MATTHEW STRUCK v. THE TAUBMAN COMPANY, LLC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

MATTHEW STRUCK and

his wife, JOCELYN

BATES,

Plaintiffs-Appellants,

v.

THE TAUBMAN COMPANY, LLC and

SCHINDLER ELEVATOR CORPORATION,

Defendants-Respondents.

________________________________________________________________

December 6, 2016

Argued October 18, 2016 Decided

Before Judges Rothstadt and Sumners.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-9239-13.

Brian P. Fleming argued the cause for appellants (Fleming & Truland, P.C., attorneys; Mr. Fleming, on the brief).

Cassandra A. Willock argued the cause for respondent The Taubman Company, LLC (Fishman McIntyre Levine Samansky, P.C., attorneys; Ms. Willock, on the brief).

James L. Sonageri argued the cause for respondent Schindler Elevator Corporation (Sonageri & Fallon, L.L.C., attorneys; Mr. Sonageri, on the brief).

PER CURIAM

Plaintiff Matthew Struck sustained injuries, while he and his family were shopping at a mall, when he took action to prevent his young daughter's fingers from being crushed by opening elevator doors. Struck and his wife, plaintiff Jocelyn Bates, filed a suit for damages against defendants, The Taubman Company, LLC (Taubman), the owner of the premises, and Schindler Elevator Corporation (Schindler), the elevator service provider. Plaintiffs contended that, but for the fact that the surface of the elevator doors were mirrored, their child would not have approached the doors, requiring Struck to take the action that led to his injuries. They appeal from the Law Division's award of summary judgment in favor of both defendants, dismissing their complaint with prejudice. The motion judge concluded that plaintiffs' evidence was insufficient to prove negligence. We agree and affirm.

The facts from the motion record, viewed in the light most favorable to plaintiffs, can be summarized as follows. Plaintiffs took their two-year-old daughter and eight-month-old son to the Mall at Short Hills. While there, Bates needed to use a restroom that was located near the elevator. The elevator's doors had a stainless steel mirror-like finish to them.

While Bates was using the restroom, Struck stood holding his son, while his daughter was "meandering" about nearby. According to Struck, as they were waiting, his daughter "kind of caught her reflection in the elevator [door] and kind of walked over to investigate." Struck watched her as she slowly walked over to the elevator door. He surmised it was her reflection that attracted her to the door. He stated

So the one thing that keyed me into the fact that she was looking at her reflection was when she went over to go touch the door, she went to go touch on her person, not somewhere else on the door, on her reflection. She was basically almost, you know, not necessarily giving herself a high five but playing with her reflection of her hand and her body.

As Struck watched his daughter head towards the elevator, he cautioned her to be careful of the elevator doors. As soon as he told her to stay away from the elevator, she placed her whole hand on the door. Within seconds, the elevator's bell rang and its doors began to open, carrying the child's hand along with the door as it retracted into the wall and pinched her fingers. As she screamed, Struck dropped to one knee, balanced his infant son with his knees and elbows, and pulled on the elevator doors to stop it from retracting further. An unidentified patron inside the elevator realized what was happening and began pressing the elevator buttons to stop the doors from retracting further.

While plaintiffs' daughter sustained only minor injuries, Struck incurred serious injuries to his right hand that required him to undergo two surgeries and a lengthy rehabilitation period. As a result of the accident, Struck's index finger on his right hand is permanently bent near the first knuckle.

Although Struck could not determine "absolutely," he believed that if his daughter had not seen her reflection, "she probably would have had less of a reason to put her hand on the door." He attributed his belief to his experience with his daughter, although he could not recall having an experience with her in which she "walk[ed] up and . . . grab[bed] something that's showing her reflection." In describing his daughter's behavior generally, Struck observed, "[c]hildren can be a little random sometimes so I see something new in each one of them every single day."

Plaintiffs filed a complaint against defendants alleging that defendants were negligent in maintaining the elevator, allowing it to remain in an unsafe condition, and failing to warn business invitees of the dangerous condition. After defendants filed responsive pleadings and the parties completed discovery, the parties filed cross-motions for summary judgment.1

In support of their motions, defendants argued that plaintiffs failed to establish a prima facie case of negligence, especially in light of their failure to come forward with any expert opinions. They also contended that neither the doctrine of res ipsa loquitur nor attractive nuisance applied. Taubman also asserted plaintiffs failed to establish that a dangerous condition existed on its premises. In opposition, plaintiffs conceded that res ipsa loquitur and attractive nuisance were not applicable; denied "the need for an expert witness"; claimed there was sufficient "evidence that there existed a duty on the part of [d]efendants to the [p]laintiffs[, that defendants] breach[ed] that duty; and [the] breach was the proximate cause of [p]laintiff's damages."

