On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, L-3321-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves and Alvarez.
This case arises from personal injuries suffered when plaintiff, Elaine Jackson, slipped and fell on a welcome mat outside her front door. Plaintiff sued the manufacturer of the mat, Ronile, Inc.; the seller of the mat, Target Stores; the store where she purchased the deck paint, Home Depot; as well as the paint manufacturer, Glidden Company. Her claims against all four defendants were dismissed on summary judgment motions; this appeal followed. We reverse and remand as to Ronile, Inc. and Target Stores on the issue of the welcome mat design defect, but affirm as to Home Depot and Glidden Company.
Plaintiff contends the fall resulted from design defects inherent in the mat and in the paint she applied to her front porch floor. She also asserts that the plastic-backed mat should have been labeled with a warning about its "slippery qualities," and that the warning on the paint can was inadequate. A label on the paint can read "CAUTION: This finish may become slippery when wet. The use of a non-skid additive is recommended."
In addition, plaintiff alleges that when she purchased the paint, the Home Depot store clerk wrongly advised her it was unnecessary to mix additives with the paint prior to use. The clerk reportedly told her she would be "wasting [her] time with it." As a result, she did not mix in additives prior to applying the paint, even though she had done so with other floor paint she had purchased in the past. After plaintiff painted the porch, the surface would become very slippery when wet. The morning of the fall, ice may have accumulated in the space between the plastic backing on the welcome mat and the painted floor.
Discovery ended January 15, 2006. On February 17, 2006, the trial court barred the testimony of plaintiff's expert against Target and Ronile as a net opinion, and granted those parties summary judgment. On March 2, 2006, Glidden, later joined by Home Depot, also filed a motion to bar the expert's testimony on the grounds it was a net opinion. On March 31, 2006, plaintiff filed a motion for reconsideration on the summary judgment granted to Target and Ronile, and submitted an additional expert report. Oral argument was conducted on April 28, 2006, but the court reserved its decision. On August 24, 2006, the trial court granted Glidden and Home Depot summary judgment, and denied plaintiff's motion for reconsideration.
On appeal, plaintiff maintains her expert's reports established competent proofs from which a reasonable trier of fact could find that the mat design was defective because of the backing material, and find that the mat should have been labeled as to potential hazards. She also maintains that her expert's reports established competent proofs that the paint was too slippery for its intended use, that the label on the can failed to adequately warn against use without additives, and that Home Depot was negligent in the manner in which they sold the product.
The standard of review for an award of summary judgment is as enunciated in Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995) and Rule 4:46-2(c). Generally, the court must "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill, supra, 142 N.J. at 540. Typically, where no genuine issue of fact exists, the question becomes whether the trial judge's ruling is correct as to the law. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).
Plaintiff's claims are governed by the New Jersey Products Liability Act (PLA), N.J.S.A. 2A:58C-1 to -11. In a PLA claim, a party will succeed against the manufacturer or merchant of a product if he or she can prove "by a preponderance of the evidence that the product causing the harm was not reasonably fit, suitable or safe for its intended purpose because it . . . failed to contain adequate warnings or instructions, or . . . was designed in a defective manner." N.J.S.A. 2A:58C-2.
Because plaintiff alleged defects in the paint and the welcome mat which were not self-evident, she was required to present expert opinion in order for the trial court to engage in the requisite preliminary risk-utility analysis. Dreir, Keefe & Katz, Current N.J. Product Liability & Toxic Tort Law §8:2-3(b) (2008). A manufacturer will be held liable only "if the danger posed by the product outweighs the benefits of the way the product was designed and marketed." Johansen v. Makita U.S.A., Inc., 128 N.J. 86, 95 (1992). A risk-utility analysis requires "'consideration of available alternatives.'" Smith v. Keller Ladder Co., 275 N.J. Super. 280, 284 (App. Div. 1994) (quoting O'Brien v. Muskin Corp., 94 N.J. 169, 184 (1983)). In the average case the availability of a reasonable alternative design is key. Lewis v. Am. Cyanamid Co., 155 N.J. 544, 560 (1998).
The motion judge found that in every respect the expert's report was a "net opinion," inadequate for the requisite risk-utility analysis. We disagree solely as to the welcome mat on the issue of whether ...