping suggesti[on] . . . that in almost all complex instrumentality cases a
res ipsa inference will be conditioned on the production of expert testimony.
24

Id. at 197. Instead, the Court determined that the pertinent question 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.
As to the necessity of liability experts, the Court instructed in Jerista that
[o]nly when the res ipsa inference falls outside of the common knowledge of
the factfinder and depends on scientific, technical, or other specialized
knowledge is expert testimony required. Ibid.; see also N.J.R.E. 702 (limiting
the admission of expert testimony to evidence or issues requiring specialized
knowledge for a factfinder to understand). A jury does not need an expert to
tell it what it already knows. Jerista, supra, 185 N.J. at 197.
The Court concluded in Jerista that the plaintiffs could have obtained a res
ipsa inference absent expert testimony because, even though automatic
doors are complex machines, based on common knowledge it is improbable
that such a door would close unexpectedly on a person unless it was
negligently maintained. Ibid. When the average juror can deduce what
happened without resort to scientific or technical knowledge, expert
testimony is not mandated. Id. at 200.
Similarly, in Rosenberg v. Otis Elevator Co., 366 N.J. Super. 292, 305 (App. Div.
2004), no expert testimony was required to assist the jury in evaluating an
incident where an elevator had dropped at least three floors in a freefall
before coming to a sudden stop. This court reasoned that the jurors could
make a rational inference, unaided by expert testimony, that an elevator
would not have fallen in such a precipitous manner unless the defendant had
breached its duty and caused the malfunction. Ibid.
By contrast, in Buckelew, supra, 87 N.J. at 527, a liability expert was needed
where the defendant physician had cut into the plaintiffs bladder during
surgery. An expert was required in that professional liability context to address
the relevant standard of care for such surgery because the Court [could] not
say, as a matter of common understanding, the injury to plaintiffs bladder
raises an inference of negligence. Ibid.
Stadium Owners Beware: Experts No Longer Needed in NJ Elevator/Escalator
Injury Lawsuits
Posted on January 3, 2015 by Steve
Escalator and elevator accidents at sporting events are becoming more
common. In New Jersey, plaintiffs no longer need to hire experts to win a
personal injury lawsuit for damages arising out of accidents from these
potentially dangerous devices.
Anyone that has ever attended an American sporting event has witnessed the
inevitable battle between drunk fans and gravity. These fans often struggle to
stay upright walking on a flat surface. Put them on an escalator, though, and
all bets are off.
Yet what happens when an escalator or an elevator malfunctions and causes a
legitimate injury to a fan or customer who was simply going about his or her
business as usual? According to Consumer Watch, U.S. elevators make 18
billion passenger trips per year. Those trips result in only about 30 deaths per
year, but nearly 20,000 people are injured by elevators and escalators
annually according to data provided by the U.S. Bureau of Labor Statistics and
the Consumer Product Safety Commission. Elevators cause almost 90 percent
of those injuries.
25

So what do you do if you are hurt by an escalator or elevator? More often than
not, the answer is found in a civil lawsuit for personal injuries. These lawsuits
are costly endeavors for plaintiffs lawyers because escalators and elevators
involve some fairly complex machinery and engineering. To litigate such a
case, the attorney has to hire an expert to help prove that the property owner
and/or the maintenance company was negligent. And trust me, these experts
do not come cheap.
However, a recent ruling by the New Jersey Superior Court Appellate Division
just eliminated the needs for experts, thereby drastically decreasing the cost
of litigating an elevator or escalator injury case for plaintiffs.
In Lazarus v. Port Authority of New York and New Jersey, Appellate Court
Judges Hayden and Sumners decided that a plaintiff could survive summary
judgment in an elevator injury case without an expert. (Docket No. A-051913T3).
The case arose out of an accident at the Pavonia-Newport PATH station. The
Plaintiff, Wendy Lazarus, was stepping into an elevator when it suddenly rose
several inches and caused her to fall. Ms. Lazarus fractured her patella in the
fall. She subsequently sued the Port Authority and Schindler Elevator
Corporation.
After discovery ended, the defendants filed a Motion for Summary Judgment
contending that plaintiffs experts report should be stricken as a net opinion
and that the doctrine of res ipsa loquitor did not apply. The trial judge agreed
and struck plaintiffs experts report. With no expert, the trial judge
determined that summary judgment was appropriate since, the common
knowledge of lay jurors is incapable of assessing negligence of both
defendants, and thus, there was no basis for a reasonable jury to find in
favor of the plaintiff. The trial court also found that plaintiff could not proceed
under a theory of res ipsa loquitur since an experts testimony was still
required to determine whether defendants were negligent in maintaining and
operating the elevator. The trial court reasoned that the mechanics of how
elevators work was a complex issue that jurors could not understand without
the assistance of expert testimony. Plaintiff naturally appealed.
One of the main issues aside from the need of an expert was whether the
doctrine of res ipsa loquitur applied. The doctrine of res ipsa arose from public
policy concerns in order to allow a blameless injured plaintiff to obtain an
inference of negligence where certain required factors are present. Mayer v.
Once Upon A Rose, Inc., 58 A.3d 1221 (NJ App. Div. 2013). The doctrine
creates a permissive inference, which may be accepted or rejected by a jury,
that if due care had been exercised by the person having control of the
instrumentality causing the injury, the mishap would not have occurred. Id.
Res ipsa loquitur permits an inference of defendants negligence where (a)
the occurrence itself ordinarily bespeaks negligence; (b) the instrumentality
was within defendants exclusive control; and (c) there is no indication in the
circumstances that the injury was the result of the plaintiffs voluntary act or
neglect. Jerista v. Murray, 185 N.J. 175, 192 (2005). While the doctrine does
not shift the burden of proof, the presentation of a prima facie case based on
res ipsa generally assures that a plaintiff will survive summary judgment. Id.
26

