SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-2988-96T3
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.
___________________________________________________________________
Argued February 2, 1998 - Decided April 14,
1998
Before Judges Landau, Newman and Collester.
On appeal from Superior Court of New Jersey,
Law Division, Monmouth County.
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.
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 (1993); Ladner v. Mercedes-Benz of N. Am., Inc., 266 N.J. Super. 481, 487-89 (App. Div. 1993), certif. denied, 135 N.J. 302 (1994).
Plaintiff's complaint against defendant Rowe alleged, inter alia, that "[t]he 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.
(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.
(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 (1982); Cintrone
v. Hertz Truck Leasing & Rental Serv.,
45 N.J. 434 (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. 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.See footnote 1 See Cartel Capital Corp.
v. Fireco of N.J.,
81 N.J. 548, 561 (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 patrons. See, e.g., Hopkins
v. Fox & Lazo Realtors,
132 N.J. 426, 433 (1993).
The record before us discloses nothing to support plaintiff's pleaded assertions of defects in manufacture or design, particularly in light of the machine's now-admitted capacity to be fastened to a floor or wall at the installer's option. In
consequence, absent an expert's support, we agree that summary
judgment was properly awarded to Rowe on the issues of
manufacturing and design defect. As noted above, however,
plaintiff pleaded product defect broadly enough to encompass the
defect of a failure to warn of a reasonably foreseeable hazard.
Failure to warn was argued during the motion proceedings, and
Rowe's pleadings included a separate defense of "adequate warning
or instruction."
Accepting for the purposes of the motion the truth of
plaintiff's contention respecting the machine's susceptibility to
tipping over by the push of an eleven-year old boy, no expert
report was necessary to support a jury finding that it was
objectively foreseeable that a patron unable to retrieve change
from the machine might engage in the misuse of pushing or rocking
it, and that a warning should have been provided to its installer,
to persons responsible for its use and to ultimate users,
respecting such susceptibility. Macri v. Ames McDonough Co.,
211 N.J. Super. 636 (App. Div. 1986), cited by Rowe in its responding
brief, is not to the contrary. Id. at 642, 643. See also Crawn v.
Campo,
136 N.J. 494, 508-09 (1994).
The factual issue raised by plaintiff's version of the
accident was sufficient to survive a R. 4:46-2 motion on the
warning issue, even under the demanding standards of Brill v.
Guardian Life Ins. Co. of Am.,
142 N.J. 520 (1995), as the issue of
objective foreseeability of the manner of misuse is for the jury.
Jurado, supra, 131 N.J. at 389.
Thus, we conclude that the factual issue raised by plaintiff's
version of the accident was sufficient to defeat the motion for
summary judgment on the warning issue as to the manufacturer, Rowe,
and as to Star Games in its role as the owner-provider of the
change-making machine. The machine was provided by Star Games to
Bat Em Out and placed on the latter's premises. We find no basis
for a products liability claim, as distinct from the premises
liability claim, against defendant Bat Em Out.
We turn to the question of negligence. That allegation is
directed, as we construe the pleadings, at the liability of Bat Em
Out as occupier-tenant of the premises, and Star Games, in its
capacity as the installer and maintainer of the machine designed to
provide change to patrons for use in the amusement devices.
Generally speaking, the owner or occupier of premises must
exercise ordinary care in conducting activities on those premises
to render the premises reasonably safe for its business invitees.
This includes taking steps to correct or to warn of hazardous
conditions or defects known or which, by exercise of reasonable
care, could be discovered.
In Mulraney v. Auletto's Catering,
293 N.J. Super. 315 (App.
Div.), certif. denied,
147 N.J. 263 (1996), we recognized that the
duty of a business proprietor to its business invitees to provide
a reasonably safe place to do that which is within the scope of the
invitation was, as illustrated in Butler v. Acme Markets, Inc.,
89 N.J. 270 (1982) and Hopkins, supra, undergoing a broadened
application. "The inquiry should be . . . whether in light of . .
. all of the surrounding circumstances" it is "fair and just" to
impose a duty to exercise reasonable care in preventing foreseeable
harm to patrons. Mulraney, supra, 293 N.J. Super. at 319-21.
Reasonable care by the owner or occupier does not ordinarily
require precautions or even warning against dangers which are
apparent (including those caused by third parties), but may subject
the possessor to liability if the danger is known by the possessor
or should reasonably have been anticipated. Restatement (Second)
of Torts §343A, §344 (1965)See footnote 2.
In an amusement center frequented by children as well as
adults, a jury might properly find, depending upon the facts before
it, that misuse in the form of a patron's pushing or rocking a
machine that failed to provide change should reasonably have been
anticipated by Bat Em Out, and by the installer-maintainer, Star
Games. In this respect, the foreseeability of misuse issue is much
like that discussed in the products liability context as to
defendants Rowe and Star Games. Of course, resolution of this
issue will be profoundly affected by what is established respecting
the vulnerability of the machine to such pushing. Were a jury to
believe plaintiff's statement that mere pushing by an eleven-year
old was sufficient to cause the two-hundred pound machine to
topple, the jury might reasonably conclude that such danger should
have been discovered or anticipated by Star Games or by Bat Em Out,
and appropriate bolting protections or warnings provided.
As set forth in our discussion on failure to warn, we disagree
with the argument that, assuming acceptance of plaintiff's version
of the accident, expert testimony was necessary to enable
reasonable jurors to determine foreseeability of misuse or the
danger presented by the change machine.
Based upon the foregoing discussion, we affirm the grant of summary judgment to defendant Bat Em Out on the products liability allegations of the complaint, and affirm the grant of summary judgment to Rowe, but only as to the allegations of defective manufacture and design. We reverse the grant of summary judgment to Rowe on the issue of failure to warn respecting foreseeable misuse of the product. We reverse the grant of summary judgment to Star Games, both on the issues of failure to warn of foreseeable misuse and on liability to expected business invitees or patrons for negligent installation and maintenance of the change machine. We reverse the grant of summary judgment to Bat Em Out on the premises liability issue.
Remanded for further proceedings consistent with this opinion.
Footnote: 1Comparative negligence may be asserted as a defense to the
negligence claim, whereas to the extent premised upon products
liability, plaintiff's unreasonable and voluntary exposure to a
known risk may instead be asserted by a defendant. Cartel Capital
Corp. v. Fireco of N.J.,
81 N.J. 548, 562-63 (1980).
Footnote: 2Restatement (Second) of Torts §334 provides:
A possessor of land who holds it open to the
public for entry for his business purposes is
subject to liability to members of the public
while they are upon the land for such a
purpose, for physical harm caused by the
accidental, negligent, or intentionally
harmful acts of third persons or animals, and
by the failure of the possessor to exercise
reasonable care to
(a) discover that such acts are being
done or are likely to be done, or
(b) give a warning adequate to enable the
visitors to avoid the harm, or otherwise to
protect them against it.