Negligence

Plaintiff Edna Albert slipped and fell on a sidewalk outside a Pathmark grocery store and suffered personal injuries.  The Pathmark had leased the premises from Klingensmith Associates, LLC (“Klingensmith”).  The issue in Albert v. Pathmark Stores, Inc., 2019 N.J. Super Unpub. LEXIS 1586 (App. Div. July 10, 2019), was whether the commercial landowner, Klingensmith, who leased the property to Pathmark pursuant to a triple-net lease could be liable for injuries suffered from a fall on a sidewalk outside of the Pathmark grocery store.

The lease governing the property required the Lessee (“Pathmark”) to maintain the premises in good order and repair.  In particular, the Lessee, at its own expense was required to keep the sidewalks in good repair.

Plaintiff claimed that she fell over a gap in the sidewalk created by the deterioration of an expansion joint between two concrete slabs.  Plaintiff retained an expert who opined that the expansion joint gap was too wide and the gap violated industry norms, thus creating an uneven walkway.

Klingensmith filed a motion for summary judgment, arguing that Pathmark had a duty to maintain the sidewalk under the triple-net lease and, hence, it should not be responsible for an injury caused by the condition of the sidewalk.   The plaintiff argued in response that the duty to maintain the premises is a non-delegable duty and, even if it is not, the Lease Agreement did not apply because the defect in the sidewalk existed before the lease was executed.  The trial court judge disagreed with the plaintiff and entered an order for summary judgment in the defendant’s favor.

Upon appeal, the plaintiff argued that the trial court erred in its decision and, again argued that Klingensmith could not delegate the obligation to maintain a safe premises.  However, the Appellate Division disagreed with that argument and affirmed the trial court decision.

The Appellate Division noted the traditional rule that a landlord is not responsible for the maintenance of a leased premises but, rather, the tenant assumes that duty as a condition of possession.  The Court noted that there were two exceptions to the general rule: “(1) A landlord is responsible to use reasonable care with regard to portions of the leased premises which are not demised and remain in the landlord’s control and (2) a landlord’s covenant to repair gives rise to the duty to the tenant.”

Neither exception applied in this case. The Appellate Division found that Pathmark, not Klingensmith, was in the best position to remedy the defective sidewalk and the pertinent lease provision controlled the allocation of liability.  The Court found that Pathmark was properly held responsible for maintaining the common area outside their store.  Further, the lease provision specifically required Pathmark to maintain the concrete and sidewalk on the leased premises.

As for whether the owner could be responsible because the defect preexisted, Court found that the pertinent lease section, by implication, held Klingensmith responsible for all defects arising prior to the inception of the lease.  Regardless, the plaintiff failed to present any proofs that the defect was present since construction of this sidewalk, let alone that Klingensmith should have known of the defect before the inception of the lease.  Further, the Court noted that the lease specifically stated that Pathmark acknowledged that it took the premises in good order and repair.            

Hence, the Appellate Division affirmed the trial court decision and upheld the dismissal of the lawsuit as to the owner of the property, Klingensmith.

Plaintiff, Samir Abdalla, alleged that he slipped and fell on an icy walkway in his apartment complex and suffered a fractured radius in his left arm. He sued his landlord Threegees t/a Monaco Arms, Inc., claiming that the defendant was negligent in failing to clear ice on the sidewalk in the apartment complex. The issue in Abdalla v. Threegees t/a Monaco Arms, Inc., 2019 N.J. Super. Unpub. LEXIS 1071 (App. Div. May 10, 2019), was whether the freezing rain which had turned to rain during this winter storm constituted a continuation of the storm such that the defendant still had a reasonable period of time to remove the ice from the sidewalk.

According to the defendant’s weather expert report, freezing rain began to fall around 7 a.m. The temperatures were in the mid-20s, well below freezing, when the freezing rain began to develop. It was undisputed that the ice rain stopped falling prior to the plaintiff’s fall according to the defendant’s expert report and the temperatures began to rise above freezing starting around 11 a.m., two hours prior to plaintiff’s fall. In plaintiff’s deposition testimony, he testified that it was cold and raining lightly at the time he fell. Plaintiff argued that considering the transition from freezing rain to plain rain occurred around 11 a.m., that the defendant was negligent by failing to treat the icy sidewalk three hours after the freezing rain stopped.

