Martucci v. Zaperla Inc., 080620 NJSUP, A-3279-19T3

Docket Nº:A-3279-19T3
Opinion Judge:PER CURIAM
Party Name:BELLA MARTUCCI, a minor, and MICHAEL and JESSICA MARTUCCI, Plaintiffs-Respondents, v. ZAPERLA INC. and ZAMPERLA ENTERPRISES INC., Defendants-Appellants, and SIX FLAGS GREAT ADVENTURE, LLC, and SIX FLAGS THEME PARKS INC, Defendants.
Attorney:Sweeney & Sheehan, PC and Ryon Yemm (The Sheehan Firm, PC) of the Illinois bar, admitted pro hac vice, attorneys for appellant (Andrew R. Siegeltuch and Ryon Yemm, on the briefs). Jeffrey N. Stern, attorney for respondents.
Judge Panel:Before Judges Sumners and Mayer
Case Date:August 06, 2020
Court:Superior Court of New Jersey
 
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BELLA MARTUCCI, a minor, and MICHAEL and JESSICA MARTUCCI, Plaintiffs-Respondents,

v.

ZAPERLA INC. and ZAMPERLA ENTERPRISES INC., Defendants-Appellants,

and

SIX FLAGS GREAT ADVENTURE, LLC, and SIX FLAGS THEME PARKS INC, Defendants.[1]

No. A-3279-19T3

Superior Court of New Jersey, Appellate Division

August 6, 2020

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 28, 2020

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-2518-17.

Sweeney & Sheehan, PC and Ryon Yemm (The Sheehan Firm, PC) of the Illinois bar, admitted pro hac vice, attorneys for appellant (Andrew R. Siegeltuch and Ryon Yemm, on the briefs).

Jeffrey N. Stern, attorney for respondents.

Before Judges Sumners and Mayer. [1]

PER CURIAM

In this products liability action pursuant to the New Jersey Products Liability Act (PLA), N.J.S.A. 2A:58C-1 to -11, we granted leave for defendant Zamperla, Inc.2 to appeal the motion court's order denying it summary judgment to dismiss the claims of plaintiffs Bella Martucci, a minor, and Michael and Jessica Martucci, Bella's parents, on the grounds their liability expert's report was inadmissible as net opinion. The court decided to determine whether to preclude the expert's opinion at a Rule 104 hearing prior to trial. We conclude the expert rendered a net opinion; thus, the court mistakenly applied its discretion to require a Rule 104 hearing. Nonetheless, summary judgment dismissal of plaintiff's complaint was not appropriate pending the court's consideration of plaintiffs' request to present another liability expert who had been previously identified and plaintiff's contention Zamperla is liable under the theory of res ipsa loquitor, neither of which were addressed in defendant's summary judgment motion. Accordingly, we reverse and remand.

I.

On May 26, 2015, six-year-old Bella was a patron at Six Flags Great Adventure Park (Great Adventure) enjoying one of its many amusement rides, the Enchanted Teacups. After the ride had ended, she was exiting one of the ride's twelve "teacups" when the ride's door closed on her right index finger, severing her the flexor tendon.

Zamperla manufactured the ride in October 1995, and installed it at Great Adventure in May 1996, where it has remained in operation. Since the ride's installation, Zamperla has not performed any additional work or service on the ride, including on the teacups' doors. The New Jersey Department of Community Affairs has regularly inspected the ride and permitted the ride's operation.

