delivered the opinion of the Court.
This case concerns the application of the doctrine of res ipsa loquitur when a supermarket’s automatic door unexpectedly closes on and injures a customer. The central issue is whether res ipsa loquitur permits a jury to infer, based on common knowledge, that automatic doors ordinarily do not malfunction unless negligently maintained by the store owner or whether the res ipsa inference is preconditioned on expert testimony first explaining the door’s mechanics.
The issue arises in a malpractice action against an attorney, who represented the injured customer and her husband in a negligence lawsuit against the supermarket. The attorney allegedly failed to respond to discovery requests, leading to dismissal of the complaint. Over the course of nine years, he then concealed from his clients the complaint’s dismissal, resulting in the loss of evidence necessary to prosecute the malpractice claim against him. Plaintiffs in the malpractice action contend that but for the attorney’s derelictions, they had a strong negligence case against the supermarket based on the res ipsa doctrine.
The attorney charged with malpractice moved for summary judgment, claiming that his former clients failed to present expert testimony explaining what went wrong with the supermarket’s automatic door and therefore were not entitled to the res ipsa inference. The attorney argues that without the res ipsa inference, plaintiffs could not make out a prima facie case that the supermarket’s negligence was the proximate cause of their damages. It follows from that argument that the lawyer caused his clients no harm because the clients had no provable claim in the underlying suit.
Plaintiffs, however, respond by asserting that they did not need an expert to survive the attorney’s summary judgment motion
In granting summary judgment for the attorney, the trial court ruled that the automatic door was a complex instrumentality, requiring expert testimony before res ipsa loquitur could be invoked. The Appellate Division affirmed. We now reverse.
I.
A.
The facts underlying this attorney malpractice action stem from an accident dating back almost twenty years. 1 In August 1987, plaintiff Terry Jerista and her husband plaintiff Michael Jerista went food shopping at a Shop Rite supermarket in Has-brouck Heights. Mr. Jerista pushed their three-year-old child in a shopping cart through the supermarket’s automatic door, which swung into the store. As Mrs. Jerista began to enter, closely behind her husband, the automatic door suddenly swung backwards, striking her right side and briefly pinning her body, causing significant injuries.
That same day, Shop Rite completed an incident report, indicating that the “automatic (in) door closed on [Mrs. Jerista’s] right wrist” and that she had pain and some redness in her wrist. Mrs. Jerista sought medical attention the next day at Holy Name Hospital Emergency Room, where she was treated for a contusion to her right wrist and for cervical (neck) strain. In September, a CT scan of her cervical spine was “remarkable” for a “central disc bulge.” Over the course of a year, Mrs. Jerista consulted with two neurologists and an orthopedist. During that period, she also received physical therapy treatments. In 1996, Mrs. Jerista underwent surgeries to address disc-related problems. Dr. Michael Wujciak, plaintiffs’ expert in the malpractice action, rendered an opinion that Mrs. Jerista had “sustained significant partial whole body permanent impairment consequent to the [Shop Rite accident].” Dr. Wujciak diagnosed the impairment as a “significant anatomical disc disruption and secondary radiculitis/radiculopathy in both the cervical and lumbar [lower back] spines.” He also noted that she had “sustained a significant contusion and secondary soft tissue injury to the hand, wrist and forearm of the right upper extremity.”
B.
Around 1980, plaintiffs began a longstanding professional relationship with defendant Thomas M. Murray, Jr., Esq., who over time became their family attorney. In the seven years before the Shop Rite incident, defendant represented plaintiffs in matters as varied as a municipal court case, the management of real estate, a personal injury action, and a will contest. Mrs. Jerista contacted defendant within
In April 1989, defendant filed on behalf of plaintiffs a complaint alleging that Shop Rite’s negligent maintenance of its premises caused Mrs. Jerista’s injuries. Shop Rite then filed a third-party complaint against New Jersey Automatic Door, Inc. (NJAD), alleging that NJAD negligently serviced the supermarket’s electronic doors that caused the accident. In response, NJAD filed a counterclaim against Shop Rite.
