JOANNE FLIS, et al. v. MAINCO ELEVATOR COMPANY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1674-05T21674-05T2

JOANNE FLIS and RAYMOND FLIS,

BEVERLEE ROLLERI and RONALD

ROLLERI,

Plaintiffs-Appellants,

v.

MAINCO ELEVATOR COMPANY t/a

MAINCO ELEVATOR SERVICE

COMPANY, a New York

Corporation,

Defendant-Respondent,

and

TAUBMAN CENTERS, INC. trading as

and/or doing business as The Taubman

Company, a Michigan Corporation;

TAUBMAN REALTY GROUP LTD. PARTNERSHIP,

individually and/or as a subsidiary,

employee, agent and/or servant

of Taubman Centers, Inc.;

FEDERATED DEPARTMENT STORES,

INC., a Ohio Corporation;

BLOOMINGDALES, INC., a New York

Corporation and subsidiary

corporation of Federated Department

Stores, Inc.,

Defendants.

__________________________________

 

Argued: October 11, 2006 - Decided November 6, 2006

Before Judges Coburn, Axelrad and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, L-5855-03.

Michael R. DuPont argued the cause for appellants (McKenna, DuPont, Higgins & Stone, attorneys; Mr. DuPont, on the brief).

Edward J. DePascale argued the cause for respondent (McElroy, Deutsch, Mulvaney & Carpenter, attorneys; Sandra D. Lovell, on the brief).

PER CURIAM

Plaintiffs Joanne Flis and Beverlee Rolleri appeal from an order of the Law Division entered on March 18, 2005, granting summary judgment to defendant, Mainco Elevator Company, and from an order entered on April 29, 2005, denying plaintiffs' motion for reconsideration. We reverse and remand.

On October 8, 2001, plaintiffs were passengers in an elevator located in Bloomingdales Department Store in the Short Hills Mall. When the elevator arrived at the fourth floor, the door did not open as expected and did not open when Rolleri pressed the "door open" button. The elevator suddenly began descending and stopping abruptly, traveling down to the basement level, jerking with sufficient violence to cause personal injury to its riders. Plaintiffs pressed the alarm button, which caused a loud ringing in the elevator, and attempted to use the on-board telephone, which apparently was not working. Flis then used her cell phone to reach Bloomingdale's security office. After being trapped in the elevator for about two hours, the store's personnel were able to shut down the power to the elevator and open the doors so that plaintiffs could exit.

Plaintiffs filed separate actions against Federated Department Stores, Inc., the owner of Bloomingdales, and Mainco, the elevator maintenance company. The two suits were consolidated below. In support of their negligence claim, plaintiffs engaged the services of Patrick A. Carrajat, a "vertical transportation expert" of the LIR Group, who rendered a report dated September 10, 2004. Carrajat reviewed the service agreement between Mainco and Bloomingdales, and determined that the elevators required monthly maintenance. A review of Mainco's records disclosed, however, that the elevator had not been serviced for three months and seven days before the incident occurred. Carrajat further noted that the responding mechanic from Mainco indicated in the log on the evening of the accident that "cars run wild," that he shut down both elevators, and on the following day the "LR" relay was replaced and the elevator was placed back in service. Carrajat also visited the accident site and performed a visual examination of the elevator.

As to Mainco, Carrajat opined:

The primary cause of the injuries to the plaintiffs is the malfunctioning of the elevator and its failure to deliver the service the plaintiffs reasonably expected to receive. . . .

. . .

It is my opinion, to a reasonable degree of certainty within my field of expertise that defendant Mainco was negligent in their maintenance of the subject elevator. This opinion is based on my review of the records produced by Mainco which verify their lack of conformance to both the service agreement in effect at the time of this accident and generally accepted practice within the elevator industry.

. . .

It is my opinion, to a reasonable degree of certainty within my field of expertise that plaintiffs in this matter were using the elevator in a proper manner and in no way could have caused or contributed to the accident or their injuries.

It is my opinion, to a reasonable degree of certainty within my field of expertise that the defendants were in exclusive control of the elevator.

It is my opinion, to a reasonable degree of certainty within my field of expertise that [the] elevator acted in an erratic manner and would have not acted in that manner in the absence of negligence.

Defendants moved for summary judgment, arguing that plaintiffs' liability expert report was a "net opinion" and without an expert, plaintiffs were unable to establish negligence against the defendants because of the complex nature of the elevator. Plaintiffs submitted an affidavit by Carrajat in opposition to the summary judgment motion, explaining that "[t]he specific cause of the erratic operation is rooted in the LR relay, which is subject to examination, adjustment, and replacement during the course of routine systematic maintenance" and "[t]he failure of this relay is the most probable cause of the erratic operation." He further noted that if called to testify he would explain in detail the operation of the elevator, how it is intended to operate and that this type of elevator requires monthly service and that such service is essential if problems are to be detected and prevented. He further stated that if Mainco had performed their preventive maintenance as required it was "probable that the failure of the LR relay would have been avoided."

