Res Ipsa Loquitur: the Thing Speaks for Itself… Unless the Thing We’re Speaking of Involves a Public Entity

By:  Jessica M. Anderson, Esq.

Res ipsa loquitur is not available in an action against a public entity grounded upon a dangerous condition of public property.  Rocco v. New Jersey Transit Rail Operations, Inc., 330 N.J. Super. 320, 339-40 (App. Div. 2000).  The Tort Claims Act requires proofs beyond those necessary for a res ipsa loquitur inference.

Similarly, the “mode of operation” rule, which permits a rebuttable inference of negligence where a business owner could reasonably anticipate that dangerous conditions would routinely arise from the customary method and manner in which he operates his business, does not apply to a public entity.  Application of that rule would not only broaden the circumstances under which a public entity could be held liable for a dangerous condition beyond those provided by N.J.S.A. 59:4-2 but would also impermissibly shift the burden of proof to the public entity.  Carroll v. New Jersey Transit, 366 N.J. Super. 380, 389-90 (App. Div. 2004).

In the recent unpublished Appellate decision, Chen v. New Jersey Transit, 2014 N.J. Super. Unpub. LEXIS 1480 (App. Div. June 20, 2014), in which this author represented Defendant, Plaintiff suffered an injury to her hand requiring internal fixation surgery when a metal object the size of a softball struck her while she was standing on the platform of the Edison train station. Two witnesses stated that the metal object either fell off or was kicked up by a passing train.  The trial court judge granted summary judgment, finding that Plaintiff could not demonstrate a prima facie case against New Jersey Transit, and failed to prove the elements necessary to establish dangerous condition liability under the New Jersey Tort Claims Act.  Plaintiff appealed, arguing that, as an invitee, Plaintiff vaulted the summary judgment threshold under the doctrine of res ipsa loquitur or the mode of operation doctrine.  The Appellate Division affirmed the trial court’s decision granting summary judgment, holding that res ipsa loquitur and the “mode of operation” rule do not apply to personal injury claims against public entities based upon the existence of an alleged dangerous condition of public property.