January 29, 2010
MELISSA WOJCIK AND BRIAN WOJCIK, PLAINTIFFS-APPELLANTS,
BOROUGH OF MANVILLE, CSX CORP., CSX TRANSPORTATION, INC., NORFOLK SOUTHERN CORP., NORFOLK SOUTHERN RAILWAY COMPANY, CONSOLIDATED RAIL CORPORATION, INDIVIDUALLY AND D/B/A CONRAIL, PENNSYLVANIA LINES, LLC, AMERICAN HONDA MOTOR CO., INC., HONDA OF AMERICA MANUFACTURING, INC., HJC AMERICA, INC., INDIVIDUALLY AND D/B/A HJC HELMETS, SULLIVANS, INC., HONDA OF SOUTH CAROLINA MFG., INC., HONDA R&D CO., LTD., HONG JIN SPORTS GOODS CO., AND HJC CORP., DEFENDANTS, AND BURGER'S MOTORCYCLE SALES AND SERVICE, INC., INDIVIDUALLY AND D/B/A BURGER'S MOTORCYCLES, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-373-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 15, 2009
Before Judges Carchman and Parrillo.
Plaintiff Melissa Wojcik suffered serious injuries when on March 5, 2005, an all-terrain vehicle (ATV) that she was driving flipped or tipped, causing injuries to her face and her chin.
At the time of the accident, plaintiff*fn1 was wearing a helmet that she had purchased from defendant Burger's Motorcycle Sales and Service, Inc. Plaintiff alleges that Burger made certain representations regarding the helmet's protective qualities that rose to the level of an express warranty. On motion for summary judgment, Judge Accurso, in the Law Division, disagreed and dismissed the complaint as to that defendant. Plaintiff appeals, and we affirm.
The facts are not in significant dispute. In November 2004, plaintiffs purchased two ATVs and a helmet for plaintiff from Burger. Plaintiffs indicated to Burger's sales personnel that this was plaintiff's first ATV, she was an inexperienced rider, and she had no knowledge about the helmet she should wear while riding. According to plaintiff:
[Brian] explained to them that we needed a really good helmet, and he asked if we could have a discount because we had just purchased two brand new ATVs. And they went into the back and came out with a helmet ten minutes later. They said this is one of the best ones, it could protect us completely. . . . They told us it was a great helmet, and it was top rated, in the top seller.
Plaintiff determined that the helmet was a good fit, and it was purchased.
Plaintiff was wearing the helmet at the time of the accident. According to plaintiff, the helmet failed to prevent the injuries as the helmet's chin bar bent, causing plaintiff's chin to make contact with the ground as she fell.
Plaintiffs filed a complaint against Burger and other defendants including Honda of America Manufacturing, Inc., Honda of South Carolina Manufacturing, Inc., Honda R&D Co., Ltd., American Honda Motor Co., Inc., Sullivans, Inc., and HJC America, Inc.*fn2 alleging, among other things, violation of the Products Liability Act (PLA), N.J.S.A. 2A:58C-1 to -11. Plaintiff served an expert report on the parties. The expert opined:
In conclusion within a reasonable degree of safety certainty the proximate cause of Ms. Wojcik's injuries is the failure by the Burgers salesperson to provide a helmet which would provide maximum safety to the face and head.
Ms. Wojcik testified that her and her husband requested the best helmet that would provide complete head and face protection in the event of an accident. The Burgers salespersons failed to meet the request of Mr. and Mrs. Wojcik.
The subject helmet did not meet the safety standards for the chin bar of either Snell or ASTM international. The Snell standard tests for chin bar protection where as the DOT standard does not.
On motion for summary judgment, the motion judge dismissed the PLA claims against defendants Borough of Manville, Sullivans Inc., HJC America, Inc., Norfolk Southern Corporation and Norfolk Southern, concluding that the expert's opinion was "a textbook net opinion."*fn3 She found that the expert did not test the helmet, did not determine if the helmet met the "Snell standard" and did not "explain how this helmet would have - - or a better helmet would have prevented these injuries."*fn4 Burger followed with a motion for summary judgment on the PLA claims, which was granted, leaving the express warranty claim extant.
