In Pannucci v. Edgewood Park Senior Housing, the New Jersey Appellate Division was asked to alter the state’s res ipsa loquitur test. As set forth most recently by the New Jersey Supreme Court in McDaid v. Aztec W. Condo. Ass’n, 234 N.J. 130 (2018), the third and final element a plaintiff must prove to establish res ipsa loquitur is that the “injury did not result from the plaintiff’s own voluntary act or neglect.” Although the plaintiff cited numerous other jurisdictions that have done away with that element, the Appellate Division declined the plaintiff’s request. The Court noted that it is an intermediate appellate court that cannot alter the Supreme Court’s prior holdings. Of note, the plaintiff-appellant did not raise this issue until her reply brief. Pennsylvania practitioners might need to sit down before reading what the Appellate Division had to say about appellate review of a claim raised so late in the process: The Court addressed the issue because “the record is sufficient, the issue is a legal one presented for our de novo review, and defendants addressed the merits in a sur-reply.”
