Opinion
CIVIL NO. 97-5635 (JBS)
Filed: September 28, 1999
Louis J. Galgano, III, Esq., Russo Galgano, White Plains, NY., Attorney for Plaintiff.
Lori A. Andreosky, Esq., Obermayer, Rebmann, Maxwell Hippel, LLP Haddonfield, New Jersey, Attorney for Defendant.
Lisa G. Miller, Esq., Kittredge, Donley, Elson, Fullem Embick, LLP Haddonfield, N.J., Attorney for Third-Party Defendant Millar.
Keith G. Von Glahn, Esq., Eric L. Probst, Esq., Wilson, Elser, Moskowitz, Edelman Dicker LLP, Newark, N.J., Attorneys for Third-Party Defendant Rutigliano.
OPINION
Plaintiffs, Derek and Marie A. Scarane, individually and as parents of Joseph A. Scarane, have brought suit against defendant/third-party plaintiff Adamar of New Jersey, Inc., doing business as Tropicana Casino and Resort ("Tropicana"), in order to recover for injuries allegedly sustained by their infant son, Joseph, at the Tropicana Resort and Casino in Atlantic City, New Jersey. According to the plaintiffs' Complaint, their son was injured while riding on an escalator with his aunt, Maria Rutigliano, at Tropicana on June 1, 1996, and his injury is a result of Tropicana's negligence. Defendant Tropicana implead third party defendant Millar Elevator Service Co. ("Millar") for indemnification. On December 10, 1998, Tropicana moved for summary judgment against plaintiffs and third-party defendant Millar, and plaintiffs cross-moved to amend the complaint. On December 21, 1998, Millar moved for summary judgment against Tropicana on Tropicana's third-party complaint.
In a July 8, 1999 Opinion and Order, this Court denied plaintiffs' cross-motion to amend the complaint but postponed decision on the summary judgment motions. At the time, plaintiffs maintained that they had not submitted an engineering expert's report as to the cause of Joseph Scarane's injury because their proposed expert could not formulate anything but net opinion without first seeing depositions of representatives of Tropicana and Millar. Noting that Judge Rosen had recently granted plaintiffs leave to take depositions of representatives from both companies, this Court ordered plaintiffs to submit their final engineering expert report within fourteen (14) days and granted leave to defendant and third-party defendant to file any opposition within ten (10) days of receipt of the report, at which point this Court would decide whether the expert report is admissible and decide the pending summary judgment motions.
The report and the summary judgment motions are now before this Court. For the reasons stated below, this Court finds that plaintiffs' final engineering expert report is admissible to the extent that it expresses an engineering opinion regarding the cause of the accident, namely, the existence of an improper gap between the moving handrail and the balustrade of the escalator into which the child's fingers most likely were caught and lacerated as the escalator moved. Based on that report, a reasonable jury could find that the infant's injuries were caused by a defective condition of the escalator. Additionally, this Court will grant Tropicana's motion for summary judgment that Millar is liable for the costs of suit against Tropicana, will deny Millar's motion for summary judgment that it is not liable for the costs of suit, and will deny as premature, without prejudice, Millar's motion for summary judgment to the extent to which it argued that Millar does not have to indemnify Tropicana.
Defendant submitted its own expert report, by Joseph Kraft, on August 2, 1999. Plaintiffs argue that this Court should exclude Mr. Kraft's report because this Court did not authorize it and because it was filed out-of-time. Plaintiffs' argument is unavailing. When this Court granted plaintiffs ten days to submit a report, it was anticipated that defendant would seek to rebut that report. Defendant had nothing to rebut before Mr. White's July 21st report was submitted on July 23rd , and thus defendant obviously could not submit its own expert's report within the same ten day time period. Mr. Kraft's report was filed less than two weeks later. It will be considered by this Court and may be used by the defendant at trial.
I. BACKGROUND
The background of this case is set out at length in this Court's July 8, 1999 Opinion, and it need not be repeated here.
