TOMASZ TLUCZEK v. PRESTIGE BMW OF RAMSEY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2116-08T22116-08T2

TOMASZ TLUCZEK and

MARGARET TLUCZEK, his

wife,

Plaintiffs-Appellants,

v.

PRESTIGE BMW OF RAMSEY, and

BMW OF NORTH AMERICA, LLC,

Defendants-Respondents.

________________________________________________________________

 

Argued June 8, 2009 - Decided

Before Judges Carchman and Parrillo.

On appeal from the Superior Court of

New Jersey, Law Division, Essex

County, Docket No. L-10117-06.

Joel I. Rachmiel argued the cause for

appellants.

C. Brian Kornbrek argued the cause for

respondents (Greenbaum, Rowe, Smith & Davis,

attorneys; Mr. Kornbrek, of counsel; Mr.

Kornbrek and Stacy M. Manobianca, on the brief).

PER CURIAM

Plaintiffs Tomasz Tluczek and Margaret Tluczek appeal from a November 21, 2008 order of the Law Division granting summary judgment to defendants Prestige BMW of Ramsey (Prestige) and BMW of North America, LLC (BMW). Judge Dennis F. Carey determined that plaintiffs' failure to produce an expert witness to prove a manufacturing defect in plaintiffs' vehicle was fatal to their products liability cause of action. We agree and affirm.

We briefly set forth the relevant facts considered on the motion that is the subject of this appeal. On October 24, 2003, plaintiffs purchased a 4-door, 2 004 BMW 525i from Prestige. Prestige delivered the car to plaintiffs on or about December 24, 2003. Six months later, plaintiffs brought the car to Prestige for servicing, complaining "of a burning smell" emanating from the car vents, smoke once coming out from behind the windshield and a few other minor problems. Prestige inspected the car and "could not verify [the] complaint."

One month later, on July 9, 2004, plaintiff once again brought the car to the dealership for servicing, claiming that the active steering light lit up and steering became difficult when plaintiff tried to turn left, but once again Prestige found nothing wrong with the vehicle. The vehicle did not have any record of any power-steering malfunction.

On September 2, 2004, plaintiffs again complained of steering problems and warning lights lighting up, but Prestige still did not find anything wrong with it even after performing a three-day, sixty mile road test. At the end of September, plaintiff once again complained of stiff steering and a loss of power steering only when making left turns. This time Prestige replaced the cover for the motor position sensor and the wiring of the AFS steering mechanism. These service actions were preventive measures carried out for all cars of this type and had nothing to do with the claimed problems. Prestige did not find any problems with the power steering, the active steering, or the active roll stabilization system. Yet, plaintiff continued to find fault in the car and scheduled another appointment with the dealership for February 22, 2005.

On December 14, 2004, Tomasz struck a utility pole while driving his BMW, sustaining severe bodily injuries. The investigating police officer arrived at the scene and assisted Tomasz. Tomasz told her that the steering had locked up, causing him to veer off the road into the pole. The officer checked the steering wheel and observed that it turned normally. The officer then issued Tomasz a motor vehicle summons for a moving violation that resulted in this collision. According to the officer, the curve in the road where this accident occurred sees many accidents, because drivers take the turn too quickly. The lack of skid marks on the road also indicated to her that Tomasz failed to maintain the lane going around the curve.

Plaintiffs commenced an action in the Law Division alleging negligent repair and product liability based on a manufacturing defect. BMW of North America conducted an internal field report and did not find any malfunction in the steering mechanism in the electrical system related to the active steering, or damage to them during the accident. The report did note that the car had traveled 21,413 miles since its purchase. Defendants retained an expert, Thomas Goetz, to inspect the vehicle. He found no evidence corroborating plaintiffs' assertions and opined that a steering problem described by Tomasz could not arise from an active steering or a power steering defect. He concluded that the problem more likely arose from a stalled engine with a manual transmission.

Following discovery, defendants moved for summary judgment. Plaintiffs did not produce an expert witness or report. Judge Carey found that without expert testimony, the jury could do nothing but speculate what the defect might have been, if any. He then granted summary judgment and dismissed the complaint. This appeal followed.

On appeal, plaintiffs argue that the judge erred in requiring plaintiffs to produce an expert to establish their cause of action and the judge further erred in dismissing their claim of negligent repair.

Summary judgment must be granted "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). The inquiry is "'whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995)). See also Jolley v. Marquess, 393 N.J. Super. 255, 267 (App. Div. 2007). "At this stage of the proceedings, the competent evidential materials must be viewed in the light most favorable to plaintiff, the non-moving party, and [he] is entitled to the benefit of all favorable inferences in support of [his] claim." Bagnana v. Wolfinger, 385 N.J. Super. 1, 8 (App. Div. 2006) (citing R. 4:46-2(c); Brill, supra, 142 N.J. at 540). See

also In re Estate of Sasson, 387 N.J. Super. 459, 462-63 (App. Div.), certif. denied, 189 N.J. 103 (2006).

