CORNELIA WRIGHT VS. PREMIER BUSINESS MANAGEMENT(L-6000-13, HUDSON COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-3002-15T3
CORNELIA WRIGHT,
Plaintiff-Appellant,
v.
PREMIER BUSINESS MANAGEMENT,
Defendant-Respondent.
______________________________
Submitted May 16, 2017 – Decided June 9, 2017
Before Judges Fisher and Vernoia.
On appeal from the Superior Court of New
Jersey, Law Division, Hudson County, Docket
No. L-6000-13.
Feintuch, Porwich & Feintuch, attorneys for
appellant (Donald R. Moran, on the brief).
McDermott & McGee, attorneys for respondent
(Joao M. Sapata, on the brief).
PER CURIAM
In this personal injury case, plaintiff Cornelia Wright
appeals from the trial's court order granting defendant Premier
Business Management's motion for summary judgment. Based on our
review of the record in light of the applicable law, we affirm.
I.
The following facts, which we view in the light most
favorable to plaintiff as the non-moving party, Brill v.
Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), are
established in the motion record. In October 2012, plaintiff was
a tenant, living on the fourth floor of a Jersey City apartment
building owned by defendant. On October 28, 2012, Superstorm
Sandy made landfall in New Jersey, causing an electrical power
outage in Jersey City that lasted for days. The apartment
building where plaintiff lived was without electrical power from
October 29, 2012 to November 1, 2012.
The building included two stairwells, which were generally
illuminated by electrical lamps. When the electricity in the
building was not working, the stairwell landings on each floor
were lit by emergency lamps powered by six volt batteries. The
emergency lamps were wired to the building's electrical power,
which charged the batteries. When the electrical power to the
building was lost, the batteries no longer received an
electrical charge and the battery power to the emergency lamps
was limited to six hours.
At about 9:30 p.m. on October 31, 2012, plaintiff walked
down a dark stairwell in the building that was illuminated only
by a small flashlight she carried in her right hand. When
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plaintiff reached the last two steps in the stairwell, she
mistakenly believed she had reached the ground floor, took a
step, and fell. Plaintiff suffered a trimalleolar fracture with
displacement of her right ankle.
Plaintiff filed suit claiming her injuries were the result
of defendant's negligence. The complaint alleged plaintiff's
injuries were caused by "a failure of emergency lighting which
is required by numerous State and [l]ocal [c]odes," and that
defendant "maintained and operated [the building] in so
negligent a manner so as to cause [a] hazardous condition."
Defendant's interrogatories to plaintiff asked her to describe
the manner in which she claimed defendant was negligent and
detail the basis for her contention that defendant maintained or
created the condition she alleged caused her injury. In her
sworn response, plaintiff stated only that defendant "[f]ail[ed]
to abide by State and [l]ocal [b]uilding [c]odes."1
1
Plaintiff's counsel argues defendant was otherwise negligent in
creating a dangerous condition in the stairwells, but
plaintiff's counterstatement of facts in response to the
defendant's summary judgment motion does not include any facts
supporting a claim defendant was negligent. The counterstatement
of facts asserts only that the stairwell was dark when the
accident occurred. In her answers to interrogatories, however,
plaintiff stated only that the alleged dangerous condition was
the result of defendant's failure to abide by State and local
codes. Thus, there was no competent evidence submitted by
plaintiff in accordance with Rule 4:46-2(b) supporting her
(continued)
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Defendant filed a motion for summary judgment arguing the
power outage resulted from an act of God and that plaintiff
failed to provide an expert liability report supporting her
claim that defendant's emergency lighting failed to comply with
State and local codes. The court found the power outage was the
result of an act of God and not defendant's negligence. The
court further found plaintiff's claim that the emergency
lighting system violated applicable building codes required
expert testimony and that, because plaintiff had not provided an
expert report, she was unable to sustain her burden of proving
defendant's negligence. The court entered an order granting
defendant's summary judgment motion. This appeal followed.
