Rosenberg v. Otis Elevator Co.
| Decision Date | 29 January 2004 |
| Citation | 366 N.J. Super. 292,841 A.2d 99 |
| Parties | Joseph ROSENBERG and Sandra Rosenberg, Plaintiffs-Appellants, v. OTIS ELEVATOR COMPANY, Bellemead Urban Renewal Corporation and Bellemead-Seton Hall Urban Renewal Association, L.P., Defendants-Respondents, and United Technologies/Otis Elevator, Seton Hall University, Bellemead Management Company, Inc., First Bellemead Urban Renewal Corporation, Technical Inspections, Inc., International Fidelity Insurance Company, and Steve Mason, Defendants. Corrado Gigante and Mary Gigante, Per Quod, Plaintiffs-Appellants, v. Otis Elevator Company, Bellemead Urban Renewal Corporation and Bellemead-Seton Hall Urban Renewal Association, L.P., Defendants-Respondents, and United Technologies/Otis Elevator, Seton Hall University, Bellemead Management Company, Inc., First Bellemead Urban Renewal Corporation, Technical Inspections, Inc., International Fidelity Insurance Company, and Steve Mason, Defendants. |
| Court | New Jersey Superior Court |
Robert P. McKevitt, argued the cause for appellants Joseph and Sandra Rosenberg (Rosenberg, Kirby, Cahill & McKevitt, attorneys; Mr. McKevitt, on the brief).
Anthony C. Sartori, West Paterson, argued the cause for appellants Corrado and Mary Gigante.
Michael J. O'Mara, argued the cause for respondent Otis Elevator Company (Crawshaw, Mayfield, Turner, O'Mara, Donnelly & McBride, attorneys; Mr. O'Mara, of counsel; Sharon M. Dostmann, on the brief).
William P. Cunningham, Florham Park, argued the cause for respondents Bellemead Urban Renewal Corporation and Bellemead-Seton Hall Urban Renewal Association, L.P. (Heim & McEnroe, attorneys; Mr. Cunningham, on the brief and joins in the brief of respondent Otis Elevator Company). Before Judges LINTNER, LISA and LANDAU.
LANDAU, J.A.D. (Retired and temporarily assigned on Recall).
Plaintiffs Joseph Rosenberg and his wife, Sondra Rosenberg, and plaintiffs Corrado Gigante and his wife, Mary Gigante, appeal from a summary judgment, rendered to defendants Otis Elevator Company (Otis), Bellemead Urban Renewal Corporation and Bellemead-Seton Hall Urban Renewal Association, L.P. (hereafter referred to in the singular as Bellemead). The judgment dismissed their consolidated complaints asserting tort claims arising out of the alleged precipitous three-story fall of a passenger elevator manufactured and maintained by Otis in a large office building owned and operated by Bellemead.
Upon careful review of the record, we conclude for the reasons stated below that the order granting summary judgment to defendants must be reversed.
The consolidated cases were sent out for trial in Ocean County on August 6, 2002. Prior to arranging for a panel of prospective jurors, the trial judge was advised by defendants' counsel of their intent to move for dismissal of the complaints on the grounds that, without expert testimony, plaintiffs could not establish a prima facie case of negligence based upon res ipsa loquitur. Supporting briefs were handed up by defendants.
Plaintiffs appear to have been surprised by this procedure. Two years earlier, the defendants had each moved for summary judgment on the same theory, namely that defendants' negligence could not be established absent presentation of evidence from an elevator expert. Those motions were denied by the first motion judge, who rendered separate opinions as to Otis and Bellemead. The judge concluded that summary judgment for defendants was not warranted because the three-pronged principle of res ipsa loquitur was applicable, allowing an inference of negligence because: (1) the occurrence of such an elevator fall itself ordinarily bespeaks negligence; (2) the instrumentality was within the defendants' exclusive control and; (3) there was no indication that the injury was attributable to negligence of the plaintiffs.
Those findings were unchallenged and undisturbed until the day of trial when defendants again raised the res ipsa issue. The trial judge elected to revisit the question, and to consider it as though raised upon motions for summary judgment, reasoning that it would be unwise to go through the cumbersome procedure of empaneling a jury and proceeding with the trial, if expert testimony supporting plaintiffs' complaints were to be deemed necessary.
