MARIA CORTEZ-STARICCO VS. PIER VILLAGE LWAG VS. MAIK COMPANY MARIA CORTEZ-STARICCO VS. GREGORY MAIK A/K/A MAIK COMPANY(L-3412-12 AND L-2831-13, MONMOUTH COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-4319-14T3
MARIA CORTEZ-STARICCO,
Plaintiff-Appellant,
v.
PIER VILLAGE LWAG, and APPLIED
PROPERTY MANAGEMENT CO., INC.,
Defendants-Respondents,
and
AJD CONSTRUCTION CO., INC.,
and TWIN INDUSTRIES a/k/a TWIN
INDUSTRIES, INC.,
Defendants,
and
PIER VILLAGE LWAG, and
APPLIED PROPERTY MANAGEMENT CO., INC.
Defendant/Third-Party Plaintiffs,
v.
MAIK COMPANY,
Third-Party Defendant.
______________________________________
MARIE CORTEZ-STARICCO,
Plaintiff-Appellant,
v.
GREGORY MAIK a/k/a MAIK COMPANY,
Third-Party
Defendant/Respondent.
________________________________________
Submitted October 11, 2016 – Decided May 22, 2017
Before Judges Ostrer, Leone, and Vernoia.
On appeal from Superior Court of New Jersey,
Law Division, Monmouth County, Docket Nos.
L-3412-12 and L-2831-13.
Richard A. Feldman, attorney for appellant.
Smith Mazure Director Wilkins Young &
Yagerman, P.C., attorney for respondents Pier
Village LWAG and Applied Property Management
Co., Inc. (Steven M. Pardalis, on the brief).
Law Office of Michael C. Urciuoli, attorney
for respondent Gregory Maik a/k/a Maik Company
(Richard B. Smith, of counsel and on the
brief).
PER CURIAM
Plaintiff Marie Cortez-Staricco challenges two April 24, 2015
orders granting summary judgment, one in favor of defendants Pier
Village LWAG (PV) and Applied Property Management, Co., Inc.
(Applied), and the other in favor of defendant Gregory Maik a/k/a
Maik Company (Maik). We reverse the orders and remand for trial.
2 A-4319-14T3
I.
We derive the following facts from the parties' statements
of undisputed facts and from evidence submitted by the parties in
connection with the summary judgment motions.1
In 2011, plaintiff was forty-three-years old and renting an
apartment at the Pier Village apartment complex (the Village) in
Long Branch. On the morning of Tuesday, July 26, 2011, plaintiff
was rollerblading between 8:00 a.m. and 8:30 a.m. on a sidewalk
at the Village near the pool. Plaintiff testified the sidewalk
1
The parties impeded judicial review of the summary judgment
motions by failing to follow Rule 4:46-2. The Rule requires the
moving party to file a "statement of each material fact as to
which the movant contends there is no genuine issue," requires the
responding party to "file a responding statement either admitting
or disputing each of the facts in the movant's statement," and
permits the responding party to list additional material facts,
to which the moving party may respond. R. 4:46-2(a), (b); see R.
4:46-5(a). Defendants filed inadequate statements, plaintiff
filed her own statement, and no one admitted or denied the facts
of anyone else's statement.
"Summary judgment requirements, however, are not optional."
Lyons v. Township of Wayne, 185 N.J. 426, 435 (2005). "A party's
failure to comply with the requirements of Rule 4:46-2 can result
in a considerable waste of judicial time and resources when trial
and appellate courts are forced to search for factual issues by
sifting through voluminous and confusing records — work that should
be performed by the parties." Id. at 435-36. Our Supreme Court
expects "parties to comply with the dictates of Rule 4:46-2(b),"
and "will not continue to condone refusal or failure to comply."
Leang v. Jersey City Bd. of Educ., 198 N.J. 557, 568 n.2 (2009).
Although we have been able to garner sufficient facts from the
record for our review despite the parties' failures to follow Rule
4:46-2, those failures are not condoned and should not be repeated.
