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Denise Donlon v. Gluck Group

December 2, 2011


The opinion of the court was delivered by: Honorable Joseph E. Irenas


IRENAS , Senior District Judge:

This lawsuit arose due to Plaintiff falling down the stairs of a houseboat in February of 2008. Presently before the Court, Defendants Patricia Ciavolella-Burgos, Estate of Debra Lang, Gluck Group and American Redi-Bilt, Inc. filed Motions for Summary Judgment (Dkt. Nos. 58-60). For the following reasons, the Motions of Defendants Patricia Ciavolella-Burgos, Estate of Debra Lang, Gluck Group (Dkt Nos. 58-60) will be granted and American Redi-Bilt's Motion (Dkt. No 60) will be denied.


The facts in this case are largely undisputed. At the time of the accident, the late Debra Lang owned a 49-foot Aqua Cruiser houseboat named "All That Jazz" manufactured by Defendant American Redi-Bilt, Inc. in or around 2005. (Def. American RediBilt's L.Civ.R. 56.1 Statement ¶¶ 7-8, Dkt. No. 60) *fn1 The boat has interior living quarters and a large sundeck that occupies the majority of the boat's roof. ( Id. at ¶ 10) The sundeck is accessible via a steep staircase located at the rear of the vessel. ( Id.

In September 2007, Lang utilized the real estate brokerage services of the Gluck Group to sell the houseboat. ( Id. at ¶ 12) Defendant Gluck Group appointed Defendant Phyllis Scherr as the listing salesperson. ( Id. ) On January 25, 2008, Ms. Lang passed away and left the boat to her daughter, Defendant CiavolellaBurgos who also acted as executrix of the estate. ( Id. at ¶¶ 13-14)

On February 18, 2008, Defendant Scherr showed the boat to Plaintiff, her husband and Plaintiff's daughter for the purposes of encouraging a sale. ( Id. at ¶¶ 15-17) The tour included a viewing of both the boat's interior and sundeck. ( Id. at ¶¶ 17-18) On the first tour of the sundeck, Plaintiff ascended and descended the stairs without incident, though, Plaintiff did express concern about the steepness of the steps. ( Id. at ¶ 22; Pl.'s L.Civ.R. 56.1 Statement ¶ 32)

Nonetheless, Plaintiff decided to view the sundeck a second time. (Def. American Redi-Bilt's L.Civ.R. 56.1 Statement at ¶¶ 20-22) On her second descent, Plaintiff slipped on the uppermost step and fell down the entire staircase. ( Id. at ¶¶ 23-25) Plaintiff cannot recall any of the details directly before, during or directly after the fall. ( Id. at ¶¶ 25-31) Due to injuries sustained in the fall, Plaintiff was transported to Shore Memorial Hospital in Somers Point, New Jersey. ( Id. at ¶ 35)

Although Ciavollela-Burgos acted as executrix and eventually inherited the boat, she did not take personal possession until June 19, 2008. ( See Def. Ciavollela-Burgos's Br. Ex. B, Dkt. No. 59) Therefore, at the time of the accident, Defendant Estate of Debra Lang owned "All That Jazz." ( Id. at ¶ 4)

On October 21, 2009, Plaintiff filed the Complaint. (Dkt. No. 1) On February 1, 2010, Plaintiff filed an Amended Complaint. (Dkt. No. 17) The three pending Motions for Summary Judgment were filed between August 17, 2011 and August 19, 2011. (Dkt. Nos. 58-60) II.

"[S]ummary judgment is proper '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 and that the moving party is entitled to a judgment as a matter of law.'" Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986) (quoting Fed. R. Civ. P. 56(c)). In deciding a motion for summary judgment, the Court must construe the facts and inferences in a light most favorable to the non-moving party. Pollock v. Am. Tel. & Tel. Long Lines , 794 F.2d 860, 864 (3d Cir. 1986).

"'With respect to an issue on which the non-moving party bears the burden of proof, the burden on the moving party may be discharged by 'showing' -- that is, pointing out to the district court -- that there is an absence of evidence to support the nonmoving party's case.'" Conoshenti v. Public Serv. Elec. & Gas , 364 F.3d 135, 145-46 (3d Cir. 2004) (quoting Celotex , 477 U.S. at 323). The role of the Court is not "to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 249 (1986).


