March 27, 2008
MYRA YEPEZ, PLAINTIFF-RESPONDENT,
SPORTS AND GAMES FUNPLEX,*FN1 DEFENDANT-APPELLANT, AND EMR PRODUCTS, INC.; BOWMAN KARTS; AND 1515 BOARDWALK CONSTRUCTION COMPANY, DEFENDANTS.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, L-5967-02.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 10, 2008
Before Judges Lintner and Alvarez.
Defendant, Sports and Games Funplex, appeals from an adverse judgment entered following a jury verdict finding it 65% liable for the severe injuries sustained by plaintiff, Myra Yepez, while operating a go-kart at defendant's facility. The jury returned a gross damage award of $550,000. Defendant's motions for a directed verdict and for judgment notwithstanding the verdict were denied, as was its subsequent motion for a new trial. On appeal, defendant asserts that the trial judge erred in not granting its motion to dismiss at the close of plaintiff's case based upon plaintiff's failure to establish a prima facie case, absent the presentation of expert testimony. We agree and reverse the order denying dismissal of plaintiff's complaint, thus vacating the judgment entered.
We recount the relevant facts established at trial by plaintiff in her case in chief. On June 17, 2002, plaintiff drove her teenage son and three of his friends to defendant's indoor amusement facility to ride go-karts. At the time, plaintiff weighed 225 pounds. She had been driving for almost twenty years. Standard operating procedure for use of the gokarts was for an attendant to make certain that drivers were wearing their safety harness and able to reach the accelerator and brake pedals. The attendant was also to give a brief description as to how to operate the machine, as well as give the track rules before permitting the operator to proceed. According to plaintiff, after being seated in the go-kart, the attendant checked her safety harness. She was also given instructions and warnings.
The go-karts have electric motors with three speed settings. The maximum speed setting, approximately twenty-five miles per hour, is used for private parties, and usually then only by the most experienced drivers. The second setting, approximately eighteen miles per hour, is the standard setting for the track, and is used by the majority of drivers. The third setting, which is the slowest speed, approximately fifteen miles per hour, is used for children and/or inexperienced drivers. The accelerator pedal and brake pedal are located in the same position as a normal American automobile. The driver can control speed by using the accelerator pedal and the brake pedal. The go-karts are steered using a standard steering wheel. The seat and the steering wheel are not adjustable. The paved track is made up of several straight-aways and turns. Around the track is a guardrail that is composed of steel rails and go-kart and automobile tires. Warning signs are posted around the track, advising patrons to keep away from the guardrails while operating the go-kart.
Plaintiff's go-kart was set at the middle speed of eighteen miles per hour. Before getting underway, plaintiff's harness fit snugly and she had no trouble turning the steering wheel or operating the accelerator and brake. Her son and two of his friends were in go-karts ahead of plaintiff, and a third friend was located in a go-kart behind plaintiff. When it was her turn, plaintiff pulled out onto the track. Shortly after pulling out, she was bumped from behind by one of the friends, but she managed to straighten the kart and continue driving. Plaintiff maneuvered the first turn without any problem.
According to plaintiff, as she proceeded down the straightaway toward the second turn, she took her foot off the accelerator. She thought the kart would slow down. Realizing that the speed was not reducing as she had expected, she put her foot on the brake, at which time she hit the guardrail. After the accident, plaintiff noticed that the bottom of the steering wheel was bent. Her abdomen had impacted the bottom of the steering wheel. She testified on direct that, prior to the accident, the clearance between the bottom of the steering wheel and her abdomen was one to two inches. In order to get plaintiff out of the kart, the bent steering wheel had to be removed. There was no other damage to the kart.
Plaintiff was taken to the emergency room. She sustained internal injuries to her bowel, necessitating several surgeries, resulting in the removal of nearly two feet of her small intestine and insertion of a praline mesh, a screen-like material, to reinforce her abdominal wall. As a result of her injuries, plaintiff suffers from cramps, gas, uncontrollable bowel movements, and related gastrointestinal problems.
Defendant's General Manager, Brian Williams, was called as a witness by plaintiff. Williams indicated that the New Jersey Department of Community Affairs (DCA) is adamant about not permitting patrons to operate a kart if they are unable to secure the safety harness or reach the pedals. Accordingly, the attendants are instructed to comply with those regulations. The DCA did not provide any guidance regarding how far a person's abdomen should be from the steering wheel and, therefore, the attendants were not trained to make such observations. He testified that a protective railing was around the entire track and he conceded that it was foreseeable for a kart to collide with the guardrail.
In its motion to dismiss at the end of plaintiff's proofs, defendant argued that the failure to present expert testimony was fatal to plaintiff's case. Defendant pointed out that plaintiff's allegations of negligence were based upon two theories. The first theory was that defendant was negligent in permitting plaintiff to use the kart because her abdomen was only one to two inches from the steering wheel, thus presenting a foreseeability of injury if an accident occurred. The second theory was that the eighteen mile per hour speed setting was too high because plaintiff did not have experience driving a go-kart and thus, the maximum speed setting should have been set at the fifteen mile per hour setting.
