Kenneth Vercammen (732) 572-0500

2053 Woodbridge Ave. Edison, NJ 08817

Ken is a NJ trial attorney who has published 130 articles in national and New Jersey publications on litigation topics. He was awarded the NJ State Bar Municipal Court Practitioner of the Year. He lectures for the Bar and handles litigation matters. He is Past Chair of the ABA Tort & Insurance Committee, GP on Personal Injury and lectured at the ABA Annual Meeting attended by 10,000 attorneys and professionals.

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Wednesday, September 27, 2017

RULE 4:44. Proceedings To Approve Settlements

 RULE 4:44. Proceedings To Approve Settlements 
4:44-1. Venue; Filing 
Actions brought in the Superior Court on behalf of a minor or mentally incapacitated person, instituted without process, for the purpose of obtaining the court's approval of a settlement shall be brought in any county in which the venue might be laid under R. 4:3-2, and in such actions in the Superior Court, the papers shall, unless the court otherwise orders, be filed with the deputy clerk of the Superior Court in the county of venue before the hearing on the application for approval. 
Note: Source-R.R. 4:56A(a)(b); amended July 26, 1984 to be effective September 10, 1984; amended July 13, 1994 to be effective September 1, 1994; amended June 28, 1996 to be effective September 1, 1996; amended July 12, 2002 to be effective September 3, 2002. 
4:44-2. Medical Testimony 
Medical testimony as to the injuries of a minor or mentally incapacitated person given in proceedings to obtain the approval of a settlement shall be that of the attending or consulting physician and may be submitted by affidavit unless the court, for good cause shown, permits the testimony of other medical experts or in its discretion requires the physician's personal appearance. 
Note: Source-R.R. 4:56A(c); amended July 13, 1994 to be effective September 1, 1994; amended July 12, 2002 to be effective September 3, 2002. 
4:44-3. Hearing; Order; Expenses 

All proceedings to enter a judgment to consummate a settlement in matters involving minors and mentally incapacitated persons shall be heard by the court without a jury. The court shall determine whether the settlement is fair and reasonable as to its amount and terms. In the case of a structured settlement providing for deferral of all or part of the proceeds thereof, the court shall also satisfy itself, based on the financial security of the obligor or surety and such other relevant facts as may be adduced, of the reasonable certainty that all future payments will be made as proposed by the settlement. If the court approves the settlement it shall enter an order reciting the action taken and directing the appropriate judgment in accordance with R. 4:48A, whose provisions shall also apply to deferred payments under structured settlements. The court, on the request of the claimant or the claimant's attorney or on its own motion, may approve the expenses incident to the litigation, including attorney's fees. If the fees of the attorney representing the guardian ad litem are to be paid by the defendant, the defendant shall upon the court's request make available to it defendant's complete file in the action. 

Sunday, September 3, 2017

Experts Not mandatory in NJ Elevator/Escalator Injury WENDY LAZARUS v. PORT AUTHORITY OF NEW YORK & NEW JERSEz

Experts Not mandatory  in NJ Elevator/Escalator Injury WENDY LAZARUS v. PORT AUTHORITY OF NEW YORK & NEW JERSE

December 29, 2014
Before Judges Hayden and Sumners.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-5670-11.