In July 1989, Shop Rite served defendant Murray with interrogatories, requests for admissions, a statement of damages, a deposition notice, and a case information statement. Because Shop Rite never received a response to its requests, it moved to dismiss the complaint. In June 1990, the trial court granted the dismissal motion.
Defendant never informed plaintiffs that their complaint against Shop Rite had been dismissed. In the following years, the unsuspecting plaintiffs in letters and at meetings expressed concern to defendant about their case. In a 1991 letter, Mrs. Jerista informed defendant that she desired a “good settlement” because of the constant pain she suffered. In August 1996, defendant offered to speak with Mrs. Jerista’s doctor about her long-term prognosis, although he did not follow through. In a 1997 letter, Mrs. Jerista inquired whether defendant needed assistance from a lawyer specializing in personal injury work and implored him to “be honest with” her and to tell her if he did not “see a huge settlement.” In June 1998, at a meeting in defendant’s office, Mr. Jerista asked defendant why he had not brought in a personal injury attorney to assist him. Defendant replied, “[w]e don’t need one. Everything is under control.” That same year, Mrs. Jerista wrote to defendant, expressing her dissatisfaction with the lack of progress in the case and asking him to put together her file because she was hiring another attorney. Finally, in a January 1999 letter, Mrs. Jerista requested that defendant release the file to her, which he had promised to do several months earlier. During the nine-year period from the case’s dismissal to this last letter, defendant never informed plaintiffs that their cause of action was dead.
In January 1999, plaintiffs retained Jack L. Wolff, Esq., to represent them in the Shop Rite case. Mrs. Jerista wrote to defendant directing him to forward the case file to Wolff, but he did not comply. Wolff then obtained from the Clerk of the Superior Court the case pleadings, which revealed that the Shop Rite suit had been dismissed in 1990.
Thereafter, Wolff filed a motion to reinstate the personal injury ease against Shop Rite. In opposing that motion, Shop Rite’s counsel averred that both her firm’s file and the store’s file relating to the 1987 accident had been destroyed. Counsel stated that witnesses and relevant information were no longer available and that “[i]t would be ‘impossible’ ” to defend Shop Rite against a lawsuit involving an accident that occurred twelve years earlier.
For similar reasons, NJAD opposed plaintiffs’ motion to reinstate the case. NJAD’s counsel certified that the company was “unable to locate any records with reference to” the Hasbrouck Heights Shop Rite and “believe[d] that the automatic doors” involved in the accident were no longer present in the store. The trial court denied the motion to reinstate the case, but ordered defendant to turn his file over to Wolff.
In July 1999, plaintiffs filed a malpractice action against defendant, alleging that he negligently failed to prosecute their personal injury lawsuit against Shop Rite. During the discovery period, plaintiffs deposed Joseph Marino, a sixteen-year employee of NJAD and its successor, Besam Automated Entrance Systems, Inc. Marino was unable to locate any company records relating to the automatic doors at the Shop Rite where Mrs. Jerista was injured. Marino had first-hand knowledge that the Hasbrouck Heights Shop Rite had “Stanley Swing” doors because he and his family had been shopping in that store since 1990. Marino’s company did not install “Stanley Swing” doors, but it did service such doors, including those at the Shop Rite. Marino had serviced the Shop Rite doors as a technician for either Besam or NJAD, but never before 1990. He could not say that the Stanley doors he observed were the same ones that had been in place at the Shop Rite on the day of Mrs. Jerista’s accident in 1987.
Plaintiffs did produce two seemingly relevant NJAD reports relating to the servicing of “Stanley Swing” doors at the Shop Rite. One report, dated several days before the accident, reads: “[fjound operator internally damaged. Will order & return.” Another, dated ten days after the accident, indicates that the NJAD technician replaced the “damaged operator.” Neither plaintiffs nor defendant introduced an expert’s report or testimony explaining the significance of those documents.
