Pannucci v. Edgewood Park Senior Hous. Phase 1, LLC

• Decision Date: 30 November 2020
• Docket Number: DOCKET NO. A-4735-17T3
• Parties: Kathleen PANNUCCI, Plaintiff-Appellant, v. EDGEWOOD PARK SENIOR HOUSING – PHASE 1, LLC; Conifer Realty, LLC; Conifer Village at Middletown 1 and Thyssenkrupp Elevator Corporation, Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

465 N.J.Super. 403

243 A.3d 948

Kathleen PANNUCCI, Plaintiff-Appellant,

v.EDGEWOOD PARK SENIOR HOUSING – PHASE 1, LLC; Conifer Realty, LLC; Conifer Village at Middletown 1 and Thyssenkrupp Elevator Corporation, Defendants-Respondents.

DOCKET NO. A-4735-17T3

Superior Court of New Jersey, Appellate Division.

Argued October 29, 2019

Decided November 30, 2020

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

Walter F. Kawalec, III, Mount Laurel, 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, Mount Laurel, and Walter F. Kawalec, III, on the briefs).

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

Before Judges Ostrer, Vernoia and Susswein.

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, 189 A.3d 321 (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, 189 A.3d 321.

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, 666 A.2d 146 (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, 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.

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 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, 189 A.3d 321. 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, 189 A.3d 321.

The woman had previously complained that the doors closed too fast. Id. at 136–37, 189 A.3d 321. 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, 189 A.3d 321. 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, 189 A.3d 321. However, the Court expressly limited its holding to the first prong of the res ipsa loquitur test. Id. at 143, 189 A.3d 321.

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 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, 300 A.2d 142 (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, 262 A.2d 868 (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, 300 A.2d 142 (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, 998 A.2d 517 (App. Div. 2010) (choosing to address an issue in a reply brief "given the importance of the issue"); Borough of Keyport v. Maropakis, 332 N.J. Super. 210, 216, 753 A.2d 154 (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, 9 A.3d 882 (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, 708 A.2d 401 (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, 658 A.2d 1230 (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...