A hearing was held on Burger's motion for summary judgment on the express warranty claim. Following argument, Judge Accurso opined:
The statements in this case . . . are too close to the sense of the seller's opinion or commendation of the goods.
The Wojciks came in looking for a good helmet. They were told this was a good helmet. It was top rated, one of the best, and that even saying that the helmet could protect them completely and top rated, it gets a little closer, but there's no case that the plaintiffs can point me to that were anything like statements of that nature have been determined to be an express warranty.
Clearly, even if an express warranty was made and breached, the plaintiff would have to show that that breach caused the injuries that resulted . . . .
There's simply nothing . . . competent in this record by which the plaintiff could demonstrate that the breach of this express warranty caused the injuries . . . .
The judge granted the motion and dismissed plaintiffs' complaint. This appeal followed.
On appeal, plaintiffs assert that the judge erred as there were sufficient facts to warrant a jury trial on the express warranty claim. They further argue that the judge erred by concluding that plaintiffs were unable to establish causation.
We first restate basic principles that inform our consideration of the merits of the appeal. Summary judgment will 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 as to any 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)). Evidence should be considered "in the light most favorable to the parties opposing summary judgment." Brill, supra, 142 N.J. at 523. We "employ the same standard that governs trial courts in reviewing summary judgment orders." Prudential Property & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).
In their amended complaint, plaintiffs alleged, among other things, that Burger's "expressly warranted that the subject helmet was merchantable and reasonably fit for use as a helmet . . . [and] that the subject Helmet was free of defects[;]" that Burger breached this warranty; and that this breach proximately caused plaintiff's injuries.
N.J.S.A. 12A:2-313 provides:
(1) Express warranties by the seller are created as follows:
(a) Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise.
(b) Any description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description.
(2) [A]n affirmation merely of the value of the goods or a statement purporting to be merely the seller's opinion or commendation of the goods does not create a warranty.
Plaintiffs claim that the express warranty was created when Burger's sales personnel stated that the helmet purchased was "one of the best ones, it could protect us completely. . . . They told us it was a great helmet, and it was top rated, in the top seller."
Statements that the helmet was "one of the best" and "great" are opinions, and, therefore, not express warranties. See N.J.S.A. 12A:2-313(b)(2). See also Simpson v. Widger, 311 N.J. Super. 379, 388 (App. Div. 1998) (holding that statements indicating a horse was "good" and "appropriate to purchase" are not express warranties); Adams v. Peter Tramontin Motor Sales, Inc., 42 N.J. Super. 313, 317-18 (App. Div. 1956) (concluding that a car was "perfect for you" and "you couldn't buy a better car" are not express warranties).
Statements that the helmet was "top rated" and a "top seller" are not express warranties but are statements of value or commendations. Lithuanian Commerce Corp. v. Sara Lee Hosiery, 214 F. Supp. 2d 453, 459 (D.N.J. 2002) (quoting language from N.J.S.A. 12A:2-313, which states that a seller need not use words such as "warrant" or "guarantee" to create an express warranty; however, as the statute goes on to exclude opinions and commendations as express warranties, the court found that a seller's assignment of a particular dollar amount to an item did not create a warranty); Simpson, supra, 311 N.J. Super. at 388 (stating a description of a horse as "good" and "appropriate to purchase" as an affirmation of value only, and as such, was explicitly excluded from the definition of express warranty); Sessa v. Riegle, 427 F. Supp. 760 (E.D.Pa. 1977) (finding a seller's comment that a horse "was sound" constituted an expression of opinion or commendation, exempting it from the definition of express warranty), aff'd o.b., 568 F.2d 770 (3rd Cir.1978). However, even if these statements could be considered warranties, they are not warranties that the helmet was merchantable, fit for use or free from defects, as plaintiffs claim. Furthermore, plaintiffs have failed to present anything to establish that the helmet was not "top rated" or "top quality." Moreover, nothing in the record suggests that these claims could proximately have caused plaintiff's injuries. These subjective comments are little more than sales puffery and fall far short of creating express warranties.