3 A-4319-14T3
was "completely dry," and there was no mulch or debris in the
area. While rollerblading, the sprinkler system activated with
no warning, and sprayed plaintiff with mulch, water, and other
debris, jamming mulch in the wheels of her rollerblades. Plaintiff
fell and broke her right wrist. She had two surgeries to repair
the damage.
Plaintiff initially sued PV. She amended her complaint to
add Applied, a property management company which supplied on-site
maintenance staff for PV. PV and Applied were principally owned
and operated by the same company, and we consider them part of a
single entity.2
Later, plaintiff separately sued Maik, an outside contractor
hired by Applied to perform maintenance on the sprinkler system
at the Village, as well as at other properties Applied managed.
The two suits were consolidated.3
2
PV and Applied jointly filed a summary judgment motion. They
filed joint briefs and were represented by the same counsel in the
summary judgment proceeding and on appeal. None of the parties
argues PV and Applied should be treated separately.
3
Plaintiff earlier sued Twin Industries, Inc. (Twin), and AJD
Construction Co., Inc. (AJD). Twin was a landscaping/sprinkler
company mistakenly believed to be responsible for the maintenance
of the sprinkler system at the Village. AJD was the commercial
construction company that designed and built the Village.
Plaintiff has voluntarily dismissed her claims against Twin and
AJD.
4 A-4319-14T3
Maik would perform a start-up of the sprinkler system at the
Village every April and a shut-down of the system every October.
Additionally, Maik would come to the Village when Applied's
maintenance supervisor, Leon Brach, called him to make repairs or
perform maintenance on the sprinkler system.
The Village is divided into "Phase I" and "Phase II" areas.
This incident occurred near the pool in the Phase II area. Phase
II is serviced by an underground irrigation sprinkler system,
controlled by a single digital control box in a locked pump room.
Brach and members of his maintenance team had the keys to the pump
room.4
In April 2011, Maik set the control box timer to run the
sprinkler system between midnight and 4:30 a.m. every Monday,
Wednesday, and Friday. Maik testified the timer was never reset
throughout the season. Maik testified that in order for the
sprinkler system to operate on a day outside of its normal
schedule, the system would need to be manually run by someone who
had access to the digital control box. Brach and other members
of the maintenance staff knew how to manually override the timer
so as to run the sprinkler system when necessary.
4
Plaintiff notes that the security guard at the Village also had
a key, but no party alleges that the security guard had any
involvement with the sprinkler system.
5 A-4319-14T3
Brach testified that "[o]nly if we come and test the system,"
or if Maik was repairing the system, would the sprinkler system
be "programmed to go on at any time after four o'clock in the
morning." Anthony Lazardi, a member of Brach's maintenance team,
testified "[s]omeone had to have turned it on, because there is
no other way" for it to have come on at or after 8:00 a.m. Maik
testified "if the system was run, other than Monday, Wednesday and
Friday from midnight to 4:30 in the morning, . . . it would have
to be activated manually."5
Plaintiff presented a report from Ronald L. Saxon, a licensed
professional engineer who offered expert opinions concerning the
possible causes of the accident. Saxon noted "the discovery
presented does not indicate clearly why the sprinkler started up
during the day on July 26th," but added:
What is known is that the sprinkler could have
started because the timer had not been set
properly, e.g. by Mr. Maik when he serviced
the system on [July] the 6th; because the
timer had been re-set by [PV] for unknown
reasons; because Maik had been at the site on
the 26th and manually operating the system;
or because [PV] had been manually operating
the system for diagnostic purposes.
5
Maik said the system also could run if there had been a disruption
in the control valve, but added there was no disruption in the
control value in 2011.
6 A-4319-14T3
PV/Applied filed a motion for summary judgment. Maik filed
a separate motion for summary judgment. At a hearing on April 24,
2015, the trial court ruled it was "constrained to grant the
motions for summary judgment." First, the court found the need
for expert testimony in the case would be "paramount." The court
acknowledged that a jury could "derive these inferences [of
negligence] from the facts." However, the court believed
"ultimately the facts have to be presented to the Jury through an
expert because this type of [complex] system in my view is
something that only an expert can render opinions on as to the
issue of negligence in this case." Second, the court concluded
"plaintiff on this record will [not] be able to show that one
party or the other had exclusive control over" the sprinkler
system. Plaintiff appeals on both issues.