Plaintiff Wendy Lazarus appeals from the August 9, 2013 Law Division order granting summary judgment to defendants Port Authority of New York and New Jersey (Port Authority) and Schindler Elevator Corporation (Schindler), and dismissing plaintiff's personal injury complaint. On appeal, plaintiff contends that she did not need an expert witness as she had demonstrated a prima facie case of negligence under the doctrine of res ipsa loquitur. After reviewing the facts and applicable legal principles, we reverse and remand for further proceedings.
Viewed in the light favorable to the non-moving party, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), the facts reveal that on December 29, 2010, plaintiff was on her way to work when she entered an elevator at the Pavonia-Newport PATH train station. At the time the elevator doors were open, the floor appeared level with the platform, and no one was in the elevator. As she put her leg into the open elevator, the elevator abruptly rose three to four inches above the platform level, causing plaintiff to fall forward onto her hands and knees. The doors closed immediately. Plaintiff reported the incident to a security worker at the station and later that afternoon made a formal report. Plaintiff went to a hospital after work due to knee pain, where she learned that she had a fractured patella.
On November 2, 2011, plaintiff filed a civil complaint against the defendants, alleging that the Port Authority was liable as the owner and operator of the facility and that Schindler was liable as the maintenance company for negligently maintaining the elevator. Defendants' maintenance records show that prior to the event, the elevator in question had recurring problems. Specifically, in the month before her accident, on November 30 and December 6, 2010, repair technicians addressed issues with the elevator. Plaintiff also argued that about twelve hours prior to her accident, technicians were called to "troubleshoot [the] controller and valve" on the elevator in response to a reported problem. The technician returned the elevator to service less than an hour before plaintiff entered it.
After discovery ended, defendants filed a motion for summary judgment dismissing the case contending that plaintiff's expert's report should be stricken as a net opinion, and that the doctrine of res ipsa loquitur did not apply in the case. After hearing oral argument, the trial judge granted defendants' motion. The trial judge first struck plaintiff's expert's report as a net opinion. The trial court then concluded that, without an expert opinion establishing negligence, summary judgment was appropriate because "the common knowledge of lay jurors is incapable of assessing negligence of both defendants" and thus, "there [was] no basis for a reasonable jury to find in favor of the plaintiff[.]"
The trial court also found that plaintiff could not proceed under a theory of res ipsa loquitur since an expert's testimony was still required to determine whether defendants were negligent in maintaining and operating the elevator. The trial court reasoned that the mechanics of how elevators work was a complex issue that jurors could not understand without the assistance of expert testimony. This appeal followed.
On appeal, plaintiff's sole contention is that the trial court erred in granting summary judgment as expert testimony was not required for plaintiff to proceed under a theory of res ipsa loquitur.1 We agree.
We review a trial court's decision to grant or deny summary judgment de novo, Heyert v. Taddese, 431 N.J. Super. 388, 411 (App. Div. 2013), utilizing "'the same standard [of review] that governs the trial court.'" Mem'l Props., LLC v. Zurich Am. Ins. Co., 210 N.J. 512, 524 (2012) (quoting Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010)). Because our review is de novo, we "accord no deference to the trial judge's conclusions on issues of law." Depolink Court Reporting & Litig. Servs. v. Rochman, 430 N.J. Super. 325, 333 (App. Div. 2013). Thus, the evidence must be viewed "in the light most favorable to the non-moving party" and must be analyzed to determine "whether the moving party was entitled to judgment as a matter of law." Mem'l Props., supra, 210 N.J. at 524 (citing Brill, supra, 142 N.J. at 523); see also R. 4:46-2(c).
The doctrine of res ipsa loquitur arose from public policy concerns in order to allow "a blameless injured plaintiff to obtain an inference of negligence where certain required factors are present." Mayer v. Once Upon A Rose, Inc., 429 N.J. Super. 365, 374 (App. Div. 2013). The doctrine creates a permissive inference, which may be accepted or rejected by a jury, that "if due care had been exercised by the person having control of the instrumentality causing the injury, the mishap would not have occurred." Ibid. (citations omitted).
Res ipsa loquitur "permits an inference of defendant's negligence where (a) the occurrence itself ordinarily bespeaks negligence; (b) the instrumentality was within defendant's exclusive control; and (c) there is no indication in the circumstances that the injury was the result of the plaintiff's voluntary act or neglect." Jerista v. Murray, 185 N.J. 175, 192 (2005) (internal citations and quotation marks omitted). While the doctrine does not shift the burden of proof, the presentation of a prima facie case based on res ipsa generally assures that a plaintiff "will survive summary judgment." Id. at 193.
