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Knight v. Essex Plaza5/23/2005
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
APPROVED FOR PUBLICATION
Argued January 4, 2005
Before Judges Wecker and S. L. Reisner.
Telephonically Reargued April 6, 2005
Decided Before Judges Coburn, Wecker and S.L. Reisner.
This case requires that we consider the relationship between two doctrines: the doctrine of res ipsa loquitur, and the common knowledge doctrine. Res ipsa loquitur permits a plaintiff to satisfy the burden of presenting a prima facie case by allowing an inference of negligence against a defendant in certain circumstances without direct evidence of negligence. The common knowledge doctrine permits a plaintiff to meet the burden of presenting a prima facie case of negligence without an expert, in certain circumstances. Here, the motion judge rejected the applicability of res ipsa and dismissed plaintiff's complaint for lack of an expert. Plaintiff appeals from the summary judgment dismissing her negligence complaint against Essex Plaza, her landlord, and MacKenzie Automatic Doors, Inc., a maintenance company that repaired automatic doors in the senior citizens' apartment building where she lived. We now affirm.
Plaintiff claimed that on May 15, 2001, after the automatic doors at the front entrance of the building opened for her to enter, one door began to close prematurely and hit her, causing her to slip and fall and sustain significant injuries. From the sparse record before us, we note that plaintiff claimed in her deposition testimony that the door had malfunctioned before the day of the accident, but she did not remember how often, and she never complained to the management of Essex Plaza about it. We also note that MacKenzie had no ongoing contract for door maintenance at Essex Plaza, but only responded to calls for service. Before plaintiff's accident on May 15, 2001, MacKenzie had last performed maintenance on the door on March 31, 2001.
There is no direct evidence that MacKenzie failed to properly repair the door on that occasion or any other.
In support of its summary judgment motion, the attorney for Essex Plaza argued: "I don't think there's any dispute that - that the door closed on her." Each defendant addressed the question whether plaintiff needed an expert in order to reach a jury. Essex Plaza's attorney maintained that plaintiff was required to establish a "specific malfunction . . . before we get to an expert opining as to whether there was negligence," adding that "even if there is an expert that doesn't necessarily get over the res ipsa argument." MacKenzie's counsel argued that "operations of the automatic door are very technical, and can really only be proved through an expert opinion." Counsel also argued that "this case does not fall under the three criteria for res ipsa, and [plaintiff has] put forth no affirmative evidence to exclude other probable causes of why this door allegedly malfunctioned."
The motion judge granted defendants' motion for summary judgment on the ground that plaintiff had failed to provide an expert report:
All right, folks, I am going to grant summary judgment to both parties, both Essex Plaza and Mackenzie's Doors. There's been no notice of a defect at all. The last time the doors were serviced was three months prior to the accident, the doors were working fine. They put in new roller guides on the bottom of the door. Even as the testimony of the plaintiff alone, everything she described to in her like 30, 40 page deposition is of a properly operating door. Either she wasn't paying attention probably or the door was closing, but when she interfered with the beam of light it
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