II.
"[W]e review the trial court's grant of summary judgment de
novo under the same standard as the trial court." Templo Fuente
De Vida Corp. v. Nat'l Union Fire Ins. Co., 224 N.J. 189, 199
(2016). "The trial court's conclusions of law and application of
the law to the facts warrant no deference from a reviewing court."
W.J.A. v. D.A., 210 N.J. 229, 238 (2012).
Summary judgment must be granted if "the pleadings,
depositions, answers to interrogatories and admissions on file,
7 A-4319-14T3
together with affidavits, if any, show that there is no genuine
issue of material fact challenged and that the moving party is
entitled to a judgment or order as a matter of law." R. 4:46-
2(c). We must "consider whether the competent evidential materials
presented, when viewed in the light most favorable to the non-
moving party, are sufficient to permit a rational factfinder to
resolve the alleged disputed issue in favor of the non-moving
party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540
(1995). We "must accept as true all evidence which supports the
position of the party defending against the motion and must accord
[that party] the benefit of all legitimate inferences which can
be deduced therefrom." Id. at 535. We must hew to that standard
of review.
III.
Plaintiff argues summary judgment should not have been
granted to defendants because the doctrine of res ipsa loquitur
applied. "When applicable, the doctrine of res ipsa loquitur
enables the plaintiff to make out a prima facie case[,]" and
"ordinarily assures the plaintiff [her] case . . . will survive
summary judgment." Jerista v. Murray, 185 N.J. 175, 191, 193
(2005).
"Res ipsa loquitur, Latin for 'the thing speaks for itself,'"
"allows the factfinder to draw an inference of negligence against
8 A-4319-14T3
the party who was in exclusive control of the object or means that
caused the accident." Id. at 191–92. "Res ipsa loquitur is not
a theory of liability; rather it is an evidentiary rule that
governs the adequacy of evidence in some negligence cases."
Szalontai v. Yazbo's Sports Café, 183 N.J. 386, 400 (2005)
(citation omitted). In order to present a case of res ipsa
loquitur, the proponent must show "(a) the occurrence itself
ordinarily bespeaks negligence; (b) the instrumentality was within
the defendant's exclusive control; and (c) there is no indication
in the circumstances that the injury was the result of the
plaintiff's own voluntary act or neglect." Khan v. Singh, 200
N.J. 82, 91 (2009) (citation omitted).
Here, it is undisputed the injury was not the result of
plaintiff's voluntary act or neglect. However, the trial court
found the other two prerequisites were not met.
A.
"Whether an accident bespeaks negligence 'depends on the
balance of probabilities.'" Jerista, supra, 185 N.J. at 192
(quoting Buckelew v. Grossbard, 87 N.J. 512, 526 (1981)). Thus,
the doctrine is available to a plaintiff "if it is more probable
than not that the defendant has been negligent." Myrlak v. Port
Auth. of N.Y. and N.J., 157 N.J. 84, 95 (1999). "[A] plaintiff
need not exclude all other possible causes of an accident as a
9 A-4319-14T3
condition of entitlement to the doctrine, provided he can show
that it is more probable than not that the defendant's negligence
was a proximate cause of the mishap." Brown v. Racquet Club of
Bricktown, 95 N.J. 280, 291-92 (1984).
The trial court found res ipsa loquitur was inapplicable
because the sprinkler system was a complex piece of machinery
which required expert testimony to detail the workings of the
system. However, our Supreme Court has "disagree[d] with [the]
sweeping suggestion . . . that in almost all complex
instrumentality cases a res ipsa inference will be conditioned on
the production of the expert testimony." Jerista, supra, 185 N.J.
at 197. "The question is not whether the instrumentality at issue
is complex or simple, but whether based on common knowledge the
balance of probabilities favors negligence, thus rendering fair
the drawing of a res ipsa inference." Id. at 199.
