Ridenour v. Bat Em Out

• Citation: 309 N.J. Super. 634,707 A.2d 1093
• Parties: DANIEL RIDENOUR, AN INFANT BY HIS GUARDIAN AD LITEM, JOHN W. RIDENOUR AND JOHN W. RIDENOUR, INDIVIDUALLY, PLAINTIFFS-APPELLANTS, v. BAT EM OUT, ROWE INTERNATIONAL, INC., BARRY WHITE AND STAR GAMES, INC., DEFENDANTS-RESPONDENTS.
• Decision Date: 14 April 1998
• Court: Superior Court of New Jersey

309 N.J. Super. 634

707 A.2d 1093

DANIEL RIDENOUR, AN INFANT BY HIS GUARDIAN AD LITEM, JOHN W. RIDENOUR AND JOHN W. RIDENOUR, INDIVIDUALLY, PLAINTIFFS-APPELLANTS, v. BAT EM OUT, ROWE INTERNATIONAL, INC., BARRY WHITE AND STAR GAMES, INC., DEFENDANTS-RESPONDENTS.

Superior Court of New Jersey, Appellate Division.

Argued February 2, 1998.

Decided April 14, 1998.

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Before Judges LANDAU, NEWMAN and COLLESTER.

Steven L. Kessel argued the cause for appellants (Drazin & Warshaw, attorneys; Paula A. Sawyer, on the brief).

Jeffrey M. Kadish argued the cause for respondent Rowe International, Inc. (Morgan, Melhuish, Monaghan, Arvidson, Abrutyn & Lisowski, attorneys; Mr. Kadish and Jodi F. Bouer, on the brief).

Granville M. Magee argued the cause for respondents Barry White and Star Games, Inc. (Magee & Isherwood, attorneys; Thomas Isherwood, of counsel; Mr. Magee, on the brief).

Respondent Bat Em Out has not filed a brief.

The opinion of the court was delivered by LANDAU, J.A.D.

Daniel Ridenour, an infant, by his guardian ad litem, John W. Ridenour, and John W. Ridenour, individually, (together hereinafter referred to in the singular as "plaintiff"), appeal from the award of summary judgment to defendants Bat Em Out, Rowe International, Inc. (Rowe), Barry White and Star Games, Inc. (together, "Star Games"), on plaintiff's complaint sounding in products liability, negligent installation, and maintenance of a condition dangerous to business invitees.

In 1993, Daniel, then eleven years old, suffered a broken leg on the premises of Bat Em Out, a commercial recreation facility, when a two-hundred pound change-making machine manufactured by Rowe, sold to and owned by Star Games, and then installed and maintained by Star Games at Bat Em Out's recreational facility, was tipped over by the youthful customer.

Summary judgment was awarded to all defendants, essentially premised upon the same reasoning, i.e., absence of an expert's report. We view the relationship between each defendant and plaintiff to be sufficiently different as to have necessitated separate analyses, leading to different results. We modify the grant of summary judgment to Rowe, reversing it in part; similarly reverse in part as to Star Games; and partially reverse as to Bat Em Out.

Our discussion begins by noting that in answers to interrogatories, plaintiff certified that:

4. On August 23, 1993 the plaintiff and his friends went to Bat Em Out to play the games there and to practice batting. The plaintiff pushed the change machine to try to get change out and it rocked over onto him breaking his left leg.

The motion judge had granted several lengthy continuances to allow plaintiff to secure an expert's report. None was provided as plaintiff contended that an expert was not required. All defendants moved for summary judgment.

The Motions

Defendant Rowe's motion for summary judgment sought dismissal of the strict products liability contentions made against it as a manufacturer of the change machine. Rowe argued that plaintiff's case could not be substantiated without an expert report setting forth the ways in which the product was not reasonably fit, suitable or safe for its intended purpose, whether by manufacturing defect, design defect or inadequacy of warning. See N.J.S.A. 2A:58C-2; Jurado v. Western Gear Works, 131 N.J. 375, 380-81, 619 A.2d 1312 (1993); Ladner v. Mercedes-Benz of N. Am., Inc., 266 N.J. Super. 481, 487-89, 630 A.2d 308 (App.Div. 1993), certif. denied, 135 N.J. 302, 639 A.2d 301 (1994).

Plaintiff's complaint against defendant Rowe alleged, inter alia, that "the product known as a change machine was in a defective condition when it left the possession and control of this defendant." The complaint also asserted that the machine was not reasonably fit, suitable or safe for its intended purpose because it deviated from the design formula, or performance standards of the manufacturer, or from otherwise identical units manufactured to the same specifications.

