ELAINE JACKSON v. TARGET STORES

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0798-06T30798-06T3

ELAINE JACKSON,

Plaintiff-Appellant,

v.

TARGET STORES, RONILE INC., HOME

DEPOT individually, and HOME DEPOT,

as manufacturers of Premium Plus

oil gloss porch & floor paint,

GLIDDEN, AMERICA'S FINEST, and

GLIDDEN, d/b/a AMERICA'S FINEST

PREMIUM PLUS HM 4016,

Defendants-Respondents.

___________________________________

 

Argued October 15, 2007 Decided

Before Judges Graves and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County,

L-3321-04.

Stanley S. Spector argued the cause for appellant.

Gregory T. Foote argued the cause for respondents Target Stores and Ronile, Inc. (Britt, Riehl & Spudic, attorneys; Mr. Foote, on the brief).

Edward H. Kerwin argued the cause for respondents Home Depot and Glidden Company (Ronan, Tuzzio & Giannone, attorneys; Mr. Kerwin, of counsel and on the brief; Paul L. LaSalle, on the brief).

PER CURIAM

This case arises from personal injuries suffered when plaintiff, Elaine Jackson, slipped and fell on a welcome mat outside her front door. Plaintiff sued the manufacturer of the mat, Ronile, Inc.; the seller of the mat, Target Stores; the store where she purchased the deck paint, Home Depot; as well as the paint manufacturer, Glidden Company. Her claims against all four defendants were dismissed on summary judgment motions; this appeal followed. We reverse and remand as to Ronile, Inc. and Target Stores on the issue of the welcome mat design defect, but affirm as to Home Depot and Glidden Company.

Plaintiff contends the fall resulted from design defects inherent in the mat and in the paint she applied to her front porch floor. She also asserts that the plastic-backed mat should have been labeled with a warning about its "slippery qualities," and that the warning on the paint can was inadequate. A label on the paint can read "CAUTION: This finish may become slippery when wet. The use of a non-skid additive is recommended."

In addition, plaintiff alleges that when she purchased the paint, the Home Depot store clerk wrongly advised her it was unnecessary to mix additives with the paint prior to use. The clerk reportedly told her she would be "wasting [her] time with it." As a result, she did not mix in additives prior to applying the paint, even though she had done so with other floor paint she had purchased in the past. After plaintiff painted the porch, the surface would become very slippery when wet. The morning of the fall, ice may have accumulated in the space between the plastic backing on the welcome mat and the painted floor.

Discovery ended January 15, 2006. On February 17, 2006, the trial court barred the testimony of plaintiff's expert against Target and Ronile as a net opinion, and granted those parties summary judgment. On March 2, 2006, Glidden, later joined by Home Depot, also filed a motion to bar the expert's testimony on the grounds it was a net opinion. On March 31, 2006, plaintiff filed a motion for reconsideration on the summary judgment granted to Target and Ronile, and submitted an additional expert report. Oral argument was conducted on April 28, 2006, but the court reserved its decision. On August 24, 2006, the trial court granted Glidden and Home Depot summary judgment, and denied plaintiff's motion for reconsideration.

I.

On appeal, plaintiff maintains her expert's reports established competent proofs from which a reasonable trier of fact could find that the mat design was defective because of the backing material, and find that the mat should have been labeled as to potential hazards. She also maintains that her expert's reports established competent proofs that the paint was too slippery for its intended use, that the label on the can failed to adequately warn against use without additives, and that Home Depot was negligent in the manner in which they sold the product.

The standard of review for an award of summary judgment is as enunciated in Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995) and Rule 4:46-2(c). Generally, the court must "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill, supra, 142 N.J. at 540. Typically, where no genuine issue of fact exists, the question becomes whether the trial judge's ruling is correct as to the law. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).

Plaintiff's claims are governed by the New Jersey Products Liability Act (PLA), N.J.S.A. 2A:58C-1 to -11. In a PLA claim, a party will succeed against the manufacturer or merchant of a product if he or she can prove "by a preponderance of the evidence that the product causing the harm was not reasonably fit, suitable or safe for its intended purpose because it . . . failed to contain adequate warnings or instructions, or . . . was designed in a defective manner." N.J.S.A. 2A:58C-2.

Because plaintiff alleged defects in the paint and the welcome mat which were not self-evident, she was required to present expert opinion in order for the trial court to engage in the requisite preliminary risk-utility analysis. Dreir, Keefe & Katz, Current N.J. Product Liability & Toxic Tort Law 8:2-3(b) (2008). A manufacturer will be held liable only "if the danger posed by the product outweighs the benefits of the way the product was designed and marketed." Johansen v. Makita U.S.A., Inc., 128 N.J. 86, 95 (1992). A risk-utility analysis requires "'consideration of available alternatives.'" Smith v. Keller Ladder Co., 275 N.J. Super. 280, 284 (App. Div. 1994) (quoting O'Brien v. Muskin Corp., 94 N.J. 169, 184 (1983)). In the average case the availability of a reasonable alternative design is key. Lewis v. Am. Cyanamid Co., 155 N.J. 544, 560 (1998).