III. DISCUSSION
A. Expert's Report of July 21, 1999
Plaintiffs also submitted a supplemental expert's report dated September 11, 1999. The report purports to "clarify and amplify the main conclusions" of Mr. White's report of July 21, 1999, and also to rebut statements made by defense expert Joseph Kraft. The Court has not considered this additional report for the purposes of this Opinion and will not consider it for plaintiffs' affirmative case. This Court originally granted plaintiffs additional time to submit an expert's report, though the report was untimely and though leave to file the report had already been denied by Magistrate Judge Rosen. After the report was submitted on July 23, 1999, this Court on its own initiative scheduled a hearing pertaining to White's opinion under Rule 104, Fed.R.Evid., which was later rescheduled due to plaintiffs' counsel's conflict, and eventually canceled because plaintiff's counsel informed this Court, two days prior to the rescheduled date, that White could not make it. This Court did not, however, request or grant a request for leave to file a supplemental report. Moreover, this Court does not agree that the September 11th supplemental report "clarifies" or "amplifies" conclusions already contained in Mr. White's original report, especially to the extent that it discusses warning signs. The July 21st report devotes no more than half of one sentence to the opinion that "the warning signs regarding children riding escalators are inadequate and that children riding escalators should be more closely monitored or forbidden, depending on their age, to ride escalators." The report did not describe the particular warning signs in question. Indeed, the sentence is written generally, indicating Mr. White's view that children should not be on escalators (not just Tropicana's escalator) because warning signs are, in general, always inadequate. This one line was not enough to put warning signs fairly at issue because Mr. White provided no grounds for this opinion. Therefore, Mr. White's opinion as to the adequacy of warning signs cannot be the basis of an unapproved supplemental report. The September 11, 1999 supplemental report is thus excluded for the purposes of this round of motion practice and in plaintiffs' case-in-chief. This preclusion of White's unsupported opinion about allegedly inadequate warning signs arises in the context of a case in which this Court has already exhibited substantial leeway toward plaintiff's overdue and incomplete expert testimony, as discussed at length in the Opinion and Order of July 8, 1999. At some point, the defendants have the right to be fully informed of plaintiff's expert's proposed opinions on these liability issues by the service of expert reports conforming to Fed.R.Civ.P. 26(a)(2) and the orders of this Court. That point was reached on July 21, 1999, at the latest, and neither plaintiffs' attorneys nor plaintiffs' proposed expert witness can change that by some unilateral submission.
In accordance with this Court's July 8, 1999 Order, plaintiffs submitted a report from proposed engineering expert Lawrence E. White, P.E., dated July 21, 1999, on July 23, 1999. According to the curriculum vitae attached to his report, Mr. White has over forty years of experience as an engineer and now operates a firm of elevator consultants who provide consultations and expert testimony in litigation connected with elevator and escalator accidents. Mr. White states in his report, dated July 21, 1999, that he bases his opinion on his study of numerous documents (including various work order reports, this Court's Opinion and Order, interrogatory answers, and the depositions taken in this case), as well as upon his experience and knowledge and his inspection of the incident escalator on July 19, 1999. (White Report at 1.) Mr. White made various findings concerning Millar's alleged inadequate preventive maintenance (including excessive clearance between the skirt and the tread and broken teeth in the combs) and Tropicana's alleged failure to monitor the escalators (including inadequate record keeping and poor reaction to Joseph Scarane's injury immediately after the accident). As to the actual cause of injury, Mr. White concludes, based upon his reading of the facts of the accident and his inspection of the site of the accident on July 19, 1999 (which he says revealed a 3/4 inch clearance, sufficient to allow entry of his thumb and certainly large enough to allow entry of Joseph Scarane's fingers), that Joseph Scarane's injury on June 1, 1996 was due to the loose fit between the handrail and the balustrade on the right side of the escalator, which should have be noted and corrected before the accident. (Id. at 2.) Mr. White thus expressed his opinion as to the cause of the accident as follows:
There is no doubt in my mind that Joseph's hand was injured after he got on to the escalator and all the evidence indicates that the injury was due to his fingers being caught between the handrail and the balustrade. My conclusion is that the injury to Joseph Scarane on June 1, 1996 was due to the action of the escalator.
