GAIL PERKEL v. APEX FURNITURE MANUFACTURING COMPANY LIMITED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5825-09T2

GAIL PERKEL and STEVEN PERKEL,

her husband,

Plaintiffs-Appellants,

v.

APEX FURNITURE MANUFACTURING

COMPANY LIMITED a/k/a APEX, a/k/a

APEX FURNITURE; AFFORDABLE

OFFICE FURNITURE, INC.; THE XELOR

CORPORATION d/b/a SEATZ, ETC.,

Defendants-Respondents.

Argued May 23, 2011 Decided June 21, 2011

Before Judges Lisa and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-1275-08.

Matthew A. Schiappa argued the cause for appellants (Galex Wolf, LLC, attorneys; Richard Galex, on the brief).

Matthew S. Schultz argued the cause for respondent, Apex Furniture Manufacturing Company Limited (Clyde & Co US LLP, attorneys; Mr. Schultz, of counsel and on the brief; Justin M. Vogel, on the brief).

Joshua P. Locke argued the cause for respondent, Xelor Corp. d/b/a Seatz, Etc. (Mayfield, Turner, O'Mara, Donnelly & McBride, attorneys; John V. Petrycki, Jr., of counsel and on the brief; Mr. Locke, on the brief).

Jonathan R. Westpy, attorney for respondent Affordable Office Furniture (Evert Van Kampen, on the brief).

PER CURIAM

Plaintiffs Gail Perkel (Perkel), and her husband Steven Perkel, appeal the July 8, 2010 award of summary judgment to defendants Apex Furniture Manufacturing Company Limited, also known as Apex or Apex Furniture (Apex), the manufacturer, Affordable Office Furniture, Inc. (Affordable), the distributor, and Xelor Corporation, doing business as Seatz, Etc. (Seatz), the seller.1 We affirm for the reasons set forth below.

On June 6, 2006, Perkel was at work. Someone had removed a chair from her office, which she retrieved via a carpeted hallway. She was walking backwards wearing two-inch wedge sandals and pulling on the chair's arms with the chair facing her. When the chair caught on the carpet, Perkel stumbled and lost her balance, sustaining a displaced fracture of the metatarsal in her right foot and other injuries. Plaintiffs attribute the mishap to hard floor glides that are standard, per Seatz's request, on all sled-based chairs distributed by Seatz through Affordable to Perkel's employer, the State of New Jersey. These hard floor glides, plaintiffs assert, pose a hazard if used on carpeted floors. Accordingly, a complaint was filed seeking compensation for Perkel's injuries.

Initially, the trial judge granted summary judgment without prejudice to Affordable and Apex on the theory "that [the] remaining discovery could still reveal evidence establishing that the alleged defect constituted [the] proximate cause of plaintiff's injuries." At that juncture, Seatz had not yet filed an answer. Once it did so, and also moved for summary judgment, the trial judge granted summary judgment to all three defendants with prejudice.

The trial judge's decision was based on three separate grounds: that plaintiffs had failed to establish the hard floor glides were the proximate cause of Perkel's injuries, based on her own deposition testimony; that with respect to the Products Liability Act, N.J.S.A. 2A:58C-1 to -11, and any resulting duty to warn, no duty had been breached by any defendant as "the danger presented by walking backwards while moving a chair ten to fifteen feet on carpet, in two-inch wedge heels was so obvious that [a] warning was not required"; and lastly, that plaintiffs' expert report contained nothing more than an impermissible net opinion.

Despite the expert's excellent qualifications, the report did nothing more than express "his personal observations from the so-called test he conducted[.]" His "specialized expertise" in furniture design did not "inform[] his conclusions and ultimate opinion." In fact, the judge noted, the report contained only "conclusions that lay jurors themselves could have also arrived at, had they been put in a room, to experiment with the chair at their disposal." This appeal followed.

a.

On review of an order awarding summary judgment, this court applies the same standards as the trial court. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Summary judgment will be granted where the moving party can prove "there is no genuine issue as to any 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). On appeal, we decide, based on the record provided, whether a genuine issue of material fact exists. Prudential, supra, 307 N.J. Super. at 167.

An issue of material fact is genuine if "the competent evidential materials presented, when viewed in the light most favorable to the non-moving party . . . , are sufficient to permit a rational fact[-]finder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). Consequently, if it is possible that a fact-finder would decide in favor of the non-moving party, granting summary judgment is improper. Ibid. "'Bare conclusions in the pleadings, without factualsupport in tendered affidavits, will not defeat a meritorious application for summary judgment[,]'" Triffin v. Somerset Valley Bank, 343 N.J. Super. 73, 87 (App. Div. 2001) (quoting U.S. Pipe & Foundry Co. v. Am. Arbit. Ass'n, 67 N.J. Super. 384, 399-400 (App. Div. 1961)); see also Brae Asset Fund, L.P. v. Newman, 327 N.J. Super. 129, 134 (App. Div. 1999), nor will "'conclusory and self-serving assertions' in certifications without explanatory or supporting facts[.]" Hoffman v. Asseenontv.com, Inc., 404 N.J. Super. 415, 425-26 (App. Div. 2009) (quoting Puder v. Buechel, 183 N.J. 428, 440 (2005)). Our function is to decide whether a genuine issue of material fact exists based solely on the record, not to decide the plausibility of either side's position. Brill, supra, 142 N.J. at 540.

b.

