NELLIE RIVERA v. PIERCING PAGODA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0816-09T3

NELLIE RIVERA,

Plaintiff-Appellant,

v.

PIERCING PAGODA,

Defendant-Respondent.

________________________________________________________________

November 15, 2010

Submitted October 6, 2010 - Decided

Before Judges Kestin and Coburn.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-2790-07.

Drazin and Warshaw, attorneys for appellant (Ralph E. Polcari, on the brief).

McCarter & English, attorneys for respondent (David J. Cooner, of counsel and on the brief; Sara F. Merin and Mitchell S. Kurtz, on the brief).

PER CURIAM

Plaintiff sued defendant alleging personal injuries as a result of infection arising from two piercings of her ears. The trial judge granted defendant's motion for summary judgment by an order dated September 4, 2009, and plaintiff appeals.

On October 2, 2005, plaintiff went to Piercing Pagoda in the Woodbridge Center Mall to have her right ear pierced in the cartilage. On or about December 10, 2005, she went to Piercing Pagoda in the East Brunswick Mall to have her left ear pierced in the cartilage. On both occasions, she received written instructions regarding the risks of this procedure, including the risk of infection. On both occasions, she also signed a waiver of liability, which read, in relevant part, as follows:

I have received, read and understand the Standard Release and Authorization and AfterCare Instructions and accept that ear piercing in the cartilage may carry a greater risk of redness, swelling, and infection due to improper care of my newly pierced ears. Therefore I understand that it is essential to follow the AfterCare Instructions exactly.

I AGREE TO RELEASE AND HOLD PIERCING PAGODA, IT'S (sic) EMPLOYEES, INVERNESS AND STUDEX HARMLESS FROM ANY AND ALL ACTIONS AND LIABILITY RESULTING FROM OR RELATING TO THIS EAR PIERCING.

Plaintiff testified on deposition that she understood the release and knew that its effect was to relieve Pagoda from any liability to her if her ears became infected or otherwise injured as a result of either or both piercings.

In her answers to interrogatories, plaintiff asserted that

[defendants were negligent and careless in that they failed to use the proper solid gold earrings; they used gold-plated earrings and plaintiff was unable to tolerate them; they failed to warn plaintiff that the earrings were gold-plated and could possibly cause infection/discoloration/ discomfort and pain; they failed to properly train their employees in the procedures and care of piercings.

The only expert evidence provided by plaintiff to support her claim was a report by her physician. That report indicates that plaintiff suffered damages because

caseous keratin (skin) debris [was] entrapped within the pierce tract (path) of both ears. This debris consisted of dead skin cells which could not exfoliate (shed), since they were trapped within the pierce site. This surgical observation strongly implicated 1) a mechanical implantation of skin into deeper tissue layers which then becomes buried or 2) the creation of a tract (path) that is lined by skin that cannot shed. Pa29

Although plaintiff's physician concludes that the complications suffered by plaintiff were "a direct result of the initial piercings," he does not say anything about negligence, let alone reckless behavior, or any kind of deviation from a standard, being present.

We affirm the summary judgment substantially for the reasons expressed by Judge O'Brien in his thorough and well-reasoned oral opinion of September 4, 2009. We add that this result accords with the views subsequently expressed by the Supreme Court in Stelluti v Casapenn Enterprises, 203 N.J. 286, 297-313 (2010).