"Whether an occurrence 'ordinarily bespeaks negligence' depends on the balancing of probabilities being in favor of negligence." Buckelew v. Grossbard, 87 N.J. 512, 526 (1981). It follows that a plaintiff has demonstrated the doctrine of res ipsa loquitur "if it is more probable than not that the defendant has been negligent." Myrlak v. Port Auth. of N.Y. & N.J., 157 N.J. 84, 95 (1999) (citing Buckelew, supra, 87 N.J. at 526).
New Jersey courts have consistently recognized the doctrine of res ipsa loquitur in cases involving malfunctioning complex instrumentalities such as escalators, elevators, and automatic sliding doors. See, e.g., Rose v. Port of N.Y. Auth., 61 N.J. 129, 136-37 (1972) (holding that res ipsa loquitur could be invoked where the plaintiff was injured by an automatic sliding door); Rosenberg v. Otis Elevator Co., 366 N.J. Super. 292, 298, 300-03 (App. Div. 2004) (finding that res ipsa loquitur applies where the plaintiffs were injured after an elevator dropped three floors); Pisano v. S. Klein on the Square, 78 N.J. Super. 375, 379, 395-97 (App. Div.), certif. denied, 40 N.J. 220 (1963) (holding that res ipsa loquitur could be used to show negligence with respect to the defendant's escalators).
It is important to note that res ipsa loquitur "is not a theory of liability[.]" Myrlak, supra, 157 N.J. at 95. Rather, it is a method by which plaintiffs can circumstantially prove the existence of negligence by permitting the fact-finder to infer that the defendants were negligent or failed to act with due care. See Rosenberg, supra, 366 N.J. Super. at 301 (internal citations omitted). "Where applicable, res ipsa allows a plaintiff to establish a prima facie case and to withstand a motion to dismiss for lack of direct proof of negligence. Res ipsa does not shift the burden of proof to the defendant, but only the burden of producing evidence." Knight v. Essex Plaza, 377 N.J. Super. 562, 569 (App. Div. 2005), overruled on other grounds by Jerista, supra, 185 N.J. at 195 (citing Myrlak, supra, 157 N.J. at 96).
Under the first element of res ipsa loquitur, courts have concentrated primarily on two factors: (1) whether it is more probable than not that the defendant was negligent in causing the accident2 and (2) whether plaintiff must present expert testimony. This first factor focuses on whether the accident is of the type that would not ordinarily occur absent negligence. Buckelew, supra, 87 N.J. at 526. Plaintiffs are not required to explain all of the reasons why an instrument has malfunctioned or to eliminate each of these as the true cause of the malfunction. Rather,
[t]he requirement as it is generally applied is more accurately stated as one that the evidence must afford a rational basis for concluding that the cause of the accident was probably "such that the defendant would be responsible for any negligence connected with it." That does not mean that the possibility of other causes must be altogether eliminated, but only that their likelihood must be so reduced that the greater probability lies at defendant's door.
[Brown v. Racquet Club of Bricktown, 95 N.J. 280, 292 (1984) (internal citations omitted).]
Moreover, instead of requiring the plaintiff to eliminate these other causes, res ipsa shifts the burden to the defendant to explain why the instrumentality malfunctioned. The rationale behind this burden-shifting is that the defendant is more knowledgeable about the instrument and has greater access to the evidence. See Jerista, supra, 185 N.J. at 192; see also Rose, supra, 61 N.J. at 137.
With respect to the second res ipsa element, "[e]xclusive control of the instrumentality by the defendant is . . . the essence of this rule of evidence." Bornstein v. Metro. Bottling Co., Inc., 26 N.J. 263, 271 (1958). This element does not mandate that "a plaintiff exclude all other possible causes of an accident, only that it is more probable than not that defendant's negligence was a proximate cause of the mishap." Luciano, supra, 306 N.J. Super. at 313. In holding that the exclusive control element of the res ipsa doctrine was met when a metal gate in Port Authority building fell on a passerby, we pointed out that
Given the Authority's well-established duty to provide a reasonably safe place for its patrons to do that which is within the scope of the invitation, it was error to require [plaintiff] to establish that prior unknown conduct by a member or members of the public did not cause the gate to fall upon him. To the contrary, the 'duty to maintain safe premises and protect invitees includes an affirmative obligation upon the proprietor to inspect the premises 'to discover their actual condition and any latent defects,' . . . as well as 'possible dangerous conditions of which he does not know.'"
[Id. at 313-14 (citing Brown, supra, 95 N.J. at 290-91).]