at 193.
As the Appellate court summarized: New Jersey courts have consistently
recognized the doctrine of res ipsa loquitur in cases involving malfunctioning
complex instrumentalities such as escalators, elevators, and automatic sliding
doors. See, e.g., Rose v. Port of N.Y. Auth., 293 A.2d 371 (NJ 1972) (holding
that res ipsa loquitur could be invoked where the plaintiff was injured by an
automatic sliding door); Rosenberg v. Otis Elevator Co., 841 A.2d 99 (App. Div.
2004) (finding that res ipsa loquitur applies where the plaintiffs were injured
after an elevator dropped three floors).
It is important to note that res ipsa loquitur is not a theory of liability. Rather,
it is a method by which plaintiffs can circumstantially prove the existence of
negligence by permitting the fact-finder to infer that the defendants were
negligent or failed to act with due care. It essentially allows a plaintiff to
automatically survive summary judgment. Additionally, res ipsa shifts the
burden to the defendant to explain why the instrumentality malfunctioned
rather than force the plaintiff to eliminate all possible other causes. The
rationale behind this burden-shifting is that the defendant is more
knowledgeable about the instrument and has greater access to the evidence.
Escalator and elevator accident are very serious matters and victims often
require a lawyer to recovery monetary damages for their injuries.
After examining all of the evidence, including records indicating prior elevator
malfunctions at the station at issue, the Court concluded that plaintiff, a
business invitee, entered the open and apparently stationary elevator at the
PATH station, which abruptly rose several inches, causing plaintiff to fall
forward, injuring her knee. Common knowledge suggests that elevators do not
usually operate in the manner reported by plaintiff and that such an accident
does not normally occur absent negligence. Lazarus, 2014 N.J. Super. Unpub.
LEXIS 2970 (App.Div. Dec. 29, 2014).
Most importantly, the Court determined that there was no need for plaintiff to
use an expert to prove her case.
The Court specifically rejected the defendants argument that the cause of the
malfunction was so complex or specialized that the fact-finder would be
unable to understand it without an expert witness. On the contrary, the Court
found that plaintiff can rely on the common knowledge and experience of the
fact-finder to deduce what happened without an experts opinion. . .
Consequently, although this case involves a complex instrumentality,
scientific or technical knowledge is not essential to the fact-finder
understanding what happened and determining whether defendants were
negligent. The average person does not need to resort to scientific or
technical knowledge to understand that an elevator generally does not
abruptly rise off the floor as a patron is entering it and before the doors have
closed. Id. at *10-11.
The Appellate Courts conclusion that an elevator malfunction is within the
common knowledge of an average juror is a huge victory for plaintiffs
attorneys. Although most will still elect to hire an expert, New Jersey has now
made it clear that experts are not necessary because the average juror can
assess liability based on common usage of elevators and escalators.
Although this victory is sweet for plaintiffs, the Courts decision places
27

