KATHLEEN PANNUCCI VS. EDGEWOOD PARK SENIOR HOUSING - PHASE 1, LLC (L-4098-15, MONMOUTH COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4735-17T3

KATHLEEN PANNUCCI,

Plaintiff-Appellant, APPROVED FOR PUBLICATION
November 30, 2020
v. APPELLATE DIVISION

EDGEWOOD PARK SENIOR
HOUSING – PHASE 1, LLC;
CONIFER REALTY, LLC;
CONIFER VILLAGE AT
MIDDLETOWN 1 and
THYSSENKRUPP ELEVATOR
CORPORATION,

Defendants-Respondents.
___________________________

Argued October 29, 2019 – Decided November 30, 2020

Before Judges Ostrer, Vernoia and Susswein.

On appeal from the Superior Court of New Jersey,
Law Division, Monmouth County, Docket No. L-
4098-15.

Thaddeus P. Mikulski, Jr., argued the cause for
appellant.

Walter F. Kawalec, III, argued the cause for
respondents Edgewood Park Senior Housing Phase 1,
LLC d/b/a Conifer Village at Middletown 1 and
Conifer Realty, LLC (Marshall Dennehey Warner
 Coleman & Goggin, attorneys; Walter J. Klekotka and
Walter F. Kawalec, III, on the briefs).

Nancy A. Nolan argued the cause for respondent
Thyssenkrupp Elevator Corporation (Shimberg &
Friel, PC, attorneys; Nancy A. Nolan, of counsel;
Jennifer Neilio, on the briefs).

The opinion of the court was delivered by

OSTRER, J.A.D.

Kathleen Pannucci was injured while boarding an elevator in her

apartment building. She sued her landlord, its manager, and the company that

serviced the elevator. For lack of proof of negligence, the court later

dismissed her suit on defendants' motion for summary judgment. To salvage

her claims, Pannucci asks us to revise the settled doctrine of res ipsa loquitur

— "the thing speaks for itself."

The doctrine permits a jury to infer a defendant's negligence, enabling a

plaintiff to make a prima facie case. McDaid v. Aztec W. Condo. Ass'n, 234

N.J. 130, 142–43 (2018). To employ the doctrine, a personal-injury plaintiff

must show three things: first, the accident was one that "ordinarily bespeaks

negligence," that is, someone's negligence more likely than not caused the

accident; second, the defendant exclusively controlled the thing that caused the

injury; and third, the injury did not result from the plaintiff's "own voluntary

act or neglect." 234 N.J. at 142-43.

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 Pannucci urges us to jettison the third requirement. She claims that it

defeats the purpose of the Comparative Negligence Act, N.J.S.A. 2A:15–5.1 to

–5.8, which discarded the rule that a personal-injury plaintiff must be free of

contributory negligence. See N.J.S.A. 2A:15–5.1.

We decline Pannucci's invitation. We acknowledge that other states

have gone where she asks us to go. Yet, altering the res ipsa loquitur

doctrine's third prong would undo settled Supreme Court precedent, and there

is no hint that the Court would endorse the change. Furthermore, there is still

good reason to require a plaintiff to show that his or her conduct is not an

alternative explanation for the accident. Absent that showing, it may be

unreasonable to infer that a defendant probably acted negligently. Because

Pannucci failed to satisfy the res ipsa loquitur rule's third prong, we affirm

summary judgment.

I.

Viewed in a light most favorable to plaintiff as the non-movant, Brill v.

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

these facts. Pannucci lived in an apartment building for seniors that Edgewood

Park Senior Housing Phase 1, LLC, owned, and Conifer Realty, LLC,

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managed.1 Conifer hired Thyssenkrupp Elevator Corp. to service the

building's elevators. One morning, Pannucci approached the elevator after

walking her twenty-pound Pomeranian dog, Luke. As she approached, the

elevator doors opened and a man exited. While the man was still exiting, Luke

ran in, four feet ahead of Pannucci. The elevator doors had already closed six

inches when Pannucci's right arm, which was holding the leash, extended into

the cab. The right door continued to close, striking Pannucci's right arm and

tearing her skin, as she pushed her left hand and the left side of her body

against the closing left door. She slowed the doors long enough to throw

herself onto the elevator, but not before the doors injured her left shoulder, left

side, back, neck, and right arm.

