Wade Clark Mulcahy LLP

<p style="text-align: justify;">The matter <em><a href="https://www.wcmlaw.com/wp-content/uploads/2020/12/Pannucci-Opinion.pdf">Pannucci v. Edgwood Park Senior Housing, et al.</a>,</em> involved an elderly plaintiff who was injured while entering an elevator in her senior living facility. The plaintiff sued the owner of the premises, the owner’s property manager and the elevator maintenance company retained by the property manager.</p>
<p style="text-align: justify;">At issue in the case, was the doctrine of <em>Res Ipsa Loquitur</em> (the thing speaks for itself).  <em>Res Ipsa Loquiter</em> allows a jury to establish a prima facie case of negligence where the traditional elements of liability cannot be proven by a preponderance of the evidence. To employ this doctrine, a plaintiff must show three things: (1) the accident was one that ordinarily bespeaks negligence (that is, someone’s negligence more likely than not caused the accident); (2) defendant had exclusive control of the thing that caused the injury; and (3) the injury did not result from the plaintiff’s own voluntary act or negligence. <em>See McDaid v. Aztec W. Condo. Ass’n</em>, 234 N.J. 130, 142-143 (2018). In <em>Pannucci</em>, the plaintiff’s attorney had asked the court to allow his client to invoke this doctrine despite there being evidence that the plaintiff’s injury was the result of her own voluntary act or neglect.</p>
<p style="text-align: justify;">With respect to the relevant facts of the case, the accident occurred when the plaintiff approached an elevator in her building. While a man was exiting the elevator, the plaintiff’s 20-pound dog ran inside. The elevator doors had already closed when the plaintiff’s right arm, which was holding the leash, extended into the elevator. The door continued to close, causing injuries to the plaintiff.</p>
<p style="text-align: justify;">The undisputed record showed that the plaintiff never had a previous problem with the elevator. Biannual state inspections of the elevator before and after the incident uncovered no operating failures. Neither the building superintendent nor the community manager had noticed any problem with the elevator. The maintenance company serviced the elevator regularly, the most recent of which was four weeks before the accident. The maintenance employee testified that he observed no problems with the elevator doors. However, the plaintiff’s liability expert maintained that the maintenance employee failed to conduct certain tests which resulted in the accident.</p>
<p style="text-align: justify;">The plaintiff appealed the trial court's grant of summary judgment in favor of the defendants. The New Jersey Appellate Division noted that most states had done away with the third prong of the <em>res ipsa loquitur</em> doctrine, but that there was no indication from New Jersey’s Supreme Court that it would also do away with that prong. The court explained that the doctrine should not be available when there was an alternative explanation for the happening of the accident.</p>
<p style="text-align: justify;">Accordingly, this case indicates that allegations of a plaintiff’s comparative fault, may preclude a plaintiff from invoking the <em>res ipsa loquiter</em> doctrine in a matter, as New Jersey continues to require all prongs of the doctrine be met, unlike other states.</p>
<p style="text-align: justify;">Thanks to Mike Noblett for his contribution to this post. If you have any questions or comments, please contact <a href="mailto:chayes@wcmlaw.com">Colleen Hayes</a>.</p>