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Thompson v. Harrah's Atlantic City Holding, Inc.

United States District Court, D. New Jersey

March 29, 2018

HOWARD THOMPSON and DEBORAH THOMPSON, h/w Plaintiffs,
v.
HARRAH'S ATLANTIC CITY HOLDING, INC., et. al. Defendants.

          OPINION

          HON. JOSEPH H. RODRIGUEZ, UNITED STATES DISTRICT JUDGE.

         These 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.[1]

         On 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 Group, LLC.

         Associated 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.

         The 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 Harrah's.

         I. Standard of Review

         A court 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).

         An 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 (1986).

         Initially, 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 322.

         In 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).

         II. Analysis

         Summary 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 Harrah's.

         A. Product's Liability Claims

         To 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.

         1. Affidavit of Merit Statute, N.J.S.A. 2A:53A-27

         Summary 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.

         The AOM statute provides:

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.

N.J.S.A. 2A:53A-27.

         The 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 granted[.]”)

         The 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).

         Here, 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).

         The 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)

         All 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.[2] 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.[3]

         Plaintiff 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 ...


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