Elevator Litigation – Need for an expert

It is well settled law in the State of New Jersey that it is recommended that plaintiffs obtain an expert in order to establish that a complex instrumentality was negligently maintained. See Jimenez v. GNOC Corp. 286 N.J. Super 533 (App. Div. 1996). The need for an expert in complex instrumentality cases stems from New Jersey law that res ipsa loquitur is inapplicable where the injured party fails to exclude other possible causes of injury. See Gore v. Otis Elevator Co., 335 N.J. Super. 296, 302 (App. Div. 2000).

Recently, in Huszar v. Greate Bay Hotel and Casino, 375 N.J. Super 463 (App. Div. 2005), an Appellate Division court held that an elevator is a complex instrumentality and a plaintiff needs to present expert testimony in order to support his claim. InHuszar, the plaintiff’s counsel failed to obtain an elevator expert during the discovery period and relied on the theory of res ipsa loquitur. The Appellate Division affirmed the trial court’s decision to dismiss this matter because plaintiff’s counsel failed to obtain an elevator expert and incorrectly relied on the doctrine of res ipsa loquitur.

The doctrine of res ipsa loquitur is a method of circumstantially proving the existence of negligence. It permits an inference of negligence without direct evidence where three elements are established: (1) the event does not normally happen in the absence of negligence, (2) the instrument of harm was exclusively within the defendant’s control, and (3) there is no indication that the plaintiff caused her own injury. Where applicable, res ipsa loquitur allows a plaintiff to establish a prima facie case and to withstand a motion to dismiss for lack of direct proof of negligence. Res ipsa loquitur does not shift the burden of proof to the defendant, but only the burden of producing evidence. See Knight v. Essex Plaza, 377 N.J. Super. 562 (App. Div. 2005).

The significance of the Huszar case is that simply relying on the theory of res ipsa loquitur may not be enough to support a claim where a piece of machinery is involved. Our firm has successfully argued that in order for a plaintiff to support a claim that involves a piece of machinery, an expert must be retained. Alternatively, defendants should consider filing summary judgment motions in cases where a plaintiff fails to obtain an expert at the conclusion of the discovery period.

Recently, in an elevator negligent maintenance case, FGSB successfully moved for summary judgment where the plaintiff and the co-defendants failed to obtain an elevator expert report setting forth their theory of liability against our insured and simply relied on the doctrine of res ipsa loquitur. FGSB has taken the lead in aggressively defending all elevator cases and moving for summary judgment in cases in which plaintiffs fail to obtain an expert report setting forth their theory of liability and rely only on the doctrine of res ipsa loquitur.