Plaintiffs retained a liability expert witness, Daniel M. Hurley, Esq. Hurley submitted a report concluding that defendant “deviated from the acceptable standards of care in the practice of law” by failing to prosecute an “excellent liability ease.” In support of that opinion, Hurley stated that defendant.failed to investigate the accident, plead both negligence and product liability claims, respond to interrogatories, take action after receiving a notice of motion to dismiss, and keep his clients apprised of the status of their case. Hurley also noted that if plaintiffs had not cooperated in answering interrogatories, as defendant contended, defendant should have moved to be relieved as counsel.
Defendant retained an expert witness, Diane Marie Aceiavatti, Esq., whose report concluded “that while there were certain deficiencies in [defendant’s] representation [of plaintiffs], those deficiencies were not, within a reasonable degree of probability, a proximate cause of harm to the plaintiffs.” Acciavatti was of the opinion that plaintiffs could not prove that defendant was the proximate cause of the loss of their case without presenting “a liability expert, such as an engineer, to establish that there was some defective condition that resulted in the door malfunctioning and causing injury to Mrs. Jerista.”
On the basis of Acciavatti’s report, defendant moved for summary judgment, asserting that plaintiffs could not prove proximate cause in the legal malpractice case without an expert who could testify about the operation of the automatic doors. Defendant also disputed plaintiffs’ contention that the Shop Rite door that injured Mrs. Jerista had been replaced and was unavailable as evidence.
Plaintiffs countered by filing a cross-motion for summary judgment. Plaintiffs explained that they did not retain an expert to render an opinion concerning the malfunction of the automatic doors because of the lack of available records and information on the subject. They contended that retaining an expert to examine the present Shop Rite door would have been futile because the door probably had been replaced when the store was renovated in 1989 or 1990. They also argued that they
The trial court granted defendant’s summary judgment motion on the ground that plaintiffs had made no showing that defendant’s alleged professional breaches proximately caused their damages. The court rejected plaintiffs’ argument that, even with out an expert, their personal injury lawsuit would have proceeded to the jury under the doctrine of res ipsa loquitur. In short, plaintiffs had not established, in the court’s view, that they would have won a judgment against Shop Rite in the “suit within a suit.”
In addition, the court believed that the underlying lawsuit was miscast as a personal injury case and instead should have been pled as a products liability action. 2 The court also did not agree with plaintiffs’ assertion that defendant’s cover-up denied them the evidence necessary to prosecute the malpractice claim. In that regard, the court chided plaintiffs for not making sufficient efforts to identify the Shop Rite door in operation on the day of the accident. Therefore, the court was disinclined either to shift the burden of proof to defendant or to allow an adverse inference to be drawn from the supposed loss of evidence.
The court denied plaintiffs’ motion for reconsideration of its ruling. Plaintiffs then appealed.
D.
A divided panel of the Appellate Division affirmed the grant of summary judgment.
Jerista v. Murray,
367
N.J.Super.
292, 304,
The majority observed that proof of an accident, standing alone, “does not establish negligence.”
Id.
at 304,
Although the majority acknowledged that “in some circumstances involving complex instrumentalities, an expert may not be required to satisfy
res ipsa,”
it decided that this was “not such a case.”
Ibid.
Consequently, the majority ruled that Mrs. Jerista was “not entitled to a
res ipsa loquitur
inference on her underlying negligence action against Shop Rite.”
Id.
at 298,
The majority also recognized that defendant’s professional derelictions might have impeded plaintiffs’ ability to prove their “suit
within a suit.”
Id.
at 303,
In dissent, Judge Kestin submitted that “it is remarkable—and paradoxical—that an attorney who so clearly breached his duties of due care and diligence ... and so completely defaulted on his duty of fidelity and full disclosure as this defendant is alleged to have done, should benefit from his own transgressions.”
Id.
at 304-05,
This appeal comes before us as of right based on the dissent in the Appellate Division. R. 2:2-l(a)(2).
II.
A.