(Id. at 1.) Mr. White makes assumptions derived from facts alleged by plaintiffs in this case, namely, that "Joseph was uninjured when he first stepped on to the escalator. He started to cry when he was part of the way down and continued crying. His bloody hand was discovered when he got off the escalator at the lower landing." Id. These facts may be regarded as true for present purposes.
Under the Federal Rules of Evidence, a federal judge must serve as a "gatekeeper" to ensure that "any and all expert testimony or evidence is not only relevant, but also reliable." Kannankeril v. Terminix Internat'l, Inc., 128 F.3d 802, 806 (3d Cir. 1997) (citing Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993)). Rule 702 of the Federal Rules of Evidence, which governs the admissibility of expert testimony, has a liberal policy of admissibility. Kannankeril, 128 F.3d at 806. It reads:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
Under Rule 702, there are primarily three requirements: (1) the proffered witness must be an expert; (2) the expert must testify about matters requiring scientific, technical, or specialized knowledge; and (3) the expert's testimony must assist the trier of fact. Here, Tropicana and Millar have not challenged Mr. White's qualifications. However, they do challenge the second requirement, the purpose of which is to insure the reliability or trustworthiness of the expert's testimony. United States v. Velasquez, 64 F.3d at 844, 849 (3d Cir. 1995). Tropicana and Millar argue that White's testimony is not relevant or reliable because it is based upon a site inspection that took place three years after the event in question. Kannankeril, 128 F.3d at 806.
The Supreme Court has recently re-examined the trial judge's "gatekeeping" function under Daubert when the reliability of the basis for expert opinion testimony is brought into question, in Kumho Tire Co. v. Carmichael, 119 S.Ct. 1167 (1999). Rule 702 "establishes a standard of evidentiary reliability." Id. at 1174. Where the opponent to such proffered testimony brings the factual basis, data, principles, methods, or their application into question, "the trial judge must determine whether the testimony has `a reliable basis in the knowledge and experience of [the relevant] discipline.'" Id. (quoting Daubert, 509 U.S. at 592). The Third Circuit has summarized the nature of this inquiry:
In interpreting this second requirement, we have concluded that "an expert's testimony is admissible so long as the process or technique the expert used in formulating the opinion is reliable." . . . In order for the expert testimony to be "reliable," we have required that the testimony be based on the "methods and procedures of science," rather than on "subjective belief or unsupported speculation." . . . Moreover, Daubert does not set up a test of which opinion has the best foundation, but rather whether any particular opinion is based on valid reasoning and reliable methodology. Admissibility decisions focus on the expert's methods and reasoning; credibility decisions arise after admissibility has been determined. . . .Kannankeril, 128 F.3d at 806-07 (internal citations omitted). The question is whether the expert has good grounds for reaching an opinion.Id.; Velasquez, 64 F.3d at 849.
The Supreme Court and the Third Circuit have identified several factors that a district court should consider when determining whether certain scientific methodology is reliable. Id. at 806-07. These factors include: (1) whether a method consists of a testable hypothesis; (2) whether the method has been subject to peer review; (3) the known or potential rate of error; (4) the existence and maintenance of standards controlling the technique's operation; (5) whether the method is generally accepted; (6) the relationship of the technique to methods which have been established to be reliable; (7) the qualifications of the expert witness testifying based on the methodology; and (8) the non-judicial uses to which the method has been put. Id. at 806-07 n. 6 (citing In re Paoli R.R. Yard Litig., 35 F.3d 717, 742 n. 8 (3d Cir. 1994)). These factors are neither exhaustive nor applicable in every case. Kannankeril, 128 F.3d at 806-07. The Supreme Court has cautioned that these factors are not to be mechanically applied in every such Rule 702 inquiry; rather, the trial judge "must have considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable. That is to say, a trial court should consider the specific factors identified in Daubert where they are reasonable measures of the reliability of expert testimony." Kumho, 119 S.Ct. at 1176.
