NANCY VASIL v. TRUMP MARINA HOTEL AND CASINO, TRUMP PROPERTIES

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1874-04T11874-04T1

NANCY VASIL, as Administrator

ad Litem of the Estate of

George Harris,

Plaintiff-Appellant,

v.

TRUMP MARINA HOTEL AND

CASINO, TRUMP PROPERTIES,

Defendants,

and

OTIS ELEVATOR COMPANY,

Defendant-Respondent.

__________________________________

 

Argued January 19, 2006 - Decided April 13, 2006

Before Judges Conley, Weissbard and Lihotz.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, L-1247-02.

Donald T. Joworisak argued the cause for appellant (Karim Arzadi, attorney; James J. Marchwinski, on the brief).

Michael J. O'Mara argued the cause for respondent (Crawshaw, Mayfield, Turner, O'Mara, Donnelly & McBride, attorneys; Mr. O'Mara, of counsel; Christine D. McGuire, on the brief).

PER CURIAM

This appeal follows the denial of plaintiff's motion for reconsideration of the order granting defendants' motions for summary judgment and dismissing plaintiff's negligence complaint. We affirm.

Applying the standard articulated in Brill v. Guardian Life Ins. Co., 142 N.J. 520, 536 (1995), we must assume plaintiff's version of the facts is true and give plaintiff the benefit of all favorable inferences. Ibid.

On June 5, 2001, George Harris suffered injury in a fall while riding the ascending escalator at the Trump Marina Hotel and Casino in Atlantic City. During the ride, Harris explained he felt "a little jar," causing him to tighten his grip on the handrail. The moving stairs did not stop and he did not become unsteady as a result of this "jolt." As he looked up, Harris saw another passenger riding the escalator ahead of him, Lorraine Swell, starting to shake. "[S]he kind of trembled or something," he explained. Swell then tumbled backward onto the passenger behind her, Jack Zylberman, who subsequently fell into Harris. The "Guest Injury/Mishap Report" completed by a Trump employee approximately ten minutes after the incident records Swell's statement that "she lost her balance and fell backward into [an]other guest." The report also notes Swell has a wooden left leg. This is the only information regarding Swell's fall, as she was not deposed by either party.

Similar mishap reports were completed after Trump employees spoke to Zylberman and Harris. These reflect no direct statements attributed to the patrons regarding their respective falls. Zylberman was deposed. During his testimony he asserted "the escalator stopped suddenly" and he fell. He could not recall if others fell into him.

A security videotape utilized by plaintiff's expert when preparing his report was supplied at our request. Although the overall incident is recorded on the video, it does not definitively reveal what occurred as an unidentified gentleman, riding the escalator ahead of Swell, obscured her as she fell. Stoppage of the escalator stairs is not evident.

Trump contracted with Otis Elevator Company to maintain and service the escalator. The following day, Otis performed a repair on the escalator. The June 6, 2001 report relates the replacement of newel sheaves on the escalator's handrails. Plaintiff's expert, Ronald D, Schloss, P.E., opined replacement resulted because the newels malfunctioned. Schloss suggested that a "jolt" experienced while on an escalator could only be caused by "a power interruption, a controller or safety switch fault, a mechanical failure in the driving system such as the drive chain or bull gear, a drive belt slip, or a stopped or slipping handrail." He contends all causes but the slipping handrail were eliminated by his review. His expert report dated November 13, 2003 states:

Code requires the handrail to run at

approximately the same speed as the

escalator. It can slip due to a number

of reasons, all of which are preventable

if proper maintenance was being performed,

as is any other reason listed above as the

cause of the jolt occurring on the escalator. Improper maintenance is very often the root

cause of escalator accidents. . . . In general,

preventive maintenance consists of periodically

examining, cleaning, lubricating, adjusting,

repairing and/or replacing various system

components. The maintenance agreement between

Otis and Trump states that these maintenance

actions are Otis's [sic] responsibility. It is my

opinion based on a reasonable degree of

engineering certainty that the reason for the

jolt experienced by Mr. Harris was due to Otis Elevator [p]ersonnel in performing improper

periodic maintenance on the escalator.

Thereafter, Schloss performed a site examination of the escalator and submitted a supplemental report dated May 6, 2004.

After describing the machine Schloss states:

The low light levels on the escalator and

the friction of the skirt when the side of

the shoe rubs the sides could have [been the]

proximate cause of the accident. I base this

opinion on the industry requirements that

steps should have the same light levels

throughout the travel, and that the rub on

the shoe could cause a passenger's leg to

move back off the step. It is also an

industry standard that a friction reducing

substance be applied to the skirts periodically

to reduce the friction.

Schloss' deposition provided testimony that "newels and sheaves are not part of routine replacement items. They are only replaced if they go bad, and to keep them from going bad you have to lubricate them, adjust them, keep them in proper adjustment and so forth."

Schloss suggested the handrail malfunction occurred from improper maintenance of the handrail newel, which brought about a slipping or stopping of the handrail and the jolt felt by Harris. He acknowledges there was no "stoppage" or "jerking" of the escalator steps.