In reviewing a grant of summary judgment, we must accept as true plaintiffs’ account that defendant’s professional derelictions led to the dismissal of their personal injury lawsuit against Shop
Rite. The principal issue before us is whether that dismissal was the proximate cause of plaintiffs’ damages. Only if plaintiffs can prove
In this case, Shop Rite’s automatic door evidently malfunctioned when it struck and pinned Mrs. Jerista. Plaintiffs contend that it is a matter of common knowledge that an automatic door ordinarily does not swing closed on a customer unless the store owner negligently maintained the doors. That argument relies on the simple notion that the trier of fact does not need the assistance of an engineer or a person with peculiar expertise to reach that conclusion. Plaintiffs seek to invoke res ipsa loquitur to allow the jury to draw an inference that Shop Rite acted negligently. Such an inference would have gotten the case to a jury and forced Shop Rite to come forward and give the reasons for the malfunction of its door. Because they were entitled to such an inference, plaintiffs submit that the trial court should not have granted summary judgment in favor of defendant.
To support their position that summary judgment was improvidently granted, plaintiffs point out that defendant’s professional missteps left them unable to determine the exact door in operation on the day of the accident. Accordingly, they suggest that even had they retained an expert, that expert could have rendered no more than a net opinion given the loss of evidence caused by defendant’s concealment of the true status of their underlying suit. Defendant disagrees, basically for the reasons articulated in the majority Appellate Division opinion.
B.
We begin our analysis by noting that a legal malpractice action has three essential elements: “(1) the existence of an attorney-client relationship creating a duty of care by the defendant attorney, (2) the breach of that duty by the defendant, and
(3) proximate causation of the damages claimed by the plaintiff.”
McGrogan v. Till,
167
N.J.
414, 425,
Plaintiffs in this malpractice action proceeded in the conventional way by attempting to prove the “suit within a suit.” In other words, plaintiffs presented “evidence that would have been submitted at a trial” in a personal injury case against Shop Rite, “had no malpractice occurred.”
Garcia v. Kozlov, Seaton, Romanini & Brooks, P.C.,
179
N.J.
343, 358,
To survive a grant of summary judgment in the legal malpractice action, plaintiffs had to show that they could have presented a
prima facie
case in the Shop Rite action. In that case, plaintiffs would have benefited from the high duty of care that landowners owe to business invitees. Under this State’s premises liability law, a business owner owes a reasonable duty of care “to discover and eliminate dangerous conditions, to maintain the premises in safe condition, and to avoid creating conditions that would render the premises unsafe.”
Nisivoccia v. Glass Gardens, Inc.,
175
N.J.
559, 563,
The
res ipsa
doctrine “permits an inference of defendant’s negligence ‘where (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 plaintiffs own voluntary act or neglect.’ ”
Buckelew, supra,
87
N.J.
at 525,
Whether an accident bespeaks negligence “depends on the balance of probabilities.”
Buckelew, supra,
87
N.J.
at 526,
Thus, if
res ipsa
applies, the factfinder may draw “ ‘the inference that if due care had been exercised by the person having control of the instrumentality causing the injury, the mishap would not have occurred.’ ”
Brown, supra,
95
N.J.
at 288-89,
With those principles in mind, we must determine whether plaintiffs in this case were entitled to the
res ipsa
inference in
At trial, the plaintiff presented as witnesses an employee of the door manufacturer who explained how the automatic door functioned, and an engineering expert who “suggested] several things that might have gone wrong,” but could not “pinpoint the actual operational failure that did occur.”
Id.
at 135-37,
In reaching that decision, we recognized that it would “likely be insuperable” for the plaintiffs engineering expert to determine the door’s “actual operational failure.”
Id.
at 137,
The Appellate Division both in this case and in
Knight v. Essex Plaza,
377
N.J.Super.