Tropicana points out, correctly, that many of Mr. White's findings are irrelevant to his ultimate finding that both Millar and Tropicana were negligent (due to Tropicana's absence of monitoring and Millar's inadequate preventative maintenance). For instance, the broken teeth on the comb of the tread and the improper clearance between the tread and the skirt (even assuming that those problems existed three years ago) have nothing to do with the accident in question. Moreover, the poor record keeping may be a good argument for why one should not trust Tropicana's records, but it does not itself evidence improper maintenance or monitoring of the escalator at the time in question. Likewise, evidence regarding Tropicana's lack of assistance to the Scaranes after the accident may speak to damages in some way but is not helpful to a jury in determining if Tropicana was negligent before the accident, and this engineering expert has no specialized knowledge to add to this case regarding post-accident responsiveness. None of this (that is, the record keeping, broken tread teeth, and improper tread clearance) forms a reliable basis for expert testimony as to the potential cause of the accident, and none of it is relevant to the facts of the case at hand.
Likewise, this Court excludes that aspect of Mr. White's July 21, 1999 report which opines that children should not ride escalators. That aspect of his opinion is not supported by any data and is net opinion.
The only true evidence supporting Mr. White's conclusion is his site inspection. Though Mr. White states that he reviewed various depositions and documents, his opinion that Tropicana and Millar were negligent specifically because the handrail was too loose is based only on his reading of the description of the events which took place on June 1, 1996 and his site inspection.
Tropicana and Millar do not question Mr. White's general methodology; that is, they agree that a site visit, measuring the distance between the handrail and the balustrade, combined with a review of the parties' testimony, is an appropriate technique for forming an expert opinion. However, Tropicana and Millar object to that site visit as unreliable because it occurred over three years after the accident in question.
The parties, throughout their briefs, refer to N.J.R.E. 702 and New Jersey cases. As the Federal Rules of Evidence and federal case law apply to the admissibility of expert opinion in federal courts, the New Jersey case law is irrelevant. Consequently, this Court reviews the opinion for reliability under Fed.R.Evid. 702, not to see if it is net opinion under New Jersey law.
Tropicana has not come forward with dispositive evidence that Mr. White's measurement of the 3/4 inch gap three years after the accident is unreliable. The parties could find no record to suggest that the rail had been replaced or repaired at any time in the interim period, so White can reasonably assume that he was viewing the escalator in essentially the same condition as on the day of the accident. No handrail measurements were taken at the time of the accident. It is plaintiffs' duty to demonstrate a reasonable basis to conclude that the railing-to-balustrade clearance on July 21, 1999 accurately reflected the condition on the date of the accident. Although the Court can imagine that the continual running of this machinery over three years' time resulted in the gradual loosening of the continuous handrail, thus undermining the assumption which renders White's opinion relevant, this Court cannot conclude that this is necessarily so. The fact of White's observation of the 3/4 inch gap is itself contested, since defendant's expert witness, Joseph Kraft, inspected the handrail on July 29, 1999 and found no defect that could catch a young child's finger, finding instead a uniform clearance of only 1/8 inch measured at six places. (Kraft Report, August 2, 1999.) This stark discrepancy will be for the jury to decide.
As explained above, Mr. White's opinion of July 21, 1999, to the extent that it links handrail clearance now with handrail clearance over three years ago at the time of the accident, derives from his own observations and expertise in the field of escalator engineering and repair, and it meets the standard for admissibility under Rule 702, Fed.R.Evid.
B. Summary Judgment Standard
Summary judgment is appropriate when the materials of record "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c);see Hersh v. Allen Prods. Co., 789 F.2d 230, 232 (3d Cir. 1986). A dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the non-moving party." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" only if it might affect the outcome of the suit under the applicable rule of law.Id. Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment. Id. In deciding whether there is a disputed issue of material fact the court must view the evidence in favor of the non-moving party by extending any reasonable favorable inference to that party. See Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1080-81 (3d Cir. 1996); Kowalski v. L F Products, 82 F.3d 1283, 1288 (3d Cir. 1996). The threshold inquiry is whether there are "any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Liberty Lobby, 477 U.S. at 250.