Plaintiff responded to Rowe's motion that no expertise was necessary to show that a heavy change machine was defective if mere pushing or rocking by an eleven-year old could cause it to topple. Initially, plaintiff's briefed motion response also pointed to the manufacturer's failure to take any steps to prevent the machine from tipping, by providing means for bolting to the floor or wall. At oral argument on the summary judgment motion, however, plaintiff's counsel conceded that this argument was in error, and that his office had been provided with Rowe's installation manual which described how the coin changer could be secured to a wall or floor at the installer's option.

The motion judge reasoned that expert testimony was necessary to establish a design defect, and that ordinary jurors with common knowledge would not be in a position to determine whether the change machine was improperly designed, particularly as it was capable of being bolted at the installer's option.

While agreeing that expert testimony should be required to establish a defect of tipping vulnerability, Star Games argued that if it were to be deemed responsible for securing the machine against a tipping hazard, then it should have been warned by Rowe of that hazard. (Because all defendants were successful on their motions directed at plaintiff, there are no cross-appeals.)

When the motion judge indicated during the course of argument that judgment would be awarded to Rowe, against whom only strict products liability was pleaded, Bat Em Out's counsel argued that any products liability counts against the remaining defendants for placing a defective product into the stream of commerce must likewise be dismissed.

As to defendants Bat Em Out and Star Games, the judge also considered plaintiff's contention that the interrogatory answer of plaintiff stating that he merely pushed the machine to get change out and it "rocked" over, furnished a sufficient factual basis, if believed, to obviate any need for expert testimony on the issues of negligent installation and maintenance of a dangerous condition. Plaintiff's counsel argued:

You have an upright piece of machinery, an upright anything that has weight, if it has a tendency to fall if a child tries to rock it, then the people who own the premises, the people who put it there should have the sense to secure it.

That's my argument in a nutshell. Now whether or not that has anything to say about Rowe Manufacturing, I don't know. If I had to stretch the argument, I would say that a jury could find that the machine was designed defectively in that it was top heavy. But no, we don't have an expert that says that, and I recognize the product's liability statute and case law say about that sic.

After being told that Rowe's motion would be granted, plaintiff's counsel continued:

As to the property owner and as to people who installed the machine, my argument is simply this, that the machine presented a dangerous condition because the child who was trying to get the change out of the machine by rocking it or whatever he was doing, should not have been able to knock it over onto himself.

And they should have known that it had that risk. And it's a risk that easily could have been addressed by securing it to the post or the wall or whatever.

Bat Em Out and Star Games argued that there was nothing to show that the non-manufacturer defendants were aware of a risk of tipping when the change machine was used in its ordinary fashion as it was intended to be used, and that expert testimony would be necessary to show the nature of the hazard.

These principles govern the resolution of plaintiff's appeal:

(1) Inasmuch as the accident occurred in 1993, it is subject to the Products Liability Act, N.J.S.A. 2A:58C-1 to -7, but not to N.J.S.A. 2A:58C-8 and -9 enacted in 1995.

(2) The Products Liability Act does not address the issue of misuse or unintended use. Consequently, products liability common law principles remain applicable. See William A. Dreier et al., New Jersey Products Liability & Toxic Torts Law § 2:1 at 13, § 5:3-2 at 33 (1998); Jurado, supra, 131 N.J. at 384-86, 619 A.2d 1312.

(3) As to the defendants who are subject to statutory or common law products liability exposure, plaintiff has the burden of showing that his misuse by pushing and rocking the machine was objectively foreseeable. It is for the jury to determine whether such manner of misuse was objectively foreseeable. Jurado, supra, 131 N.J. at 386-91, 619 A.2d 1312.

(4) At least until enactment of N.J.S.A. 2A:58C-8 and -9 in 1995, New Jersey common law held sellers, lessors, and others having a significant role in the chain of distribution to strict products liability responsibility. See, e.g., Michalko v. Cooke Color and Chem. Corp., 91 N.J. 386, 394, 396, 401, 451 A.2d 179 (1982); Cintrone v. Hertz Truck Leasing & Rental Serv., 45 N.J. 434, 212 A.2d 769 (1965); Dreier, supra, § 2.1 at 13, 14.

(5) There is a duty to warn as to dangers inherent in a reasonably foreseeable misuse, which warnings must be given by the manufacturer and subsequent parties in the chain of distribution. Michalko, supra, 91 N.J. at 394, 403, 451 A.2d 179. Because of its role in placing the change machine into the stream of commerce and in its continued ownership and provision of the change device which serves customers of the amusement machines, Star Games as well as Rowe must be held subject to products liability principles.

(6) As the provider and installer of the change machine, Star Games, unlike Rowe, is also subject to plaintiff's allegations of negligent installation and maintenance.¹ See Cartel Capital Corp. v. Fireco of N.J., 81 N.J. 548, 561, 410 A.2d 674 (1980).

(7) A business proprietor such as Bat Em Out must provide a reasonably safe place for its business invitees to do that which is within the scope of the invitation to...