Plaintiffs argued that, relying on the prior rulings as the law of the case, they came to trial understanding that an expert would not be required in order to establish a prima facie case. The trial judge pointed out that the law of the case doctrine was not mandatory, and that it does not provide a precluding effect to an interlocutory order denying summary judgment. Exercising his discretion, he concluded that our then recent decision in Gore v. Otis Elevator Co., 335 N.J.Super. 296, 762 A.2d 292 (App.Div.2000), compelled the conclusion that, because an elevator is a complex instrumentality, plaintiffs could not possibly establish a prima facie case without expert testimony. He ruled:
The facts here are insufficient to create a genuine issue of material fact as to whether the elevator dropping occurred more likely then not as a result of the elevator company's negligence in maintaining the elevator. To serve as the foundation for the application of res ipsa loquitur, expert testimony should provide an explanation in lay terms of the possible ways in which the accident could have occurred that would, more likely then not, point to the defendants' negligence as a substantial contributing cause.
Plaintiffs did not, at that time, request a postponement of trial in order to secure an expert. In the brief supporting Gigante's motion for reconsideration, it was argued:
In the alternative and without prejudice to [its reconsideration argument] ... the interests of justice mandate that [the] Summary Judgment Order in favor of defendants be vacated and that plaintiffs be granted leave to present an expert report and expert testimony at trial.
The motion, and with it the request to present expert opinion, was denied.
The standard for summary judgment expressed in Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 666 A.2d 146 (1995), has been summarized in Pressler, Current N.J. Court Rules, Comment R. 4:46-2 (Gann):
... movant is entitled to judgment, if on the full motion record, the adverse party, who is entitled to have the facts and inferences viewed most favorably to it, has not demonstrated the existence of a dispute whose resolution in his favor will ultimately entitle him to judgment.
The full motion record before the motion judge and this court presents these facts for consideration in a light most favorable to plaintiffs.
Plaintiffs Corrado Gigante and Joseph Rosenberg were returning from lunch to their jobs on the twenty-first floor of One Newark Center. The two entered an automatic elevator manufactured by defendant Otis and maintained by that defendant under an agreement with Bellemead, owner and operator of the building. One of the plaintiffs pushed the twenty-first floor button. A third individual pressed the button for the sixteenth floor. The elevator stopped at the sixth floor where a Bellemead building maintenance worker entered the elevator. The elevator began to ascend again, but commenced to shake at the twelfth floor, and precipitously dropped at least three floors in a freefall until it came to a sudden stop.
The elevator then began to ascend again, and plaintiffs were able to exit on the twenty-first floor. The maintenance worker remained on the elevator, having placed the elevator in "independent service" in order to return it to the first floor without passengers. On its way down, however, the elevator began to "shimmy" and the building maintenance worker was instructed by security to leave it in "parked position" at the fifteenth floor.
Defendant Otis had contracted with Bellemead to provide regular maintenance of the elevator which it manufactured and installed. In pertinent part, the contract provided that Otis among other identified components. In addition, the agreement promised that, "as conditions warrant, we will ... repair or replace ... hoist way and machine room elevator wiring." Otis agreed to have its maintenance supervisor verify that the elevators conform to Otis requirements for maintenance quality and safety, and to periodically conduct field audits of its personnel to maintain high Otis quality standards. By addendum to its printed agreement, Otis contracted to "make necessary tests to determine if all circuits and time settings are properly adjusted, and make adjustments necessary for the system to perform as designed and installed by Otis ..." (Emphasis added in contractual quotes.)
The agreement further provided that Otis would indemnify and hold Bellemead harmless "... for losses due to personal injury or property damage to the extent caused by the negligent acts or omissions of Otis Elevator Company, its employees, agents and subcontractors during performance of the services under this contract, but not to the extent caused by others."
Steve Mason, an Otis maintenance employee, responded to Bellemead's call for assistance with the malfunctioning elevator after the incident. He inspected the elevator and then went to the "machine room" where he discovered a "chattering relay" that was engaging and disengaging at a rapid pace. The relay is an electrical component. He concluded that a circuit board needed to be changed,...
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