C. Tropicana's Motion for Summary Judgment Against Plaintiffs
Plaintiffs have asserted a claim of negligence against Tropicana. Therefore, they must prove that Tropicana acted in a way that fell below the standard of care, that their son was injured, and that Tropicana's negligence was the cause of the injury. Tropicana argues that it is entitled to summary judgment on plaintiffs' claim because plaintiffs have not forth evidence which shows that Tropicana fell below its standard of care by allowing a defective condition to exist. More specifically, Tropicana contends that cannot be liable for falling below the standard of care because it hired Millar to control and maintain the escalator. Moreover, Tropicana contends that there is no direct evidence of defect or that Tropicana was aware of any defect with enough time to fix it and that the doctrine of res ipsa loquitur does not apply here because of the lack of an admissible expert's report.
1. Hiring Millar to Maintain and Control the Escalator
A landlord or building owner, like Tropicana, owes a nondelegable duty to invitees like the plaintiffs' son to exercise reasonable care in caring for their property. Mayer v. Fairlawn Jewish Ctr., 38 N.J. 549, 555 (1962). Tropicana argues that it fulfilled its duty by hiring a competent servicer like Millar, citing Jimenez v. GNOC Corp, 286 N.J. Super. 533, 543-544 (App.Div.), cert. denied, 145 N.J. 374 (1996), in which a woman fell on an escalator inside the Bally's Grand Hotel and Casino, and sued Bally's and Westinghouse Elevator Corporation for her injuries. The Appellate Division upheld the trial court's finding that the plaintiff had not proven that Bally's breached its duty of care. Id. The Appellate Division noted that Bally's had hired "a company, whose competence has never been questioned, to maintain exclusive control of its elevators, and that plaintiff had agreed that there was no evidence of negligence, there was no prima facie negligence case against Bally's. Id. That, however, is different from the proposition that the mere fact that Tropicana hired a competent independent contractor to service the escalator relieves Tropicana of any other responsibility. Though an owner like Tropicana could seek indemnity (through its agreement or by common law indemnification) if the fault belongs to the independent contractor, the landowner's duty to the invitee is non-delegable, and the landlord cannot relieve itself of the responsibility to make certain that the premises are reasonably safe and fit for the uses which it has invited others to make of them by its unilateral act of engaging an independent contractor to discharge the responsibility. Levine v. Boshiaro, 137 N.J.L. 215, 219 (1948). See also De Los Santos v. Saddlehill, Inc., 211 N.J. Super. 253, 262-263 (App. Div. 1986). Therefore, Tropicana would be liable for negligence if a finder of fact found that an action or omission of either Tropicana or Millar caused Joseph Scarane's injury.
The plaintiff in Jimenez was trying to get to the jury on a res ipsa loquitur theory, but plaintiff had no direct claim of negligence. 286 N.J. Super. at 548 .
The question is, then, whether either Tropicana or Millar can be shown to have failed to act reasonably and thus fell below the standard of care. There are two ways that plaintiffs could prove that they did. The first way is by presenting direct evidence of negligence. The second way is through an inference of negligence, available in cases of res ipsa loquitur.
2. Direct Evidence of Negligent Acts
Plaintiffs have come forward with evidence in the form of an expert opinion that the escalator that Joseph Scarane was riding was defective due to an abnormally large gap between the handrail and balustrade. According to the record, no one saw the accident as it occurred. Maria Rutigliano saw Joseph put his hand on the rubber handrail and thereafter stopped looking at him. Plaintiff is entitled to the inference that Joseph moved his hand from the top of the moving rail to its underside. Neither Ms. Rutigliano nor Mrs. Scarane looked at Joseph again until after he had already started crying and had pulled his hand away from the handrail and indicated that he was injured.