The motion judge recognize the well-settled rule of law that a commercial property owner does have a duty to keep its premises safe, including public sidewalks. However, the judge found that the defendant did not have the responsibility to go out while it was still raining to deice the condition that developed the hour earlier or two hours earlier. The owner had to be given some form of reasonable time period after the cessation of the storm itself.

The Appellate Division agreed with the motion judge that the maintenance of a public sidewalk by a commercial property owner may require removal of snow or ice or reduction of the risk, depending upon the circumstances. However, the commercial property owner would have a reasonable period of time thereafter to make the public sidewalk in a reasonably safe condition.

The Appellate Division relied on an almost 100-year-old case, Bodine v. Goerke Company, that the reasonable period of time did not commence until the precipitation ceased. The Court found that the fact that the freezing rain had turned to rain during the storm did not preclude the grant of summary judgment. It was undisputed that it was still raining when plaintiff fell. Thus, continuation of the storm did not provide the defendant with a reasonable period of time to remove ice from the sidewalk. That reasonable period of time commenced at the conclusion of the precipitation.            

This case will be very helpful for business owners and commercial land owners because it specifically deals with a freezing rain event, as opposed to just a snow event. Again, in a flurry of decisions which have been coming down from the Appellate Division, they all seem to side with the landowner that there is a reasonable period of time after the conclusion of the storm event to clear a sidewalk or walkway from that precipitation.

Plaintiff, Janet Dixon, while leaving work, slipped and fell on a sidewalk due to snow and ice.  It was undisputed that she fell during a snow storm.  In Dixon v. HC Equities Associates, 2019 N.J. Super. Unpub. LEXIS 1005 (App. Div. May 2, 2019), the issue was whether the defendant property owner was liable due to the failure to clear the ice and snow from the walkway.

Plaintiff, who was a Senior Probation Officer, left work at 7:00 p.m.  As she was walking around the building to her vehicle, she slipped and fell.  She testified that it had started snowing earlier that day while she was at work and was still snowing when she left.  As she was walking, she assumed that she slipped on ice under the snow. She fractured her left hip and underwent a left hip replacement as a result of her fall.

Plaintiff sued the defendant property owner for negligence.  The defendant moved for a dismissal via summary judgment, arguing that there was no breach of duty because the plaintiff fell on snow while it was snowing and there was no duty to remove the snow until a reasonable time after the snow stopped falling.  The trial judge agreed with that argument and granted summary judgment.

The plaintiff appealed, arguing that there were material factual disputes that should have precluded summary judgment in favor of the defendant.  The Appellate Division, however, found that based upon the undisputed facts that it was snowing when the plaintiff arrived for work and when she left, “the defendant was not obligated to remove snow and ice until the precipitation stopped and it had a reasonable time to remove the snow and ice.”  The Court found that there was no duty for a commercial landowner to maintain sidewalks free of ice and snow until a reasonable time after a storm has ended.

The plaintiff argued that prior case law should be distinguishable because the plaintiff was required to stay at work until 7:00 p.m.  The trial judge did not accept that argument, finding that the plaintiff could have left at any time.  The Appellate Division noted that there was no distinction between voluntarily being on a premises versus working when it comes to the issue of snow removal.

Further, the plaintiff argued that it would be reasonable to require the defendant superintendent to shovel, salt or sand the sidewalk, knowing that the probation officers were required to work late some evenings.  The plaintiff argued that the superintendent should have at least shoveled a little path to get to the parking lot.  The Appellate Division noted that there was no evidence provided as to whether or not the superintendent or anyone else had salted or sanded the sidewalk prior to the plaintiff’s fall because it was irrelevant due to the storm being in progress and no duty was owed by defendant.  The Appellate Division rejected the plaintiff’s attempt to impose a duty on a commercial landowner who employs a live in superintendent to clear sidewalks of ice and snow during an ongoing snow storm.            

Further, the Appellate Division noted that there was a municipal code in Elizabeth, where the accident occurred, which required an owner to remove snow and ice within twelve hours of daylight after precipitation had ceased.  Pursuant to this ordinance, the defendant’s duty would not have arisen until the following morning.  While municipal codes are not binding on whether a legal duty existed, the Court did find that they could be instructive as to whether a defendant acted reasonably.  Because the undisputed material fact remained that it was snowing and defendant was afforded a reasonable period of time to remove the snow and ice, the Appellate Division affirmed the trial court decision, dismissing the lawsuit.

