United States District Court, D. New Jersey
JOSEPH H. RODRIGUEZ, UNITED STATES DISTRICT JUDGE.
matters arise out of an incident that occurred on May 30,
2012, at Harrah's Casino in Atlantic City. Plaintiff
claims that he suffered extensive burns to his feet while
walking across the outside pool deck. He filed a three-count
complaint against several defendants alleging violations of
New Jersey's Product Liability Act, N.J. Stat. Ann.
§ 2A:58C-1, negligence, and his wife's loss of
consortium. Generally, he alleges that defendants designed,
manufactured, assembled, processed, distributed,
reconditioned, maintained, services, installed, inspected and
made available for use and/or advertise the pool and sundeck
in question, and/or more of its component parts, which are
hereinafter referred to as “the product” or
“the pavers” which were ultimately sold or leased
to the hotel defendants and/or one or more of defendant John
Doe Corporations, and which ultimately caused the
Plaintiffs' injuries and damages.
April 27, 2017, the Court granted summary judgment in favor
of Defendant Roofblok. Presently before the Court are several
independent motions for summary judgment filed by the
remaining defendants: Associated Indemnity Insurance Company,
Thomas Company, Inc., Oldcastle, Inc., T.N. Ward Company,
Harrah's Atlantic City Operating Company, and Friedmutter
Indemnity Insurance Company provided insurance coverage for
defendant T.N. Ward, which is seeking indemnification. T.N.
Ward, the general contractor on the project, moves for
summary judgment because it is not the designer or
manufacturer of the product and it received no warnings as to
the product's fitness for the application, it is,
therefore, not liable under a negligence or product's
liability theory. Thomas Company, Inc., installed the
original pavers and moves for summary judgment because there
is no allegation that the pavers were incorrectly installed.
Some of the pavers were replaced over time and Thomas
Company, Inc. did not do the replacement installation.
Plaintiff is unable to state whether his injury occurred on a
replacement tile or on an original tile. Oldcastle, Inc.,
also known as Westile, manufactured the original tiles at
issue and supplied them to a distributor, who eventually sent
them to the Harrah's project. Westile moves for summary
judgment because there is no evidence of a defect in the
tiles and because Plaintiff is unable to state whether his
injury occurred on a replacement tile or on an original tile.
Harrah's Atlantic City Operating Company moves for
summary judgment as to the product's liability claims
because it is not a manufacturer or designer of the paver and
is therefore not amendable to suit on this basis. Likewise,
as to the negligence claim, Harrah's argues that because
there was no notice that there was a problem with the pool
deck, it is not liable for Mr. Thompson's injury.
Finally, the Friedmutter Group, LLC is the architect of the
pool deck seeks summary judgment because Plaintiff failed to
get an affidavit of merit in support of its claim of
professional negligence, as required by New Jersey's
Affidavit of Merit Statute, 2A:53A-27. Friedmutter claims
that allegations of professional malpractice against an
architect are subject to the Affidavit of Merit Statute.
Court has considered the written submissions of the parties
and the arguments advanced at the hearing on September 26,
2017. For the reasons stated on the record during the
hearing, and those that follow, summary judgment is granted
in favor of all defendants as to the product liability claims
and denied as to the negligence claims against Defendant
Standard of Review
will grant a motion for summary judgment if there is no
genuine issue of material fact and if, viewing the facts in
the light most favorable to the non-moving party, the moving
party is entitled to judgment as a matter of law. Pearson
v. Component Tech. Corp., 247 F.3d 471, 482 n.1 (3d Cir.
2001) (citing Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986)); accord Fed.R.Civ.P. 56 (c). Thus,
this Court will enter summary judgment only when “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 judgment as a matter
of law.” Fed.R.Civ.P. 56 (c).
issue is “genuine” if supported by evidence such
that a reasonable jury could return a verdict in the
nonmoving party's favor. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A fact is
“material” if, under the governing substantive
law, a dispute about the fact might affect the outcome of the
suit. Id. In determining whether a genuine issue of
material fact exists, the court must view the facts and all
reasonable inferences drawn from those facts in the light
most favorable to the nonmoving party. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
the moving party has the burden of demonstrating the absence
of a genuine issue of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). Once the moving party
has met this burden, the nonmoving party must identify, by
affidavits or otherwise, specific facts showing that there is
a genuine issue for trial. Id.; Maidenbaum v.
