KAREN ALLEN VS. FAMILY MEDICAL EQUIPMENT (L-0552-17, CUMBERLAND COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3562-19
KAREN ALLEN and
JAMES ALLEN,
Plaintiffs-Appellants,
v.
FAMILY MEDICAL
EQUIPMENT,
Defendant-Respondent,
and
MEDICAL DEPOT
INCORPORATED,
Defendant.
__________________________
Argued October 4, 2021 – Decided November 10, 2021
Before Judges Sabatino, Rothstadt, and Natali.
On appeal from the Superior Court of New Jersey, Law
Division, Cumberland County, Docket No. L-0552-17.
Matthew Weng argued the cause for appellant (Chance
& McCann, LLC, attorneys; Matthew Weng, on the
briefs).
Dennis M. Marconi argued the cause for respondent
(Barnaba & Marconi, LLP, attorneys; Dennis Marconi,
on the brief).
PER CURIAM
In this personal injury action, plaintiffs Karen and James Allen appeal
from an April 24, 2020 order awarding defendant Family Medical Equipment
summary judgment and dismissing plaintiffs' complaint. The complaint sought
damages for injuries Karen 1 sustained in a fall that occurred as she attempted to
stand up from a raised toilet seat with arm rests, which she used immediately
after defendant's employee delivered and installed at plaintiffs' home.2 In their
complaint, plaintiffs alleged defendant was "negligent in [its] choice, instruction
for use given to plaintiffs, or installation of the raised toilet seat." In opposition
to a summary judgment motion filed by defendant, plaintiffs did not support
1
Plaintiffs are married. We refer to them individually by their first names to
avoid any confusion caused by their common last name.
2
The product was manufactured by defendant Medical Depot. The summary
judgment orders entered in this case also dismissed plaintiffs' defective product
claim against Medical Depot. However, after plaintiffs filed their appeal from
both orders, plaintiffs and Medical Depot filed a Stipulation of Dismissal with
prejudice on December 17, 2020, as to plaintiffs' claims against Medical Depot.
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their claim with any expert opinions or other direct evidence of defendant's
negligence, but instead relied upon the doctrine of res ipsa loquitur.3 The motion
judge disagreed with plaintiffs that the doctrine applied and entered the order
dismissing their complaint.
We affirm, as we conclude from our de novo review of her order, the
motion judge correctly determined res ipsa loquitur did not apply to plaintiffs'
claims, but we reach this conclusion for a slightly different reason.
The material facts viewed in the light most favorable to plaintiffs are not
generally in dispute and are summarized as follows. Prior to her fall, in July
2015, Karen suffered a stroke that led to her hospitalization and admission to a
rehabilitation facility. As a result of her stroke, she was "weak on the left side"
and could not stand up from a seated position without the assistance of her
husband or a cane. As part of her discharge, the rehabilitation facility issued an
order for Karen to have a raised toilet seat installed at her home.
Shortly after her release, Karen returned home and ordered the raised
toilet seat from defendant. The item was delivered to plaintiffs' house on August
5, 2015, by one of defendant's employees, who installed the product in plaintiffs'
3
As discussed in more detail infra, the doctrine permits proof of negligence by
inference under limited circumstances.
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bathroom while they observed his actions. According to Karen, the employee
brought the box containing the raised toilet seat to the bathroom and "screwed
[the toilet seat] down" "against the toilet," which took five minutes to complete.
The employee did not speak to plaintiffs, he never showed plaintiffs how to sit
on the raised toilet seat, and he did not ask either plaintiff to attempt to sit on
the product before he left the house, and plaintiffs did not request that he observe
either of them sitting down and standing up from it before he departed.
The employee did have James sign a delivery ticket, acknowledging
delivery and that plaintiffs' received written instructions about the product's
use.4 The document included an acknowledgment that
[a]ll Manufacturer environmental and safety checks
have been performed per Company Policy prior to
delivery and reviewed with the patient upon delivery
including[:] Safe use of the equipment in your home
setting. All risk of potential harm from use of the above
equipment have been reviewed and safe storage and
maintenance requirements including cleaning and
regular safety checks have been reviewed with me.