defendants at a huge disadvantage. Think of how many people ride elevators


and escalators at arenas and stadiums every weekend. The potential liability
is enormous. Now throw in the fact that an injured plaintiff does not need to
hire an expert and that he or she can rely on res ipsa. The defense bar is likely
reeling.
However, two groups of people should be celebrating Jets and Giants fans.
If they get hurt on an elevator or escalator their path to victory in the
courtroom just became a lot easier because their stadium is in New Jersey and
not New York. Then again, they are Jets and Giants fans. Getting hurt on an
elevator is the least of their problems.
This entry was posted in Articles and tagged elevators, escalators, New
Jersey, personal injury lawsuit, Sports Law. Bookmark the permalink.
WWE Body Slams Merchandise Counterfeiters
The IRS Collects From Everyone, Even The Jocks
No Expert Necessary in Elevator Injury Case
Posted on January 6, 2015 by admin
A commuter who claims she was hurt while trying to board an elevator at a
PATH station has gotten the go-ahead from a New Jersey appeals court to
proceed with her personal injury suit absent any expert testimony, based on
the doctrine of res ipsa loquitur.
We reject defendants argument that the cause of the malfunction was so
complex or specialized that the fact-finder would be unable to understand it
without an expert witness, wrote the two-judge panel in Lazarus v. Port
Authority of New York and New Jersey (PATH) on Dec. 29, 2014. On the
contrary, plaintiff can rely on the common knowledge and experience of the
fact-finder to deduce what happened without an experts opinion.
The opinion by Appellate Division Judges Margaret Hayden and Thomas
Sumners Jr. reversed a decision by Hudson County Superior Court Judge
Lourdes Santiago, who threw out the case on summary judgment after
excluding the plaintiffs expert report and then finding that the plaintiff could
not prove her case without expert testimony.
The court emphasized that res ipsa is not a theory of liability but a method by
which a plaintiff can circumstantially prove negligence by inferring it. It allows
a plaintiff who lacks direct proof of negligence to establish a prima facie case
and shift the burden of production to the defendant to explain why the
malfunction occurred, on the rationale that the defendant is more
knowledgeable and has greater access to such evidence, Hayden and
Sumners said.
The judges cited no case exactly on point, but noted that New Jersey courts
have consistently recognized the doctrine of res ipsa loquitur in cases
involving malfunctioning complex instrumentalities, such as escalators,
falling elevators and automatic sliding doors.
Reported By: New Jersey Law Journal, 12/31/14
Doctrine of Res Ipsa Loquitor Saves Plaintiffs Case from Dismissal
Betsy G. Ramos January 30, 2015 Blog
0 Comments
Plaintiff, Wendy Lazarus, was injured as she tried to enter the elevator at the
28

PATH station. In Lazarus v. Port Authority of New York and New Jersey, 2014
N.J. Super. Unpub. LEXIS 2970 (App. Div. Dec. 29, 2014), the plaintiff sued the
Port Authority for her injuries. Initially, her case was dismissed by the trial
judge because she did not have an expert witness to testify as to how the Port
Authority was negligent. However, she appealed, claiming that the doctrine of
res ipsa loquitor applied and she did not need an expert to pursue her claim.
The plaintiff had been on her way to work when she entered the elevator at
the PATH station. After the elevator doors opened, she put her leg into the
elevator and, suddenly, it rose 3 to 4 inches above the platform level, causing
her to fall forward onto her hands and knees. She later learned that she had
fractured her patella.
The defendants records showed that prior to the accident, the elevator had
recurring problems. Repair technicians had been there 2 times the month
before her accident and that just 12 hours prior to her accident, technicians
had been called to troubleshoot the controller and valve. The elevator had just
been returned to service less than an hour before the plaintiff entered it.
After discovery ended, the defendant successfully moved for summary
judgment, dismissing the case. It contended that without an expert to
establish negligence, the common knowledge of lay jurors is incapable of
assessing negligence as to the defendant. The trial judge rejected the
application of the doctrine of res ipsa loquitor (which means the thing speaks
for itself), reasoning that the mechanics of how an elevator works was a
complex issue that jurors could not understand without the assistance of
expert testimony.
The plaintiff appealed that decision to the Appellate Division, claiming that
she should have been entitled to proceed under this doctrine. The Appellate
Division agreed and reversed the trial courts ruling.
The court explained that this doctrine arose from public policy concerns to
allow a blameless injured plaintiff to obtain an inference of negligence where
certain required factors are met. This doctrine allows a permissive inference,
that a jury can accept or reject, that if due care had been exercised by the
person having control of the instrumentality causing the injury, the mishap
would not have occurred.
Res ipsa loquitor would permit this inference of defendants negligence if the
following is established: (1) the occurrence itself ordinarily bespeaks
negligence: (2) the instrumentality was within defendants exclusive control;
and (3) there is no indication in the circumstances that the injury was the
result of plaintiffs voluntary act or neglect.
The Appellate Division pointed out that res ipsa loquitor has consistently been
recognized in cases involving malfunctioning complex instrumentalities such
as escalators, elevators, and automatic sliding doors. After reviewing the
facts, the appeals court found that the plaintiff did meet the test for the
application of this doctrine.
The Appellate Division stated that common knowledge suggests that
elevators do not usually operate in the manner reported by the plaintiff and
that such accident does not normally occur absent negligence. Further, there
was no evidence that the plaintiff was at fault.
29

The courts conclusion was further supported by the prior complaints as to


this elevator. Although this case involved a complex instrumentality, technical
knowledge is not essential for jury to understand what happened and to
determine if the defendant was negligent. Hence, the Appellate Division held
that the plaintiff may proceed with her case without expert testimony.

30