In response, plaintiff argued that, because it was foreseeable that a kart would collide with the guardrail, expert testimony was not necessary to establish that the failure to instruct attendants to determine whether a patron's abdomen was in close proximity created a dangerous condition. He also argued that an expert was not needed to establish negligence in the failure of defendant's employees to make an assessment of a driver's ability to operate the kart until after the driver did a lap or two around the track, rather than reducing the speed.
Pointing out that plaintiff was a licensed driver for twenty years and not inexperienced, the judge did not accept plaintiff's argument regarding the failure of defendant to reduce the speed setting. The judge, however, added that he would allow plaintiff to make that argument to the jury. He then stated:
I'm going to deny the motion because while I, certainly, feel it's a rather weak case, there is a basis upon which a reasonable jury could infer that either from the physical proximity . . . of the plaintiff's abdomen to the steering wheel, or possibly from their lack of assessment of that situation, that the defendants were negligent. I grant you that . . . no expert opinion has been presented, nor has there been any standards presented. However, it is a situation where a reasonable juror could make the determination as to whether or not it was so obvious that it was clearly negligent. It's up to them.
Because we focus on defendant's motion to dismiss following the presentation of plaintiff's case, we need not recount the testimony presented by defendant.*fn2
Initially, we note that plaintiff's complaint named defendant and the original and successor manufacturers*fn3 of the go-kart used by plaintiff, as well as several fictitious defendants, alleging negligence, failure to warn patrons of potential dangers, nuisance, defective manufacturing, defective design, products liability, negligent installation, and negligent construction and/or maintenance of the track guardrail.
Plaintiff's original counsel secured the services of an expert, James Pugh, Ph.D., P.E., who wrote a report indicating that the guardrail around the track had been defectively maintained, thus causing plaintiff's injuries. His examination of the railing in April 2005 revealed that it had been modified. He rendered an opinion dealing with the crashworthiness of the go-kart in combination with the railing used at the time of the accident and the railing as modified at the time of his inspection. He opined that had the railing at the time of plaintiff's accident been the same as the one in place at the time of his inspection plaintiff's injuries would have been prevented had she used a similar exemplar go-kart.
By the time of trial, plaintiff secured new counsel and opted not to utilize Pugh as an expert. Instead, counsel proceeded on the two theories of negligence previously noted. Defendant sought, by way of motions in limine, to bar testimony on plaintiff's ability to fit into the go-kart, as plaintiff had introduced no expert testimony on that point. Denying the motion, the judge stated, "I'm going to allow the testimony as to that [issue] because certainly that is well within the jury's common sense, based on whatever the testimony is, they can interpret it as to whether or not that constituted negligence."
Generally, expert testimony is required when the subject matter to be dealt with "is so esoteric that jurors of common judgment and experience cannot form a valid judgment as to whether the conduct of the party was reasonable." Butler v. Acme Markets, Inc., 89 N.J. 270, 283 (1982). Whether or not the one to two inch clearance between plaintiff's abdomen and the steering wheel represented an unreasonable dangerous condition under the circumstances of this case is "beyond the ken of the average juror." State v. Kelly, 97 N.J. 178, 208 (1984). Expert testimony is needed to help to exclude other possible causes of the accident and avoid pure speculation. See Ibid.; see also Kelly v. Berlin, 300 N.J. Super. 256, 267-68 (App. Div. 1997). Especially when dealing with a complex instrumentality, such as a go-kart, expert testimony is needed in order to help the fact finder understand "the mechanical intricacies of the instrumentality" and help to exclude other possible causes of plaintiff's injuries not attributable to defendant's negligence. Jimenez v. GNOC, Corp., 286 N.J. Super. 533, 546 (App. Div.), certif. denied, 145 N.J. 374 (1996).
Although presented as a claim of negligence on the part of defendant's employees, plaintiff's liability theory rested on a jury determination of whether the go-kart, as designed or configured at the time of plaintiff's accident, presented an unreasonably dangerous condition or unreasonable risk of harm to plaintiff. That determination, notwithstanding the conceded foreseeability of collision with the railing, necessarily encompassed issues of secondary impact, crashworthiness, force of impact, suitability of design, and appropriateness of the speed setting, all of which, in our view, is beyond the ken of an average juror. Because we conclude that expert testimony was necessary and defendant's motion to dismiss following the presentation of plaintiff's case should have been granted, we are constrained to vacate the judgment entered.
The orders denying dismissal of plaintiff's complaint, directed verdict, and judgment notwithstanding the verdict are reversed and the judgment accordingly vacated.