Further, Schloss determined the escalator side-skirt was not treated with Teflon or a similar low friction material. He concluded that a rider whose foot rubbed the side-skirt could sense a "stoppage" or "stutter," which might "facilitate a fall." However, Schloss acknowledged no factual support existed supporting a conclusion that the foot position of these riders rubbed the side-skirt.

In ruling on defendants' motions for summary judgment, the motion judge reviewed Schloss' November 13, 2003 and May 6, 2004 reports, stating the "reports really don't have any factual basis" but only presented Schloss' opinion that the accident "could have happened in a certain way." The judge further noted, "in this case we don't have any testimony presented by Miss Swell, we don't have anything to indicate that she scraped her foot, that she was jolted from her position." Judge Gelade concluded:

[T]here's nothing that connects what

happened by this expert to aid the jury

in determining what happened because

there's no . . . underlying facts upon which

he based his, his opinion. The jury can't

themselves ascertain the workings or mechanisms

of an escalator. It's a complex piece of

machinery. They need an expert. This expert

came in and didn't have any facts upon which

to base his opinion and his opinion was, was

purely conjectured.

Plaintiff filed for reconsideration, asserting the motion judge failed to consider Schloss' deposition testimony, which plaintiff maintained sufficiently amplified the factual basis for the expert's opinion. Finding no new information was provided and the motion represented "a repetition of the precise arguments. . . made . . . when the matter was originally heard[,]" the judge denied plaintiff's motion. Plaintiff has appealed asserting the following:

POINT I

THE COURT BELOW ERRED IN CONCLUDING

THAT PLAINTIFF'S EXPERT EXPRESSED A "NET OPINION."

POINT II

THE COURT BELOW ERRED BY REFUSING TO APPLY THE DOCTRINE OF RES IPSA LOQUITUR.

POINT III

THE COURT BELOW ERRED IN GRANTING SUMMARY

[JUDGMENT] AS THERE ARE GENUINE FACTUAL ISSUES

CONCERNING THE CAUSE OF THE SUBJECT ACCIDENT.

Summary judgment must be granted if "the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c); Brill, supra, 142 N.J. at 528-29.

A reviewing court employs the same standards as the trial court to determine whether the motion for summary judgment should have been granted or denied. See Antheunisse v. Tiffany & Co., Inc., 229 N.J. Super. 399, 402 (App. Div. 1988), certif. denied, 115 N.J. 59 (1989). Therefore, we inquire whether a reasonable factfinder could have resolved this matter in favor of plaintiff. "If the response is in the affirmative, then the summary judgment was improvidently granted. If the response is in the negative, then summary judgment was appropriate." Maussner v. Atl. City Country Club, 299 N.J. Super. 535, 555 (App. Div. 1997).

At issue is the sufficiency of plaintiff's expert reports. "As construed by applicable case law, N.J.R.E. 703 requires that an expert's opinion be based on facts, data, or another expert's opinion, either perceived by or made known to the expert, at or before trial." Rosenberg v. Tavorath, 352 N.J. Super. 385, 401 (App. Div. 2002); see also Buckelew v. Grossbard, 87 N.J. 512, 524 (1981); Nguyen v. Tama, 298 N.J. Super. 41, 48-49 (App. Div. 1997). "An opinion is no stronger than the facts which support it." Buckelew, supra, 87 N.J. at 524 (quoting Parker v. Goldstein, 78 N.J. Super. 472, 484 (App.Div.), certif. denied, 40 N.J. 225 (1963)). If the expert submits a bare conclusion, unsupported by factual evidence or data, his opinion is inadmissible as a "net opinion." Johnson v. Salem Corp., 97 N.J. 78, 91 (1984); Buckelew, supra, 87 N.J. at 524; Parker, supra, 78 N.J. Super. at 484. The "net opinion rule" requires an expert witness "to give the why and wherefore" of his expert opinion, not just a mere conclusion. Jimenez v. GNOC, Corp., 286 N.J. Super. 533, 540 (App. Div.), certif. denied, 145 N.J. 374 (1996); see also Froom v. Perel, 377 N.J. Super. 298, 317 (App. Div.), certif. denied, 185 N.J. 267 (2005).

Plaintiff challenges the judge's conclusion that Schloss' expert opinion "lacked any factual basis." Plaintiff argues that Schloss, with his approximately forty years of knowledge in the vertical transport field, reviewed deposition testimony, documents, and the security videotape (which was not viewed by the motion judge). Further, Schloss' deposition testimony, which plaintiff contends "proved more elucidating than the reports," must be included to formulate the entirety of his expert opinion. Taken as a whole, plaintiff asserts, Schloss' "opinion is fact-based."

Plaintiff's theory of liability was that the escalator malfunctioned due to Otis' negligent maintenance, and this malfunction caused Swell's fall, resulting in the domino effect upon other passengers. The judge noted the necessity of an expert report to explain the malfunction, because expert testimony is required when the issue is beyond the "common knowledge of lay persons." Froom, supra, 377 N.J. Super. at 318; Kelly v. Berlin, 300 N.J. Super. 256, 265-66 (App. Div. 1997).