Written instructions and Warranty information have
been given to me reinforcing this content.
[(Emphasis added).]
4
The document appears in the record to bear James' signature, but at her
deposition, Karen stated she signed the document.
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Instructions about the product's installation and use were typically located
in the product's box, which the employee left at plaintiffs' home. The
instructions indicated, among other things, that the "[u]ser's weight should be
centered over toilet seat, not too far forward or too far to one side, as unit may
tip." Additionally, the instruction manual included a "CAUTION" section with
the following warnings:
1. Always be sure that the seat is correctly and
securely locked in place before using.
2. Be sure that the adjustment knob in front of the
seat is tight at all times, thus securing the seat to
the toilet bowl.
3. . . . [B]e sure that the unit is correctly installed, fits
properly and is stable before use.
4. On models with arm rests: The arms are for the
purpose of providing assistance when getting on
and off the seat. DO NOT try to use the arms to
support full body weight during transfer, as this
may result in failure of the unit.
[(Emphasis added).]
Although Karen stated she read the signed acknowledgement confirming
receipt of the instructions, she never read any instructions about how to attach
or use the raised toilet seat, and she did not speak with anyone about them.
According to plaintiffs, when the employee left, the raised toilet seat
seemed to be tight on the toilet and sturdy. James confirmed he saw defendant's
employee tightened the knob on the raised toilet seat and then "checked" the
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toilet seat by putting his hands on the handles and "rock[ing] it a little bit " to
"see if it was tight." According to James, the seat "seemed to be" tight after he
witnessed this check by the employee. Plaintiffs did not test the raised toilet
seat before Karen used it for the first time after the employee left. When she
did, she fell off it and sustained injuries.
Karen described how she used the toilet seat as having "[g]rabbed the side
– each of the rails, went to stand up. When I went to stand up, the thing went
off the toilet and I went on the floor with it." She also described the incident as
occurring after she "sat down. When I got ready to get up, the whole thing come
off, and me and that went on the floor." According to Karen, her husband
assisted her when she first sat down, but she did not call him for help when she
was ready to stand up. She noted that when she sat down, she did not feel the
raised toilet seat move, she did not hear anything crack, and, while she was
seated, "[i]t felt sturdy." She also noted the raised toilet seat was still connected
to her buttocks after she had fallen to the floor and hit her left hip and leg. After
she fell, Karen called for her husband, who assisted her and drove her to the
emergency room.
Bart Price is defendant's president. According to Price, defendant is a
"[d]urable medical equipment" company, meaning their products are
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"equipment that is put in the home and hospitals, that type of thing." He
explained that defendant's drivers deliver equipment and ordinarily it is just
dropped off, except for hospital beds and oxygen equipment, which would
routinely be set up by the driver upon delivery. He stated a raised toilet seat is
"not typically" installed by defendant's drivers, and its installation does not
require any special training.
Plaintiffs filed their complaint in 2017. In March 2020, after discovery
was completed, defendant filed its motion for summary judgment. Oral
argument was held on the motion on April 24, 2020. At the conclusion of oral
argument, the motion judge granted defendant's motion and entered the order
dismissing plaintiffs' complaint with prejudice, placing her reasons on the record
that day.
In granting the motion, the judge observed plaintiffs were "attempting to
prove this case on the theory that [Karen] fell and was injured using the product;
therefore, defendant must have been negligent and that is not a basis. It's not
sufficient proof to go forward on a negligence claim." The judge then made
factual findings, primarily based upon plaintiffs' deposition testimony. The
judge noted that neither plaintiff testified about the installation being improper
or that the seat was not sturdy after it was installed.
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The judge then outlined the standard for negligence. Regarding the
elements of duty, she concluded there was no issue as to defendant having a duty
to properly install the seat. As to breach of that duty, she found that plaintiffs
relied only upon the fact that Karen fell, and they did not offer any "criticism of
the observed installation, [and] there's no evidence that the device was not sturdy
and in place properly before plaintiff used it." (Emphasis added).
The judge turned to plaintiffs' res ipsa loquitur argument and held it did
not apply. Relying on the Court's opinion in Buckelew v. Grossbard, 87 N.J.
