On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-10117-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman and Parrillo.
Plaintiffs Tomasz Tluczek and Margaret Tluczek appeal from a November 21, 2008 order of the Law Division granting summary judgment to defendants Prestige BMW of Ramsey (Prestige) and BMW of North America, LLC (BMW). Judge Dennis F. Carey determined that plaintiffs' failure to produce an expert witness to prove a manufacturing defect in plaintiffs' vehicle was fatal to their products liability cause of action. We agree and affirm.
We briefly set forth the relevant facts considered on the motion that is the subject of this appeal. On October 24, 2003, plaintiffs purchased a 4-door, 2004 BMW 525i from Prestige. Prestige delivered the car to plaintiffs on or about December 24, 2003. Six months later, plaintiffs brought the car to Prestige for servicing, complaining "of a burning smell" emanating from the car vents, smoke once coming out from behind the windshield and a few other minor problems. Prestige inspected the car and "could not verify [the] complaint."
One month later, on July 9, 2004, plaintiff once again brought the car to the dealership for servicing, claiming that the active steering light lit up and steering became difficult when plaintiff tried to turn left, but once again Prestige found nothing wrong with the vehicle. The vehicle did not have any record of any power-steering malfunction.
On September 2, 2004, plaintiffs again complained of steering problems and warning lights lighting up, but Prestige still did not find anything wrong with it even after performing a three-day, sixty mile road test. At the end of September, plaintiff once again complained of stiff steering and a loss of power steering only when making left turns. This time Prestige replaced the cover for the motor position sensor and the wiring of the AFS steering mechanism. These service actions were preventive measures carried out for all cars of this type and had nothing to do with the claimed problems. Prestige did not find any problems with the power steering, the active steering, or the active roll stabilization system. Yet, plaintiff continued to find fault in the car and scheduled another appointment with the dealership for February 22, 2005.
On December 14, 2004, Tomasz struck a utility pole while driving his BMW, sustaining severe bodily injuries. The investigating police officer arrived at the scene and assisted Tomasz. Tomasz told her that the steering had locked up, causing him to veer off the road into the pole. The officer checked the steering wheel and observed that it turned normally. The officer then issued Tomasz a motor vehicle summons for a moving violation that resulted in this collision. According to the officer, the curve in the road where this accident occurred sees many accidents, because drivers take the turn too quickly. The lack of skid marks on the road also indicated to her that Tomasz failed to maintain the lane going around the curve.
Plaintiffs commenced an action in the Law Division alleging negligent repair and product liability based on a manufacturing defect. BMW of North America conducted an internal field report and did not find any malfunction in the steering mechanism in the electrical system related to the active steering, or damage to them during the accident. The report did note that the car had traveled 21,413 miles since its purchase. Defendants retained an expert, Thomas Goetz, to inspect the vehicle. He found no evidence corroborating plaintiffs' assertions and opined that a steering problem described by Tomasz could not arise from an active steering or a power steering defect. He concluded that the problem more likely arose from a stalled engine with a manual transmission.
Following discovery, defendants moved for summary judgment. Plaintiffs did not produce an expert witness or report. Judge Carey found that without expert testimony, the jury could do nothing but speculate what the defect might have been, if any. He then granted summary judgment and dismissed the complaint. This appeal followed.
On appeal, plaintiffs argue that the judge erred in requiring plaintiffs to produce an expert to establish their cause of action and the judge further erred in dismissing their claim of negligent repair.
Summary judgment must be granted "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact challenged and that the moving party is entitled to a judgment or order as a matter of law."
R. 4:46-2(c). The inquiry is "'whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995)). See also Jolley v. Marquess, 393 N.J. Super. 255, 267 (App. Div. 2007). "At this stage of the proceedings, the competent evidential materials must be viewed in the light most favorable to plaintiff, the non-moving party, and [he] is entitled to the benefit of all favorable inferences in support of [his] claim." Bagnana v. Wolfinger, 385 N.J. Super. 1, 8 ...