ALIN ESPINOZA MINOR HECTOR ESPINOZA GUARDIAN v. GENERAL GROWTH PROPERTIES INC BRIDGEWATER COMMONS MALL THYSSENKRUPP ELEVATOR CORPORATION (2013)

Plaintiffs Alin Espinoza, a minor, and his father Hector Espinoza appeal from two orders entered on June 29, 2012, granting summary judgment in favor of defendants Bridgewater Commons Mall, II, LLC, and Thyssenkrupp Elevator Corporation, which dismissed plaintiffs' personal injury complaint.   We affirm.

I.

We recite the generally-undisputed facts most favorable to plaintiffs because summary judgment was granted in favor of defendants.  Estate of Hanges v. Metro.   Prop. & Cas. Ins. Co., 202 N.J. 369, 374 (2010).

On October 21, 2007, while riding an ascending escalator with her parents and two sisters in the Bridgewater Commons Mall, the minor plaintiff was injured when a metal panel measuring approximately three square feet presumably fell off the side of the escalator and lacerated her right shin.   After receiving preliminary treatment at the Mall, the child was transported by ambulance to the Somerset Medical Center Emergency Room where the wound was cleaned, sutured, dressed, and medication was prescribed.¹  Prior to the incident, the Mall had contracted with Thyssenkrupp to provide maintenance services for the escalators at the Mall.

After discovery ended, defendants moved for summary judgment, contending that in the absence of expert opinion, plaintiffs failed, as a matter of fact and law, to demonstrate a prima facie case of negligence.   Plaintiffs responded by relying upon the doctrine of res ipsa loquitor to establish negligence.

The motion judge observed that “the source of this ‘metal part’ as well as the precise reason as to why it was on the escalator at the time of the incident is somewhat unclear.”   The minor could not identify from where or how the metal panel was projected towards her.   Her father, who did not see the panel come off the escalator assembly, nevertheless opined, “it was attached to the corner, and I don't know how it came off, but it came off and it came towards us.   Since it's a band that's running the escalator, I'm thinking that that piece came off and it shot.   I'm thinking.”

The judge canvassed the jurisprudence relating to res ipsa loquitor, and ultimately concluded that it was not applicable because plaintiffs provided no expert testimony to buttress the lay opinion of how the incident might have occurred, and defendants did not have “exclusive control” of the escalator, rendering res ipsa loquitor unavailable.   The judge noted,

a high volume of individuals ride the escalator on an everyday basis, and based on the record, there is no way to conclude that the negligent or intentional acts of a third-party, rather than the negligence of either [d]efendant in this case, could not have caused or contributed to the accident.

After concluding that plaintiffs had not otherwise “articulated what conduct, or lack thereof” by Thyssenkrupp was unreasonable or fell below applicable standards of care, and without expert evidence to indicate that the escalator's maintenance was substandard, the judge held that “the record does not contain evidence sufficient to support a finding that there is an actionable nexus between the conduct of Thyssenkrupp and the injury that occurred.”

With regard to the Mall, the judge reviewed principles of premises liability, and ultimately concluded that “[p]laintiff[s] [have] not provided evidence tending to demonstrate what conduct or lack of ․ conduct the Mall exhibited to trigger a finding of negligence.”   Specifically, the judge determined that any claim of “failure to inspect and maintain the premises” was invalid in light of plaintiffs' failure to produce expert opinion “explaining the exact cause of the accident as well as any opinion suggesting that the Mall breached its duties [by] failing to learn about the escalator defect.”

II.

Orders granting summary judgment pursuant to Rule 4:46–2 are reviewed de novo, Town of Kearny v. Brandt, 214 N.J. 76, 91 (2013), and we apply the same legal standard employed by the Law Division.  Canter v. Lakewood of Voorhees, 420 N.J.Super. 508, 515 (App.Div.2011).   We consider, as did the motion court, “ ‘whether the competent evidential materials presented, when viewed in the light most favorable to the nonmoving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.’ ”  Advance Hous., Inc. v. Twp. of Teaneck, 422 N.J.Super. 317, 327 (App.Div.2011) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)), certif. granted, 209 N.J. 100 (2012).   Similarly, when the legal conclusions of a motion court's Rule 4:46–2 summary judgment decision are reviewed on appeal, “ ‘[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference[,]’ and, hence, an ‘issue of law is subject to de novo plenary appellate review.’ ”  Estate of Hanges, supra, 202 N.J. at 382–83 (alteration in original) (quoting Manalapan Realty, L.P. v. Twp. Comm. of Twp. of Manalapan, 140 N.J. 366, 378 (1995))).

To demonstrate a claim against Thyssenkrupp, plaintiffs would be required to affirmatively prove negligence on the part of defendant.   See Buckelew v. Grossbard, 87 N.J. 512, 525 (1981).   Plaintiffs were required to prove:  (1) that there was a duty owed to them by Thyssenkrupp, (2) that Thyssenkrupp breached that duty, (3) that there was a causal connection between the breach and the complained injuries, and (4) damages.   See Polzo v. Cnty. of Essex, 196 N.J. 569, 584 (2008).

