Jimenez v. GNOC, Corp.

• Decision Date: 16 January 1996
• Docket Number: D,I-
• Citation: 670 A.2d 24,286 N.J.Super. 533
• Parties: Angelica JIMENEZ, Plaintiff-Appellant, v. GNOC, CORP., t/a Bally's Grand Hotel and Casino, Westinghouse Elevator Corporation; and John Doeefendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 533

286 N.J.Super. 533

670 A.2d 24

Angelica JIMENEZ, Plaintiff-Appellant, v. GNOC, CORP., t/a Bally's Grand Hotel and Casino Westinghouse Elevator Corporation; and John Doe I-X, Defendants-Respondents.

Superior Court of New Jersey Appellate Division.

Argued Nov. 14, 1995.

Decided Jan. 16, 1996.

George Duggan, Newark, for appellant (Mr. Duggan, attorney, of counsel and on the brief).

Thomas J. Alworth, Morristown, for respondents (Shanley & Fisher, attorneys; Mr. Alworth and Joseph M. Cerra, of counsel and on the brief).

Sills, Cummis, Zuckerman, Radin, Tischman, Epstein & Gross, ¹ Newark, submitted a brief for GNOC, Corp., t/a Bally's Grand Hotel and Casino (Alan J. Cohen, of counsel; Mr. Cohen and N. Lynne Hughes on the brief).

Before Judges MICHELS and VILLANUEVA.

The opinion of the court was delivered by

VILLANUEVA, J.A.D.

Plaintiff Angelica Jimenez appeals from a judgment of involuntary dismissal entered at the conclusion of her proofs in this personal injury negligence/product liability action instituted against defendants GNOC, Corp., t/a Bally's Grand Hotel and Casino (Bally's), and Westinghouse Electric Corporation (Westinghouse). We affirm.

On March 28, 1989, plaintiff and her daughter decided to leave Bally's casino floor where they had been gambling and go upstairs to get coffee. Plaintiff boarded upward escalator # 1 behind her daughter and grasped the right handrail. According to plaintiff, after the escalator advanced four or five steps the right handrail stopped, and she was thrown backwards as the steps continued to rise. Plaintiff's body twisted, and she lost her balance and screamed for help. Two men, Henry Dumas and Walter Jenkens, who were standing behind her, caught and supported plaintiff while they rode to the top of the escalator. After receiving minor medical aid from the casino staff for a small cut, plaintiff went home. Thereafter, she experienced intermittent lower back pain.

Jenkens' attention was concentrated on plaintiff after she lost her balance, and he noticed nothing out of the ordinary about the handrail. Dumas, who was behind Jenkens on the escalator, did not notice anything amiss with the right handrail which he, too, used during his ascent. Dumas said he did not hear plaintiff scream or call for help.

The incident was captured by Bally's on a videotape which was viewed by the trial judge and jury. An accident report completed by the responding security personnel states, in part:

Sgt. DiEva and this officer checked the escalator. The handrail on the right side of Escalator # 1 was not working at all. Engineering Shift Superv. John DiDonato responded and the escalator was shut down. S/O Lyons and S/O Miller were posted at different times to re-direct patrons away from that section. Left handrail working properly. Escalator # 2's handrails working properly also.

At trial, plaintiff called Theodore Moss, a licensed New Jersey civil engineer, as an expert in safety engineering. Moss gave his explanation of the videotape to the jury:

She's going up, okay. She's still here on the handrail. Her body turns just like mine did. She comes over it. Her feet kept going up. Oh, she's stumbling backwards, moving backwards because the feet have to come back to where the hand was. Okay.

So, the escalator is moving up and the handrail has definitely stopped. It's stopped before the accident. It stopped as a function of the escalator itself, not as a function of her weight or her doing anything, because it stopped before she did anything. The only thing she's got is her hand and maybe a tiny bit of leaning here, but basically that's all she's doing, right. She's not balancing herself on the handrail, but when it stopped, it stopped before that.

According to Westinghouse's account of the videotape, it shows that

Ms. Jimenez reached down before she boarded the escalator to pick up something on the floor. Then, after boarding the escalator, she turned to face the right handrail, her left foot one stair higher than her right. She then reached over the right side of the escalator in an apparent effort to pick up something else. Ms. Jimenez, who is 5-foot-5 and weighed 235 pounds in March, 1989, was thus positioned so that her waist met the handrail. Her torso was extended over the right side of the escalator so that the handrail bore the entire weight of her upper body. Having placed herself in this precarious position, the tape shows that Ms. Jimenez lost her balance and fell backwards in [sic] the arms of a man riding the escalator behind her.