Although the inner workings and mechanisms of a sprinkler
system may be outside the ken of the average juror, here it was
undisputed that the Village sprinkler system should not have turned
on between 8:00 a.m. and 8:30 a.m. on a Tuesday. Our Supreme
Court faced an analogous situation in Jerista. There, it was
conceded that while the plaintiff was entering a supermarket, the
automatic door suddenly closed, striking and injuring her. Id.
at 182. The Court considered whether a jury could "infer, based
10 A-4319-14T3
on common knowledge, that automatic doors ordinarily do not
malfunction unless negligently maintained by the store owner or
whether the res ipsa reference is preconditioned on the expert
testimony first explaining the door's mechanics." Id. at 180.
The Court held "[a]n automatic door may be a highly sophisticated
piece of machinery," but "an automatic door that closes onto and
injures a customer entering a supermarket is an occurrence
bespeaking negligence that falls within jurors' common knowledge,"
so "expert testimony is not mandated" and "a res ipsa inference"
is justified. Id. at 197, 200.
Like the supermarket door in Jerista, the sprinkler system
at the Village concededly activated when it was not supposed to.
Based on the defendants' own evidence — the testimony of Maik,
Brach, and Brach's staff — it is undisputed that the sprinkler
system could not have run at the inappropriate time of Tuesday
between 8:00 a.m. and 8:30 a.m. unless the system was manually
overridden by one of the defendants.6
Moreover, Mark Hindenach, another member of Brach's
maintenance staff, testified the sprinklers were "never" run
during the day because there was "so much traffic, so many people"
6
No party claimed at the summary judgment hearing that the
sprinkler system turned on because it malfunctioned or was
defectively manufactured or installed.
11 A-4319-14T3
then and the sprinklers would "interfere with people walking and
whatever." Given that testimony, and the undisputed evidence the
sprinklers should not have been running on a Tuesday between 8:00
a.m. and 8:30 a.m., a jury could find manually running the
sprinkler system at that busy time of day so it sprays tenants
walking, running, or rollerblading through the area "probably does
not" happen without negligence. Id. at 197. "That conclusion can
be reached based on common knowledge without resort to expert
testimony. A jury does not need an expert to tell it what it
already knows." Ibid.7
In any event, plaintiff's expert reached a similar conclusion
in his report. Excluding other possible causes, and discounting
the possibility that the timer had been mis-set or reset, Saxon
concluded either PV/Applied or Maik had manually overridden the
system in a negligent manner contributing to plaintiff's injuries.
Although the trial court stressed Saxon could not say which
defendant was responsible, that does not preclude application of
res ipsa loquitur. See Rose v. Port of N.Y. Auth., 61 N.J. 129,
7
PV/Applied argues an expert was required to establish a standard
of care. Even assuming standard of care testimony is generally
required regarding sprinkler operation, "experts are not needed
to establish professional standards of care where either the
doctrine of res ipsa loquitur or the doctrine of common knowledge
applies." Estate of Chin by Chin v. St. Barnabas Med. Ctr., 312
N.J. Super. 81, 92-93 (App. Div. 1998), aff’d, 160 N.J. 454, 469
(1999).
12 A-4319-14T3
135-37 (1972) (applying res ipsa loquitur to the defendants even
though the plaintiff's expert could not pinpoint the actual reason
the automatic doors closed but instead "'suggest[ed] several
things that might have gone wrong'"); see Jerista, supra, 185 N.J.
at 193-95 (relying on Rose even though Rose's "expert engineering
testimony did not answer the question of why the automatic door
malfunctioned"). "To be sure, [more definitive] expert testimony
in this case might have been helpful, but it was not essential to
plaintiff's case." Mayer v. Once Upon A Rose, Inc., 429 N.J.
Super. 365, 377 (App. Div. 2013).
Regardless, viewing the facts in the light most favorable to
plaintiff, we find the "accident bespeaks negligence." Jerista,
supra, 185 N.J. at 192. "The [res ipsa loquitur] doctrine does
not shift the burden of persuasion to the defendant. Rather, what
is required of defendant is an explanation, not exculpation. It
shifts to the defendant the obligation to explain the causative
circumstances because of defendant's superior knowledge."
