Pannucci v. Edgewood Park Senior Housing- Phase 1, LLC, ___ N.J. Super. ___ (App. Div. 2020). As Judge Ostrer explained in his opinion for the Appellate Division today, the “settled doctrine of res ipsa loquitur,” which means “the thing speaks for itself,” allows a jury “to infer a defendant’s negligence, enabling a plaintiff to make a prima facie case.” To trigger the doctrine, a plaintiff must show that “first, the accident was one that ‘ordinarily bespeaks negligence,’ that is, someone’s negligence more likely than not caused the accident; second, the defendant exclusively controlled the thing that caused the injury; and third, the injury did not result from the plaintiff’s ‘own voluntary act or neglect'” (quoting McDaid v. Aztec W. Condo. Ass’n, 234 N.J. 130, 142-43 (2018), another elevator case).
Plaintiff lived at a senior citizen apartment building owned and managed by defendants. Another defendant serviced the building’s elevator. Plaintiff approached the elevator while walking her dog, which was on a long leash. The dog ran into the elevator four feet ahead of plaintiff. The elevator doors closed on plaintiff as she extended her right arm, which held the leash, into the elevator cab, and plaintiff pushed her left side against the closing left door and managed to “throw herself onto the elevator.” In doing all that, she injured her right arm, left shoulder, left side, back, and neck.
Defendants moved for summary judgment, and plaintiff invoked res ipsa loquitur in response. There was no dispute as to the first prong of the doctrine, since the defendant that serviced the elevator had “exclusive control” over it, and that fact might “bespeak negligence.” But the Law Division held that plaintiff did not prove the third element– her own lack of negligence– since, as Judge Ostrer out it, “[o]ne could reasonably infer that plaintiff negligently caused her own injuries by keeping her dog on such a long leash, and forcibly stopping the elevator doors.”
Plaintiff appealed, and her opening brief argued that McDaid required reversal since it held that res ipsa loquitur “applies to an allegedly malfunctioning elevator door that causes injury to a passenger.” But that case, Judge Ostrer observed, “expressly limited its holding to the first prong of the res ipsa loquitur test.” McDaid did not address the third prong or its validity.
Plaintiff’s reply brief turned out to be a key aspect of tis appeal. There, for the first time, she argued that the Appellate Division should “discard the third prong because it defeats the purpose of the Comparative Negligence Act. And in a footnote in her reply brief, plaintiff stated that she did not address the second prong because [the defendant that managed the building] did not ‘seriously argue’ that defendants lacked exclusive control of the elevator.”
Judge Ostrer noted that since it was improper to raise issues for the first time, on appeal and only in a reply brief, the panel would have been justified in declining to consider the argument that the third prong should be abrogated. But the court chose to consider that argument “because of its public importance.”
Plaintiff cited a number of cases from other jurisdictions that had “found the third prong incompatible with their states’ comparative negligence statutes.” Some of those cases involved “malfunctioning elevators.” A leading treatise agreed with those cases.
Judge Ostrer found those authorities “impressive,” but declined to follow them, for two reasons. “First, plausible grounds for the third prong remain. Second and more importantly, it is not for us to disturb settled precedent absent a signal from the Supreme Court that it would do so.”
The first point was supported by section 17, comment h, of the Restatement (Third) of Torts: Liability for Physical and Emotional Harm. The second point recognized that the Supreme Court, whose decisions bind lower tribunals, had reiterated the third prong as recently as 2018, in McDaid, and that prong, adopted by the Court in 1958, had “survived without uncertainty in the years following,” citing other Supreme Court cases. The Appellate Division, Judge Ostrer said, cannot “change the law the Supreme Court has established,” absent “significant precedent to suggest that the Court is prepared to alter a settled rule of law.” Here, there was none.
The panel then discussed the argument that plaintiff met the second prong as to the defendant property manager but found it “unfair” to reach that argument. That was because plaintiff had raised it “not just in her reply brief, but in a footnote.” Having not addressed the second prong in her main brief, which apparently led the defendant not to discuss it either since plaintiff had not raised it, plaintiff could not rely in her reply brief on defendant’s silence about the second prong.
The Appellate Division had considered plaintiff’s argument for abolition of the third prong, which was not raised either below or in her main brief, though the panel was not obligated to address it. But plaintiff did not get a similar indulgence a second time, regarding the second prong. “Not raised below” and “arguments cannot be made only in a footnote” are real barriers, and appellants cannot assume that appellate courts will always relax those strictures, even though courts sometimes do so. Today’s opinion reinforces that lesson.