II.
We review the grant of summary judgment de novo, applying
the same standard as the trial court. Henry v. N.J. Dep't of
Human Servs., 204 N.J. 320, 330 (2010). We determine whether
the moving party has demonstrated the absence of genuine issues
of material fact, and whether the trial court has correctly
determined that the movant is entitled to judgment as a matter
of law, owing no deference to the trial court's legal
(continued)
argument that defendant negligently created the alleged
dangerous condition in the stairwell by a means other than
failing to abide by the codes.
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conclusions. N.J. Dep't of Envtl. Prot. v. Alloway Twp., 438
N.J. Super. 501, 507 (App. Div.), certif. denied, 222 N.J. 17
(2015).
"To sustain a cause of action for negligence, a plaintiff
must establish four elements: '(1) a duty of care, (2) a breach
of that duty, (3) proximate cause, and (4) actual damages.'"
Townsend v. Pierre, 221 N.J. 36, 51 (2015) (quoting Polzo v.
Cnty of Essex, 196 N.J. 569 (2008)). Here, the court granted
defendant's summary judgment motion finding plaintiff did not
present sufficient evidence to sustain her burden of proving
defendant breached a duty of care. We therefore focus on that
element of plaintiff's negligence claim.
Generally, a "plaintiff is not required to establish the
applicable standard of care" in a negligence case. Davis v.
Brickman Landscaping, 219 N.J. 395, 406 (2014), cert. denied, __
U.S. __, 135 S. Ct. 761, 190 L. Ed. 2d 635 (2014). The plaintiff
need only "show what the defendant did and what the
circumstances were," and the jury is competent to supply the
applicable standard of care by "determin[ing] what precautions a
reasonably prudent [person] in the position of the defendant
would have taken." Sanzari v. Rosenfeld, 34 N.J. 128, 134
(1961); see also Davis, supra, 219 N.J. at 406-07. In such
cases, "a layperson's common knowledge" permits the "jury to
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find that the duty of care has been breached without the aid of
an expert's opinion." Giantonnio v. Taccard, 291 N.J. Super. 31,
43 (App. Div. 1996); see also Davis, supra, 219 N.J. at 407.
Where a jury lacks the competence to supply the applicable
standard of care, the plaintiff must establish "the requisite
standard" and the defendant's deviation from it by "present[ing]
reliable expert testimony on the subject." Davis, supra, 219
N.J. at 407 (quoting Giantonnio, supra, 291 N.J. Super. at 42).
In determining whether expert testimony is required, "a court
properly considers 'whether the matter to be dealt with is so
esoteric that jurors of common judgment and experience cannot
form a valid judgment as to whether the conduct of the
[defendant] was reasonable.'" Ibid. (quoting Butler v. Acme
Mkts., Inc., 89 N.J. 270, 283 (1982)).
On defendant's motion for summary judgment, the court
applied these principles and determined that because plaintiff's
negligence claim was founded on alleged violations of State and
local codes, expert testimony was required. We agree. In Davis,
supra, 219 N.J. at 408-09, our Supreme Court considered whether
there was a need for expert testimony to establish defendant's
duty and alleged breach where plaintiff claimed defendant failed
to inspect fire sprinklers in accordance with applicable fire
codes. The Court observed that "fire codes and standards are
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particularly complex," and determined that familiarity with the
fire code standards was required to "determine the appropriate
standard of care by which to assess [the] defendants' conduct."
Id. at 408-09. The Court concluded that because the standards
embodied in the fire codes were beyond the ken of the average
juror, "identification of the relevant standard and any
departure from that standard requires expert testimony." Id. at
409.
As correctly determined by the motion court, plaintiff's
claim that defendant deviated from a standard of care defined by
State and local codes required expert testimony. See ibid. Based
on the allegations in the complaint and plaintiff's answers to
interrogatories, the codes defined the standard for defendant's
conduct and were the benchmark for the assessment of defendant's
alleged breach of a duty owed to plaintiff. Consistent with the
Court's reasoning in Davis, expert testimony was required to
define the alleged standard and defendant's alleged deviation
from it. Ibid.