Plaintiffs have also presented a statement in the Guest Mishap Report filled out by a Trop employee that one of the surgeons at the Atlantic City Medical Center opined that "the child's fingers became entangled under the rubber hand rail of the escalator, causing the injury. He based this on previous cases of the same nature." (Pls.' Br. Ex. A.) This hearsay, however, does not constitute admissible evidence as to defect. It is inadmissible hearsay and is not considered further in this motion.
Clearly, Tropicana is not a guarantor "of everyone who used its escalators," Jimenez, 286 N.J. Super. at 548, but rather is only responsible for defects of which it was aware or should have been aware.Simpson v. Duffy, 19 N.J. Super. 339 (App.Div.), cert. denied, 10 N.J. 315 (1952). Plaintiffs will have the burden of proving at trial that either Millar or Tropicana was aware, or should have been aware, of the escalator's condition with enough time to do something about it. If the jury credits White's opinion that the defect he identified in 1999 existed at the time of the accident, the jury will also be free to find that this condition existed for a sufficient length of time that Tropicana and Millar should have detected it prior to Joseph's Scarane's accident. Therefore, summary judgment must be denied.
3. Res Ipsa Loquitur Theory
Res ipsa loquitur gives a plaintiff an inference of negligence, such that the plaintiff does not have to prove negligence, if three elements are established:
(1) the accident which produced a person's injury was one which ordinarily does not happen unless someone was negligent, (2) the instrumentality or agent which caused the accident was under the exclusive control of the defendant, and (3) the circumstances indicated that the untoward event was not caused or contributed by any act or neglect on the part of the injured person.Eaton v. Eaton, 119 N.J. 628, 638 (1990), cited in Jimenez v. GNOC Corp, 286 N.J. Super. 533, 543-544 (App.Div.), cert. denied, 145 N.J. 374 (1996). The issue is whether the plaintiffs have presented evidence establishing the three elements such that they do not need direct evidence of negligent acts by Millar or Tropicana in order to hold Tropicana liable. I will take the elements in reverse order.
Plaintiffs have clearly presented evidence establishing the third element, that Joseph Scarane did not cause or contribute to the accident, for the only evidence so far is that Joseph had his hand on the rubber railing of the escalator. Plaintiffs also have presented evidence establishing that Tropicana had exclusive control over the escalator, and thus the second element is met, despite the fact that Tropicana contracted with Millar for servicing.
The second prong of eligibility for res ipsa loquitur is exclusive control. The res ipsa loquitur theory entitles a plaintiff to an inference of negligence because the circumstances are such that it is highly likely that something the defendant did caused the injury; where the defendant lacks exclusive control over the instrumentality, someone else may well be responsible for the injury, and a plaintiff should not benefit from any inference. See Jimenez, 286 N.J. Super. at 548. InJimenez, Bally's had signed an agreement that gave Westinghouse Elevator Corporation exclusive control over the escalator on which the plaintiff was injured. Id. at 547. As a result, Bally's did not have "exclusive control" over the escalator, and the plaintiff was not entitled to an inference that Bally's was negligent.
Jimenez does not control the instant case, however, because, whereas Bally's gave exclusive control to the independent contractor, Tropicana retained exclusive control over the escalator on which Joseph Scarane was injured. Though Tropicana did sign an agreement by which Millar would visit the hotel and casino in order to service the escalators, Tropicana's agreement with Millar clearly states that Tropicana retains control over the escalator: "[i]t is agreed that we do not assume possession or control of any part of the equipment, that such remains yours solely as the owner, lessee, or agent of the owner or lessee, and that you are solely responsible for all requirements imposed by any federal, state, or local law, ordinance or regulation." (Trop's Br. Supp. Summ. J. Ex. A.) This clause is very similar to one in Tait v. Armor Elevator Co., 958 F.2d 563, 570 (3d Cir. 1992), in which the Third Circuit found that the defendant did retain exclusive control despite its servicing agreement with an independent contractor. See id. ("Armor does not assume possession, management, or control of any part of the equipment, but such remains purchaser's exclusively as to owner or lessee thereof.") Therefore, even if this accident was in fact due to Millar's negligence, Tropicana could be held liable under res ipsa loquitur because Tropicana, by legally retaining exclusive, "sole" control over the escalator, opened itself up to liability for any injury on the escalator.