512 (1981), the judge reviewed the elements of res ipsa loquitur and concluded
as follows:
When I go through those elements of res ipsa, I
find that [plaintiff] has not established that the
inference can be instructed to the jury in this case or
applied to the [c]ourt's consideration of this motion.
The first prong is the occurrence itself bespeaks
negligence. I don't see that the plaintiff has met the
burden of showing that just because plaintiff fell, that
ordinarily must mean that the installation of the product
was negligent or it could be various other reasons for
the plaintiff's fall. For example she was a stroke patient
who was just recently admitted home and could have
had difficulty with resolving her medical condition. I
am cognizant of the fact that I have to give, I have to
consider the facts in the light most favorable to the
plaintiff, but when I consider this prong, I can't find that
just because a plaintiff fell the first time using a raised
toilet seat taking into consideration the manner that she
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described she fell, I can't find that there must have been
some negligence involved in that considering all of the
other facts in this case and it fails for that reason.
But more, I think a stronger argument is prong
two that the [c]ourt would have to find that the toilet
seat was in the defendant's exclusive control. It was not
in the control of this defendant at the time that the
injury occurred. Plaintiff did make argument that, oh,
and some case law was cited, cases that have found
where the product was not in the exclusive control of
the defense at the time and res ipsa was still applied.
The exclusive control prong does not require that a
plaintiff exclude all other possible causes of an accident
but only that it is more probable than not that
defendant's negligence was a proximate cause of the
mishap. That comes from [Luciano v. Port Authority
Trans-Hudson Corp., 306 N.J. Super. 310 (App. Div.
1997)].
The question is whether the facts permit a
reasonable inference that the defendant's control over
the toilet seat was such that it would be responsible for
any negligence connected with it. I understand the
argument to be that because the accident occurred so
quickly after the device was installed that the defendant
should be deemed to still be in exclusive control over
it. I just don't see that that's supported by the case law.
Now, here there's no question that if it was installed by
[defendant's] employee, it was installed and then the
employee left the residence and some period of time
passed and the defendant was clearly not in control.
There's no allegation that the defendant was in control
of the device at the time that the accident occurred.
The third prong also fails I find. The third prong
would require the [c]ourt to find that there is no
indication that the circumstances of the injury -- there's
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no indication in the circumstances that the injury was
the result of the plaintiff's own voluntary act or neglect.
Again, there are facts that this was an individual
who had some medical concerns. She attempted to
conduct from the toilet on her own. I'm not going to
speculate about the cause of her fall. I don't think it
would be appropriate for me to and I won't find that she
fell because she had a medical condition. What the
question is is there enough evidence for the plaintiff to
prove that she fell because of the installation, the
negligent installation of the product and where there are
other reasonable explanations for the fall and in
absence of any testimony directly challenging the
installation of the product the plaintiff could have
contributed to the cause of accident, so the res ipsa
inference fails on that prong.
[(Emphasis added).]
Finally, without any inference of negligence under res ipsa loquitur, the
judge determined "there's inadequate evidence of a breach of duty to properly
install the device and a lack of evidence of causation as well." The judge again
cited to the "equally acceptable and plausible argument that plaintiff fell because
of her medical condition" and the "absence of some testimony as to the cause of
the fall" to find that the causation prong of the negligence standard also was not
met. The judge concluded plaintiff failed to establish a genuine issue of material
fact and granted defendant's motion. This appeal followed.
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On appeal, plaintiffs only argue the motion judge should have denied
summary judgment by applying res ipsa loquitur to the facts she found and
inferring defendant's negligence from those facts. We disagree and affirm,
substantially for the reasons expressed by the motion judge, except for her
conclusions about the application of the "exclusive control" element of res ipsa
loquitur.
We review the disposition of a summary judgment motion de novo,
applying the same standard used by the motion judge. Townsend v. Pierre, 221
N.J. 36, 59 (2015). In our review, we accord no special deference to a motion
judge's assessment of the documentary record, as the decision to grant or
withhold summary judgment does not hinge upon a judge's determinations of
the credibility of testimony rendered in court, but instead amounts to a ruling on
a question of law. See Manalapan Realty, L.P. v. Twp. Comm. of Manalapan,
140 N.J. 366, 378 (1995) (noting that no "special deference" applies to a trial
court's legal determinations).