Following oral argument on May 29, 2015, Judge Dennis F. Carey, III granted defendants' motions and denied plaintiffs' as moot. In his oral decision, the judge found there was insufficient evidence of defendants' negligence and stated that "it would be unfair to the defendants to allow a jury to speculate as to their possible negligence." The judge also found that the parties did not know the reason that the child approached the mirror and noted that this was an accident "where there is no fault on anybody's part." This appeal followed.

We review the disposition of a summary judgment motion de novo, applying the same standard used by the motion judge. Townsend v. Pierre, 221 N.J. 36, 59 (2015). We view "the competent evidential materials presented . . . in the light most favorable to the non-moving party, [and determine whether they] are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Town of Kearny v. Brandt, 214 N.J. 76, 91 (2013) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)); see also R. 4:46-2(c). If "the evidence is so one-sided that one party must prevail as a matter of law," courts "should not hesitate to grant summary judgment." Brill, supra, 142 N.J. at 540 (citation omitted).

While a court must view the evidence in the light most favorable to the non-movant, "[c]ompetent opposition requires competent evidential material beyond mere speculation and fanciful arguments." Cortez v. Gindhart, 435 N.J. Super. 589, 605 (App. Div. 2014) (quoting Hoffman v. Asseenontv.Com, Inc., 404 N.J. Super. 415, 426 (App. Div. 2009)), certif. denied, 220 N.J. 269 (2015). A motion for summary judgment will not be defeated by bare conclusions lacking factual support, Petersen v. Twp. of Raritan, 418 N.J. Super. 125, 132 (App. Div. 2011), self-serving statements, Heyert v. Taddese, 431 N.J. Super. 388, 414 (App. Div. 2013), or disputed facts "of an insubstantial nature." Pressler & Verniero, Current N.J. Court Rules, comment 2.1 on R. 4:46-2 (2016).

Plaintiffs contend that Judge Carey erred in dismissing their complaint, claiming that summary judgment in a personal injury action is erroneous where there is a genuine issue of material fact in dispute. They argue that they established a prima facie showing of negligence, and they do not need to avail themselves of either the attractive nuisance doctrine2 or res ipsa loquitur.3 Plaintiffs contend, however, that their claim is "founded on the same logic that underpins the Attractive Nuisance Doctrine," which recognizes "that it is unacceptable to create or maintain an unguarded condition that is likely to attract children to their detriment," and "therefore defies reason to suggest that infants or minors could be entitled to any less consideration when they are upon Defendant's property as invitees for the Defendant's benefit."

Relying on our opinion in Tierney by Tierney v. St. Michael's Med. Ctr., 214 N.J. Super. 27, 31 (App. Div. 1986), certif. denied, 107 N.J. 114 (1987), plaintiffs argue "that the propensities of small children, . . . is something that is widely known and therefore, it is reasonable to expect those persons, who owe children a duty, to both anticipate and guard against the dangers associated with the propensity." They contend that it is "reasonable to propose that . . . children could be expected to touch [d]efendants' mirrored [elevator] door" and liken defendants' choice of a mirrored surface to "placing balloons or images of Disney characters on the door" in a way that would attract young children to it. According to plaintiffs, "a mirrored surface that will attract a child's touch and thereby expose the child to serious bodily injury, is unreasonable and unacceptable."

Furthermore, plaintiffs assert they have provided substantial evidence about why their two-year-old child reached out to touch the door. They contend that they do not have to "identify the purpose and intent of small children" in order to prevail.

Finally, relying on our opinion in Campbell v. Hastings, 348 N.J. Super. 264, 270 (App. Div. 2002), plaintiffs argue "[e]xpert testimony is not required when the subject can be understood by jurors using common judgment and experience" as their arguments do not concern esoteric concepts. Rather, plaintiffs assert that "every ordinary person has an understanding of infants, mirrors and elevator doors" and that whether these facts "constitute negligence is one for the jury to make."

Defendants disagree. They both argue that plaintiffs failed to come forward with any evidence that defendants breached any duty owed to plaintiffs. Specifically, there was no evidence that "the reflective surface of the elevator door is a dangerous condition" or that plaintiff's "daughter approached and/or touched the elevator door due to the reflective surface." Taubman asserts it is not in violation of any federal, state, or local building codes by having a mirror-like finish on their elevator. Defendants also reject plaintiffs' argument that their negligence claims are akin to the attractive nuisance doctrine or that our holding in Tierney supports plaintiffs' contention.

We conclude from our review of the record and applicable legal principles that plaintiffs' arguments are without merit. We affirm substantially for the reasons expressed by Judge Carey. We add only the following comments.