Plaintiff Folusho Oyebola fell in the Walmart parking lot during a snowstorm and sued Wal-Mart Stores, Inc. and Tree Fellas, LLC, Walmart’s snow contractor, for her injuries. In Oyebola v. Wal-Mart Stores, Inc., 2019 N.J. Super. Unpub. LEXIS 432 (App. Div. Feb. 25, 2019), the issue was whether either defendant breached a duty of care owed to the plaintiff in light of the ongoing snowstorm.

On the day of the accident, at least 8 inches of snow fell. The winter storm developed early and continued into the afternoon. The Walmart store opened at 6 a.m. and the snow contractor, Tree Fellas, arrived between 6 and 7 a.m. The crew worked to remove snow and ice from the parking lot until sometime after 9 a.m.

Plaintiff arrived at the Walmart store at about 8 a.m. while it was snowing. She parked her car and went into the store, where she shopped for about 45 minutes. At around 8:45 a.m., she left the store and walked back to her car. It was still snowing at that time. She fell while she was walking between her car and the car parked next to her car. Plaintiff claimed that she slipped on built-up snow and ice between the cars. As result of her fall, she fractured her right foot.

The defendants contended that there was a lack of evidence from which a jury could determine that they had breached a duty of care because the plaintiff fell while it was still snowing. The defendants claimed that they did not have a duty to remove all of the snow until a reasonable time after the snow stopped falling and moved for summary judgment, requesting a dismissal. The trial court agreed with the argument and found that “no rational injury could find the defendants were negligent because plaintiff fell during an ongoing snowstorm when Tree Fellas was already at the location engaged in snow removal efforts.”

The plaintiff appealed the dismissal. She argued that the trial court ignored the opinions of her proposed experts and should have allowed her claims to go to the jury.

The defendants did not dispute that they owed the plaintiff a duty to exercise reasonable care because she was a business invitee of Walmart. However, they argued that the plaintiff’s negligence claim failed as a matter of law because she could not show that they breached that duty. The Appellate Division agreed.

The Appellate Division noted that business owners, such as Walmart, did owe their invitees a duty of reasonable care “to provide a safe environment for doing that which is within the scope of the invitation.” Further, the Court noted that this duty required a business owner “to discover and eliminate dangerous conditions, as well as maintain the premises in a safe condition.” That duty extended to the premise’s parking lot.

The Court further noted that it has long been recognized that “commercial landowners have a reasonable time in which to act to clear snow and ice from walkways.” The Appellate Division noted the undisputed facts that the snowstorm was ongoing when plaintiff slipped and fell. In fact, the plaintiff had acknowledged that it was snowing when she arrived and was still snowing when she left the store. It was also undisputed that the crew from Tree Fellas was on site and plaintiff fell while they were engaged in snow removal activities. Based upon all of these facts, the Appellate Division found that the “defendants were not obligated to remove snow and ice between parked cars until the cars either moved or the snow stopped falling and defendants had a reasonable time to remove the snow.”

The plaintiff also argued that the trial court ignored its liability expert report. Plaintiff’s liability expert opined that Walmart did not establish a procedure with Tree Fellas to clear the parking lot in a sequential manner “so as to provide customers with safe conditions for entering and leaving the store.” However, the Appellate Division rejected that idea because even if the opinions of the plaintiff’s liability expert were to be considered, it did not change that it was snowing at all times when plaintiff was present at the Walmart. Thus, even if those procedures had been followed, the snow continued to fall during this time. The defendants’ duty to remove the snow did not arise until some reasonable passage of time allowing them to take action. Therefore, because the undisputed material fact remained that it was snowing and defendants are afforded a reasonable period of time to remove the snow, the Appellate Division affirmed the trial court’s summary judgment decision in favor of the defendants.

