May 28, 2013
LISHA LOO MORGAN and RAYMOND MORGAN, Plaintiffs-Appellants,
SIX FLAGS GREAT ADVENTURE, L.L.C., t/a SIX FLAGS HURRICANE HARBOR, Defendant-Respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 20, 2012
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-1571-10.
Richard B. Ansell argued the cause for appellants (Ansell, Grimm & Aaron, P.C., attorneys; Mr. Ansell, of counsel and on the brief; Kristine M. Bergman, on the brief).
Douglas D. Suplee argued the cause for respondent (Marshall, Dennehey, Warner, Coleman & Goggin, attorneys; Mr. Suplee, on the brief).
Before Judges Axelrad and Nugent.
Plaintiffs, Lisha Loo Morgan and Raymond Morgan, appeal from the Law Division order that granted summary judgment to defendant, Six Flags Great Adventure, L.L.C., and dismissed their personal injury and product liability complaint with prejudice. We affirm.
Construed in the light most favorable to plaintiff, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), the evidence on the motion record established the following facts. On August 16, 2009, plaintiff and other members of her family visited defendant's amusement park in Jackson Township. While riding a water slide called "The Big Bamboo" with her daughter and granddaughter, plaintiff fractured her fifth left metatarsal.
Plaintiff described the "The Big Bamboo" as a large yellow raft, with handles on each side, that goes down a slide. She and her daughter and granddaughter climbed stairs to the top of the slide and then sat in the raft in a circle. An attendant instructed them to sit in the raft with their legs crossed under them, "like Indian style, " and to hold onto the handles on "both sides, left and right."
Once the three were positioned in the raft according to the attendant's instructions, the attendant pushed the raft "to go through the tunnel, the slide." Plaintiff described how she was injured:
And we're swooshing back and forth, we're coming down and we come down and the raft went airborne and when it came down at the end of the tunnel that's when my foot - -at the edge, that's when the raft came down, at the edge and that's how I fractured my foot[.]
Plaintiff further explained that after the raft became airborne, part of it came down on the edge of the slide, rather than entirely in the splash pool. Her left foot was "sandwiched" between the slide and her body weight.
Plaintiff filed a complaint alleging that defendant designed, manufactured, operated, and maintained The Big Bamboo in a negligent and careless manner, and failed to warn plaintiff of the risks associated with using the ride (first count); and designed, manufactured, assembled, sold, and installed the ride in violation of New Jersey's Product Liability Act (PLA), N.J.S.A. 2A:58C-1 to -11 (second count). Plaintiff's husband asserted a per quod claim (third count).
Plaintiff neither inspected the ride nor retained an expert during the discovery period. After the period for discovery ended, defendant moved for summary judgment. Following oral argument, Judge Rochelle Gizinski delivered her decision from the bench, granting defendant's summary judgment motion.
Citing the PLA's definition of a product liability action as "any claim or action brought by a claimant for harm caused by a product, irrespective of the theory underlying the claim, except actions for harm caused by breach of an express warranty[, ] N.J.S.A. 2A:58C-1, " and determining that plaintiff's action was a product liability action, Judge Gizinski concluded the PLA provided the exclusive remedy for plaintiff's injury. The judge explained that because defendant did not design, manufacture, or sell the ride, but merely sold licenses for admissions to its premises, it was not a proper defendant under the PLA. Additionally, the judge explained that the PLA and cases interpreting it prohibited negligence claims based upon the absence of warnings against entities that had not manufactured or sold a product. Lastly, Judge Gizinski concluded that, even if plaintiff's cause of action were not precluded by the PLA, defendant breached no duty to plaintiff.
On appeal, plaintiff argues:
THE MOTION JUDGE ERRED IN DETERMINING THAT DEFENDANT-APPELLANT DID NOT HAVE A DUTY TO WARN PLAINTIFF-APPELLANT OF THE DANGERS OF RIDING ITS WATER SLIDE.
THE DEFENDANT HAD A DUTY TO PROVIDE WARNINGS TO ITS PATRONS THAT THEIR NON-NEGLIGENT RIDING OF A RIDE COULD NEVERTHELESS RESULT IN SERIOUS BODILY INJURY, AS WAS SUSTAINED BY THE PLAINTIFF-APPELLANT HEREIN.
THE ISSUES PRESENTED IN THIS CASE DO NOT REQUIRE NOR WARRANT EXPERT TESTIMONY.
THE MOTION COURT'S ENTRY OF SUMMARY JUDGMENT WAS ERROR, AS HAVING BEEN PREDICATED UPON ISSUES OF FACT DECIDED AS A MATTER OF LAW.
The summary judgment standard is set forth in Brill, supra, 142 N.J. at 540. The motion judge must determine whether the competent evidential materials, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party. R. 4:46-2(c); Brill, supra, 142 N.J. at 540. When a party appeals from a trial court order granting a summary judgment motion, we "'employ the same standard [of review] that governs the trial court.'" Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010) (quoting Busciglio v. DellaFave, 366 N.J.Super. 135, 139 (App. Div. 2004)).
Having considered plaintiff's arguments and the record under that standard, we affirm substantially for the reasons stated by Judge Gizinski in her oral decision. Plaintiff's arguments do not warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).