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Lauren Klimko, A Minor By Her Guardian Ad Litem, James Klimko, James Klimko, Individually, and Alexander Klimko v. Vinyl Works Canada

October 22, 2012

LAUREN KLIMKO, A MINOR BY HER GUARDIAN AD LITEM, JAMES KLIMKO, JAMES KLIMKO, INDIVIDUALLY, AND ALEXANDER KLIMKO, PLAINTIFFS-APPELLANTS/ CROSS-RESPONDENTS,
v.
VINYL WORKS CANADA,
DEFENDANT-RESPONDENT/CROSS-APPELLANT, AND TRENT PETTIT, JERSEY CHEMICAL, INC., AND BEST IN PLASTICS CORP., DEFENDANTS.



On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-6671-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 15, 2012

Before Judges Yannotti, Espinosa and Kennedy.

On July 10, 2006, nine-year old Lauren Klimko was injured when she fell from her family's pool ladder and hit her armpit on the ladder's safety gate latch. Her parents, James and Alexandra Klimko, instituted this product liability action on behalf of themselves and her (collectively, "plaintiffs"),*fn1

alleging that the placement of the latch was a design defect. In its amended answer, defendant Vinyl Works Canada,*fn2 the manufacturer of the ladder, asserted a defense of comparative negligence and filed a counterclaim against Alexandra for contribution and indemnification based upon her negligence in assembling the ladder.

Prior to trial, plaintiffs filed a motion in limine seeking the dismissal of the counterclaim against Alexandra and to bar evidence of Alexandra's negligence and Lauren's comparative negligence. Defendant filed a motion to exclude plaintiffs' expert's testimony as a net opinion. The judge denied both motions.

In this appeal, plaintiffs argue that the court erred in its decision of the in limine motion allowing evidence of Alexandra's and Lauren's negligence to be presented to the jury. In addition, they argue that the court erred in denying their motions for a judgment notwithstanding the verdict or a new trial or for additur. Defendant filed a cross-appeal, in which it argues that the trial court erred in denying its motion to exclude the testimony of plaintiff's liability expert. For the reasons that follow, we affirm the judgment.

I

Plaintiffs purchased the ladder in April 2006. Alexandra installed it with assistance from a neighbor. Before installation, Alexandra read and understood the instructions accompanying the ladder. Those instructions cautioned that "[f]ailure to follow [them] may result in serious personal injury." Nonetheless, Alexandra failed to follow two of the instructions.

First, the instructions required the installer to secure the ladder to the pool by inserting two bolts through the ladder platform into the top rail of the pool. Alexandra testified that she understood that the bolts provided the only direct attachment between the ladder and the pool and that the purpose of putting the bolts through the rail of the pool was for the safety and stability of the ladder. At the end of the initial instructions, the last sentence stated, "Do not deviate from these instructions." Alexandra admitted that, even though she knew that the bolting system was for the stability of the ladder, she decided not to bolt the ladder to the pool. She testified that, at the time of installation, the ladder was "very steady" and that she only planned to insert the bolts if that changed.

The instructions also required the installer to fill each side of the part of the ladder that goes into the pool with ten pounds of sand or gravel. Alexandra understood that the purpose of this instruction was to weight the ladder down to the bottom of the pool so it would not move around. However, instead of following the directions, Alexandra chose to fill the ladder with water. Defendant's president, Trent Pettit, testified that if the ladder is filled with water, rather than sand or gravel, the ladder "will not sit stable on the pool floor."

Defendant also provided safety instructions for users. Lauren testified that she understood that the rule was to "climb out of the pool, and once you reach the top you turn around and climb down." At the time of her deposition, Lauren stated that she "kind of remember[ed]" or was "pretty sure" that she "stepped down to the first step and then started to turn around," before falling.*fn3 Carolyn Smith, a neighbor who saw Lauren fall, testified at her deposition that she thought Lauren was "in the process of stepping down as she was turning[.]"

In her deposition testimony, Lauren initially stated the ladder was sometimes "like shaky, like not stable."*fn4 Her subsequent deposition answers, however, made it unclear whether she was referring to defendant's ladder ...


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