FRED DOERFLEIN v. SIX FLAGS GREAT ADVENTURE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0522-04T20522-04T2

FRED DOERFLEIN,

Plaintiff-Appellant,

v.

SIX FLAGS GREAT ADVENTURE,

Defendant-Respondent,

and

ARROW DYNAMICS, INC.,

Defendant.

 

Argued on September 27, 2005 - Decided February 22, 2006

Before Judges Lefelt, Hoens and R. B. Coleman.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-5229-01.

Robert B. Woods, argued the cause for appellant.

Walter F. Kawalec, III argued the cause for respondent (Marshall, Dennehey, Warner, Coleman & Goggin, attorneys; Mr. Kawalec, on the brief).

PER CURIAM

Plaintiff Fred Doerflein appeals from the August 25, 2004 order of the Law Division granting summary judgment in favor of defendant Six Flags Great Adventure and dismissing his personal injury and products liability complaint. We affirm.

The following facts are relevant to the issues advanced on appeal. On May 28, 2001, plaintiff and his wife visited an amusement park owned and operated by defendant Six Flags. One of the rides that was operating that day was the "Great American Scream Machine," an amusement ride designed, manufactured and distributed by defendant Arrow Dynamics, Inc. Plaintiff asserts that he was injured when his head was thrown from side to side while he was on the ride. He was aware that he had been injured as soon as he left the ride and immediately told his wife that he had been hurt. He was not aware at the time of the extent of his injury. Plaintiff did not report the incident to anyone at the amusement park either on the day it happened or at any time prior to filing his complaint in the Law Division on November 1, 2001.

Plaintiff's original complaint asserted that defendant Six Flags was negligent in its operation of the ride on which he had been injured. Plaintiff filed his amended complaint in August 2002, adding defendant Arrow Dynamics and asserting products liability claims against that entity as the designer, manufacturer and distributor of the ride on which he was injured. The amended complaint asserted the products liability theories against defendant Six Flags as well. In October 2002, plaintiff was advised that defendant Arrow Dynamics was involved in a bankruptcy proceeding in Utah. Plaintiff did not attempt to file a claim against defendant Arrow Dynamics in the Bankruptcy Court. Concluding, instead, that further litigation against that entity would violate the automatic stay provisions of the Bankruptcy Act, see 11 U.S.C. 362(a), plaintiff proceeded to litigate his claims, including his products liability theory of recovery, against defendant Six Flags alone.

On August 25, 2004, the Law Division judge granted defendant Six Flags' motion for summary judgment as to all counts of the complaint for reasons he expressed on the record on August 24 and August 25, 2004.

On appeal, plaintiff argues that the judge erred in his analysis of the requirements of the Carnival-Amusement Rides Safety Act (CARSA), N.J.S.A. 5:3-31 to -59, and in his interpretation of the Products Liability Act, N.J.S.A. 2A:58C-1 to -11. Specifically, plaintiff argues that the judge erred in failing to find that the complaint itself complied with CARSA's statutory requirement of notice and in rejecting his assertion that the signs posted by defendant Six Flags were not sufficiently conspicuous. In addition, he argues that the judge erred in analyzing the products liability claim by failing to conclude that defendant Six Flags is liable to him for the injuries he sustained on the ride as the seller of the product of defendant Arrow Dynamics, its bankrupt manufacturer.

CARSA governs the operation of all carnival and amusement rides in New Jersey. It requires that an injured person file an accident report with the operator of the park as a precondition to commencing litigation for personal injury. N.J.S.A. 5:3-57a. The statute requires each amusement park to maintain one or more designated locations to facilitate the filing of the reports, specifies the appropriate level of staffing for the office where the reports are filed and describes the manner of identifying the location of the place designated for filing reports. N.J.S.A. 5:3-57b.

CARSA also requires that the accident report be in writing, that it include specific information, and that the report be filed with the park operator within ninety days from the time of the incident leading to the injury. N.J.S.A. 5:3-57a, -57c. The statute further provides, however, that the ninety-day notice period may be extended to permit filing of the report within one year of the accident. N.J.S.A. 5:3-58. That extension may be granted by a judge, based upon a motion demonstrating "sufficient reason" for failing to file the report, and upon a finding that the operator of the park is not "substantially prejudiced" by that failure. Ibid.

CARSA requires the park operator to conspicuously post notices of the reporting requirement and specifies the contents of the notices and locations where the notices must be posted. N.J.S.A. 5:3-57a, -57c. It is undisputed that the defendant Six Flags posted the required notices and maintained an office to facilitate the filing of the accident reports as required by the statute.