562, 578-79,
However debatable the point, we now conclude that
Rose’s
factual narrative containing the testimony of the door manufacturer’s employee and the expert engineer was background to the ease and did not imply that expert testimony was a necessary precondition for the
res ipsa
inference. As the
Rose
Court noted, the expert engineering testimony did not answer the question of why the automatic door malfunctioned. 61
N.J.
at 136, 137,
Even if we are mistaken about the breadth of
Rose, supra,
we nonetheless would find in this ease that common knowledge is sufficient to entitle plaintiffs to the
res ipsa
inference. We do not see why in an automatic door malfunction case the
res ipsa
inference should be contingent on expert testimony. Under the paradigm described in
Knight, supra,
the expert will give a menu of things that might have gone wrong with the automatic door. In such cases, improper or lack of maintenance of the door always
•will be a likely cause of the problem. Moreover, equitable principles suggest that a commercial business that invites a plaintiff onto its property for financial gain and that has exclusive control of an automatic door and superior knowledge about its maintenance should give an account of what went wrong.
See Nisivoccia, supra,
175
N.J.
at 566,
Courts in a number of jurisdictions, some relying on our holding in
Rose, supra,
also have come to the conclusion that common knowledge will justify a
res ipsa
inference when automatic doors cause injury to blameless victims.
See, e.g., Stone v. Courtyard Mgmt. Corp.,
In some sense, the present case is little different from the first reported decision in which res ipsa loquitur was applied, Byrne v. Boadle, 159 Eng. Rep. 299 (Ex. 1863). In that case, a passerby on Scotland Road in Liverpool was struck by a barrel that fell while being lowered from a flour warehouse. Id. at 299. The court held that the falling barrel was “prima facie evidence of negligence.” Id. at 301. The court did not require the injured party to show that a barrel “could not fall without negligence,” but rather placed the burden on the warehouse owner to produce “any facts inconsistent with negligence.” Ibid.
An automatic door may be a highly sophisticated piece of machinery, but it probably does not close on an innocent patron causing injury unless the premises’ owner negligently maintained it. That conclusion can be reached based on common knowledge without resort to expert testimony. A jury does not need an expert to tell it what it already knows. If the premises’ owner, who has exclusive control over the automatic door, has proof that he is not to blame and that another is at fault, he must come forward to rebut the inference. For example, the owner is in the better position to say whether the malfunction was the result of improper inspection or a product defect for which others should be answerable.
We disagree with the Appellate Division’s sweeping suggestion in this ease that in almost all complex instrumentality cases a
res ipsa
inference will be conditioned on the production of expert testimony.
See Jerista, supra,
367
N.J.Super.
at 300-02,
The source of that misstatement of law was
Jimenez, supra,
a case involving a plaintiff who was thrown backwards on an ascending escalator when the right handrail stopped moving. 286
N.J.Super,
at 537,
In that case, the plaintiff, a mechanic at a Ford production plant, was injured when a sanding disc, attached to a “pneumatic
rotary-type grinding machine” he was operating, broke “in half and struck him in the abdomen.”
Id.
at 180-81,
This Court noted that “[generally,
[res ipsa
loquitur] cannot be invoked until it is shown that the instrumentality causing the injury was within the control of the defendant at the time of the mishap.”
Id.
at 183,
The question is not whether the instrumentality at issue is complex or simple, but whether based on common knowledge the balance of probabilities favors negligence, thus rendering fair the drawing of a
res ipsa
inference.
See Buckelew, supra,
87
N.J.
at 526-29,
Buckelew, supra,
a medical malpractice case, illustrates when expert testimony must be provided to allow jurors to draw a
res ipsa
inference. In that case, while conducting an exploratory laparotomy, the defendant surgeon inadvertently cut into the plaintiffs bladder. 87
N.J.
at 518,
In summary, an automatic door that closes onto and injures a customer entering a supermarket is an occurrence bespeaking negligence that falls within jurors’ common knowledge. In this ease, the automatic doors were under Shop Rite’s exclusive control, and there was no indication that the accident was Mrs. Jerista’s fault. When the average juror can deduce what happened without resort to scientific or technical knowledge, expert testimony is not mandated. The circumstances in this case invited a res ipsa inference, which means that plaintiffs could have made out a prima facie case against Shop Rite, which in turn leads to the inexorable conclusion that the Appellate Division erred in affirming summary judgment in this legal malpractice action. We therefore reverse and remand for trial.
III.
