NOT FOR PUBLICATION WITHOUT THE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-2202-15T3
NADINE AMBRICO,
Plaintiff-Appellant,
v.
THYSSENKRUPP ELEVATOR
CORPORATION,
Defendant-Respondent.
________________________________________
Submitted March 9, 2017 – Decided October 13, 2017
Before Judges Hoffman and O'Connor.
On appeal from the Superior Court of New
Jersey, Law Division, Camden County, Docket
No. L-1484-14.
Dennis E. Block, attorney for appellant.
Shimberg & Friel, PC, attorneys for
respondent (Kevin B. Golden, of counsel and
on the brief).
The opinion of the court was delivered by
O'Connor, J.A.D.
In this personal injury negligence action, plaintiff Nadine
Ambrico appeals from a December 18, 2015 order granting
defendant Thyssenkrupp Elevator Corporation summary judgment
dismissal. After reviewing the record and applicable law in
light of the contentions advanced on appeal, we affirm.
The motion record reveals the following. On September 13,
2012, plaintiff was injured when an elevator door at her place
of employment, the Camden County Health Services Building in
Camden, closed on her hand and arm. At that time, defendant and
plaintiff's employer, the County of Camden, were parties to a
contract in which defendant agreed to maintain the elevators in
the building and service them as needed.1 Defendant had been
inspecting the elevators on a monthly basis since at least
January 2011; the last time the subject elevator had been
inspected before the subject incident was on August 1, 2012.
Plaintiff did not serve defendant with an expert's report.
After the close of discovery, defendant filed a motion for
summary judgment dismissal, asserting plaintiff could not
successfully prove a claim for negligence against it without
expert testimony, because the manner in which elevator doors
operate is beyond the ken of the average juror.
1
A copy of the agreement in effect at the time of the incident
was not included in either party's appendix.
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Plaintiff maintained she did not require expert testimony
to prove her cause of action against defendant because she was
proceeding under the doctrine of res ipsa loquitur. She argued
she met the three elements of this doctrine, which are: (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. See Bornstein v.
Metropolitan Bottling Co., 26 N.J. 263, 269 (1958).
The court determined this doctrine was unavailing to
plaintiff because, although she met the first and third
elements, she failed to show the elevator was under defendant's
exclusive control at the time of or just before the incident.
Given plaintiff could not rely upon this doctrine to prove her
cause of action, the court granted defendant summary judgment
dismissal.
On appeal, plaintiff's principal argument is the court
erred when it found defendant did not have exclusive control
over the elevator and, thus, improperly rejected plaintiff's
claim the doctrine of res ipsa loquitur applied in this matter.
We review the trial court's grant of summary judgment de
novo, employing the same standard used by the trial court.
Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of
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Pittsburgh, 224 N.J. 189, 199 (2016). When deciding a summary
judgment motion, the court "must accept as true all the evidence
which supports the position of the party defending against the
motion and must accord [her] the benefit of all legitimate
inferences which can be deduced therefrom." Brill v. Guardian
Life Ins. Co. of Am., 142 N.J. 520, 535 (1995). Summary
judgment must be granted if "the pleadings, depositions, answers
to interrogatories and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to
any material fact challenged and that the moving party is
entitled to a judgment or order as a matter of law." Id. at
528-29.
"Res ipsa loquitur is grounded in probability and the sound
procedural policy of placing the duty of producing evidence on
the party who has superior knowledge or opportunity for
explanation of the causative circumstances." Buckelew v.
Grossbard, 87 N.J. 512, 526 (1981) (citing Bornstein, supra, 26
N.J. at 269). However, "before the doctrine of res ipsa
loquitur operates to shift the burden of persuasion to the
defendant in a negligence case, the plaintiff first must meet
all of the elements of the three-part res ipsa loquitur test."
Szalontai v. Yazbo's Sports Cafe, 183 N.J. 386, 389 (2005). If
plaintiff fails to prove any of these elements by a
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preponderance of the evidence, this doctrine and its concomitant
burden-shifting is no longer available to that plaintiff. Id.
at 389-90.
Here, the issue is whether the instrumentality causing the
injury was under defendant's exclusive control at the time of
the incident. See Jerista v. Murray, 185 N.J. 175, 192 (2005).
Defendant does not challenge the trial court's finding plaintiff
met the other two elements of the res ipsa loquitur doctrine.
In our view, given the time lapse between defendant's inspection
of the elevator on August 1, 2012 and the incident over six
weeks later on September 13, 2012, compounded by the absence of
any evidence linking defendant to the malfunction of the door,
the trial court correctly determined defendant did not wield the
requisite control over the elevator to justify the application
of the res ipsa loquitur doctrine.
To be sure, we have applied this doctrine against an
elevator company that had serviced an elevator that subsequently
caused personal injuries. In Allendorf v. Kaiserman
Enterprises, 266 N.J. Super. 662 (App. Div. 1993), the plaintiff
was injured when the doors to an elevator closed against her.
At trial, it was established the defendant elevator company had
serviced the elevator just hours before the accident. In
addition, the plaintiff called an expert witness who testified
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the elevator was in a poor state of repair at the time of
plaintiff's accident. Given the proofs, a conditional res ipsa
loquitur instruction was justified because being struck by an
elevator door ordinarily bespeaks negligence, the elevator
company's recent service established exclusive control, and
there was no evidence the plaintiff herself was negligent. Id.
at 667-70.
Here, however, what is lacking is evidence defendant
exerted control over this particular instrumentality at the time
of the incident. Unlike the elevator company in Allendorf,
defendant had not serviced, repaired, or handled any part of the
elevator within any temporal proximity of the accident in
question. Defendant had last inspected the elevator over six
weeks before the incident and, at that time, the elevator was in
proper working order. In fact, there was no evidence the
elevator was malfunctioning just before plaintiff was injured.
There must be evidence defendant exercised control over the
subject instrumentality to meet the second prong of this
doctrine. Unlike in Allendorf, where the maintenance company's
"connection with the elevator which caused plaintiff's injury
was sufficiently immediate and direct to support a finding that
it had 'control' of that elevator," id. at 671-72, defendant's
connection to the elevator is too attenuated from plaintiff's
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A-2202-15T3
accident to conclude it maintained control over the elevator at
that time. Accordingly, we affirm the trial court's
determination the doctrine of res ipsa loquitur does not apply
here.
We have considered plaintiff's remaining arguments and
conclude they are without sufficient merit to warrant discussion
in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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