We apply the same standard as the trial court in reviewing the granting of motions for summary judgment, EMC Mortg. Corp. v. Chaudhri, 400 N.J. Super. 126, 136 (App. Div. 2008), and we review the lower court's decision de novo. Spring Creek Holding Co. v. Shinnihon U.S.A. Co., 399 N.J. Super. 158, 180 (App. Div.), certif. denied, 196 N.J. 85 (2008). If then there is no genuine issue of material fact, we must determine "whether the trial court correctly interpreted the law." Massachi v. AHL Servs., Inc., 396 N.J. Super. 486, 494 (App. Div. 2007), certif. denied, 195 N.J. 419 (2008).

A plaintiff has the burden of proving that, because of a manufacturing defect, the product causing the harm was not reasonably fit or safe for its intended and foreseeable uses. Myrlak v. Port Auth. of NY and NJ, 157 N.J. 84, 97 (1999). This burden can be met by (1) direct evidence, (2) circumstantial evidence that justifies such an inference, or (3) negating all other possible reasons for the occurrence to make it reasonable to assume that the defect existed prior to the sale. Scanlon v. Gen. Motors Corp., 65 N.J. 582, 591-92 (1974). To circumstantially establish a manufacturing defect, plaintiff must establish that (1) the incident is one that ordinarily occurs as a result of a product defect and (2) that the incident was not solely the result of causes other than the product defect existing at the time the product left the manufacturer's control. Id. at 104.

The use of expert testimony has always held significant weight. In Cintrone v. Hertz Truck Leasing & Rental Serv., 45 N.J. 434 (1965), the Court did not require expert testimony regarding brake malfunctions. The plaintiff allegedly reported on three consecutive days that the defendant should check the brakes on the truck, but no inspection occurred. Id. at 442. During the following week when riding along in the truck, the brakes worked for several hours but failed as the truck approached a low-hanging trestle. The top of the truck collided with the trestle damaging the truck and injuring the passengers. At trial, a mechanic testified that when the plaintiff returned the truck to the defendant, he investigated the faulty brake claim, found a defect and repaired it. When raised, the Court determined that the plaintiff had produced enough circumstantial evidence to allow the jury to infer the defendant's liability using common knowledge alone. The Court noted:

[p]utting aside plaintiff's claim that the brakes had not been working properly on three successive days of the previous week, it does appear that on test by Sottilare [the truck driver] before leaving his employer's lot on the morning of the mishap, they seemed all right. Moreover, they functioned on the long trip between 7:00 AM and noon when they failed completely on application to avoid collision with the overhead trestle . . . . These circumstances justify the inference that the brakes were defective. And the inference is strengthened by the Hertz foreman's testimony . . . .

Id. at 452.

In Scanlon, while driving down a hill, plaintiff's car accelerated uncontrollably and hit a telephone pole. Plaintiff did not mention any malfunction to the responding officer, simply that he lost control. The Court observed that the age and prior usage of a car are important in considering whether the jury can reasonably infer a defective condition. Scanlon, supra, 65 N.J. at 593. However, because a motor vehicle is a complicated instrumentality and human experience does not dictate that a nine-month old car with 4,000 miles malfunctions only if the defect existed while in the hands of the manufacturer, circumstantial evidence did not suffice. Id. at 599. Although plaintiff offered expert opinion as to the accident's cause, the expert's assumptions were contradicted by the facts, fatally compromising the expert's opinion. Id. at 600.

In Moraca v. Ford Motor Co., 66 N.J. 454 (1975), the Supreme Court concluded that the circumstantial evidence produced was sufficient to warrant submission to a jury. Six months after purchasing the car, with about 11,000 miles on it, the plaintiff drove to Maryland. Before embarking he went to the service station for a checkup on the car and found that his car was low on power steering fluid. The mechanic added fluid, but once on the road, the plaintiff heard a noise from the front of the car and the steering wheel locked. He skidded off the road and hit a tree. The Court found that "[a] new Lincoln Continental properly operated and maintained should not in normal experience develop a critical malfunction in the steering mechanism in six months and after being driven about 11,000 miles. When this happens a jury could reasonably infer that the malfunction was due to some manufacturing defect." Id. at 460.

