CORNELIA WRIGHT VS. PREMIER BUSINESS MANAGEMENT(L-6000-13, HUDSON COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-3002-15T3

CORNELIA WRIGHT,

Plaintiff-Appellant,

v.

PREMIER BUSINESS MANAGEMENT,

Defendant-Respondent.
______________________________

Submitted May 16, 2017 – Decided June 9, 2017

Before Judges Fisher and Vernoia.

On appeal from the Superior Court of New
Jersey, Law Division, Hudson County, Docket
No. L-6000-13.

Feintuch, Porwich & Feintuch, attorneys for
appellant (Donald R. Moran, on the brief).

McDermott & McGee, attorneys for respondent
(Joao M. Sapata, on the brief).

PER CURIAM

In this personal injury case, plaintiff Cornelia Wright

appeals from the trial's court order granting defendant Premier

Business Management's motion for summary judgment. Based on our

review of the record in light of the applicable law, we affirm.
 I.

The following facts, which we view in the light most

favorable to plaintiff as the non-moving party, Brill v.

Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), are

established in the motion record. In October 2012, plaintiff was

a tenant, living on the fourth floor of a Jersey City apartment

building owned by defendant. On October 28, 2012, Superstorm

Sandy made landfall in New Jersey, causing an electrical power

outage in Jersey City that lasted for days. The apartment

building where plaintiff lived was without electrical power from

October 29, 2012 to November 1, 2012.

The building included two stairwells, which were generally

illuminated by electrical lamps. When the electricity in the

building was not working, the stairwell landings on each floor

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. When the electrical power to the

building was lost, the batteries no longer received an

electrical charge and the battery power to the emergency lamps

was limited to six hours.

At about 9:30 p.m. on October 31, 2012, plaintiff walked

down a dark stairwell in the building that was illuminated only

by a small flashlight she carried in her right hand. When

2 A-3002-15T3
plaintiff reached the last two steps in the stairwell, she

mistakenly believed she had reached the ground floor, took a

step, and fell. Plaintiff suffered a trimalleolar fracture with

displacement of her right ankle.

Plaintiff filed suit claiming her injuries were the result

of defendant's negligence. The complaint alleged plaintiff's

injuries were caused by "a failure of emergency lighting which

is required by numerous State and [l]ocal [c]odes," and that

defendant "maintained and operated [the building] in so

negligent a manner so as to cause [a] hazardous condition."

Defendant's interrogatories to plaintiff asked her to describe

the manner in which she claimed defendant was negligent and

detail the basis for her contention that defendant maintained or

created the condition she alleged caused her injury. In her

sworn response, plaintiff stated only that defendant "[f]ail[ed]

to abide by State and [l]ocal [b]uilding [c]odes."1

1
Plaintiff's counsel argues defendant was otherwise negligent in
creating a dangerous condition in the stairwells, but
plaintiff's counterstatement of facts in response to the
defendant's summary judgment motion does not include any facts
supporting a claim defendant was negligent. The counterstatement
of facts asserts only that the stairwell was dark when the
accident occurred. In her answers to interrogatories, however,
plaintiff stated only that the alleged dangerous condition was
the result of defendant's failure to abide by State and local
codes. Thus, there was no competent evidence submitted by
plaintiff in accordance with Rule 4:46-2(b) supporting her
(continued)

3 A-3002-15T3
 Defendant filed a motion for summary judgment arguing the

power outage resulted from an act of God and that plaintiff

failed to provide an expert liability report supporting her

claim that defendant's emergency lighting failed to comply with

State and local codes. The court found the power outage was the

result of an act of God and not defendant's negligence. The

court further found plaintiff's claim that the emergency

lighting system violated applicable building codes required

expert testimony and that, because plaintiff had not provided an

expert report, she was unable to sustain her burden of proving

defendant's negligence. The court entered an order granting

defendant's summary judgment motion. This appeal followed.