Before the accident, Pannucci had never experienced a problem with the

elevator. Furthermore, biannual state inspections of the elevator before and

after the incident uncovered no operating failures. And neither the building

superintendent nor the community manager had noticed any problem with the

elevator.

Thyssenkrupp serviced the elevator regularly. The employee assigned to

Conifer inspected the elevator just four weeks before it injured plaintiff. He

testified that he observed no problems with the elevator doors during his visits.

1
We will refer to both LLCs as "Conifer."
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 Plaintiff's expert challenged the employee's testimony, contending that

the employee failed to test the "door close force and door close kinetic

energy." He based this claim on an unchecked box in the maintenance record,

and on one part of the employee's deposition testimony. The employee

initially testified that an unchecked box meant an unperformed task. However,

he later clarified that he observed all the elevator's operations, but he only

checked boxes if he had to adjust or repair something.

At the summary judgment hearing, plaintiff argued that her case could

proceed based on res ipsa loquitur. The court rejected that argument. The

court did find that the accident was "one which may bespeak negligence," and

that Thyssenkrupp had exclusive control of the elevator. But the court also

found that plaintiff failed to meet the doctrine's third requirement. One could

reasonably infer that plaintiff negligently caused her own injuries by keeping

her dog on such a long leash, and forcibly stopping the elevator doors.

The court granted Conifer summary judgment because plaintiff failed to

satisfy the res ipsa doctrine's preconditions; plaintiff's expert did not identify

negligence by Conifer; and plaintiff presented no evidence that Conifer had

noticed the elevator was malfunctioning. The court later granted

Thyssenkrupp summary judgment based on the court's earlier res ipsa loquitur

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ruling, and because the court held that plaintiff's expert offered a net opinion

after the expert failed to appear at an N.J.R.E. 104 hearing.

II.

In her initial appellate brief, plaintiff argued that the Court's intervening

decision in McDaid warranted reversal of summary judgment. In McDaid, the

Court held that the res ipsa doctrine "applies to an allegedly malfunctioning

elevator door that causes injury to a passenger." 234 N.J. at 141, 147. In that

case, an elevator door struck a woman who was using a walker. The door

knocked the plaintiff down, and then struck her again. Id. at 137.

The woman had previously complained that the doors closed too fast.

Id. at 136–37. And, a post-accident inspection found a problem with the

elevator's electric eye, which was designed to prevent the doors from closing

on objects it detected in the doors' path. Id. at 137. Noting that "automatic

doors are not supposed to close on and seriously injure a passenger who enters

or exits an elevator," the Court held that it "bespeaks negligence" when they

do. Id. at 143, 147–48. However, the Court expressly limited its holding to

the first prong of the res ipsa loquitur test. Id. at 143.

In their responding briefs, Conifer and Thyssenkrupp argued that

McDaid's limited holding did not help plaintiff, because the res ipsa loquitur

doctrine's third prong — which was not at issue in McDaid — still doomed

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plaintiff's claim. Conifer did not address the second prong, and Thyssenkrupp

did not challenge the court's finding that it exclusively controlled the elevator.

In her reply brief, plaintiff argued for the first time that we should

discard the third prong because it defeats the purpose of the Comparative

Negligence Act. And in a footnote in her reply brief, plaintiff stated that she

did not address the second prong because Conifer did not "seriously argue"

that defendants lacked exclusive control of the elevator.

III.

We are not obliged to address plaintiff's newly-minted argument that we

should discard the res ipsa loquitur doctrine's third prong. Plaintiff failed to

present the issue to the trial court. See Nieder v. Royal Indem. Ins. Co., 62

N.J. 229, 234 (1973) (stating that appellate court generally need not address

issues not properly presented to the trial court). And she did not even present

the issue in her initial appellate brief; she improperly saved it for her reply.

See State v. Smith, 55 N.J. 476, 488 (1970) (stating that it is improper to raise

new issues in a reply brief).