Szalontai, supra, 183 N.J. at 400 (quoting Myrlak, supra, 157 N.J.
at 95-96). Here, defendants offered no other explanation as to
why the sprinkler system turned on at the time of the injury other
than one of the defendants turned it on. See Jerista, supra, 185
N.J. at 197 (a defendant "must come forward to rebut the
inference"). Thus, "the circumstances establish 'that it is more
13 A-4319-14T3
probable than not that the defendant's negligence was a proximate
cause of the mishap.'" Id. at 192 (quoting Brown, supra, 95 N.J.
at 287, 291-92).8
B.
Defendants next argue res ipsa loquitur is inapplicable
because plaintiff cannot specify which of the defendants had
exclusive control over the sprinkler system at the time of her
injury. "The doctrine of res ipsa loquitur, however, has been
applied in cases involving multiple defendants." Myrlak, supra,157 N.J. at 100. "[T]he exclusive control requirement has not
been interpreted as limiting application of the doctrine only to
those situations involving a single defendant." Apuzzio v. J.
Fede Trucking, Inc., 355 N.J. Super. 122, 128 (App. Div. 2002)
(allowing plaintiffs struck by a truck's tires to invoke res ipsa
loquitur against both the company which owned the truck and the
company which serviced the tires four days before). "The word
'exclusive' when used to define the nature of the control necessary
to invoke the doctrine of res ipsa loquitur does not connote that
such control must be several and the defendant singular and never
plural." Ibid. (quoting Meny v. Carlson, 6 N.J. 82, 93 (1950)
8
Plaintiff asserts her expert's report cannot be used against her
because she produced the report under the proviso that it was not
an adoptive admission. We find summary judgment was inappropriate
even considering the expert's report.
14 A-4319-14T3
(allowing a plaintiff injured by the collapse of a scaffold to
invoke res ipsa loquitur against both the company which erected
and maintained the scaffold and the company using and maintaining
the scaffold)). "Control might have been in either or both of the
defendants; in either case the doctrine of res ipsa loquitur was
applicable." Ibid. (quoting Meny, supra, 6 N.J. at 93).
Thus, we held a plaintiff pinned by an elevator door could
invoke res ipsa loquitur against both the building owner and the
maintenance company which serviced the elevator earlier that day.
Allendorf v. Kaiserman Enters., 266 N.J. Super. 662, 669-72 (App.
Div. 1993). We ruled the maintenance company's "connection with
the elevator which caused plaintiff's injury was sufficiently
immediate and direct to support a finding that it had 'control'
of that elevator, and thus the trial court correctly concluded
that the doctrine of res ipsa loquitur was applicable." Id. at
671-72; see also Smith v. Claude Neon Lights, Inc., 110 N.J.L.
326, 330-32 (E. & A. 1933) (finding "sufficient evidence of partial
possession and control . . . to warrant the application of the
doctrine of res ipsa loquitur against the Light Company [which
maintained a sign on a building roof], as well as against the
Trust Company" which owned the building).
This case resembles Allendorf, as plaintiff has sued both the
premises owner, PV/Allied, and Maik, who recently maintained the
15 A-4319-14T3
sprinkler system. Moreover, there was sufficient evidence to
allow a jury to find control of the system "might have been in
either or both of the defendants." Meny, supra, 6 N.J. at 93.
PV/Applied does not contest it generally had control over the
system both on and before the day plaintiff was injured. 9 Maik
does not dispute that when he services the system he has control
over it. Finally, plaintiff proffered evidence supporting an
inference that Maik serviced the system on or immediately before
the day of plaintiff's injury.
Plaintiff made clear at the summary judgment hearing her
claim "against Maik is that he was there on July 26 and he was
involved in the activation of the system."10 Although Maik's
9
Indeed, "[a]n owner of a building has a non-delegable duty to
exercise reasonable care for the safety of tenants and persons
using the premises at his invitation. That the owner contracts
for maintenance of [the equipment on the premises] does not relieve
it of that duty[.]" Rosenberg v. Otis Elevator Co., 366 N.J.