Like the motion judge, we view "the competent evidential materials
presented . . . in the light most favorable to the non-moving party, [and
determine whether they] are sufficient to permit a rational factfinder to resolve
the alleged disputed issue in favor of the non-moving party." Town of Kearny
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v. Brandt, 214 N.J. 76, 91 (2013) (quoting Brill v. Guardian Life Ins. Co. of
Am., 142 N.J. 520, 540 (1995)); see also R. 4:46-2(c). If "the evidence is so
one-sided that one party must prevail as a matter of law," courts will "not
hesitate to grant summary judgment." Brill, 142 N.J. at 540 (internal quotation
marks omitted) (citation omitted).
While a court must view the evidence in the light most favorable to the
non-movant, "[c]ompetent opposition requires 'competent evidential material'
beyond mere 'speculation' and 'fanciful arguments.'" Cortez v. Gindhart, 435
N.J. Super. 589, 605 (App. Div. 2014) (quoting Hoffman v. Asseenontv.Com,
Inc., 404 N.J. Super. 415, 426 (App. Div. 2009)). A motion for summary
judgment will not be defeated by bare conclusions lacking factual support,
Petersen v. Twp. of Raritan, 418 N.J. Super. 125, 132 (App. Div. 2011), self-
serving statements, Heyert v. Taddese, 431 N.J. Super. 388, 414 (App. Div.
2013), or disputed facts "of an insubstantial nature." Pressler & Verniero,
Current N.J. Court Rules, cmt 2.2 on R. 4:46-2 (2022).
With these guiding principles in mind, we turn to the doctrine of res ipsa
loquitur, which provides an exception to a plaintiff's obligation to prove
negligence. Without resort to the doctrine, "it is ordinarily a plaintiff's burden
to prove negligence, and [negligence] is never presumed." Khan v. Singh, 200
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N.J. 82, 91 (2009) (citation omitted). Negligence is established by proof that a
defendant (1) owed plaintiff a duty of care; (2) breached that duty; (3) the breach
was the cause of plaintiff's damages; and (4) plaintiff suffered actual damages.
Townsend, 221 N.J. at 51 (citation omitted).
The doctrine represents a rule of circumstantial evidence of a defendant's
negligence. Roper v. Blumenfeld, 309 N.J. Super. 219, 230 (App. Div. 1998).
It "permits an inference of [a] defendant's negligence," Buckelew, 87 N.J. at
525, where plaintiff has shown 1) the injury itself "ordinarily bespeaks
negligence," 2) the instrumentality causing the injury was within the defendant's
exclusive control, and 3) there is no indication that the plaintiff contributed to
her own injury. Khan, 200 N.J. at 91; see also Jerista v. Murray, 185 N.J. 175,
192 (2005). And, if established by a plaintiff, while it will not "shift the burden
of proof to the defendant, it ordinarily assures the plaintiff a prima facie case
that will survive summary judgment." Jerista, 185 N.J. at 193 (emphasis
omitted). Where a plaintiff fails to "present evidence to establish all three
factors required for the application of" res ipsa loquitur, she is not entitled to its
application. Saks v. Ng, 383 N.J. Super. 76, 91 (App. Div. 2006).
In applying the doctrine to the facts she found in this case, the motion
judge placed too much emphasis on the element of exclusive control when she
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relied upon the fact that the toilet seat "was installed and then the employee left
the residence and some period of time passed and the defendant was clearly not
in control. There's no allegation that the defendant was in control of the device
at the time that the accident occurred." (Emphasis added). The fact that
defendant was no longer in actual control of the alleged instrumentality of
plaintiff's injury no longer necessarily dictates whether res ipsa loquitur should
be applied.