However, we address the issue because of its public importance. See

Nieder, 62 N.J. at 234 (stating that a court may address an issue not raised

below if it is of "great public interest"); State v. Federico, 414 N.J. Super. 321,

328 n.5 (App. Div. 2010) (choosing to address an issue in a reply brief "given

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the importance of the issue"); Borough of Keyport v. Maropakis, 332 N.J.

Super. 210, 216 (App. Div. 2000) (considering legal issue of general

application initially raised in reply brief). After all, the record is sufficient, the

issue is a legal one presented for our de novo review, and defendants addressed

the merits in a sur-reply. See Henry v. N.J. Dep't of Hum. Servs., 204 N.J.

320, 330 (2010) (stating that an appellate court reviews a summary judgment

order de novo); Alan J. Cornblatt, P.A. v. Barow, 153 N.J. 218, 230–31 (1998)

(considering issue not raised before trial court where relevant record was

complete and issue was fully briefed); Manalapan Realty, L.P. v. Twp. Comm.

of Manalapan, 140 N.J. 366, 378 (1995) (stating that court reviews legal issue

de novo).

Without citing any New Jersey authority questioning, let alone

dispensing with, the third prong, plaintiff cites the holdings of several other

courts that have found the third prong incompatible with their states'

comparative negligence statutes. See Montgomery Elevator Co. v. Gordon,

619 P.2d 66, 70 (Colo. 1980) (stating that requiring plaintiff be "free from

contributory negligence or other responsibilities . . . would effectively erect a

complete bar to recovery" and "would be in direct contravention to the co ncept

of comparative negligence"); Giles v. City of New Haven, 636 A.2d 1335,

1341–42 (Conn. 1994) (stating that continuing "to require a plaintiff to be free

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from contributory negligence" for res ipsa loquitur purposes would violate the

"manifest legislative purpose" of the comparative negligence statute, and that

instead, jury should compare parties' negligence); Dyback v. Weber, 500

N.E.2d 8, 12 (Ill. 1986) (stating that, applying comparative fault principles, "a

plaintiff relying on the res ipsa loquitur doctrine" need not "prove freedom

from contributory negligence"); Tipton v. Texaco, Inc., 712 P.2d 1351, 1359

(N.M. 1985) (citing Montgomery Elevator and holding that "the mere

existence of concurrent negligence does not preclude a particular finding of"

defendants' negligence under res ipsa loquitur); Cyr v. Green Mountain Power

Corp., 485 A.2d 1265, 1268 (Vt. 1984) (stating that, under Vermont's

comparative negligence statute, a jury must be allowed to compare parties'

negligence if plaintiff presents evidence otherwise satisfying the res ipsa

loquitur doctrine); Turk v. H.C. Prange Co., 119 N.W.2d 365, 372 (Wis. 1963)

(holding that "freedom from contributory negligence is not a requirement for

the application of res ipsa loquitur," where the plaintiff alleged a department

store negligently failed to adjust the tread and comb of an escalator that caught

a child's galosh). 2

2
Plaintiff also cited Watzig v. Tobin, 642 P.2d 651, 654–65 (Or. 1982), which
did not directly rely on comparative negligence statutes, but did hold that a
"plaintiff's participation does necessarily exclude the operation of res ipsa
loquitur," id. at 655, where the plaintiff drove into a cow that escaped a farm.
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 Some of these out-of-state cases involve persons battling malfunctioning

elevators. See Montgomery Elevator, 619 P.2d at 68 (after elevator doors

malfunctioned and left only a narrow opening, one passenger was able to

separate the doors to exit; but when plaintiff tried to follow, the door pinned

and injured her); Giles, 636 A.2d at 1337 (a fearful plaintiff, who had already

struck her head when the malfunctioning elevator jolted, jumped from the

stopped cab, further injuring herself).

A leading treatise agrees with the reasoning of these cases, stating,

"[T]he advent of comparative fault should logically eliminate this [f reedom

from negligence] from the doctrine, unless the plaintiff's negligence would

appear to be the sole proximate cause of the event." Prosser and Keeton on

Torts § 39 (Keeton ed., 5th ed. 1984).