Super. 292, 303-05 (App. Div. 2004) (citation omitted) (upholding
application of res ipsa loquitur against both the building owner
and the company which manufactured and maintained an elevator
which dropped suddenly). "Where . . . the defendant's duty of
care with respect to the injuring agency is (as to the plaintiff)
non-delegable, the fact that control may have been in an
independent contractor will not preclude the application of the
[res ipsa loquitur] doctrine." 2 Harper & James, The Law of Torts
§ 19.7 at 1087 (1956); see Prosser & Keeton on Torts 250 (5th ed.
1984).
10
Plaintiff's counsel conceded it would be "pure speculation" to
suggest "Maik did something two weeks earlier or three weeks
earlier to have caused the sprinkler to fire two or three weeks
later."
16 A-4319-14T3
appointment book does not list any work at the Village on July 26,
plaintiff argued Maik's billing system and his bookkeeping
supported a reasonable inference that Maik was at the Village on
July 26. Maik sent an invoice to Applied dated July 28 for repairs
on the sprinkler system near the pool area of Phase II at the
Village. Maik testified he typically bills two to three days
after the work is performed, and never bills beforehand. Thus, a
jury could reasonably infer Maik was at the Village on July 25 or
26, accessed the control panel, and manually overrode the system
while repairing the continuing problems in the pool area, causing
plaintiff's injury. Therefore, "[c]ontrol might have been in
either or both of the defendants; in either case the doctrine of
res ipsa loquitur was applicable." Meny, supra, 6 N.J. at 93.11
Our decision is based on our standard of review and on the
unusual agreement of the witnesses for PV/Applied and Maik that
the sprinkler should not have turned on at the time plaintiff was
11
Thus, we need not address whether Maik's regular, twelve—year,
multi-location relationship with Applied made him its servant.
See Bornstein v. Metro. Bottling Co., 26 N.J. 263, 272 (1958)
(finding res ipsa loquitur can apply if the instrumentality is
"under the management of the defendant or his servants"); see also
Maciag v. Strato Med. Corp., 274 N.J. Super. 447, 461 (App. Div.
1994) (finding res ipsa loquitur can apply if the instrumentality
was under "'[t]he control at one time or another, of . . . [the]
defendant or of his employees or temporary servants'") (citation
omitted).
17 A-4319-14T3
injured, and could only have been turned on manually by one of the
defendants. "Accepting plaintiff['s] version of the [sprinkler]
incident and the causation described by [Maik and PV/Applied's]
employees, summary judgment should not have been granted to
defendants on the record before the court." Rosenberg, supra, 366
N.J. Super. at 305. Whether plaintiff's claims should prevail is
for the jury.12
"Once res ipsa loquitur is established, the case should go
to the jury unless defendant's countervailing proof is so strong
as to admit of no reasonable doubt as to the absence of
negligence." Szalontai, supra, 183 N.J. at 398 (quoting Brown,
supra, 95 N.J. at 288-89). Here, neither PV/Applied nor Maik have
yet offered such strong evidence as to prevent plaintiff's case
from going to a jury.13 Therefore, we reverse the orders granting
12
Maik testified that his last visit to the Village was on July
13, 2011, and that he was not at the Village on July 26. Brach
and the other staff of PV/Applied testified they had not manually
operated the sprinkler system on July 26, and insisted a staff
member would not have done so without a second person near the
sprinklers to observe their operation. While we must "accept as
true all the evidence which supports the position of the party
defending against the motion and must accord [that party] the
benefit of all legitimate inferences which can be deduced
therefrom," Brill, supra, 142 N.J. at 535, the jury will be free
to consider any such contrary testimony at trial.
13
Defendants' remaining arguments lack sufficient merit to warrant
discussion. R. 2:11-3(e)(1)(E).
18 A-4319-14T3
summary judgment and remand for trial. We do not retain
jurisdiction.
Reversed and remanded.
19 A-4319-14T3