Plaintiff Fr. Babu T. Paramel (“Paramel”) was in a motor vehicle accident with defendant Merca Martinez (“Merca”) on Rt. 7 in Jersey City. Prior to the accident, Paramel had been driving eastbound on Rt. 7 and Merca was travelling westbound. As plaintiff was driving over a bridge, Merca lost control of her car due to a slippery sludge like material that had spilled onto the roadway, entered plaintiff’s lane, and struck his vehicle. The issue in Paramel v. Martinez, 2017 N.J. Super. Unpub. LEXIS 1701 (App. Div. July 11, 2017) was whether Merca’s loss of control over her motor vehicle due to the slippery substance on the roadway established her negligence.

After the accident, the police responded to the accident scene and saw that slippery material had spilled onto both sides of the roadway but it was thicker on the westbound side upon which Merca was traveling before the accident. The police determined that the slippery sludge like substance caused a dangerous condition on the roadway, which was so bad, that they shut the roadway down. The investigation revealed that a truck owned by the third-party defendant DJM Transport, LLC and driven by third-party defendant Orelvy Gonzalez had discharged hazardous sewage onto the roadway.

Following the completion of discovery, the defendants (Merca Martinez, the driver, and José Martinez, the owner), filed a motion for summary judgment, requesting a dismissal. The motion judge granted the motion and held that there was no evidence that Merca was negligent because “the mere happening of an accident does not bespeak negligence.” The law is clear that there can be no recovery for damages merely upon proof of the happening of an accident. It is the plaintiff’s burden to prove negligence.

In prior case law (Mockler v. Russman, 102 N.J. Super. (App. Div. 1968)), the Appellate Division held that “the loss of control over a motor vehicle on a slippery roadway does not definitively establish negligence, nor does it justify an inference of negligence on the part of an operator of a motor vehicle.” In the Mockler case, the Appellate Division held that should this rule be otherwise, every automobile driver would need to stay off the public roads when the roads happened to be slippery. The Court further stated that the “sudden and unexpected skidding of an automobile is one of the natural hazards of driving on icy roads and that it may befall even the most cautious of drivers.” In Mockler, the Appellate Division also stated that if the driver was operating his car as would a reasonably prudent person under the circumstances, he would not be held negligent merely because his car skidded. However, skidding could be evidence of negligence if it appears that it was caused by the failure of the driver to take reasonable precautions to avoid it when he knew or should have known of the conditions and that such a result would be probable in the absence of precautions.

Hence, in Paramel, the Appellate Division followed Mockler and held that more than the loss of control over motor vehicle would be required to warrant an inference of negligence. The plaintiff would need to prove that “a defendant could have taken reasonable precautions to avoid the accident.” In this case, the Appellate Division pointed out that there was no evidence that Merca knew or should have known of the presence of the slippery substance on the roadway or could have taken evasive maneuvers had she known about the dangerous condition. Accordingly, the Court found that, without proof of negligence, the motion judge properly granted summary judgment to the defendants.

Plaintiff Maria Troiani-Schwartz and Defendant Elizabeth Dicker collided at an uncontrolled intersection in Hopewell, New Jersey. The traffic light at the intersection was not functioning due to Hurricane Sandy. In Troiani-Schwartz v. Dicker, 2018 N.J. Super. Unpub. LEXIS 1520 (App. Div. June 26, 2018), the plaintiff contended that summary judgment was inappropriate because there was a factual dispute as to whether the defendant failed to make reasonable observations before entering the intersection.

The accident occurred at the intersection of Route 31 and the exit ramp from I-95 toward Bull Run Road in Hopewell. The plaintiff admitted to seeing defendant’s vehicle on the ramp before the intersection about 500 feet away and assumed that defendant would stop. Defendant testified that she came to a complete stop and looked both ways before she entered the intersection. Plaintiff, however, sped up and crossed the intersection because she thought she had the right of way. She was unaware of her duty to come to a complete stop at an uncontrolled intersection.

Based on these facts, the trial court granted summary judgment to the defendant, dismissing the complaint. The court concluded that the plaintiff had failed to present facts to refute that the defendant had the right of way and made reasonable observations. The plaintiff appealed, contending that her accident reconstruction expert’s opinion as to causation presented an issue of material fact, which should have been decided by a jury.

New Jersey law is clear that, under N.J.S.A. 39:4-90, a driver to the right has the right of way.  The Appellate Division noted that the plaintiff was legally obliged to yield to defendant, to her right, and come to a full stop because the traffic light was not operating. Under N.J.S.A. 39:4-81(b), when a traffic light is out due to a malfunction, the driver must observe the requirements for a stop intersection.