Although this authority is impressive, we decline to follow it for two

reasons. First, plausible grounds for the third prong remain. Second and more

importantly, it is not for us to disturb settled precedent absent a signal from the

Supreme Court that it would do so.

The Oregon court previously relied on the "comparative negligence system" to
permit a plaintiff to recover under the res ipsa doctrine "in spite of his
contributing negligence." Cramer v. Mengerhausen, 550 P.2d 740, 744 (Or.
1976).
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 The Restatement (Third) of Torts: Liab. for Physical & Emotional Harm,

§ 17, cmt. h (Am. Law Inst. 2010) (Third Restatement) recognizes that "[a]

number of modern courts, noting that contributory negligence is no longer a

full defense, have ruled that this prerequisite is no longer appropriate" in

applying res ipsa loquitur. However, the Third Restatement concludes that a

plaintiff's contribution is still relevant in determining whether the d octrine

should apply. "Properly understood, the doctrine concerning plaintiff

contribution has a narrow scope, yet survives the shift to comparative

responsibility." Ibid.3

The res ipsa loquitur doctrine is an evidentiary principle. It allows a

factfinder to infer a defendant's negligence from the facts of a particular

accident. However, it may be unreasonable to draw that inference if a

plaintiff's actions provide an alternative explanation for the accident.

3
Section 17 of the Third Restatement describes the doctrine as follows: "The
factfinder may infer that the defendant has been negligent when the accident
causing the plaintiff's harm is a type of accident that ordinarily happens as a
result of the negligence of a class of actors of which the defendant is the
relevant member." By contrast, the Restatement (Second) of Torts, § 328D(1)
(Am. Law Inst. 1965) requires a plaintiff to prove that his or her conduct did
not contribute to the accident, stating that the doctrine applies if "(a) the event
is of a kind which ordinarily does not occur in the absence of negligence; (b)
other responsible causes, including the conduct of the plaintiff and third
persons, are sufficiently eliminated by the evidence; and (c) the indicated
negligence is within the scope of the defendant's duty to the plaintiff."
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 The Third Restatement compares two factual scenarios to make this

point. In the first, the plaintiff's negligence offers no explanation, and the

Third Restatement suggests there should be no bar to using the doctrine.

[C]onsider the motorist who parks a car at the top of
an incline; a minute later, the car rolls down the
incline and runs into a pedestrian, who at the time is
carelessly not paying attention. . . . [T]he plaintiff's
carelessness – even though it has contributed to the
accident – in no way diminishes the res ipsa loquitur
idea that the car probably rolled because of the
motorist's negligence. Hence res ipsa applies, despite
the plaintiff's contribution.

[Ibid.]

In the second scenario, the Third Restatement suggests that a plaintiff's act of

negligence should bar the use of the doctrine.

By contrast, consider the case in which a hotel guest,
while taking a shower, is scalded by extremely hot
water. In such a case, the plaintiff, in order to
establish that the scalding probably happened because
of the negligence of the hotel, needs to prove that
nothing in the plaintiff's own conduct explains how
the incident occurred. In cases fitting this pattern – in
which plaintiff contribution as an explanation for what
went wrong is an alternative to defendant negligence –
there is merit in the plaintiff-contribution doctrine,
and the doctrine should be applied without regard to
the jurisdiction's acceptance of comparative
responsibility. In this type of case, excluding plaintiff
contribution is merely a specific aspect of establishing
that defendant's negligence is the most probable cause
of the accident.

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 [Ibid.]4

We acknowledge that even under the Third Restatement's nuanced

approach, the third prong must be tailored to fit only cases in which a

"plaintiff's conduct is in fact an alternative to defendant negligence as an

explanation for what went wrong." Id. § 17 cmt. h, note.

However, as recently as its decision in McDaid, our Supreme Court has

included the third prong without amendment as a precondition for inferring

negligence. 234 N.J. at 143. Although the Court incorporated the third prong

of the res ipsa loquitur standard long before the 1973 adoption of the

Comparative Negligence Act, see, e.g., Bornstein ex rel. Bornstein v. Metro.