Expert testimony was required to illuminate the first three elements because the subject matter was such that “jurors of common judgment and experience” would not be able to “form a valid judgment as to whether the conduct of the party was reasonable.”  Butler v. Acme Mkts., Inc., 89 N.J. 270, 283 (1982).   Plaintiffs' grievances focus on a complicated multipart device accessed by hundreds of people daily.   Where “a case involves a complex instrumentality, expert testimony is needed in order to help the fact-finder understand ‘the mechanical intricacies of the instrumentality’ and help to exclude other possible causes of the accident.”  Rocco v. N.J. Transit Rail Operations, Inc., 330 N.J.Super. 320, 341 (App.Div.2000) (quoting Jimenez v. GNOC, Corp., 286 N.J.Super. 533, 546 (App.Div.), certif. denied, 145 N.J. 374 (1996)).   Without expert testimony linking the displaced panel to Thyssenkrupp's negligence, or excluding other possible causes, plaintiffs' negligence claim fails as a matter of law.

To establish premises liability in a case such as this, plaintiffs bear the burden of proving that the Mall breached the duty of care owed to them.   Jerista v. Murray, 185 N.J. 175, 191 (2005).   Under New Jersey law, “landlords and business owners should be liable for foreseeable injuries that occur on their premises.”   Cuzmicz v. Ivy Hill Park Apartments, Inc., 147 N.J. 510, 517 (1997).

The owner of premises generally is not liable for injuries caused by defects for which it had no actual or constructive notice and no reasonable opportunity to discover.  Nisivoccia v. Glass Garden, Inc., 175 N.J. 559, 563 (2003).   For that reason, “[o]rdinarily an injured plaintiff ․ must prove, as an element of the cause of action, that the defendant had actual or constructive knowledge of the dangerous condition that caused the accident.”  Ibid.

In addition, “[n]egligence is a fact which must be shown and which will not be presumed.”  Long v. Landy, 35 N.J. 44, 54 (1961).  “[T]he mere showing of an accident causing the injuries sued upon is not alone sufficient to authorize an inference of negligence.”  Vander Groef v. Great Atl. & Pac. Tea Co., 32 N.J.Super. 365, 370 (App.Div.1954) (internal quotation marks and citation omitted).

In this case, plaintiffs seek to establish an inference of negligence by reliance upon the doctrine of res ipsa loquitur.   Res ipsa loquitur, a Latin phrase meaning “the thing speaks for itself,” permits an inference of negligence, establishing, in turn, a prima facie case of negligence.  Mayer v. Once Upon A Rose, Inc., 429 N.J.Super. 365, 373 (App.Div.2013).   In order to invoke the doctrine, a plaintiff must establish that “ ‘(a) the occurrence itself ordinarily bespeaks negligence;  (b) the instrumentality [causing the injury] 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.’ ”  Ibid. (quoting Szalontai v. Yazbo's Sports Cafe, 183 N.J. 386, 398 (2005));  Buckelew, supra, 87 N.J. at 525 (quoting Bornstein v. Metro.   Bottling Co., 26 N.J. 263, 269 (1958)).   The Court has stated that

[the mere] existence of a possibility of a defendant's responsibility for a plaintiff's injuries is insufficient to impose liability.   In the absence of direct evidence, it is incumbent on the plaintiff to prove not only the existence of such possible responsibility, but the existence of such circumstances as would justify the

inference ․ and would exclude the idea that it was due to a cause with which the defendant was unconnected.

[Szalontai, supra, 183 N.J. at 399 (citation omitted).]

The doctrine is inapplicable if it is equally likely that the negligence causing the injury “ ‘was that of someone other than the defendant.’ ”   Bornstein, supra, 26 N.J. at 273 (citation omitted).

While plaintiffs were not required to exclude all other possible causes of the incident, they were at least required to establish that it is more probable than not that one or the other defendant's conduct, particularly the manner in which the escalator was maintained, was a proximate cause of the accident.   See Jerista, supra, 185 N.J. at 192.   This was not done here.   See Szalontai, supra, 183 N.J. at 399 (“In the absence of direct evidence, it is incumbent on the plaintiff to prove not only the existence of [defendant's] possible responsibility, but the existence of such circumstances as would justify the inference.”).

Res ipsa loquitur is not a “panacea for the less-than-diligent plaintiff or the doomed negligence cause of action.”  Id. at 400.   Instead, res ipsa loquitur

is a rule of law that has its origin in negligence and “governs the availability and adequacy of evidence of negligence in special circumstances.”   Res ipsa loquitur is not a theory of liability;  rather it is an evidentiary rule that governs the adequacy of evidence in some negligence cases.

[Ibid. (quoting Myrlak v. Port. Auth., 157 N.J. 84, 95 (1999).]

Regardless of the doctrine's application, “a plaintiff nonetheless must satisfy its burden to proffer competent evidence that ‘reduces the likelihood of other causes so that the greater probability of fault lies at defendant's door.’ ”  Ibid. (quoting Jimenez, supra, 286 N.J.Super. at 545).

Without producing evidence that reduces the likelihood of other causes of the incident, and establishes that the greater probability of fault lies with either defendant, plaintiffs may not rely upon the doctrine of res ipsa loquitur.   There is nothing in this record to establish that the incident was the fault of either the Mall or Thyssenkrupp other than the occurrence of the incident itself.   We agree with the motion judge that the evidence of multiple users of the escalator militated against res ipsa loquitor's applicability.

Affirmed.

FOOTNOTES

FN1. Among the child's sequelae is a two-inch scar exhibiting a tenderness to touch..  FN1. Among the child's sequelae is a two-inch scar exhibiting a tenderness to touch.

PER CURIAM