Provided, of course, that the plaintiffs establish the first and third elements.
Of course, as explained earlier and as will be further explained in this Opinion's discussion of indemnification, if Tropicana is held liable under a res ipsa loquitur theory and evidence is established of Millar's negligence, Millar could be liable for indemnifying Tropicana for any damages it is required to pay to plaintiffs.
Therefore, plaintiffs have presented evidence meeting the second and third elements. On its face, this case would seem to be the epitome of a res ipsa loquitur case: nobody saw the accident occur, but Joseph Scarane was fine when he stepped onto the escalator, which was in Tropicana's exclusive control, and his hand was injured when he stepped off. The Court next considers whether plaintiffs have not established the first element: the "ordinarily bespeaks negligence" factor.
This first factor considers whether the "balance of probabilities" weighs "in favor of negligence" by the defendant. Jimenez, 286 N.J. Super. at 543. In Jimenez, the Appellate Division noted that in complex instrumentality cases, such as ones involving injuries on escalators, a plaintiff must present admissible expert testimony that tends to "exclude other possible causes of the injury" id. at 544 (internal citation omitted), for "a plaintiff is not entitled to bring her case to a jury under res ipsa loquitur any time there is an unexplained accident for which a defendant might plausibly be responsible," but rather must produce evidence "that reduces the likelihood of other causes. . . ." Id. at 545. Plaintiffs have presented expert opinion evidence that this sort of injury could not have happened in the absence of negligence because an escalator normally does not cause this sort of injury to a small child's fingers. Although no one saw the child insert his fingers into the gap between railing and balustrade, Mr. White has explained, by measuring the gap itself, how this may have occurred and why the occurrence bespeaks negligence in maintaining this escalator. Accordingly, since there will be material disputes of fact at trial which, if resolved in plaintiff's favor, could reasonably support a finding of res ipsa loquitur liability, Tropicana's motion for summary judgment against plaintiffs must be denied.
D. Whether Millar is Liable to Tropicana for Indemnification and Cost of Suit
Two more motions remain before this Court: Tropicana's motion for summary judgment on its third-party claim against Millar for the costs of suit, and Millar's motion for summary judgment that it is not responsible for either the costs of suit or indemnification for damages for Joseph Scarane's injury. This Court cannot yet conclude that Millar will not be held responsible for indemnification of damages. As explained below, the addendum to the agreement between Millar and Tropicana states that Millar will indemnify Tropicana for liability and loss "as a result of negligent acts or omissions of Millar. . . ." (Millar Br. Ex. A at addendum.) Thus, Millar need only indemnify Tropicana if Millar acted negligently. As explained above, because of plaintiffs' expert report, there is evidence from which a a reasonable jury could find that Millar did act negligently.
Therefore, it is premature for this Court to decide that Millar is not responsible for indemnification. This aspect of Millar's summary judgment motion will be denied as premature without prejudice to Millar's right to re-raise the issue at a later time. However, for the reasons explained below, the Court agrees with Tropicana that Millar has a duty to defend and will therefore grant Tropicana's motion for summary judgment on the issue of Millar's duty to defend and deny Millar's motion for summary judgment on the same issue.
Millar believes that its agreement with Tropicana holds it liable for indemnification and costs of suit only if Millar itself was negligent, and, arguing that there is no direct or res ipsa evidence that Millar was negligent, Millar believes that it is entitled to summary judgment on Tropicana's third-party claim. Millar is correct that the language of both the agreement and the addendum to the Custom Engineered Maintenance Agreement, see July 8, 1999 Opinion at 6, hold Millar responsible for indemnification and the costs of defense only if Millar or its employees were negligent. (Trop Br. Supp. Summ. J. Ex. F.) The original agreement between the parties noted that each party would indemnify the other for damages, losses, and expenses, including reasonable attorneys' fees, only to the extent caused by its own negligence. (Millar Br. Ex. A at 7.)