The evidence of defendant Six Flags' compliance with the number and placement of the required signs is undisputed. Indeed, plaintiff's argument about the signs was that they must not have been conspicuous because he stayed at the park for several hours and did not see them. We decline plaintiff's implicit invitation to adopt a subjective standard for conspicuousness in place of compliance with the statute itself.

At the time of plaintiff's visit to the amusement park, it is undisputed that the signs were posted in six locations, including the two main entrances, the main exit, the overflow exit, and two first aid offices. Each sign included an explanation of the reporting requirement under the statute. See N.J.S.A. 5:3-57, -58. It is also undisputed that the signs had been inspected by representatives of the Department of Community Affairs. There is, in short, no evidence in the record to suggest that defendant Six Flags failed to comply with the requirement that it post signs that were both conspicuous in place and number so as to satisfy the statutory prerequisite to the reporting requirement.

Plaintiff further asserts that the motion judge erred in failing to permit his complaint to serve as the functional equivalent of the motion for leave to extend the notice period. He relies on this court's discussion of the motion requirement in Lopez v. Gillian's Pier, 359 N.J. Super. 410 (App. Div.), certif. denied, 172 N.J. 496 (2003), for support. We disagree, however, with plaintiff's analysis. Our discussion in Lopez of the relationship between the one-year window for filing the motion and the discovery rule, id. at 413-15, does not support plaintiff's argument that filing a complaint to commence litigation supplants the requirement that one file a motion or that one seek leave by way of motion to file a late notice.

Plaintiff has never filed a notice relating to his injury. Although he filed his complaint within one year of the date on which he asserts he was injured, by failing to seek leave as the statute requires, he effectively deprived the judge of the opportunity to exercise the discretion granted by the statute itself to evaluate whether the park operator had suffered prejudice as a result of the delay. See N.J.S.A. 5:3-58. We find no basis on which to conclude that the filing of a complaint fulfills the statutory requirement that the injured party either file the report of injury or timely file a motion for leave.

Finally, plaintiff asserts that the judge erred in his analysis of the products liability claim. He contends that defendant Arrow Dynamics, the designer, manufacturer and distributor of the ride on which he was injured, is bankrupt and that defendant Six Flags therefore stands in the shoes of that entity as the seller of the ride. See N.J.S.A. 2A:58C-9a,

-9c(3). We disagree with plaintiff's analysis for two reasons.

First, the evidence in the record only demonstrates that defendant Arrow Dynamics was involved in bankruptcy proceedings in or around October 2002. There is no evidence establishing, however, that Arrow "has no attachable assets or has been adjudicated bankrupt and a judgment is not otherwise recoverable from the assets of the bankruptcy estate" as required under our Products Liability Act as a threshold for relief against another potentially responsible entity. See N.J.S.A. 2A:58C-9c(3).

Second, however, the Products Liability Act itself defines a product seller for purposes of liability so as to explicitly exclude an entity, like defendant Six Flags, which provides a service "in which the sale or use of a product is incidental to the transaction and the essence of the transaction is the furnishing of judgment, skill or services." N.J.S.A. 2A:58C-8. As we have recently decided, a trucking company is not liable as a seller of a tire it sent for retreading, see Becker v. Tessitore, 356 N.J. Super. 233, 235 (App. Div. 2002), a motel owner is not liable to a guest for a defective cooking utensil supplied in the motel room, see Ranalli v. Edro Motel Corp., 298 N.J. Super. 621, 624-25 (App. Div. 1997), and a bowling alley operator is not liable to a patron injured by a bowling ball supplied to that patron by the operator of the bowling alley, see Dixon v. Four Seasons Bowling Alley, Inc., 176 N.J. Super. 540, 546-47 (App. Div. 1980). In each of these instances, the entity provided a service which incidentally included the defective product. In each of these matters, we rejected the argument that the entity fell within the definition of a seller. We find no ground in this record on which to reach a contrary conclusion.

 
Affirmed.

Regulations adopted with an effective date of December 16, 2002, relating to carnival amusement rides, see N.J.A.C. 5:14A-1.1 to -13.15, were not in effect at the time of plaintiff's visit to the park and thus are not relevant to our analysis. To the extent that these regulations might be of assistance to our analysis, we note that they do not define conspicuousness.

At oral argument counsel for defendant Six Flags asserted that the bankruptcy proceeding as against Arrow Dynamics remained unresolved even as recently as September 2005, with the implication that plaintiff might be able to assert a claim in that forum. We need not consider this assertion, however. Regardless of the status of the bankruptcy proceeding, plaintiff has not produced evidence that would satisfy the statutory threshold for relief against defendant Six Flags in place of defendant Arrow Dynamics.

(continued)

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9

A-0522-04T2

February 22, 2006