STEPHANIE SKIDMORE et al. v. WALL STADIUM CONCESSIONS, INC., et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6950-03T36950-03T3

STEPHANIE SKIDMORE and

MICHAEL SKIDMORE, her husband,

Plaintiffs-Appellants,

v.

WALL STADIUM CONCESSIONS, INC.,

WALL STADIUM ENTERPRISES, INC.,

WALL STADIUM; TUCKER NICOL;

THOMAS NICOL; and CONCESSION

SUPPLY CO., INC.,

Defendants,

and

WILLIAM JOHNSON; and B.J.'S

CONCESSIONS CORP,

Defendants-Respondents.

_____________________________________

 

Argued February 15, 2006 - Decided March 8, 2006

Before Judges Skillman and Payne.

On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-1460-01.

George W. Conk argued the cause for appellants (Hanna & Anderson and Tulipan & Conk, attorneys; Mr. Conk, of counsel and on the brief; Douglas B. Hanna, on the brief).

George A. Prutting, Jr. argued the cause for respondents William Johnson and B.J.'s Concession Corp. (Prutting & Lombardi, attorneys; Mr. Prutting, Jr., of counsel and on the brief).

PER CURIAM

Plaintiffs appeal from a summary judgment dismissing their complaint against defendants B.J. Concessions, Inc. and one of its principals, William J. Johnson.

On June 6, 1999, plaintiff Stephanie Skidmore suffered personal injuries from an electric shock in the course of her employment as a concession stand worker at Wall Stadium. The electric shock occurred when plaintiff came into contact with a three-prong electric cord of a pretzel warmer that was allegedly plugged into an ungrounded two socket extension cord.

B.J. Concessions supplied the pretzel warmer and the pretzels sold at the stadium to plaintiffs' employer, and it received 75% of the proceeds from the sale of the pretzels. Although Johnson and other B.J. Concessions employees were sometimes present at Wall Stadium when the pretzels were being sold, discovery did not reveal any evidence that B.J. Concessions played a role in determining the location of the pretzel warmer plaintiff operated or in connecting the warmer to the electrical receptacle. Discovery also did not reveal any evidence that B.J. Concessions was aware that the three-prong electrical cord on the pretzel warmer was allegedly connected to a two-prong ungrounded extension cord or that this alleged hazardous condition would have been visible to B.J. Concession's employees. In fact, plaintiff did not present any evidence that the extension cord was even in use at the time of her accident.

In granting summary judgment, Judge O'Brien stated in a written opinion:

The plaintiff contends that the defendants used an improper extension cord that caused the plaintiff's injuries. However, the plaintiff has failed to identify who plugged in the extension cord and when it was used. All of the defendants deny ever seeing the extension cord before, as does the plaintiff. None of the defendants know how the extension cord got there and who decided to use it. The defendants testified that they did not sign for the pretzel warmer nor place it in its location. Rather, they opine that the maintenance supervisor of the Stadium probably signed for and placed the unit where it is. The plaintiff has failed to identify who was responsible for the installation of the pretzel warmer with the extension cord. When viewing the facts in the light most favorable to the plaintiff, the facts indicate that [Wall Stadium's employees] placed the pretzel warmer in its current location.

. . . There are simply no facts to support a claim that the defendants were responsible for the placement of the extension cord or that they even knew about it. The plaintiff relies on mere speculation and assumption to conclude that one of the defendants placed the extension cord or [was] responsible for its placement.

We affirm the summary judgment in favor of B.J. Concessions and Johnson substantially for the reasons expressed by Judge O'Brien. We also note that plaintiff did not allege that there was any defect in the pretzel warmer and did not assert any products liability claim. We reject plaintiff's argument, raised for the first time on appeal, that B.J. Concessions had a duty to inspect the area where plaintiff's employer placed the pretzel warmer to determine whether there was a hidden hazardous condition.

 
Affirmed.

(continued)

(continued)

4

A-6950-03T3

March 8, 2006