Plaintiff alleges five claims in the Amended Complaint - one for each defendant. Against Defendant American Redi-Bilt, Plaintiff alleges a product liability claim for "manufacturing defects, design defects and/or a failure to warn." (Compl. ¶ 23, Dkt. No. 17) Next, Plaintiff alleges that Defendants Gluck Group, Ciavollela-Burgos and Estate of Lang acted negligently and are vicariously liable for the actions of Defendant Scherr. Against the three remaining Defendants - Scherr, CiavolellaBurgos and the Estate of Debra Lang - Plaintiff alleges negligence. All Defendants except Scherr move for summary judgment.


The first task is to decide which law governs this case. Plaintiff Donlon argues that maritime law applies. Although Donlon does not describe how maritime law would change the Court's analysis or cite to any admiralty case law concerning principles of negligence, the Court must still determine the law applicable to this case.

Normally, a party seeking to invoke admiralty jurisdiction in tort must satisfy a two-part test of location and connection with maritime activity. Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co. , 513 U.S. 527, 534 (1995). The location test examines "whether the tort occurred on navigable water or whether the injury suffered on land was caused by a vessel on navigable water." Id. (citing 46 U.S.C. § 30101). The connection test examines whether the incident has a "potentially disruptive effect on maritime commerce" and whether the general character of the activity giving rise to the incident bears a "substantial relationship to traditional maritime activity." Id. (quoting Sisson v. Ruby , 497 U.S. 358, 363 (1990)).

The Court need not apply this analysis, however, because Donlon has not pled admiralty jurisdiction. "A plaintiff with a claim cognizable in the district court's admiralty jurisdiction and actionable on other jurisdictional grounds may invoke which ever jurisdiction is desired." Fedorczyk v. Caribbean Cruise Lines, Ltd. , 82 F.3d 69, 73 (3d Cir. 1996). To invoke admiralty jurisdiction, a plaintiff must "affirmatively insert a statement in the pleadings identifying the claim as an 'admiralty or maritime claim.'" Id. (quoting Fed.R.Civ.P. 9(h)(1)).

Here, Plaintiff only invoked the Court's diversity jurisdiction under 28 U.S.C. § 1332. ( See Compl. ¶ 1, Dkt. No. 17) "If brought under diversity of citizenship, the forum state's choice of law rules dictate which state law applies." Fedorczyk, 82 F.3d at 73. If maritime law does not apply, there is no dispute that New Jersey state law applies. Accordingly, the Court will apply New Jersey state law to this case.


Defendant American Redi-Bilt advances several arguments in support of summary judgment. First, American Redi-Bilt argues that Plaintiff cannot establish the elements of a products liability claim. Second, Defendant American Redi-Bilt argues that expert testimony is required to establish a prima facie case and evidence proffered by Plaintiff's expert witness, Roy Scott, would be inadmissible at trial.

The New Jersey Products Liability Act provides: A manufacturer or seller of a product shall be liable in a product liability action only if the claimant proves 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: a. deviated from the design specifications, formulae, or performance standards of the manufacturer or from otherwise identical units manufactured to the same manufacturing specifications or formulae, or b. failed to contain adequate warnings or instructions, or c. was designed in a defective manner.

N.J.S.A. 2A:58C-2.

Although not specifically stated, Plaintiff brings claims under subsection b and c - a failure to contain adequate warnings and a design defect. *fn2 The Court will first determine whether Plaintiff has stated a prima facie design defect claim because the elements of a failure to warn claim significantly overlap with a design defect claim. Second, assuming Plaintiff has established a prima facie case, the Court will examine the admissibility of Scott's proposed testimony and report.


As a threshold matter in a design defect case, plaintiff must show that the "product was defective, that the defect existed when the product left the defendant's control, and that the defect caused injury to a reasonably foreseeable user." Feldman v. Lederle Labs. , 97 N.J. 429, 449 (1984); accord Indian Brand Farms, Inc. v. Novartis Crop Protection Inc. , 617 F.3d 207, 225 (3d Cir. 2010). "The defect may take one of three forms: a manufacturing flaw, a design defect, or an inadequate warning." Feldman , 97 N.J. at 449. "Because this case involves a design defect, as distinguished from a manufacturing defect, plaintiff must show specifically that the product is not reasonably fit, suitable and safe for ...

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