Bally's Park Place, Inc., 870 F.Supp. 1254, 1258
(D.N.J. 1994). Thus, to withstand a properly supported motion
for summary judgment, the nonmoving party must identify
specific facts and affirmative evidence that contradict those
offered by the moving party. Andersen, 477 U.S. at
256-57. Indeed, the plain language of Rule 56(c) mandates the
entry of summary judgment, after adequate time for discovery
and upon motion, against a party who fails to make a showing
sufficient to establish the existence of an element essential
to that party's case, and on which that party will bear
the burden of proof at trial. Celotex, 477 U.S. at
deciding the merits of a party's motion for summary
judgment, the court's role is not to evaluate the
evidence and decide the truth of the matter, but to determine
whether there is a genuine issue for trial.
Anderson, 477 U.S. at 249. Credibility
determinations are the province of the finder of fact.
Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d
1358, 1363 (3d Cir. 1992).
judgment is granted as to the product liability claims
because Plaintiff's expert is unqualified to render an
opinion on defectiveness and because there is no evidence in
the record to demonstrate that the pavers were defective. In
addition, summary judgment is granted as to the claims
against Friedmutter because Plaintiff failed to file an
affidavit of merit pursuant to N.J.S.A. 2A:53A-27 and
because, even if that failure is not fatal, Plaintiff's
expert is unqualified to opine on matters related to
architecture. Finally, as to Plaintiff's claims of
negligence, summary judgment is denied as to Defendant
Product's Liability Claims
establish a right to relief under New Jersey's Product
Liability Act (“PLA”), “a plaintiff must
show that the defendant manufactured the product, that a
reasonably foreseeable user was injured, that the product was
defective, that the defect existed when it left the
defendant's control, and that the defect was the actual
and proximate cause of the plaintiff's injury.”
Worrell v. Elliott & Frantz, 799 F.Supp.2d 343,
350 (D.N.J. 2011) (citing Myrlak v. Port Auth. of N.Y.
and N.J., 723 A.2d 45, 52 (N.J. 1999)). Summary judgment
is granted as to the product's liability claims because
Plaintiff's expert cannot establish that the pavers were
defective and or that the architect deviated from the
requisite standard of care.
Affidavit of Merit Statute, N.J.S.A. 2A:53A-27
Judgment is granted as to Defendant Friedmutter because
Plaintiff failed to timely file an Affidavit of Merit
pursuant to N.J.S.A. 2A:53A-27. Mr. Meshulam testified that
he is not a licensed engineer and that he has never applied
with any state to become a licensed engineer. Meschulam Dep.,
12:22-13:8. Friedmutter is a professional architecture firm.
Plaintiff's claims against Friedmutter include,
interalia, that "the floor of the sundeck was
inadequate, improper and/or not in accordance with the
applicable laws, regulations, and codes and that Friedmutter
negligently used materials for the flooring of the sundeck
that become excessively hot in the sun, otherwise, causing a
hazardous condition for persons walking barefoot on the
sundeck. The claims against Friedmutter require an Affidavit
of Merit (“AOM”) pursuant to N.J.S.A. 2A:53A-27.
In any action for damages for personal injuries [or] wrongful
death ... resulting from an alleged act of malpractice or
negligence by a licensed person in his profession or
occupation, the plaintiff shall, within 60 days following the
date of filing of the answer to the complaint by the
defendant provide each defendant with an affidavit of an
appropriate licensed person that there exists a reasonable
probability that the care, skill or knowledge exercised in
the treatment, practice or work that is the subject of the
complaint, fell outside acceptable professional or
occupational standards or treatment practices. The court may
grant no more than one additional period, not to exceed 60
days, to file the affidavit pursuant to this section, upon a
finding of good cause.
