GRSLBG&B is pleased to announce another victory on behalf of one of its construction clients in the New Jersey Superior Court, Appellate Division. Shareholder, Phil Garubo, Jr., represented a construction company who was performing work on the Pulaski Skyway. The Plaintiff, who was operating a motor vehicle below the roadway, asserted that a metal rod fell from the Skyway and struck his vehicle, which resulted in an accident and significant personal injuries.
Through discovery, however, depositions of numerous construction company employees established that the metal rod that struck the Plaintiff’s vehicle failed to match the materials the company was using during its Pulaski Skyway work. Further, testimony was elicited from the Plaintiff, which highlighted the fact that he did not actually see the rod become dislodged from the Skyway itself; rather, he only observed it in the air approximately one second before it impacted his vehicle.
At the close of discovery, we filed a Motion for Summary Judgment, arguing for the inability of the Plaintiff to establish a prima facie case of negligence against his construction company client. In particular, the Plaintiff was unable to demonstrate that the metal rod originated from the Skyway, and consequently, the Plaintiff’s argument of liability was speculative at best. Ultimately, the Trial Court agreed with our client’s position, granted Summary Judgment, and dismissed all claims with prejudice. The Plaintiff’s Motion for Reconsideration before the Trial Court was denied, and Plaintiff’s suit was dismissed.
The Plaintiff subsequently filed an Appeal with New Jersey’s Appellate Division. On Appeal, the Plaintiff asserted that the doctrine of res ipsa loquitur should have dictated a denial of the Motion for Summary Judgment. The res ipsa loquitur doctrine permits a factfinder to draw an inference of negligence so long as the following elements are satisfied: “(a) the occurrence itself ordinarily bespeaks negligence; (b) the instrumentality was within the Defendant’s exclusive control; and (c) there is no indication in the circumstances that the injury was the result of the Plaintiff’s own voluntary act or neglect.” Myrlak v. Port Auth. of New York & New Jersey, 157 N.J. 84, 95 (1999).
Following oral argument, the Appellate Division reaffirmed the grant of Summary Judgment. The Appellative Division reviewed the record and determined that the Plaintiff had failed to prove our client’s exclusive control over the metal rod, and further, that the Plaintiff failed to provide competent evidence to reduce the likelihood that the metal rod originated from another source, such as a passing vehicle, as opposed to the construction on the Pulaski Skway. Accordingly, the Appellate Division upheld the grant of Summary Judgment and the dismissal of the Plaintiff’s claims with prejudice.
Please join us in congratulating Phil on a job well done!
Philip A. Garubo, Jr. is a Shareholder in GRSLBG&B’s Litigation Department. He defends a wide variety of clients in various civil actions brought forth in New Jersey State and Federal Courts. Phil can be reached at PGarubo@grsl.com
