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Ronald Pollander and Frances Pollander v. Desimone Bmw of Mt. Laurel

January 18, 2012


On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-2703-09.

Per curiam.


Argued: November 1, 2011

Before Judges Yannotti, Espinosa and Kennedy

Plaintiffs, Ronald and Frances Pollander,*fn1 appeal from orders entered by the trial court on December 17, 2010, granting summary judgment to defendants BMW of North America, LLC, (BMW) and DeSimone BMW of Mt. Laurel, LTD (DeSimone) dismissing plaintiffs' complaint, and from an order of January 21, 2011, denying reconsideration. For reasons which follow, we affirm.

Because this appeal arises in the context of a summary judgment application, we, like the trial court, are obliged to view the facts in a light most favorable to the non-moving party, here the plaintiffs. Estate of Hanges v. Met. Prop. & Cas. Ins. Co., 202 N.J. 369, 374 (2010). We accord no special deference to a trial judge's assessment of the documentary record, as the decision to grant or withhold summary judgment does not hinge upon the trial judge's determination of the credibility of testimony in court, but instead amounts to a ruling on a question of law. See Manalapan Realty, L.P. v. Manalapan Twp., Comm., 140 N.J. 366, 378 (1995) (noting that no "special deference" applies to a trial court judge's legal determination).

The statement of facts which follows is discerned from the submissions made by the parties on the motions for summary judgment. The facts appear uncontested for the purposes of the motions for summary judgment.

On June 1, 2007, Ronald Pollander (Pollander), an insurance adjuster, was dispatched to DeSimone to examine the rear seat of a 2002 BMW two-door convertible that had been damaged by vandals. He was an experienced adjuster who had examined hundreds of vehicles with power seats and seat memory functions. The vehicle had been repaired but Pollander was asked to supplement the original estimate which did not cover damage to the rear seat.

Pollander arrived at DeSimone's lot that morning and obtained the key for the car. He opened the driver's side door and located the power seat switch on the base of the driver's seat and pressed it so that the front seat moved all the way forward. He then activated the power recline button which moved the seat back into its full forward position.

Pollander placed his right foot into the rear footwell and knelt with his left knee in the doorjamb. He was examining the rear seat and trying to take a picture when, after "a couple of minutes", he felt something hit his left shoulder and saw the power seat moving backwards into him. He could not extract himself and was injured. He was certain he had not made any contact with the driver's seat before it moved backward.

On June 1, 2009, plaintiffs filed a complaint against BMW and DeSimone alleging that the movement of the seat "was due to negligence . . . or . . . to the defective condition of the seat movement/mechanism . . . ." Pollander asserted that "because of the propensity and/or capability of the BMW's front seat movement mechanism/motor to operate in the manner described . . . [it] was a product that was not reasonably fit, suitable and safe for its intended or reasonably foreseeable usage." The claim against DeSimone was predicated upon an alleged dangerous condition of property arising from the condition of the vehicle. The alleged dangerous condition was a failure to warn of the purported product defect.

The vehicle's manual describes power seat controls and three position memory "storage" buttons along the lower left driver's seat base. A horizontal bar moves the seat back and forward and operates as long as the bar is pressed backward or forward. The storage positions are pre-set and can be accessed as follows: 1) by electronic fob when the remote control entry is employed; 2) by "briefly" pressing one of the memory settings when the ignition key has been inserted into the ignition and turned to position "1"; or (3) if the driver door is closed and the ignition key is either removed or it is in positions "0" or "2" by pressing a memory button and maintaining pressure on the button until the adjustment is completed.

Pollander at his deposition indicated that he had manually turned the key in the driver's side door lock to enter the vehicle. However, the theory advanced by plaintiffs' counsel is that Pollander had the "car key in his hand or in his pocket, and he inadvertently put pressure against the fob and activated the seat positioning motor." While other theories might also be advanced explaining the seat's movement, we accept the theory of plaintiffs' counsel for purposes of this appeal.

The BMW manual contains a warning about using the remote opener with a programmed adjustment feature set in place. ...

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