The Court found that the plaintiff presented no evidence from which a reasonable juror could conclude that the defendant violated N.J.S.A. 39:4-90. The evidence showed that defendant’s vehicle entered the intersection first and had the right of way for that reason alone. Further, the defendant had the right of way because plaintiff was the driver of the vehicle to the left and defendant was the driver of the vehicle to the right. Hence, under N.J.S.A. 39:4-90, the plaintiff was required to yield the right of way to the defendant.

The Appellate Division rejected plaintiff’s argument that her expert report created a genuine issue of material fact as to causation. Her expert submitted no proof that plaintiff’s vehicle entered the intersection first. Further, the Court noted that there was no evidence offered from which a jury could conclude that the defendant failed to make reasonable observations. The mere happening of an accident raises no presumption of negligence.

Due to the “substantial evidence of plaintiff’s negligence and the dearth of evidence of defendant’s negligence,” the Appellate Division upheld the trial court’s order granting summary judgment in favor of the defendant.

I had previously reported on the Appellate Division decision in Krzykalski v. Tindall, 448 N.J. Super. 1 (App. Div. 2016), in which the court upheld the trial court’s decision to allow the jury to allocate negligence between defendant David Tindall and the fictitiously named John Doe defendant in an automobile accident case. The New Jersey Supreme Court has now affirmed that decision in Krzykalski v. Tindall, 2018 N.J. LEXIS 484 (April 17, 2018).

The auto accident occurred on October 24, 2009 in Florence Township. Plaintiff’s vehicle and Tindall’s vehicle were both in the left lane when a vehicle driven by a fictitious John Doe cut in front of them and proceeded to make a left turn. Both plaintiff and Tindall braked. Plaintiff was able to stop without striking the vehicle in front of him but Tindall’s vehicle struck the rear of plaintiff’s vehicle.

The plaintiff suffered serious injuries in the accident and filed a UM claim against his auto insurance company. Plaintiff rejected his insurance company’s offer to settle the UM claim for the policy limits and sued defendant Tindall and John Doe for negligence.

At trial, plaintiff requested that the John Doe’s negligence be kept from the jury, which motion the judge denied. The jury found Tindall 3% negligent and John Doe 97% negligent for plaintiff’s injuries. On appeal, plaintiff argued that the phantom “John Doe” should not have been placed on the verdict sheet.

The Appellate Division disagreed, affirming the trial court’s decision. It concluded that an alleged tortfeasor does not need to be an identified party for his or her negligence and degree of responsibility to be considered by a jury. The Supreme Court granted certification, agreeing to hear plaintiff’s appeal of the Appellate Division decision.

The Supreme Court noted that the Comparative Negligence Act requires the allocation of fault “to defendants who may be responsible for the injury without regard to whether those defendants are, for other reasons, invulnerable to recovery by the plaintiff.” The question answered by the Court is how this principle is to be applied when a defendant is a known but unidentified John Doe defendant.

The Court found that the Legislature dealt with this scenario by requiring that auto insurance policies include a UM provision. Thus, phantom vehicles that are driven by known but unidentified motorists that play a part in an accident presumptively may be allocated fault in accordance with the Joint Tortfeasors Contribution Law, the Comparative Negligence Act, and the laws requiring UM coverage.

The ability to allocate fault to such defendants depends upon “fair and timely” notice of their intent to argue fault to the John Doe defendant. Here, plaintiff received such notice that defendant would assert that John Doe was the cause of the accident. Defendant’s third party negligence defense was set forth in the answer to the complaint. Further, Plaintiff’s UM carrier received notice of the litigation but chose not to intervene. Thus, the Court agreed with the trial court’s decision to submit the question of John Doe’s negligence to the jury for fault allocation.

Plaintiff Patricia Rieger was shopping at the defendant Loft store in Marlton, NJ when she suffered an injury. She was trying on a scarf and, while viewing herself in the mirror of the common dressing area of the store, she backed up, tripped and fell over a platform behind her. Her trip caused the mannequin on the platform to strike her, injuring her shoulder and elbow. The issue in Rieger v. Ann, Inc., d/b/a/ LOFT, 2017 N.J. Super. Unpub. LEXIS 2582 (App. Div. Oct. 12. 2017), was whether the plaintiff needed an expert to pursue her claim against the defendant store on the theory that the placement of the platform display in proximity to the mirror created a dangerous condition.