Bottling Co., 26 N.J. 263, 269 (1958), it has survived without a hint of

uncertainty in the years following, see, e.g., Jerista v. Murray, 185 N.J. 175,

4
The Third Restatement based the scalded hotel-guest example on Malvicini
v. Stratfield Motor Hotel, Inc., 538 A.2d 690 (Conn. 1988). See Third
Restatement, § 17 cmt. h, note. Malvicini affirmed the trial court's refusal to
instruct the jury on res ipsa loquitur. However, the court relied not on the third
prong, which defendant did not contest, but on the second, holding that the
plaintiff could not demonstrate the defendant's exclusive control. Malvicini,
538 A.2d at 693. The court stated that the second prong was intended "to
exclude the possibility of an intervening act of the plaintiff or a third party
which causes or contributes to . . . the accident." Ibid. We take no position on
whether a scalded New Jersey hotel guest would be barred from a res-ipsa-
based claim, particularly since New Jersey regulations set maximum water
temperatures to protect guests against their own carelessness in regulating hot
and cold water. See N.J.S.A. 5:10-15.3.

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192 (2005); Szalontai v. Yazbo's Sports Café, 183 N.J. 386, 401 (2005);

Brown v. Racquet Club, 95 N.J. 280, 288 (1984); Buckelew v. Grossbard, 87

N.J. 512, 525 (1981). 5

Judges on an intermediate appellate court are not bystanders in the

development of the common law. "As judges in a system rooted in the

common law, we have an independent obligation, where circumstances

require, to fill lacunae in the law . . . ." A.N. ex rel. S.N. v. S.M. ex rel. S.M.,

333 N.J. Super. 566, 579–80 (App. Div. 2000) (Kestin, J., concurring).

However, plaintiff does not ask us to fill a gap in the law; she asks us to

change the law the Supreme Court has established. That, we may not do.

State v. Steffanelli, 133 N.J. Super. 512, 514 (App. Div. 1975). It is not our

role "to alter a rule solidly supported by the courts of last resort," Orlik v. De

Almeida, 45 N.J. Super. 403, 409 (App. Div. 1957), or "to engraft . . . an

exception that was not expressed" in the Court's own statement of a rule, State

v. Rodriguez, 459 N.J. Super. 13, 25 (App. Div. 2019). Absent "significant

5
By contrast, the Court has acknowledged the view that the exclusive control
requirement should be modified to require a plaintiff to show that "the
apparent cause of the accident [is] such that the defendant would be
responsible for any negligence connected with it." Brown, 95 N.J. at 290
(quoting Bornstein, 26 N.J. at 276 (Francis, J., concurring) (quoting Prosser on
Torts 205, 206 (2d ed. 1955))).

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precedent to suggest that the Court" is prepared to alter a settled rule of law,

we shall not do so in its place. See State v. Colon, 374 N.J. Super. 199, 216

(App. Div. 2005).

IV.

We briefly address plaintiff's argument that it met the second prong as it

relates to Conifer. A landlord may not delegate its duty to exercise reasonable

care for its tenants' safety, even if it "contracts for maintenance of an elevator."

Rosenberg, 366 N.J. Super. at 303. Furthermore, "a group approach to res ipsa

loquitur is supportable" in cases where "two parties . . . share responsibility for

a dangerous activity." Third Restatement at § 17 cmt. f. In particular, if one

party owns and controls a building, and a second party sold and exclusively

services the elevator in that building, "res ipsa loquitur warrants findings of

negligence on the part of both parties" if the elevator malfunctions. Ibid.

However, plaintiff raised the point not just in her reply brief, but in a

footnote. That is improper. See State v. Mays, 321 N.J. Super. 619, 636 (App.

Div. 1999). Plaintiff was not entitled to rely on Conifer's silence on the

subject in its opposition brief, when plaintiff failed to mention it in her initial

brief. Nor was Conifer obliged to address the issue in its sur-reply, given

plaintiff's improper presentation of the claim in the reply brief. Under these

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circumstances, it would be unfair to reach the issue of whether plaintiff met

the exclusive control prong as to Conifer.

Affirmed.

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