Schloss asserted that Otis completed work on the handrails the day after the accident, which was not "routine maintenance but a repair of a component which had gone bad. With proper maintenance the escalator newels and sheaves do not go bad and do not need to be replaced." In his reports Schloss adequately discussed the nature of escalator malfunctions. What remains unanswered, however, is the factual basis supporting his conclusion that this alleged malfunction caused Swell's fall.

Plaintiff's expert focused on the possible consequence of the "jolt" or "jerk" described by Harris. The initial report speaks of how faulty maintenance can cause an escalator's handrail to slip, which may cause a passenger to experience a "jerk". His supplemental report adds other possible suggestions for escalator falls, such as dim lighting or a rider's foot rubbing the side-skirt. Schloss' deposition elaborated on these conclusions.

It is undisputed, however, that Harris did not become unsteady or fall after sensing the "jolt" or "jerk" of the escalator. Harris' injury resulted because Zylberman fell on top of him after Zylberman was hit by Swell. No one took Swell's statement as to what caused her fall. No factual support suggests a bumpy handrail affected Swell or that she experienced a "jerk." Our examination of the security video does not reveal a disruption in the movement of the escalator. The passenger ahead of Swell on the stairs appeared unaffected by any escalator related event and smoothly departed the stairs upon reaching the top. No party complained of dim lighting. No party complained of the handrail stuttering. No evidence shows shoes scraping the side-skirt. No evidence shows lack of proper maintenance.

The Schloss opinion as to the cause of the Swell fall was not grounded in established facts. Judge Gelade held that the report presented merely a conclusion, which failed to explain the causal connection between Otis' actions or omissions and Swells' fall, making it inadmissible. Jimenez, supra, 286 N.J. Super. at 540. Finding no factual or scientific basis for Schloss' opinion as to why Swell fell, the judge properly concluded the expert's speculative conclusions would not aid the trier of fact. Jimenez, supra, 286 N.J. Super. at 540. Consequently, plaintiff's case lacked the requisite proofs for a jury to reasonably find Otis' negligence proximately caused Harris' injuries.

We next address plaintiff's argument for the application of the doctrine of res ipsa loquitur. When applicable, the doctrine "allows the factfinder to draw an inference of negligence against the party who was in exclusive control of the object or means that caused the accident." Jerista v. Murray, 185 N.J. 175, 192 (2005)(citation omitted). In effect the rule creates a permissive presumption that "the set of facts present 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 v. Yazbo's Sports Caf , 183 N.J. 386, 398 (2005) (quoting Brown v. Racquet Club of Bricktown, 95 N.J. 280, 288-89 (1984)).

Before applying res ipsa loquitur plaintiff must establish three elements:

(1) the accident which produced a person's injury was one which ordinarily does not happen unless someone was negligent, (2) the instrumentality or agent which caused the accident was under the exclusive control of the defendant, and (3) the circumstances indicated that the untoward event was not caused or contributed to by any act or neglect on the part of the injured person.
 
[Jimenez, supra, 286 N.J. Super. at 543-44 (citations omitted).]

Plaintiff failed to adequately address any of these questions. The trial court discussed the possibilities for Swell's fall in its opinion:

Well, a woman slipped and fell and fell into

a group of people who ultimately hit the

plaintiff. Now, it's possible that they could

have fallen through some defect in the

escalator. It's also possible that they could

have fallen through some negligent act on their

part. It also could have been not negligence

on their part. It could have been that they just

lost their balance, that accidents sometimes

do happen without negligence. There are lots

of reasons for the accident.

Plaintiff's decision not to depose Swell to discern the cause of her fall precludes the exclusion of other possibilities explaining her loss of balance. As a result, a factfinder cannot conclude that Otis' alleged negligence was the most likely reason for the tumble, making res ipsa loquitur inapplicable. Huszar v. Greate Bay Hotel & Casino, Inc., 375 N.J. Super. 463, 474-475 (App. Div.), certif. granted, 185 N.J. 290 (2005); Gore v. Otis Elevator Co., 335 N.J. Super. 296, 302 (App. Div. 2000); see also Dombrowska v. Kresge-Newark, Inc., 75 N.J. Super. 271, 274-75 (App. Div. 1962).

Summary judgment was properly entered in favor of defendants, dismissing plaintiff's complaint.

Affirmed.

 

 

 
 

 

While this matter was pending, Harris passed away due to causes unrelated to this action. Nancy Vasil, the executrix of his estate was substituted as the party plaintiff on December 8, 2003. R. 4:34-1(b).

After the appeal was filed, Trump Marina Associates, L.P. filed a voluntary petition pursuant to Chapter 11 of the Bankruptcy Code on November 21, 2004. We entered an order on December 27, 2004, dismissing the appeal as to Trump, without prejudice. This matter proceeded addressing the order of summary judgment granted in favor of Otis.

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A-1874-04T1

April 13, 2006