The platform was rectangular, about five inches high, and large enough to hold two mannequins. A clothing bar was on each side of the platform and a three way mirror was located just across the platform display. On each side of the mirror, the store had shelves containing scarves. Private dressing rooms were to the left and right side of the mirror.

Plaintiff testified that she did not notice the platform display when she entered the dressing area. At some point, she tried on a scarf, viewed herself in the three way mirror and took a step back for a better view. One of her heels hit the platform, causing a mannequin to fall and injure her.

The defendant obtained an engineering expert report, which report opined that the accident occurred because the plaintiff “failed to maintain a proper lookout in the direction that she was moving before she fell.” The engineer found that the aisle accessway between the mirror and the platform exceeded the requirements of the applicable building code. Plaintiff did not produce an expert report.

The motion judge granted summary judgment to the defendant, finding that plaintiff “failed to demonstrate defendant’s placement of the platform display in the dressing area breached a standard of care that created a dangerous condition.” Plaintiff appealed this decision, arguing that she was not claiming a violation of a building or other code and, thus, did not need an expert to argue that the platform display constituted a dangerous condition. She argued that it was foreseeable that customers often step back while viewing themselves in the three way mirror.

The Appellate Division noted the common law duty of a business owner is “to maintain a safe premises for their business invitees because the law recognizes that an owner is in the best position to prevent harm.” That duty of care includes an affirmative duty to inspect the premises and to discover and eliminate dangerous conditions. In some cases, it is not necessary for a plaintiff to establish the standard of care in a negligence case. However, when a jury lacks the competence to supply the applicable standard of care, then the plaintiff must provide expert testimony to establish the requisite duty of care.

Here the Court found that an expert was needed to establish the applicable standard of care. Expert testimony was needed to establish that placement of the platform display violated pertinent standards of care to create a tripping hazard. The Appellate Division noted that the platform display was not camouflaged, nor protruding into the accessway. The Court held that “the customs and standards for retail store displays and safe clearance conditions are not part of jurors’ common knowledge.”

Without an expert to establish the standard of care, the Court was unable to conclude that the defendant acted unreasonably in its placement of the platform. Hence, the Appellate Division upheld the trial court’s decision to grant summary judgment and dismiss the lawsuit.

Plaintiff Nadine Ambrico was injured when an elevator door closed on her hand and arm. The elevators were maintained by defendant Thyssenkrupp Elevator Corp. on a monthly basis. The issue in Ambrico v. Thyssenkrupp Elevator Corp., 2017 N.J. Super. Unpub. LEXIS 2558  (App. Div. October 13, 2017) was whether plaintiff needed an expert to pursue her claim against the elevator company or if she could prove her cause of action based upon the doctrine of res ipsa loquitor.

Plaintiff was injured while at her place of employment, the Camden County Health Services Building when the elevator door closed on her hand and arm. At that time, her employer, the County of Camden, had a contract with the defendant to maintain the elevators in the building and service them as needed. Defendant inspected the elevators on a monthly basis. The elevator company had last inspected the elevator about 6 weeks before the plaintiff’s accident.

Plaintiff did not submit an expert report, instead contending that no expert report was necessary. The defendant filed for a summary judgment on the basis that an expert report was necessary because the manner in which elevator doors operated was beyond the ken of an average juror.

The plaintiff contended that no expert testimony was needed to prove her cause of action because she was proceeding under the theory of res ipsa loquitor (a Latin phrase which means “the thing speaks for itself”). Plaintiff argued that she met the three elements necessary to utilize this doctrine: “(1) the occurrence itself ordinarily bespeaks negligence; (2) the instrumentality causing the injury was within the defendant’s exclusive control and (3) the injury was not caused by plaintiff’s voluntary act or neglect.”

The trial court found that this doctrine could not be applied because, while the plaintiff met the first and third elements, she was unable to meet the second element, showing that the elevator was in the defendant’s exclusive control at the time of or just before the incident. Thus, the trial court granted summary judgment as to the defendant.

