On appeal from Superior Court of New Jersey, Law Division, Monmouth County.
Before: Judges Landau, Newman and Collester.
The opinion of the court was delivered by: Landau, J.A.D.
Daniel Ridenour, an infant, by his guardian ad litem, John W. Ridenour, and John W. Ridenour, individually, (together hereinafter referred to in the singular as "plaintiff"), appeal from the award of summary judgment to defendants Bat Em Out, Rowe International, Inc. (Rowe), Barry White and Star Games, Inc. (together, "Star Games"), on plaintiff's complaint sounding in products liability, negligent installation, and maintenance of a condition dangerous to business invitees.
In 1993, Daniel, then eleven years old, suffered a broken leg on the premises of Bat Em Out, a commercial recreation facility, when a two-hundred pound change-making machine manufactured by Rowe, sold to and owned by Star Games, and then installed and maintained by Star Games at Bat Em Out's recreational facility, was tipped over by the youthful customer.
Summary judgment was awarded to all defendants, essentially premised upon the same reasoning, i.e., absence of an expert's report. We view the relationship between each defendant and plaintiff to be sufficiently different as to have necessitated separate analyses, leading to different results. We modify the grant of summary judgment to Rowe, reversing it in part; similarly reverse in part as to Star Games; and partially reverse as to Bat Em Out.
Our Discussion begins by noting that in answers to interrogatories, plaintiff certified that:
4. On August 23, 1993 the plaintiff and his friends went to Bat Em Out to play the games there and to practice batting. The plaintiff pushed the change machine to try to get change out and it rocked over onto him breaking his left leg.
The motion Judge had granted several lengthy continuances to allow plaintiff to secure an expert's report. None was provided as plaintiff contended that an expert was not required. All defendants moved for summary judgment.
Defendant Rowe's motion for summary judgment sought dismissal of the strict products liability contentions made against it as a manufacturer of the change machine. Rowe argued that plaintiff's case could not be substantiated without an expert report setting forth the ways in which the product was not reasonably fit, suitable or safe for its intended purpose, whether by manufacturing defect, design defect or inadequacy of warning. See N.J.S.A. 2A:58C-2; Jurado v. Western Gear Works, 131 N.J. 375, 380-81 (1993); Ladner v. Mercedes-Benz of N. Am., Inc., 266 N.J. Super. 481, 487-89 (App. Div. 1993), certif. denied, 135 N.J. 302 (1994).
Plaintiff's complaint against defendant Rowe alleged, inter alia, that "[t]he product known as a change machine was in a defective condition when it left the possession and control of this defendant." The complaint also asserted that the machine was not reasonably fit, suitable or safe for its intended purpose because it deviated from the design formula, or performance standards of the manufacturer, or from otherwise identical units manufactured to the same specifications.
Plaintiff responded to Rowe's motion that no expertise was necessary to show that a heavy change machine was defective if mere pushing or rocking by an eleven-year old could cause it to topple. Initially, plaintiff's briefed motion response also pointed to the manufacturer's failure to take any steps to prevent the machine from tipping, by providing means for bolting to the floor or wall. At oral argument on the summary judgment motion, however, plaintiff's counsel conceded that this argument was in error, and that his office had been provided with Rowe's installation manual which described how the coin changer could be secured to a wall or floor at the installer's option.
The motion Judge reasoned that expert testimony was necessary to establish a design defect, and that ordinary jurors with common knowledge would not be in a position to determine whether the change machine was improperly designed, ...