However, the addendum to the agreement added an additional wrinkle:
Without regard to limitation by the amount of insurance coverage, Millar shall indemnify and hold TropWorld harmless for all liability and loss because of bodily injury (including death) to any person . . . at any time during or after the performance of the work hereunder, as a result of negligent acts or omissions of Millar, its consultants, agents, servants, or employees. At its own expense, Millar shall defend all suits or claims alleging such bodily injury . . . and shall pay all expenses in connection therewith. . . .
(Miller Br. Ex. A at addendum (emphasis added).) The language of this addendum separates indemnity from the duty to defend; the duty to defend is independent of and broader than the duty to pay for losses. See Danek v. Hommer, 28 N.J. Super. 68, 79 (App.Div. 195 3), aff'd, 15 N.J. 573 (1954). While Millar is responsible for paying for the Scaranes' losses only if there is proof that Millar or its employees acted negligently, Millar agreed to defend suits "alleging" bodily injury resulting from work performed by Millar. (Miller Br. Ex. A. at addendum.) Here, though the plaintiffs in their Complaint did not name Millar as a defendant, they did allege improper maintenance of the escalator in question (Compl. ¶ 9), and, while Tropicana retained exclusive control over the escalator, the Agreement between Tropicana and Millar clearly indicates that maintenance of the escalator was Millar's job. Therefore, this is a lawsuit alleging bodily injury as a result of improper maintenance by Millar, even though Millar is not a named defendant in the plaintiffs' suit. This is precisely the sort of suit for which Millar agreed to pay Tropicana's costs of defense.
As a result, the Court denies with prejudice Millar's summary judgment motion to the extent that it argued that Millar has no duty to defend. The Court additionally grants Tropicana's motion for summary judgment against Millar to the extent it seeks to enforce Millar's duty to defend.
IV. CONCLUSION
As explained above, plaintiffs' expert's report of July 21, 1999 is admissible, but only to the extent to which it opines that Joseph Scarane's accident was a result of an improper, abnormally large gap between the handrail and the balustrade. All other opinions contained therein, including those related to the broken tread teeth, tread clearance, reporting, warning signs, and propriety of children on escalators, are irrelevant or unsupported, and they are excluded. Because plaintiffs have come forward with direct evidence of negligence, as well as with an admissible expert's report that gives rise to a res ipsa loquitur theory, plaintiffs' case against Tropicana survives summary judgment, and this Court will deny Tropicana's motion for summary judgment against plaintiffs. This Court will deny as premature, without prejudice, that aspect of Millar's summary judgment motion which addresses the issue of indemnification. Finally, this Court will grant Tropicana's motion for summary judgment against Millar on the issue of Millar's duty to defend and will deny summary judgment to Millar on the same issue. The accompanying Order is entered.
ORDER
This matter having come before the Court upon the motion of defendant Adamar of New Jersey, Inc. ("Tropicana") for summary judgment against plaintiffs and against third-party defendant Millar Elevator Service Co. ("Millar") for indemnification of costs of suit and upon Millar's motion for summary judgment on Tropicana's third-party claim against Millar for indemnification; and the Court having considered the parties' submissions; and for the reasons expressed in an Opinion of today's date;
IT IS this day of September 1999 hereby
ORDERED that Tropicana's motion for summary judgment on plaintiffs' claim against Tropicana for negligence be, and hereby is, DENIED; and it is
ORDERED that Tropicana's motion for summary judgment on its claim against Millar for the costs of suit be, and hereby is, GRANTED; and it is
ORDERED that Millar's motion for summary judgment on Tropicana's third-party claim for indemnification and costs of suit be, and hereby is, DENIED to the extent that the third-party complaint stated a claim for costs of suit, and DENIED AS PREMATURE, WITHOUT PREJUDICE, to the extent that the third-party complaint stated a claim for indemnification for Tropicana's damages.