Moreover, exclusive control is not limited to a single defendant. See Apuzzio v. J. Fede Trucking, Inc., 355 N.J. Super. 122, 128 (App. Div. 2002). Rather, "an instrumentality causing injury may be in joint control of two defendants in which event the doctrine of res ipsa loquitur will apply against both of said defendants." Id. at 129 (citing Meny v. Carlson, 6 N.J. 82, 94 (1950)).
Having reviewed the evidence and drawn all reasonable inferences in favor of plaintiff, Brill, supra, 142 N.J. at 523, we find that plaintiff has established a prima facie case for negligence through the doctrine of res ipsa loquitur. Here, plaintiff, a business invitee, entered the open and apparently stationary elevator at the PATH station, which abruptly rose several inches, causing plaintiff to fall forward, injuring her knee. Common knowledge suggests that elevators do not usually operate in the manner reported by plaintiff and that such an accident does not normally occur absent negligence. Thus, the trial court erred in finding that plaintiff could not proceed under this theory.
We view the circumstances present here as analogous to those in Rose and Luciano, where res ipsa loquitur was found to be applicable. See Rose, supra, 61 N.J. at 136-37 ("Members of the public passing through automatic doors . . . do so generally without sustaining injury[]" and when such injury does occur, "[i]t strongly suggests a malfunction which in turn suggests neglect."). Our conclusion is further bolstered by the fact that there had been several prior complaints made to defendants regarding the particular elevator that injured plaintiff. Indeed, the last reported problem occurred less than twenty-four hours before plaintiff's accident. Cf. Gore v. Otis Elevator Co., 335 N.J. Super. 296, 302 (App. Div. 2000) (reasoning that res ipsa loquitur did not apply because there was no evidence that defendant had made any repairs or received any complaints about the elevator prior to the accident).
We reject defendants' argument that the cause of the malfunction was so complex or specialized that the fact-finder would be unable to understand it without an expert witness. On the contrary, plaintiff can rely on the common knowledge and experience of the fact-finder to deduce what happened without an expert's opinion. See Jerista, supra, 185 N.J. at 195, 197 (expert testimony not required to establish under res ipsa that the accident was more likely than not the result of defendants' negligence). Consequently, although this case involves a complex instrumentality, scientific or technical knowledge is not essential to the fact-finder understanding what happened and determining whether defendants were negligent. The average person does not need to resort to scientific or technical knowledge to understand that an elevator generally does not abruptly rise off the floor as a patron is entering it and before the doors have closed.
We also reject defendant's argument that plaintiff bears the initial burden of explaining what caused the elevator to malfunction. Such an argument miscomprehends Jerista, which explicitly found that the burden of explaining why an instrumentality malfunctioned is squarely on defendants because of their superior knowledge and access to the relevant information. See Jerista, supra, 185 N.J. at 192; see also Rose, supra, 61 N.J. at 137 (citing Wollerman v. Grand Union Stores, Inc., 47 N.J. 426, 430 (1966) ("The situation being peculiarly in the defendant's hands, it is fair to call upon the defendant to explain, if he wishes to avoid an inference by the trier of the facts that the fault probably was his.")).
We also note that the plaintiff has established that the defendants were in exclusive control of the elevator. The Port Authority owned and operated the PATH station where the accident occurred and contracted with Schindler to inspect, maintain, and repair the elevators at this particular train station. Nothing in the record suggests that the Port Authority relinquished complete control to Schindler, that only Schindler had access to the elevator in question, or that third parties had access to the inner workings of the elevator. Additionally, we note that neither defendant has presented evidence that would suggest that plaintiff or a third party was at fault or contributed to the accident.
In sum, the record viewed in the light most favorable to plaintiff showed that the occurrence here bespeaks negligence, the instrumentality was in the exclusive control of defendants, and plaintiff did not contribute to the accident. Accordingly, we are satisfied that plaintiff may proceed in reliance on the res ipsa loquitur doctrine without expert testimony. Of course, defendants are free to produce evidence that it was not negligent as the res ipsa inference is merely permissive. Jerista, 185 N.J. at 193.
Reversed and remanded. We do not retain jurisdiction.
1 Plaintiff is not appealing the part of the order striking her expert's report.
2 Some cases examine this factor under the first element whereas other cases consider this a factor under the second element of res ipsa loquitur. See Szalontai v. Yazbo's Sports Caf , 183 N.J. 386 (2005) (noting that "[w]hether an occurrence ordinarily bespeaks negligence is based on the probabilities in favor of negligence.") (quoting Myrlak, supra, 157 N.J. at 95). Cf. Luciano v. Port Auth. Trans-Hudson Corp., 306 N.J. Super. 310, 313 (App. Div. 1997)