From our review of the videotape we cannot determine whether the right handrail was stopped before plaintiff started to turn and fall backwards or whether the handrail stopped when plaintiff leaned over it.

Moss testified that the "ultimate cause" of the accident was "that the preventive maintenance wasn't properly done." He opined that, had there been proper preventive maintenance the handrail would not have stopped, nor would escalator # 1 have had three other recent problems involving the handrail. He concluded that the stopping of a handrail in normal operation while the steps continue to rise would not occur if there was due care in the maintenance. Moss could not, however, specifically articulate any mechanical root problems which caused the handrail failure, nor could he describe what type of work would be required to correct this so-called mechanical problem. Moss did not ask plaintiff for her version of the accident, and he did not view the accident scene. His entire expert opinion was based on his experience, the repair record of the escalator, the testimony of the people who worked on the escalator, and the videotape.

At the close of plaintiff's case before a jury, the trial court granted Bally's motion for an involuntary dismissal on the grounds that Bally's duty was only to exercise reasonable care toward its casino guests and plaintiff had demonstrated no negligence or breach of that standard. The trial court also granted Westinghouse's motion to strike the testimony of plaintiff's expert because it constituted a net opinion. As a result, the trial court granted Westinghouse's motion for an involuntary dismissal because he found that without the expert testimony "the Doctrine of Res Ipsa Loquitur does not apply here."

On appeal, plaintiff seeks to reverse the judgment of involuntary dismissal and obtain a new trial, contending that (1) her expert's testimony that negligent preventive maintenance caused the handrail to stop during normal operation did not constitute a net opinion and, therefore, the trial court erred in striking the testimony; (2) the escalator handrail stopped while the steps continued moving, which is an aberration from normal operation of the escalator and, therefore, the doctrine of res ipsa loquitur applied; and (3) the escalator was owned by Bally's which had a non- duty to exercise reasonable care to keep the escalator in safe condition for use by plaintiff and other invited guests.

I. WAS THE OPINION OF PLAINTIFF'S EXPERT A NET OPINION?

Westinghouse argues that Moss's expert testimony was a net opinion because it was not based on established facts and Moss could not specify any negligent acts or omissions on Westinghouse's part and, therefore, it was properly struck from the evidence.

Qualified expert testimony is admissible to assist the jury, N.J.R.E. 702, but there must be a factual and scientific basis for an expert's opinion. Rubanick v. Witco Chemical Corp., 242 N.J.Super. 36, 45, 576 A.2d 4 (App.Div.1990), modified on other grounds, 125 N.J. 421, 593 A.2d 733 (1991). An opinion lacking in foundation is worthless. Stanley Co. of America v. Hercules Powder Co., 16 N.J. 295, 305, 108 A.2d 616 (1954). When an expert's opinion is merely a bare conclusion unsupported by factual evidence, i.e., a "net opinion," it is inadmissible. Buckelew v. Grossbard, 87 N.J. 512, 524, 435 A.2d 1150 (1981); In re Yaccarino, 117 N.J. 175, 196, 564 A.2d 1184 (1989). In essence, the net opinion rule requires an expert witness to give the why and wherefore of his expert opinion, not just a mere conclusion. As the Supreme Court stated, this rule "frequently focuses ... on the failure of the expert to explain a causal connection between the act or incident complained of and the injury or damage allegedly resulting therefrom." Buckelew, supra, 87 N.J. at 524, 435 A.2d 1150. Where, as here, an expert offers an opinion without providing specific underlying reasons for the alleged malfunction, he ceases to be an aid to the trier of fact and becomes nothing more than an additional juror.

While plaintiff's counsel concedes in his brief that "Moss was unable to pinpoint the exact cause of the right handrail stopping," he argues on appeal that Moss's testimony is not a net opinion since Moss concluded that Westinghouse's improper preventative maintenance caused the condition which triggered plaintiff's accident and injuries. Moss could not explain why the preventative maintenance in this case was inadequate. He did not even explain how improper maintenance could lead to a mechanical problem that would cause a handrail to stop. Moss had to concede that he could only "guess" what caused the handrail to stop. In the end, all Moss said was that escalator handrails do not stop unless there has been improper maintenance. Even in offering this bare opinion, Moss did not explain why other general theories of liability as easily identifiable as "improper maintenance," e.g., design or manufacturing defects, were not the alleged root problem.

Without providing any factual foundation, Moss testified that improper maintenance could be inferred because Westinghouse had worked on the escalator three times in the two months preceding the incident. As the trial court noted, this observation was misleading. Westinghouse's work reports indicate the following: two employees each worked eight hours on March 9, 1989 and ...