Plaintiffs also claim that defendant's representation that the helmet "could protect us completely" constituted an express warranty. A reasonable jury could find that this representation constitutes an express warranty. See Cipollone v. Liggett Group, Inc., 893 F.2d 541, 575-76 (1990), rev'd in part on other grounds, 505 U.S. 504, 112 S.Ct. 2608, 120 L.Ed. 2d 407 (1992) (holding that cigarette advertisements representing that the cigarettes were safe could constitute express warranties). However, even if plaintiffs could prove that this statement is an express warranty, plaintiffs have not established breach or causation.
Plaintiffs assert that plaintiff's injuries sustained while using the helmet as well as the photographs of the helmet depicting the bent chin bar*fn5 are sufficient to establish that that plaintiff's injuries were caused by breach of express warranty. Plaintiffs maintain, "There is no explanation for these injuries to her face other than the failure of the helmet to function as warranted."
However, plaintiffs do not allege that defendant warranted that the helmet would protect plaintiffs from any type of head injury under any circumstances. Plaintiffs allege that defendants warranted that the helmet was merchantable, fit for use and free from defects. To succeed on these claims, plaintiffs must establish that the helmet had some "defect," that it could not "protect completely."*fn6 This showing would require expert testimony. See Rocco v. NJ Transit Rail Operations, 330 N.J. Super. 320, 341 (App. Div. 2000) (finding expert testimony was needed where the allegedly defective product was complex); see also, Jimenez v. GNOC Corp., 286 N.J. Super. 533, 546 (App. Div.) (stating that expert testimony is necessary to assist the fact finder in understanding intricate instrumentalities and to exclude other possible causes of an accident), certif. denied, 145 N.J. 374 (1996).
Generally, "[e]xpert testimony is only required to support a claim when the subject matter is so esoteric that jurors of common judgment and experience are unable to make a determination without the benefit of the information and opinions possessed by a person with specialized knowledge." Macri v. Ames McDonough Co., 211 N.J. Super. 636, 642 (App. Div. 1986). Accordingly, in product liability actions, we have held that:
To prove the existence of a defect, a plaintiff may rely on the testimony of an expert who has examined the product or offers an opinion on the product's design. Alternatively, a plaintiff may produce circumstantial evidence of a defect, "such as proof of proper use, handling or operation of the product and the nature of the malfunction, [which] may be enough to satisfy the requirement that something is wrong with [the product]." The res ipsa loquitur doctrine is not available to product liability plaintiffs, however. [Lauder v. Teaneck Volunteer Ambulance Corps, 368 N.J. Super. 320, 331 (App. Div. 2004) (quoting Scanlon v. General Motors Corp., 65 N.J. 582, 591 (1974)) (citations omitted).]
Moreover, where the allegedly defective product involves a complex instrumentality, a plaintiff is required to provide expert testimony. Expert testimony is necessary to assist the fact finder in understanding "the mechanical intricacies of the instrumentality" and in excluding other possible causes of the accident. [Ibid. (quoting Jimenez v. GNOC Corp., 286 N.J. Super. 533, 546 (App. Div.), certif. denied, 145 N.J. 374 (1996)) (citations omitted).]
In Lauder, supra, expert testimony was required to show that a gurney was defective. Id. at 332-33. We held that the mere fact that the gurney collapsed was insufficient to establish that the gurney was defective. We noted that the gurney could have collapsed from reasons aside from defect, for example the legs not being locked or a blanket getting caught in the legs. Id. at 331. Cf. Macri, supra, 211 N.J. Super. at 642-43 (concluding that expert testimony is not required in a products liability case involving a hammer).
Here, as in Lauder, a showing that plaintiff suffered facial injuries while wearing the helmet and that the chin bar may have been bent are insufficient to establish a breach of an express warranty. Too many other possible causes exist, such as a failure to fasten the helmet correctly, to establish the nexus required here. Unlike the hammer in Macri, the design and construction of a helmet are not simple enough for a jury to be able to find "defect" in the helmet or causation without expert testimony. A jury cannot be left to speculate as to the structural integrity, design and usage of the helmet without the assistance of an expert. Plaintiffs argument that no expert is necessary is without merit.
In sum, we conclude that plaintiffs failed to establish express warranties and even if they did, expert testimony was necessary to establish the requisite causation. We conclude that Judge Accurso correctly dismissed plaintiffs' complaint.