Affidavit of Merit Statute imposes a strict deadline by when
the plaintiff must serve an Affidavit of Merit: within sixty
(60) days of the professional defendants filed answer.
N.J.S.A. 2A:53A-27; see also Janelli v. Kepper, 317
N.J.Super. 309, 312 (Law Div. 1998). A plaintiff may apply
for an extension, however the Affidavit of Merit may not be
served more than 120 days after the Answer has been filed.
Id. In other words, an extension renders a 120-day
deadline from the filing of the relevant answer (the original
60 day period, plus an additional
sought-and-granted-for-good-cause period not exceeding 60
days) an “end of the line ... drop-dead date[.]”
Douglass v. Obade, 359 N.J.Super. 159, 160 (App.
Div. 2003); Familia v. Univ. Hosp., 350 N.J.Super.
563, 569 (App. Div. 2002) (an extension acts as “an
outer time limit ... beyond which no extension could be
failure of a plaintiff to produce an Affidavit of Merit
within this timeframe is considered a failure to state a
cause of action requiring the dismissal of the complaint with
prejudice N.J.S.A. 2A:53A-29; see also Nuveen Mun. Trust
v. Withumsmith Brown, P.C., 692 F.3d 283, 305; see
also Cornblatt v. Barow, 153 N.J. 218 (1998).
Plaintiffs failed to serve the Affidavit of Merit within the
prescribed timeframe and never sought an extension from the
Court. Plaintiffs did submit a "sworn statement" in
lieu of the Affidavit of Merit; however, the filing was made
outside the permissible window. N.J.S.A. 2A:53A-29; see
also Nuveen Mun. Trust, 692 F.3d at 305; see also
Cornblatt, 153 N.J. 218 (1998).
Court will now consider whether an AOM is required under the
circumstances here. In order to assist courts in determining
whether an affidavit of merit is required, the Couri
Court articulated a three-element test. Courts should ask:
(1) whether the action is for “damages for personal
injuries, wrongful death or property damage” (nature of
injury); (2) whether the action is for “malpractice or
negligence” (cause of action); and (3) whether the
“care, skill or knowledge exercised or exhibited in the
treatment, practice or work that is the subject of the
complaint [ ] fell outside acceptable professional or
occupational standards or treatment practices”
(standard of care).
Id. at 1137 (quoting N.J.S.A. § 2A:53A-27). If
all three elements are satisfied, then the claim falls within
the purview of the AMS, and the affidavit is required.
Calender v. NVR, Inc., No. 10-CV-4277 NLH KMW, 2011
WL 4593759, at *4 (D.N.J. Sept. 30, 2011), aff'd, 548
Fed.Appx. 761 (3d Cir. 2013)
three Couri elements are satisfied. First, as an
architect group, defendant Friedmutter is considered a
“licensed person.” Second, the claim seeks
damages for personal injury. Third, the nature of the claim
necessarily involves a contention about the professional
standard of care for a protected, licensed
class-architect. The Affidavit of Merit statute applies to
the Plaintiff's design defect claim. An affidavit of
merit was therefore required to proceed under that theory of
liability. It is undisputed, however, that Plaintiff did not
file an affidavit of merit.
argues that the reason an AOM was not filed was the result of
Friedmutter's alleged failure to supply documents
requested by Plaintiff. Friedmutter argues that it supplied
all of the documents in its possession and that Super Storm
Sandy impeded its ability to produce more documentation;
however, the documents Plaintiff requested were in the
possession of other named defendants. See Waldron
Cert., Ex. G. The documents Plaintiff requested included
architectural drawings, plans and specifications, allegedly
necessary for obtaining an AOM. Id.; Ex. H.
Friedmutter maintains that Affidavit in Lieu is insufficient
because Plaintiff is attempting to bypass the Affidavit of
Merit Statute by claiming it has not received certain
documents from Friedmutter, documents which are available
from Atlantic City Township and Defendant Harrah's.
Plaintiffs' claims in this regard, that they have not
received crucial documents from Friedmutter, is unavailing
and there is no evidence tending to show that Friedmutter is
in possession of the requested ...