Following oral argument on March l8, 2005, the trial judge determined that the doctrine of res ipsa loquitur did not apply to create an inference of negligence. He reasoned that the elevator was not necessarily in the exclusive control of defendants and the incident, which appeared to have been caused by the failure of a switch, did not seem "in and of itself to be one that necessarily occurs only in the incidence of negligence." The judge further barred plaintiffs' liability expert report as a net opinion because it lacked a detailed explanation as to the alleged malfunction, provided no scientific or engineering theory or methodology to support its conclusions, and did not explain whether conforming with the service agreement would have detected the problem with the relay to establish proximate cause. The judge concluded that the case involved operation of a complex instrumentality and that an expert opinion was required to establish why the malfunction occurred and if negligence was the cause. The judge thus granted defendants' motions for summary judgment, dismissing with prejudice plaintiffs' claims dealing with direct injuries caused by the elevator malfunction.

Plaintiffs moved for reconsideration, relying upon a supplemental affidavit of its expert, and sought a hearing under N.J.R.E. 104. Following oral argument on April 29, 2005, the trial court denied the relief sought by plaintiffs. This appeal ensued.

On appeal, plaintiffs argue the trial court erred in: (1) determining their liability expert's opinion was a net opinion; (2) denying them an N.J.R.E. 104 hearing concerning their expert report before concluding it was inadmissible; and (3) granting summary judgment because plaintiffs were entitled to rely upon the doctrine of res ipsa loquitur. As to the latter argument, plaintiffs rely primarily upon the Supreme Court's opinion in Jerista v. Murray, 185 N.J. 175 (2005), and its summary reversal and remand in Knight v. Essex Plaza, 185 N.J. 291 (2005), decided after the reconsideration motion. In those cases, the Court held that an automatic door closing on a business invitee was an occurrence bespeaking negligence that fell within jurors' common knowledge, so expert testimony was not mandated and plaintiffs were entitled to a res ipsa loquitur inference. Jerista, 185 N.J. at 200; Knight, 185 N.J. 291. In Jerista, the Court reasoned:

An automatic door may be a highly sophisticated piece of machinery, but it probably does not close on an innocent patron causing injury unless the premises' owner negligently maintained it. That condition can be reached based on common knowledge without resort to expert testimony. A jury does not need an expert to tell it what it already knows. If the premises' owner, who has exclusive control over the automatic door, has proof that he is not to blame and that another is at fault, he must come forward to rebut the inference. For example, the owner is in the better position to say whether the malfunction was the result of improper inspection or a product defect for which others should be answerable.

[185 N.J. at 197.]

Mainco counters that the trial judge properly barred plaintiffs' liability expert from testifying and contends plaintiffs are not entitled to a res ipsa loquitur inference in the absence of expert testimony. Defendant distinguishes Jerista on the basis that the maintenance company does not have the heightened duty of the premises' owner and that the accident involves an elevator and not an automatic door. Thus it contends the Court's finding that the incident bespeaks negligence is inapplicable to a case involving an elevator allegedly moving in an erratic manner and that such an incident cannot be considered a case of "common knowledge" because jurors cannot be expected to understand and deduce the cause of the alleged malfunction without resort to scientific or technical knowledge.

Although we agree that the expert's opinion was a net opinion, we believe, nevertheless, the trial judge should have allowed plaintiffs' expert to testify at trial as to what his review of the maintenance records disclosed, i.e., Mainco's obligations under the service contract, the lack of monthly maintenance as required thereunder, the elevator's "running wild" the day of the incident, and the replacement of the relay switch by Mainco's mechanic the following day, properly limited so as not to include net opinion statements about negligence or fault. Plaintiffs would thus be able to present testimony that by virtue of its contract, Mainco had a duty to perform maintenance in accordance with its contractual obligations and exercised exclusive control over the elevator.

We are not convinced the Court intended to limit its holding in Jerista to storeowners or automatic doors in a supermarket. Rather, we are satisfied the Court intended plaintiffs such as Flis and Rolleri, who were blameless occupants of the elevator with no control over its operation, to rely upon the theory of res ipsa loquitur against the maintenance company for injuries sustained by the malfunctioning of the elevator. Generally, "the ambit of a maintenance contractor's duty to a third person may be measured by the nature and scope of its contractual undertaking." Rosenberg v. Otis Elevator Co., 366 N.J. Super. 292, 303 (App. Div. 2004). Moreover, we discern no difference between an electric door and an elevator. Although both items involve complex machinery, it is more "probable than not" the elevator's abrupt and violent descending, stopping and descending for four flights over a two-hour period would not occur in the absence of negligence. Id. at 305 (applying res ipsa loquitur against elevator company, who manufactured and maintained elevator, and building owner in action by occupants who were injured when elevator in which they were riding dropped three floors). The jury should decide if plaintiffs' injuries occurred as a result of defendant's negligent maintenance of the elevator.

 
Reversed and remanded.

Plaintiffs Raymond Flis and Ronald Rolleri sued per quod. All references in this opinion to plaintiffs/appellants refer only to Joanne Flis and Beverly Rolleri.

The March l8, 2005 order did not dispose of plaintiffs' claims for emotional distress against defendant, Federated Department Stores, Inc., caused by delay in extricating plaintiffs from the elevator. On September 28, 2005, plaintiffs and Federated entered into a Stipulation of Dismissal with Prejudice.

(continued)

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A-1674-05T2

November 6, 2006