On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-2192-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Judges Wefing, Grall and LeWinn.
In March 2005, plaintiff was seriously injured when he fell while skiing in Vernon, New Jersey, and one of his ski bindings failed to release. He filed a complaint under the New Jersey Products Liability Act, N.J.S.A. 2A:58C-1 to -11, against Pelican Leisure Sports, Inc. (Pelican), which sold him the ski equipment, and Marker Volkl/USA, Inc. (Marker), the manufacturer of the bindings. Plaintiff now appeals from the June 30, 2009 order of the trial court granting defendants' motions for involuntary dismissal at the conclusion of his case at trial.
The evidence pertinent to our decision may be summarized as follows. Plaintiff testified that he started skiing at a young age but that at the age of eleven, he witnessed a skier suffer a serious accident and it traumatized him to the extent that he "stopped skiing for 20 years." When he resumed skiing, he first rented equipment and then in December 2004, he purchased ski equipment from Pelican. He purchased skis manufactured by Volkl, bindings manufactured by Marker, ski poles and boots. He testified that, because of his childhood experience, safety was a top priority in selecting equipment.
His first skiing trip with the new equipment was in Colorado; plaintiff testified that he skied for five days and never fell. While skiing in Colorado, however, the boots which plaintiff had purchased from Pelican bothered him, so he purchased new ski boots from Aspen Sports. Plaintiff acknowledged that when he purchased the new ski boots, the salesperson at Aspen had to make adjustments to the settings on his skis and bindings. Plaintiff stated, "they explained to me they have to set the new boots to the bindings and the skis. Or that there are settings that had to be made.... I said I'd like the settings to be correct and everything to work the right way."
A few weeks later, plaintiff went skiing at the Mountain Creek resort in Vernon. He took two "warm up" runs.
Plaintiff testified that on his third run, he gained speed and lost control where "the snow was thin and it was a little icy in patches." His "right ski popped off" but his left ski "stayed right there like... a vice.... The entire weight of [his] body was pulling... and twisting his leg around."
Plaintiff heard "a big pop" followed by "an immense amount of pressure...." Plaintiff testified that he believed that his accident was caused by "the bindings on the left leg not opening...."
Sometime after his accident, plaintiff brought his skis, bindings and boots to Steven French, who owns a ski shop in Far Hills called Sports People. French prepared a report and testified at trial as an expert on behalf of plaintiff. French described himself as a "graduate mechanical engineer... working in the ski industry for over 35 years doing all aspects of the business, including mounting bindings, releasing bindings." He was proffered by plaintiff, and accepted by defendants, "as an expert in the field of a certified ski binding technician."
French explained how the settings on ski bindings are correlated to the particular physical characteristics of the skier, including height, weight, age and skiing style. A "visual setting" is obtained from the manufacturer's binding adjustment chart taking the above factors into account. The bindings are then set to that visual indicator which corresponds to the bindings' range of release values. French stated that the visual setting on plaintiff's bindings was properly set at 6.5.
French performed a torque*fn1 test. He testified that the left ski binding was defective because it did not "release at the proper torque for a 6.5 visual indicator." This led to the following colloquy on direct examination:
Q: And because of that, do you know what the source, what the origin of that problem was?
A: I have to assume that there was something I would expect with the bindings.
A: Basically the bindings should have released within the 15 percent plus or minus, they did not, so there's something amiss and I can't ...