Plaintiffs sued Zamperla and Great Adventure, among other parties, for the injury to Bella's hand. As to Zamperla, plaintiffs' expert, Dennis R. Andrews PhD., PSP, CECD, WSO-CSS, opined that "within a reasonable degree of safety certainty, sole cause of the injury to [Bella] was the insufficient timing of the exit door of the teacup[s] ride." According to Dr. Andrews, his inspection of one of the twelve teacups on the ride revealed the "exit door close[d] in approximately 1.2 seconds" instead of the allegedly required closure of "no less than 1.5 seconds from 70% open." Citing the Americans with Disabilities Act Accessibility Guidelines (ADAAG) 4.13.10, ICC, and American National Standard Product Safety Signs and Labels (ANSI) 117.1, Dr. Andrews furthered stated: "the door shall be adjusted so that from an open position, 90°, the time required to reach 12° from the latch is a minimum of 5 seconds. The door should be adjusted to close from a position of 70° to 3 inches from the latch in no sooner than 3 seconds." He furthered asserted Zamperla was negligent in failing "to inspect and maintain the [ride's] exit door so [Bella] would have sufficient time to exit . . . the teacup[s] ride safely."

At his deposition, Dr. Andrews maintained at the time of the accident, the gate on the teacup Bella was exiting closed "too quickly." He further opined Zamperla was negligent because it failed to inspect the teacups ride's door, to ensure the door did not close "too quickly." Dr. Andrews, however, admitted the ADAAG and ANSI standards cited in his report apply only to interior building doors with mechanical, hydraulic, or pneumatic closing devices which automatically open and close doors for individuals who need assistance; none of which are present on the teacups ride. Dr. Andrews admitted he was unaware of any legal standard requiring Zamperla, or any designer, manufacturer, or distributor of the teacups amusement ride to comply with the ADAAG or ANSI standards. The following colloquy occurred: [Question:] Was there any requirement for the designer or manufacturer of this amusement ride or the distributor of this amusement ride to comply with ADAAG 4:13-10?

[Dr. Andrew:] No, other than common sense and maybe a moral value.

[Question:] But there's no legal requirement, correct?

[Dr. Andrew:] Not that I'm aware of.

[Question:] Is there any legal requirement for any designer, manufacturer or distributor to comply with ANSI 117.1?

. . . . [Dr. Andrew:] I am not aware of it.

Following discovery, Zamperla moved for summary judgment arguing plaintiffs' claims are barred under the Statute of Repose (SOR), N.J.S.A. 2A:14-1.1(a), because Bella's injury on the teacups ride, an improvement of real property, occurred more than ten years after the ride was installed. Zamperla also argued plaintiffs' complaint should be dismissed because Dr. Andrews' opinion that it was liable for Bella's injury was inadmissible net opinion.

The court rendered an oral decision and entered an order denying the motion. The court rejected Zamperla's contention plaintiffs' claims were barred under the SOR. However, the court did not rule on Zamperla's contention that Dr. Andrews' opinion - Bella's injury was caused by the teacups' door closing too fast - was inadmissible because it was his "personal" or "moral" opinion and not based on a recognized standard. Zamperla contended Dr. Andrews inspected the ride four years after the accident and did not know which teacup Bella was exiting when she was injured. The court suggested there was some merit to Zamperla's contention it had no obligation to continually inspect the teacups ride since it was sold and installed at Great Adventure nineteen years ago. The court ruled the admissibility of Dr. Andrews opinion should be decided at a Rule 104 hearing prior to trial.

After we granted leave to appeal the court's order denying summary judgment, the court submitted a written decision pursuant to Rule 2:5-1(b) amplifying the reasons regarding its determination the SOR did not apply to Bella's injury because the teacups ride is a removable structure not adding "permanent value to the real property" and not "specialized in any meaningful way that would alter the mechanics of the ride." The court did not amplify its reasons for deciding to hold a Rule 104 hearing regarding the admissibility of Dr. Andrews' expert opinion.

II.

A.

Before us, Zamperla contests the court's order deferring the determination of whether to find Dr. Andrews' expert opinion inadmissible as net opinion to a Rule 104 hearing. The decision on whether to hold a Rule 104 hearing is within the sound discretion of the trial court.

Kemp v. State, 174 N.J. 412 (2002). "Absent a clear abuse of discretion, an appellate court will not...

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