For that reason, the term "exclusive control" has generated much
confusion. The term was indeed once taken literally to mean the defendant had
to have "exclusive control" of the instrumentality at the time of the alleged
negligent act. See Brown v. Racquet Club of Bricktown, 95 N.J. 280, 290
(1984); Restatement (Third) of Torts: Physical and Emotional Harm § 17 cmt. b
(Am. Law Inst. 2010) (Third Restatement) (noting "the exclusive-control
criterion is often effective in identifying the negligent party," but "frequently
exclusive control functions poorly as such a proxy"). While proof of exclusive
control of the instrumentality can still be used to satisfy the second prong of the
res ipsa loquitur doctrine, the motion judge here mentioned it only in passing,
and did not apply the broader definition of exclusive control that states the
second prong "does not require that a plaintiff exclude all other possible causes
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of an accident," rather it may also be met through a less stringent showing that
"it is more probable than not that defendant's negligence was a proximate cause
of the mishap." Luciano, 306 N.J. Super. at 313 (citing Brown, 95 N.J. at 291-
92).
In order to establish "exclusive control," a plaintiff must produce
"competent evidence that 'reduces the likelihood of other causes so that the
greater probability of fault lies at defendant's door.'" Szalontai v. Yazbo's Sports
Care, 183 N.J. 386, 400 (2005) (quoting Jimenez v. GNOC, Corp., 286 N.J.
Super. 533, 545 (App. Div. 1996)). Without that evidence, a plaintiff cannot
invoke "[r]es ipsa loquitur [as it] is not a panacea for the less -than-diligent
plaintiff or the doomed negligence cause of action." Ibid.Having said that, we conclude from our review, even when applying the
correct standard and viewing the evidence before us in the light most favorable
to plaintiff, there is still nothing in the record to suggest that it was more
probable than not defendant was negligent, or that Karen's injury "ordinarily
bespeaks negligence," or that Karen did not contribute to her own injury. See
Khan, 200 N.J.at 91.
Res ipsa loquitur is ordinarily impressed only "where the injury more
probably than not has resulted from negligence of the defendant." Anderson v.
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Somberg, 67 N.J. 291, 299 (1975). See also Myrlak v. Port Auth. of N.Y. &
N.J., 157 N.J. 84, 95 (1999) (citing Buckelew, 87 N.J. at 526). "Whether an
occurrence 'ordinarily bespeaks negligence' depends on the balance of
probabilities being in favor of negligence." Buckelew, 87 N.J. at 526. "[T]he
doctrine becomes inapplicable when the circumstances have been so completely
elucidated that no inference of defendant's liability can reasonably be made."
Brown, 95 N.J. at 292 (quoting Lustine-Nicholson Motor Co. v. Petzal, 268 F.2d
893, 894 (D.C. Cir. 1959)).
The only facts established by plaintiffs in response to the summary
judgment motion was that defendant installed the seat and Karen fell. There was
nothing to even suggest that the installation was improper or that Karen could
not have fallen but for defendant's negligence. Rather, the facts established
other reasons could have caused Karen to fall to the extent that those reasons
more likely caused her accident as compared to defendant's unidentified
negligence, if any. For example, Karen's disability could have caused the fall.
Because of her mobility issues, Karen recognized the need for her husband to
help her sit down on the seat, but she failed to ask for his help to stand up.
Moreover, the seat's instructions clearly stated how a user should place
themselves on the seat and cautioned against using the armrests to support their
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full weight, yet Karen never read the instructions and she stated that she used
the armrests to push herself up.
Contrary to plaintiffs' contentions on appeal, the facts in this case are not
like those addressed in Jerista where the plaintiff was injured by a store's
automatic closing door over which she had no control. Jerista, 185 N.J. at 200.
So too are they unlike a situation where an injured pedestrian claims negligence
against a driver who drives a new car for the first time and the brakes fail,
causing injury to the pedestrian. Under those circumstances, the injured party
and even the driver could pursue a claim against the automobile's manufacturer
under res ipsa loquitur despite the fact that the driver had exclusive control. See
Third Restatement § 17 cmt. b.
Here, the facts developed on summary judgment did not "bespeak
defendant's negligence" nor did they exclude the possibility that Karen
contributed to her own injury. Therefore, defendant's negligence could only be
established by some evidence that it did something wrong. At a minimum, there
had to be some evidence that defendant did not install the product correctly or
failed to satisfy some other duty.
Affirmed.
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