Upon appeal, the plaintiff argued that the court erred in failing to find that the defendant did not have exclusive control over the elevator and that the doctrine of res ipsa loquitor should have been applied. The Appellate Division agreed with the trial court that the plaintiff failed to meet all three elements and, hence, the plaintiff could not utilize this doctrine to prove negligence against the elevator company.

Because of the lapse in time between the defendant’s inspection of the elevator on August 1, 2012 and the incident over six weeks later on September 13, 2012, as well as the absence of any evidence linking the defendant to the malfunction of the door, the Court found that the defendant lacked the requisite control over the elevator to justify the application of res ipsa loquitor.

At the time of the last inspection, the elevator was in proper working order. There was no evidence that the elevator malfunctioned at the time of the accident. The Court noted that there “must be evidence that the defendant exercised control over the subject instrumentality to meet the second prong of this doctrine.” The Appellate Division found that the defendant’s connection to the elevator was “too attenuated” from the accident to conclude that it maintained control over the elevator at that time. Hence, the Court determined that the doctrine of res ipsa loquitor did not apply and it upheld the trial court’s dismissal of the plaintiff’s case.

Plaintiff Cornelia Wright was a tenant, living on the fourth floor of a Jersey City apartment building owned by defendant Premier Business Management, when she fell and was injured, while walking down a dark stairwell in the building.  The building’s power was out due to an electrical power outage in Jersey City from Super Storm Sandy.  The issue in Wright v. Premier Business Management, No. A-3002-15T3, 2017 N.J. Super. Unpub. LEXIS 1415 (App. Div. June 9, 2017), was whether the plaintiff needed an expert to establish the standard of care in a negligence case when it was founded on alleged violations of state and local codes.

When Super Storm Sandy made landfall on October 28, 2012, it caused the apartment building where plaintiff lived to be without electrical power from October 29, 2012 to November 1, 2012.  The building had two stairwells, which lighting was supplied by electrical lamps.  When the electricity in the building was not working, the stairwell landings were lit by emergency lamps powered by six volt batteries.  The emergency lamps were wired to the building’s electrical power, which charged the batteries, and when the power was lost, the batteries no longer received a charge.  The battery power to the emergency lamps was limited to six hours.

At about 9:30 p.m. on October 31, 2012, plaintiff was walking down a dark stairwell in the building, which was lit only by a small flashlight she was carrying.  When she reached the last two steps in the stairwell, she mistakenly believed she reached the ground floor and fell.  She suffered a right ankle fracture due to the fall.

Plaintiff sued, claiming her injuries were as a result of the defendant’s negligence.  She alleged that her injuries were caused by a failure of emergency lighting, as required by numerous state and local codes, and that the defendant maintained and operated the building in a negligent manner so as to cause a hazardous condition.  In her Answers to Interrogatories, which asked her to detail the basis of the defendant’s negligence, she stated that the defendant failed to abide by state and local building codes but did not enumerate further the applicable codes.

The trial court found that it is the plaintiff’s requirement to establish the applicable standard of care when it is beyond a lay person’s common knowledge.  Where a jury lacks the competence to supply the applicable standard of care, the plaintiff must establish the standard by presenting reliable expert testimony on the subject.  However, the plaintiff failed to provide an expert report on the applicable codes. On the defendant’s Motion for Summary Judgment, the court determined that because plaintiff’s negligence claim was founded on alleged violations of state and local codes, expert testimony was required. Thus, it granted summary judgment to the defendant, dismissing the lawsuit.

Upon appeal, the Appellate Division agreed with this holding.  The Court found that plaintiff’s claim that the defendant deviated from a standard of care, defined by state and local codes, required expert testimony.  Expert testimony was required to define the alleged standard and defendant’s alleged deviation from it.

The court also rejected the plaintiff’s argument that her cause of action was viable under the doctrine of res ipsa loquitor.  Based upon this doctrine, if it applied, an inference of negligence would be permitted to establish a prima facie case of negligence.  However, the Court rejected the application of this doctrine because it found that the electrical outage was beyond the defendant’s control and the plaintiff’s negligence claim was based upon alleged violations of the state and local codes.

Accordingly, the Appellate Division upheld the trial court’s decision, dismissing plaintiff’s Complaint.