Anyone that has ever attended an American sporting event has witnessed the inevitable battle between drunk fans and gravity. These fans often struggle to stay upright walking on a flat surface. Put them on an escalator, though, and all bets are off.
Yet what happens when an escalator or an elevator malfunctions and causes a legitimate injury to a fan or customer who was simply going about his or her business as usual? According to Consumer Watch, U.S. elevators make 18 billion passenger trips per year. Those trips result in only about 30 deaths per year, but nearly 20,000 people are injured by elevators and escalators annually according to data provided by the U.S. Bureau of Labor Statistics and the Consumer Product Safety Commission. Elevators cause almost 90 percent of those injuries.
So what do you do if you are hurt by an escalator or elevator? More often than not, the answer is found in a civil lawsuit for personal injuries. These lawsuits are costly endeavors for plaintiffs’ lawyers because escalators and elevators involve some fairly complex machinery and engineering. To litigate such a case, the attorney has to hire an expert to help prove that the property owner and/or the maintenance company was negligent. And trust me, these experts do not come cheap.
However, a recent ruling by the New Jersey Superior Court Appellate Division just eliminated the needs for experts, thereby drastically decreasing the cost of litigating an elevator or escalator injury case for plaintiffs.
In Lazarus v. Port Authority of New York and New Jersey, Appellate Court Judges Hayden and Sumners decided that a plaintiff could survive summary judgment in an elevator injury case without an expert. (Docket No. A-0519-13T3).
The case arose out of an accident at the Pavonia-Newport PATH station. The Plaintiff, Wendy Lazarus, was stepping into an elevator when it suddenly rose several inches and caused her to fall. Ms. Lazarus fractured her patella in the fall. She subsequently sued the Port Authority and Schindler Elevator Corporation.
After discovery ended, the defendants filed a Motion for Summary Judgment contending that plaintiff’s expert’s report should be stricken as a net opinion and that the doctrine of res ipsa loquitor did not apply. The trial judge agreed and struck plaintiff’s expert’s report. With no expert, the trial judge determined that summary judgment was appropriate since, “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. Plaintiff naturally appealed.
One of the main issues aside from the need of an expert was whether the doctrine of res ipsa loquitur applied. The doctrine of res ipsa 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., 58 A.3d 1221 (NJ 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.” Id.
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). 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.
As the Appellate court summarized: 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., 293 A.2d 371 (NJ 1972) (holding that res ipsa loquitur could be invoked where the plaintiff was injured by an automatic sliding door); Rosenberg v. Otis Elevator Co., 841 A.2d 99 (App. Div. 2004) (finding that res ipsa loquitur applies where the plaintiffs were injured after an elevator dropped three floors).
It is important to note that res ipsa loquitur is not a theory of liability. 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. It essentially allows a plaintiff to automatically survive summary judgment. Additionally, res ipsa shifts the burden to the defendant to explain why the instrumentality malfunctioned rather than force the plaintiff to eliminate all possible other causes. The rationale behind this burden-shifting is that the defendant is more knowledgeable about the instrument and has greater access to the evidence.
After examining all of the evidence, including records indicating prior elevator malfunctions at the station at issue, the Court concluded that “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.” Lazarus, 2014 N.J. Super. Unpub. LEXIS 2970 (App.Div. Dec. 29, 2014).
Most importantly, the Court determined that there was no need for plaintiff to use an expert to prove her case.
The Court specifically rejected the 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, the Court found that “plaintiff can rely on the common knowledge and experience of the fact-finder to deduce what happened without an expert’s opinion. . . 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.” Id. at *10-11.
The Appellate Court’s conclusion that an elevator malfunction is within the common knowledge of an average juror is a huge victory for plaintiffs’ attorneys. Although most will still elect to hire an expert, New Jersey has now made it clear that experts are not necessary because the average juror can assess liability based on common usage of elevators and escalators.
Although this victory is sweet for plaintiffs, the Court’s decision places defendants at a huge disadvantage. Think of how many people ride elevators and escalators at arenas and stadiums every weekend. The potential liability is enormous. Now throw in the fact that an injured plaintiff does not need to hire an expert and that he or she can rely on res ipsa. The defense bar is likely reeling.
However, two groups of people should be celebrating — Jets and Giants fans. If they get hurt on an elevator or escalator their path to victory in the courtroom just became a lot easier because their stadium is in New Jersey and not New York. Then again, they are Jets and Giants fans. Getting hurt on an elevator is the least of their problems.