On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-4224-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 24, 2012 -
Before Judges Simonelli and Accurso.
Plaintiff James Reardon appeals from the September 9, 2011 Law Division order, which granted summary judgment to defendant/third-party plaintiff Peachtree Doors and Windows, Inc. (Peachtree).*fn1 Plaintiff also appeals from the October 14, 2011 order, which denied his motion for reconsideration. We affirm.
The following facts are derived from evidence submitted by the parties in support of, and in opposition to, the summary judgment motion, viewed in a light most favorable to plaintiff. See Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540 (1995).
Plaintiff was employed as an in-home sales specialist by Lowe's Home Centers, Inc. In the course of his in-home demonstrations, plaintiff used a sample window that was encased in a strand board display having an attached handle. On August 23, 2007, plaintiff was allegedly injured when a screw on one end of the handle "popped out" strand board display while he was removing the sample window from the trunk of his car. Plaintiff had the sample window in his possession for approximately one month prior thereto, and had used it approximately fifteen times without incident.
On August 20, 2009, plaintiff filed a complaint against Peachtree, alleging that Peachtree had negligently attached the handle to the strand board display with two screws instead of the four screws indicated by the handle assembly. Plaintiff also alleged that Peachtree was strictly liable for the sample window's design and manufacturing defects and failure to properly affix the handle to the strand board display. Plaintiff did not name any fictitious parties.
In its answer filed on October 9, 2009, Peachtree denied liability, and asserted that individuals and/or entities over whom it had no control were liable for plaintiff's alleged injuries. In its answers to plaintiff's interrogatories, Peachtree admitted it manufactured the sample window, but denied it designed or manufactured the strand board display and handle, or attached the handle to the strand board display. Peachtree stated that DAC Products, Inc. (DAC) had designed and manufactured the strand board display and handle, and attached the handle to the strand board display.
Peachtree filed a motion for leave to file a third-party complaint against DAC, which was granted. On September 24, 2010, Peachtree filed a third-party complaint against DAC, seeking contribution and indemnification. On December 16, 2010, DAC filed an answer, denying it had manufactured the strand board display or attached the handle.
Plaintiff did not file a motion to amend the complaint to add DAC as a direct defendant. He also did not depose any Peachtree or DAC representative, serve any discovery requests on DAC, or serve an expert's report. Plaintiff also admitted in his interrogatory answers that the sample window "was probably manufactured properly."
After the close of discovery, Peachtree filed a motion for summary judgment. It argued that the New Jersey Product Liability Act (NJPLA), N.J.S.A. 2A:58C-1 to -11 subsumed plaintiff's negligence claim, the record lacked expert evidence establishing a products liability claim, and the record lacked evidence establishing Peachtree's liability. In opposition, plaintiff argued there was no need for an expert because res ipsa loquitur applied. Plaintiff also argued there was a material factual dispute based on a contradiction between DAC's answer to the third-party complaint, denying it had manufactured the strand board display or attached the handle, and the admission by DAC's attorney during an arbitration that DAC did so.
The trial judge granted the motion. The judge held that the NJPLA subsumed plaintiff's negligence claim, there was no evidence of a design or manufacturing defect, res ipsa loquitur did not apply, and expert evidence was required to prove Peachtree's liability. The judge noted there was no evidence showing who removed the screws from the handle, and no proof that Peachtree had exclusive control of the instrumentality. Noting that plaintiff had control of the instrumentality for a period of time before the incident, the judge questioned whether plaintiff had removed the screws. The judge memorialized his decision in a September 9, 2011 order.*fn2
Plaintiff filed a motion for reconsideration. He again argued that res ipsa loquitur applied, and also argued that the judge erred by not examining the sample window, which plaintiff's counsel had brought to court on the day of oral argument of the summary judgment motion. Plaintiff further argued that the judge ...