II.

We review the grant of summary judgment de novo, applying

the same standard as the trial court. Henry v. N.J. Dep't of

Human Servs., 204 N.J. 320, 330 (2010). We determine whether

the moving party has demonstrated the absence of genuine issues

of material fact, and whether the trial court has correctly

determined that the movant is entitled to judgment as a matter

of law, owing no deference to the trial court's legal

(continued)
argument that defendant negligently created the alleged
dangerous condition in the stairwell by a means other than
failing to abide by the codes.

4 A-3002-15T3
conclusions. N.J. Dep't of Envtl. Prot. v. Alloway Twp., 438

N.J. Super. 501, 507 (App. Div.), certif. denied, 222 N.J. 17

(2015).

"To sustain a cause of action for negligence, a plaintiff

must establish four elements: '(1) a duty of care, (2) a breach

of that duty, (3) proximate cause, and (4) actual damages.'"

Townsend v. Pierre, 221 N.J. 36, 51 (2015) (quoting Polzo v.

Cnty of Essex, 196 N.J. 569 (2008)). Here, the court granted

defendant's summary judgment motion finding plaintiff did not

present sufficient evidence to sustain her burden of proving

defendant breached a duty of care. We therefore focus on that

element of plaintiff's negligence claim.

Generally, a "plaintiff is not required to establish the

applicable standard of care" in a negligence case. Davis v.

Brickman Landscaping, 219 N.J. 395, 406 (2014), cert. denied, __

U.S. __, 135 S. Ct. 761, 190 L. Ed. 2d 635 (2014). The plaintiff

need only "show what the defendant did and what the

circumstances were," and the jury is competent to supply the

applicable standard of care by "determin[ing] what precautions a

reasonably prudent [person] in the position of the defendant

would have taken." Sanzari v. Rosenfeld, 34 N.J. 128, 134

(1961); see also Davis, supra, 219 N.J. at 406-07. In such

cases, "a layperson's common knowledge" permits the "jury to

5 A-3002-15T3
find that the duty of care has been breached without the aid of

an expert's opinion." Giantonnio v. Taccard, 291 N.J. Super. 31,

43 (App. Div. 1996); see also Davis, supra, 219 N.J. at 407.

Where a jury lacks the competence to supply the applicable

standard of care, the plaintiff must establish "the requisite

standard" and the defendant's deviation from it by "present[ing]

reliable expert testimony on the subject." Davis, supra, 219

N.J. at 407 (quoting Giantonnio, supra, 291 N.J. Super. at 42).

In determining whether expert testimony is required, "a court

properly considers 'whether the matter to be dealt with is so

esoteric that jurors of common judgment and experience cannot

form a valid judgment as to whether the conduct of the

[defendant] was reasonable.'" Ibid. (quoting Butler v. Acme

Mkts., Inc., 89 N.J. 270, 283 (1982)).

On defendant's motion for summary judgment, the court

applied these principles and determined that because plaintiff's

negligence claim was founded on alleged violations of State and

local codes, expert testimony was required. We agree. In Davis,

supra, 219 N.J. at 408-09, our Supreme Court considered whether

there was a need for expert testimony to establish defendant's

duty and alleged breach where plaintiff claimed defendant failed

to inspect fire sprinklers in accordance with applicable fire

codes. The Court observed that "fire codes and standards are

6 A-3002-15T3
particularly complex," and determined that familiarity with the

fire code standards was required to "determine the appropriate

standard of care by which to assess [the] defendants' conduct."

Id. at 408-09. The Court concluded that because the standards

embodied in the fire codes were beyond the ken of the average

juror, "identification of the relevant standard and any

departure from that standard requires expert testimony." Id. at

409.