The motion judge found that in every respect the expert's report was a "net opinion," inadequate for the requisite risk-utility analysis. We disagree solely as to the welcome mat on the issue of whether a safer reasonable alternative design was available.

II.

The question of reasonable alternative design is "the ultimate issue [the jury] ha[s] to determine in plaintiff's favor in order to" find a manufacturer liable. Hinojo v. N.J. Mfrs. Ins. Co., 353 N.J. Super. 261, 276 (App. Div.), certif. denied, 175 N.J. 76 (2002). To merely suggest a safer design possibility is not a basis upon which a fact finder can conclude that there is an available substitute product which would meet the same need. H.T. Rose Enters. v. Henny Penny Corp., 317 N.J. Super. 477, 494-95 (App. Div. 1999).

The expert submitted reports dated October 8, 2003, October 16, 2005, November 14, 2005, and March 21, 2006. The expert conducted testing of the static coefficient of friction (SCOF) between the surface of the painted porch deck and the plastic backing on the door mat in order to determine the slipperiness of the product. Testing was conducted by the use of a slip tester device the expert designed in order to establish slip resistance on the test surfaces. In support of his construction of a device used to perform testing, the expert attached copies of pertinent pages in "The Slip and Fall Handbook." As set forth in that manual, it is not uncommon for slip testing devices to be fabricated by experts.

Based on his testing, the expert opined that the bottom surface of the door mat has an "unsatisfactory slip resistance," of 4.10 and 4.32 respectively, when the acceptable value was 5.0 based on his review of various manuals. Additionally, the expert made reference to a variety of alternative non-slip materials that could have been used on the bottom of the mat. In the supplemental report of November 14, 2005, the expert described two other similar welcome mats, in a similar price range, which were backed with "reprocessed rubber" that had "excellent slip resistant qualities." His opinion was that both showed "excellent slip-resistant characteristics."

As to the painted deck surface, although the expert tested the slipperiness of the surface using his self-fabricated testing, and found that it too was below relevant safety standards, he did not obtain cans of other deck paint for testing. He did not attempt to mix the paint with an additive to determine if its slip characteristics were thereby lessened.

The motion judge granted Ronile and Target's motions for summary judgment, first, because testing was not conducted of the mat's slip qualities on other surfaces. This complaint goes more to the weight of the expert's opinion rather than its admissibility. The expert's March 21, 2006 report, submitted with the motion for reconsideration, includes attachments from, and references to, various safety manuals and handbooks, although not industry standards or manuals relating specifically to the manufacturer of welcome mats.

The judge was also troubled by the fact the expert did not know how the mat was stored after the accident prior to testing, a consideration that does not seem to have any bearing on the issue of whether his conclusion was a net opinion. Again, although it may ultimately affect the weight a jury may accord his testimony, this concern does not impact admissibility. The information was sufficient.

As to the paint, plaintiff urges that we accept a "common sense" approach in determining that it was not safe for intended use because the expert did not conduct any additional investigation with reference to the slippery qualities of the paint after he determined it did not meet threshold safety standards. But without testing with additives, and comparison with similar products, no risk utility analysis could be engaged in regarding the paint. As the motion judge said, the expert "does not provide proofs that the allegedly frozen mat on which [plaintiff] claims she fell would have been less likely to slip when frozen if the additive had been added to the paint." Nor did he provide proof that a similar product readily available in the marketplace would have met the safety standard. Therefore, we affirm the judge's ruling as to the award of summary judgment against Glidden and Home Depot.

III.

The PLA also subjects a product manufacturer or seller to liability for a product which "fail[s] to contain adequate warnings or instructions." N.J.S.A. 2A:58C-2. N.J.S.A. 2A:58C-4 provides that:

[a]n adequate product warning or instruction is one that a reasonably prudent person in the same or similar circumstances would have provided with respect to the danger and that communicates adequate information on the dangers and safe use of the product, taking into account the characteristics of, and the ordinary knowledge common to, the persons by whom the product is intended to be used

. . . .

In other words, "an adequate warning is one that includes the directions, communications, and information essential to make the use of a product safe." Freund v. Cellofilm Props., Inc., 87 N.J. 229, 243 (1981).

Plaintiff's expert report concluded that Target and Ronile failed to adequately warn of the "slippery qualities" of the mat. The opinion was not based on testing, reference to protocols, safety manuals, or any other scientific or technical information. It was based on nothing more than his unsupported belief, in the most literal sense, a "net opinion."

The expert also concluded that the warning on the can was inadequate as the print was too small. On this point the motion judge said the expert did "not cite any standard regarding proper warning or suggest the size of print necessary to adequately warn . . . . [H]e has not presented any example of a warning used by another manufacturer." The expert's opinion is nothing more than a "net opinion" and is therefore inadmissible.

Accordingly, the judge's award of summary judgment on the issue of warnings as to all defendants is affirmed.

IV.

To summarize, the expert's opinion was sufficient to reach the jury as to the backing material on the welcome mat, therefore summary judgment is reversed, and the matter remanded as to Target and Ronile, based on design defect. Summary judgment is affirmed, however, as to the alleged failure to warn on the part of those two defendants. The summary judgment award is affirmed in its entirety as to Home Depot and Glidden.

 
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.

(continued)

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A-0798-06T3

July 21, 2008