Plaintiffs' reliance on Struck's assumptions about his child's behavior and society's general understanding about how children behave in general did not establish that either defendant was negligent. In order to prove a claim of negligence, a plaintiff must establish "(1) a duty of care, (2) a breach of that duty, (3) proximate cause, and (4) actual damages." Townsend, supra, 221 N.J. at 51 (internal quotation marks omitted) (quoting Polzo v. Cty. of Essex, 196 N.J. 569, 584 (2008)).

The "common law imposes a duty of care on business owners to maintain a safe premises . . . ." Stelluti v. Casapenn Enters., LLC, 203 N.J. 286, 306 (2010). That duty does not extend to a business owner's contractors or service providers. Raimo v. Fischer, 372 N.J. Super. 448, 453 (App. Div. 2004). A breach of that duty must be shown rather than presumed, "and cannot be based upon a foundation of pure conjecture, speculation, surmise or guess." Long v. Landy, 35 N.J. 44, 54 (1961); see also Saks v. Ng, 383 N.J. Super. 76, 89 (App. Div) ("[N]egligence is never presumed . . . ."), certif. denied, 186 N.J. 605 (2006).

We reject plaintiffs' contention that Taubman breached its duty to maintain a safe place for patrons, young or old, by maintaining elevators that were in good working order, but which had reflective doors. There is no evidence in the record that this mirror-like surface was unsafe or dangerous, such as notice that others were injured as a result of its reflective nature. Plaintiffs' claims against Schindler are equally without merit because there was no proof of any duty owed by Schindler to Taubman's patrons or that it breached a duty because the elevators it was servicing had reflective doors. See Townsend, supra, 221 N.J. at 51. Simply stated, there was no evidence that either defendant did anything wrong to cause Struck's injuries.

Plaintiffs' argument to the contrary in reliance on Tierney is misplaced. In that case, a seventeen-month-old, who was entrusted to the care of a hospital, fell out of his crib. Tierney, supra, 214 N.J. Super. at 31. The parents testified that they told hospital personnel that the child was a "climber" and that he needed to be placed in a safety crib. Id. at 29. Also, a nurse testified that toddlers are very active and tend to climb out of their cribs when placed in an unfamiliar environment. Id. at 32. We viewed the case "as a child care case rather than a medical malpractice case," and found the hospital "had a duty to provide the infant with proper care, which included the duty to supervise him" and failure to do so could lead a jury to conclude that the child's injuries were proximately caused by the hospital's negligence. Id. at 31.

Here, plaintiffs' daughter was not entrusted to the care of either defendant and neither of them had any knowledge of the child's propensities or children's propensities in general to be attracted to elevators with mirrored doors. Unlike Tierney, plaintiffs did not have an expert testify to a toddler's propensity for approaching mirrored surfaces, and Struck admitted that the propensities of his own children are sometimes unknown to him. Struck's speculation did not establish either defendants' negligence. See Long, supra, 35 N.J. at 54.

Plaintiffs' reliance on Campbell is also inapposite. In Campbell, plaintiff-guest fell in defendant-homeowner's dimly lit sunken living room. Campbell, supra, 348 N.J. Super. at 266. Finding reversible error in granting defendant's motion for summary judgment, we stated, in dicta, that "expert testimony is not necessary when the subject can be understood by jurors utilizing common judgment and experience." Id. at 270; 271-72. Plaintiffs rely on this statement to support the proposition that they did not need an expert to testify about children being drawn to their reflection in mirrored surfaces. Their argument that plaintiffs in tort cases do not need experts to opine on issues that are among jurors' common experiences is accurate. See id. at 270. Although expert testimony was not necessarily required to prove each element of their claim, plaintiffs still had to produce evidence that defendants breached a duty of care owed to plaintiffs by having mirror-like elevator doors. See Townsend, supra, 221 N.J. at 51. They simply did not do so.

Affirmed.

1 Plaintiffs filed a cross-motion for partial summary judgment seeking an order that plaintiff was not comparatively negligent for either his failure to adequately supervise his daughter or for attempting to rescue her from the elevator.

2 "For the . . . rule to apply, a plaintiff must establish that: (1) the infant's trespass was foreseeable; (2) an artificial condition existed on defendant's property; and (3) the condition posed an unreasonable risk of death or serious bodily injury." De Robertis v. Randazzo, 94 N.J. 144, 157 (1983) (citations omitted); see also Vega by Muniz v. Piedilato, 154 N.J. 496, 510 (1998). The rule applies to possessors of land who maintain dangerous conditions on their property because children may not appreciate the associated danger or risk. Vega by Muniz, supra, 154 N.J. at 503-04.

3 "The doctrine of res ipsa loquitur permits an inference of defendant's negligence 'where (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.'" Buckelew v. Grossbard, 87 N.J. 512, 525 (1981) (quoting Bornstein v. Metro. Bottling Co., 26 N.J. 263, 269 (1958)).