As correctly determined by the motion court, plaintiff's

claim that defendant deviated from a standard of care defined by

State and local codes required expert testimony. See ibid. Based

on the allegations in the complaint and plaintiff's answers to

interrogatories, the codes defined the standard for defendant's

conduct and were the benchmark for the assessment of defendant's

alleged breach of a duty owed to plaintiff. Consistent with the

Court's reasoning in Davis, expert testimony was required to

define the alleged standard and defendant's alleged deviation

from it. Ibid.

We also reject plaintiff's argument that her cause of

action is supported under the doctrine of res ipsa loquitor. The

doctrine permits an inference of negligence establishing a prima

facie case of negligence. Jerista v. Murray, 185 N.J. 175, 192

(2005); Mayer v. Once Upon A Rose, Inc., 429 N.J. Super. 365,

7 A-3002-15T3
373 (App. Div. 2013). 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." Szalontai v.

Yazbo's Sports Cafe, 183 N.J. 386, 398 (2005) (quoting Brown v.

Racquet Club of Bricktown, 95 N.J. 280, 288-89 (1984)); Mayer,

supra, 429 N.J. Super. at 373.

The first factor, that the occurrence ordinarily bespeaks

negligence, is dependent on "whether based on common knowledge

the balance of probabilities favors negligence, thus rendering

fair the drawing of a res ipsa inference." Jerista, supra, 185

N.J. at 199. Where "the res ipsa inference falls outside of the

common knowledge of the factfinder and depends on scientific,

technical, or other specialized knowledge . . . expert testimony

[is] required." Ibid.; see Buckelew v. Grossbard, 87 N.J. 512,

528-29 (1981) (requiring expert testimony establishing the

standard of care in medical malpractice case to permit res ipsa

loquitor inference); cf. Mayer, supra, 429 N.J. Super. at 376-77

(finding expert testimony was not required for a res ipsa

loquitor inference because it was within the common knowledge of

8 A-3002-15T3
jurors that "too much pressure applied to glass can cause it to

break").

Here, the undisputed facts showed there was an electrical

outage that was beyond defendant's control, and plaintiff's

negligence claim is based on alleged violations of the State and

local codes. In our view, plaintiff did not establish that the

probabilities favored defendant's negligence because, without

expert testimony establishing the standard of care under the

codes, any res ipsa loquitor inference requires a knowledge of

the codes that is outside of the common knowledge of a jury. See

Jerista, supra, 185 N.J. at 199. Thus, the motion court

correctly determined plaintiff was not entitled to a res ipsa

loquitor inference of negligence because without expert

testimony, plaintiff could not establish "that it is more

probable than not that the defendant's negligence was a

proximate cause of the mishap." Brown, supra, 95 at 291-92

(1984); see also Jerista, supra, 185 N.J. at at 192.

The record also supports the court's finding plaintiff was

not entitled to a res ipsa loquitor inference because she failed

to demonstrate the functioning of the emergency lamps was within

defendant's exclusive control, and there was an indication her

injury "was the result of [her] own voluntary act or neglect."

Szalontai, supra, 183 N.J. at 398. The undisputed facts showed

9 A-3002-15T3
the building experienced a lengthy power outage caused by an

unprecedented storm, and that the emergency lamp batteries,

which were otherwise recharged by electric power, were not

recharged because of the power outage. Moreover, the record

shows plaintiff's injury was caused, as least in part, by her

own negligence; her mistaken belief she had reached the ground

floor when she took the step that caused her injury.

"Res ipsa loquitor is not a panacea for the . . . doomed

negligence cause of action." Szalontai, supra, 183 N.J. at 400.

A plaintiff is not entitled to prosecute a case under the

doctrine "any time there is an unexplained accident for which a

defendant might plausibly be responsible." Jimenez v. GNOC,

Corp., 286 N.J. Super. 533, 545 (App. Div. 1996), certif.

denied, 145 N.J. 374 (1996). Plaintiff did not establish any of

the essential elements required for application of the doctrine

and, as such, the court correctly rejected plaintiff's reliance

upon it.

Affirmed.

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