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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...