Last, we address plaintiffs’ argument that because defendant’s alleged negligence and dishonesty led to the loss of evidence necessary to prove their claim against Shop Rite (the “suit within a suit”) and, ultimately, their malpractice claim against him, defendant should not benefit from his own wrongdoing. Plaintiffs first maintain that for nine years defendant intentionally deceived them into believing that their lawsuit was proceeding forward, when in fact he knew that it had been dismissed due to his noncompliance with discovery demands. By the time plaintiffs learned of their suit’s dismissal, twelve years had passed since the accident. They further contend that defendant’s prolonged concealment of the truth resulted in the destruction or loss of critical records kept by Shop Rite and NJAD concerning the identity, nature, and servicing of the automatic door that malfunctioned. Indeed, both Shop Rite and NJAD successfully opposed the reinstatement of the original complaint, in which they were named parties, precisely because they were hampered in their defenses due to loss of records, long-faded memories, and changed conditions at the accident site.
Defendant counters that plaintiffs’ lack of cooperation with him led to the dismissal of their lawsuit, that he never misled them, and that they should have been aware of the disposition of their lawsuit. We express no opinion concerning where the truth lies between the competing claims. That is a matter for the jury. At trial, if the jury believes that plaintiffs were responsible for the lawsuit’s dismissal, then their malpractice suit will fail. On the other hand, if the jury finds that defendant’s professional defaults caused the dismissal, the jury must consider the other elements of the malpractice action and, in doing so, should consider whether defendant’s conduct led to the spoliation of evidence.
Spoliation typically refers to the destruction or concealment of evidence by one party to impede the ability of another party to litigate a case.
See Rosenblit v. Zimmerman,
166
N.J.
391, 400-01,
“Since the seventeenth century, courts have followed the rule ‘omnia praesumuntur contra spoliatorem,’ which means ‘all things are presumed against the destroyer.’ ”
Id.
at 401,
Assuming arguendo that defendant misled plaintiffs about the true status of the Shop Rite ease and failed to conduct discovery in that case, such dishonesty and dereliction created a high probability that records would be purged and evidence lost, making it difficult, if not impossible, for plaintiffs to prosecute the “suit within a suit” malpractice action. By deliberately deceiving plaintiffs for nine years about the status of their ease, defendant can be said to have consciously disregarded a substantial risk that key evidence would not be available when needed by plaintiffs.
If plaintiffs can make a threshold showing that defendant’s recklessness caused the loss or destruction of relevant evidence in the underlying personal injury lawsuit, the jury should be instructed that it may infer that the missing evidence would have been helpful to plaintiffs’ ease and inured to defendant’s detriment. The jury is free to accept or reject that inference—just like the permissive inference of negligence that jurors may draw under the doctrine of
res ipsa loquitur. See Buckelew, supra, 87 N.J.
at 526,
IV.
For the reasons discussed, we reverse the Appellate Division’s affirmance of the grant of summary judgment in defendant’s
For reversal and remandment—Chief Justice PORITZ and Justices LONG, LaVECCHIA, ZAZZALI, ALBIN, WALLACE and RIVERA-SOTO—7.
Opposed—None.
Notes
Because the trial court granted and the Appellate Division affirmed defendant attorney’s motion for summary judgment, we review the facts in the light
most favorable to the non-moving parties, i.e., plaintiffs.
R.
4:46-2(c);
Britt v. Guardian Life Ins. Co. of Am.,
142
N.J.
520, 540,
Although that part of the trial court's ruling is not before us on certification, we take this opportunity to express our disagreement with it. Plaintiffs properly pled a cause of action sounding in premises liability. "Business owners owe to invitees a duty of reasonable or due care to provide a safe environment for doing that which is within the scope of the invitation.”
Nisivoccia v. Glass Gardens, Inc.,
175
N.J.
559, 563,
Since
Jakubowski, supra,
we have held "that the traditional negligence doctrine of
res ipsa loquitur
generally is not applicable in a strict products liability case."
Myrlak, supra,
157
N.J.
at 90,