Unlike Scanlon, where the car had much less mileage, the proofs in Moraca substantiated a reasonable inference that the steering wheel locked. The skid marks at the scene were consistent with a car not turning until it hit the tree. Additionally, "[t]here was nothing to indicate that the manner of [the] plaintiff's operation of the vehicle, or the condition of the roadway was a factor in the happening of the accident." Id. at 459. We explained that the opposite result in Scanlon resulted from the conflicting evidence at the scene of the accident. Id. at 460.

In Consalo v. Gen. Motors Corp., 258 N.J. Super. 60 (App. Div.) certif. denied, 130 N.J. 597 (1992), we recognized the significance of expert testimony. In front of several witnesses, the plaintiff's car lunged forward, propelling her towards a loading dock. She applied the brakes to no avail and crashed into the dock. The plaintiff's expert could not articulate a reason for the malfunction, so the plaintiff attempted to substantiate her claim with other circumstantial evidence. Id. at 64. Applying Scanlon and Moraca, we determined that the different outcomes in the two cases were based on "quality of the plaintiffs' proofs . . . ." Id. at 65. We noted that in Scanlon, because of the absence of a sufficient factual basis for plaintiff's expert testimony, the plaintiff, only left with a "`naked claim . . . that the carburetor had jammed,'" could not prevail as a matter of law. Id. at 66 (quoting Moraca, supra, 66 N.J. at 460). But, we also noted that in Moraca, the expert opinions were "essential" to substantiating the existence of manufacturing defects. Ibid.

In Rocco v. NJ Transit Rail Operations, Inc., 330 N.J. Super. 320 (App. Div. 2000), the plaintiff's hand became jammed in the railcar's emergency unlock mechanism and he suffered injuries. We held that in order to survive a motion for summary judgment in a design defect case, the plaintiff must offer expert testimony. Id. at 342. The unlock mechanism contained intricacies unknown to the ordinary person, compelling expert testimony if the court were to allow a jury to determine if a design defect existed. Ibid.

Finally, in Lauder v. Teaneck Volunteer Ambulance Corps, 368 N.J. Super. 320, 331-32 (App. Div. 2004), we required the use of expert testimony in both manufacturing and design defects for products liability cases involving a complex instrumentality. When the defendants transported the plaintiff to the hospital on a gurney, the gurney collapsed underneath the plaintiff, inflicting fatal injuries. In the ambulance, a paramedic employee had loosened the chest strap securing the plaintiff in order to facilitate the plaintiff's breathing. Both the defendant hospital and defendant manufacturer of the gurney moved successfully for summary judgment.

On appeal, we reversed as to the hospital but affirmed as to the manufacturer of the gurney. We held that as to the hospital employee, it is common knowledge that when administering life support and removing the decedent from the ambulance, a chest strap would have secured the patient and prevented his injuries. Id. at 229-330. Yet, as to a defect on the gurney, we held that the jury requires expert testimony to inform them as to the mechanics and operation of this complex instrumentality. Id. at 331-32. Without that, we reasoned, the jury has no way to determine if the product defect caused the accident, and any determination by the jury would only be speculation as to whether a defect existed while in the control of the manufacturer-defendant. Id. at 332-33. Because "the gurney could have collapsed for a number of reasons unrelated to a design or manufacturing defect," we held that the plaintiff must provide expert testimony as a matter of law. Id. at 333.

Here, plaintiffs contend that a manufacturing defect in the power steering or the active steering of his BMW caused Tomasz' accident but offer no expert testimony to establish that fact. Instead, plaintiffs offer their prior complaints about steering malfunctions. As in Scanlon, the independent evidence at the scene of the accident conflicts with plaintiffs' assertions. The officer found that the absence of skid marks was consistent with someone unsuccessfully navigating the turn, and the steering wheel turned without a problem when the officer inspected it. Plaintiffs had owned the BMW for approximately one year, driving over 21,000 miles.

Though the motion judge recognized that the circumstances in Cintrone are similar to the case here, the quality of the alleged malfunction distinguishes the two cases. Truck brakes from the 1960s and computerized microchips controlling active and power steering from the Twenty-First Century differ greatly in complexity and common understanding of their functions. The judge found that a jury's knowledge of basic brakes sufficed to determine if a defect existed; that is not the case with a computerized and complex steering mechanism.

We agree that plaintiffs' failure to proffer expert testimony about the alleged manufacturing defect dooms plaintiffs' cause of action for a manufacturing defect.

We reach the same conclusion regarding the claim of negligent repair. This claim, likewise, requires expert testimony. Nothing in the record supports the claim that the repairs were negligent. In essence, plaintiffs' claim is derivative. If there is no proof as to a problem with the steering, there can be no negligence in the repair of the unidentified defective condition.

 
Affirmed.

The Supreme Court did not address the issue of expert witnesses in affirming our decision.

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A-2116-08T2

August 26, 2009