We also reject plaintiff's argument that her cause of
action is supported under the doctrine of res ipsa loquitor. The
doctrine permits an inference of negligence establishing a prima
facie case of negligence. Jerista v. Murray, 185 N.J. 175, 192
(2005); Mayer v. Once Upon A Rose, Inc., 429 N.J. Super. 365,
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373 (App. Div. 2013). To invoke the doctrine, a plaintiff must
establish that "(a) the occurrence itself ordinarily bespeaks
negligence; (b) the instrumentality [causing the injury] 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." Szalontai v.
Yazbo's Sports Cafe, 183 N.J. 386, 398 (2005) (quoting Brown v.
Racquet Club of Bricktown, 95 N.J. 280, 288-89 (1984)); Mayer,
supra, 429 N.J. Super. at 373.
The first factor, that the occurrence ordinarily bespeaks
negligence, is dependent on "whether based on common knowledge
the balance of probabilities favors negligence, thus rendering
fair the drawing of a res ipsa inference." Jerista, supra, 185
N.J. at 199. Where "the res ipsa inference falls outside of the
common knowledge of the factfinder and depends on scientific,
technical, or other specialized knowledge . . . expert testimony
[is] required." Ibid.; see Buckelew v. Grossbard, 87 N.J. 512,
528-29 (1981) (requiring expert testimony establishing the
standard of care in medical malpractice case to permit res ipsa
loquitor inference); cf. Mayer, supra, 429 N.J. Super. at 376-77
(finding expert testimony was not required for a res ipsa
loquitor inference because it was within the common knowledge of
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jurors that "too much pressure applied to glass can cause it to
break").
Here, the undisputed facts showed there was an electrical
outage that was beyond defendant's control, and plaintiff's
negligence claim is based on alleged violations of the State and
local codes. In our view, plaintiff did not establish that the
probabilities favored defendant's negligence because, without
expert testimony establishing the standard of care under the
codes, any res ipsa loquitor inference requires a knowledge of
the codes that is outside of the common knowledge of a jury. See
Jerista, supra, 185 N.J. at 199. Thus, the motion court
correctly determined plaintiff was not entitled to a res ipsa
loquitor inference of negligence because without expert
testimony, plaintiff could not establish "that it is more
probable than not that the defendant's negligence was a
proximate cause of the mishap." Brown, supra, 95 at 291-92
(1984); see also Jerista, supra, 185 N.J. at at 192.
The record also supports the court's finding plaintiff was
not entitled to a res ipsa loquitor inference because she failed
to demonstrate the functioning of the emergency lamps was within
defendant's exclusive control, and there was an indication her
injury "was the result of [her] own voluntary act or neglect."
Szalontai, supra, 183 N.J. at 398. The undisputed facts showed
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the building experienced a lengthy power outage caused by an
unprecedented storm, and that the emergency lamp batteries,
which were otherwise recharged by electric power, were not
recharged because of the power outage. Moreover, the record
shows plaintiff's injury was caused, as least in part, by her
own negligence; her mistaken belief she had reached the ground
floor when she took the step that caused her injury.
"Res ipsa loquitor is not a panacea for the . . . doomed
negligence cause of action." Szalontai, supra, 183 N.J. at 400.
A plaintiff is not entitled to prosecute a case under the
doctrine "any time there is an unexplained accident for which a
defendant might plausibly be responsible." Jimenez v. GNOC,
Corp., 286 N.J. Super. 533, 545 (App. Div. 1996), certif.
denied, 145 N.J. 374 (1996). Plaintiff did not establish any of
the essential elements required for application of the doctrine
and, as such, the court correctly rejected plaintiff's reliance
upon it.
Affirmed.
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