In their first and sixth points, plaintiffs contend the judge erred in concluding the chair was not the proximate cause of Perkel's injury and in relieving defendants of their strict liability for the hazards posed by the chair pursuant to the Products Liability Act. Both these points were thoroughly addressed by the court.

When deposed, Perkel said that as she was pulling the chair, it stopped on the carpet. Her body continued to move backwards and her hands came off the chair, causing her foot to twist. She stumbled but did not fall, although she could not recall precisely what actually occurred in those seconds. Even granting Perkel all favorable inferences, as the judge was required to do on this application, he concluded "the obviousness" of the inherent dangers of walking backwards while wearing two-inch wedge heels pulling a chair down a carpeted hallway did not require warnings from the manufacturer, distributor, or sellers of the chair.

We agree with this analysis. Additionally, plaintiff's own words do not establish a connection between the design of the chair and her fall. Facts which establish proximate cause must be more than the sequence of events described by Perkel. The record is devoid of any basis for concluding the proximate cause of her injuries was the presence of the hard floor glides. In the absence of proximate cause, the Products Liability Act does not apply. See Coffman v. Keene Corp., 133 N.J. 581, 594 (1993); Sharpe v. Bestop, Inc., 314 N.J. Super. 54, 62-63 (App. Div.), aff d, 158 N.J. 329 (1998).

In our view, the trial court applied the appropriate standard when reviewing the facts established by Perkel, and reached a logical and unassailable conclusion. We affirm his finding that the risk undertaken by Perkel was obvious and that plaintiffs did not establish proximate cause, rendering the Product Liability Act inapplicable, thus relieving defendants of any duty to warn.

c.

A duty to warn arises only when a product is not reasonably fit, suitable, or safe for its intended purpose. Campos v. Firestone Tire & Rubber Co., 98 N.J. 198, 205 (1984). No duty to warn exists where a product presents no danger, Zaza v. Marquess & Nell, Inc., 144 N.J. 34, 58-63 (1996), or when the danger is obvious. Matthews v. Univ. Loft Co., 387 N.J. Super. 349, 356 (App. Div.), certif. denied, 188 N.J. 577 (2006).

Accordingly, plaintiffs' argument that Perkel was entitled to the heeding presumption is moot. The presumption is not applicable where no duty to warn exists. Since, in our opinion, the record amply supports that determination, we find no merit to this argument.

d.

Lastly, plaintiffs assert the court erred in characterizing the expert's report as a net opinion. "The net opinion rule is a prohibition against speculative testimony." Grzanka v. Pfeifer, 301 N.J. Super. 563, 580 (App. Div. 1997), certif. denied, 154 N.J. 607 (1998). "Under this doctrine, expert testimony is excluded if it is based merely on unfounded speculation and unquantified possibilities." Vuocolo v. Diamond Shamrock Chems. Co., 240 N.J. Super. 289, 300 (App. Div.), certif. denied, 122 N.J. 333 (1990).

N.J.R.E. 703 requires an expert "to give the why and wherefore" of his or her opinion rather merely express a conclusion. Jimenez v. GNOC, Corp., 286 N.J. Super. 533, 540 (App. Div.), certif. denied, 145 N.J. 374 (1996). Therefore, experts "must be able to identify the factual bases for their conclusions, explain their methodology, and demonstrate that both the factual bases and the methodology are scientifically reliable." Landrigan v. Celotex Corp., 127 N.J. 404, 417 (1992). They must relate their conclusions to generally accepted, objective standards of practice, and "not merely to standards personal to the witness." Fernandez v. Baruch, 52 N.J. 127, 131 (1968). An expert's conclusion is inadmissible as a net opinion when it is a bare conclusion unsupported by factual evidence. Buckelew v. Grossbard, 87 N.J. 512, 524 (1981); see also Johnson v. Salem Corp., 97 N.J. 78, 91 (1984) (noting that "[t]he weight to which an expert opinion is entitled can rise no higher than the facts and reasoning upon which that opinion is predicated") (internal quotation omitted).

Plaintiffs' expert's report states the chair, when manufactured with hard floor glides, was hazardous when used on a carpeted floor. In reaching that conclusion, the expert did nothing more than jurors would have done, as the trial court put it, if they were placed "in a room, to experiment with the chair at their disposal." The expert did not explain the physical properties which made the hard floor glide dangerous by virtue of any scientific methodology or formula, such as the coefficient of friction. He made no reference to any industry practices, standards, or warnings. He did not compare the propriety of Seatz's standing order that hard floor glides be installed on all chairs sold to the State of New Jersey with industry-wide customs. The expert simply did not identify a generally accepted, objective standard from which any defendant had deviated. He broadly stated his opinion, without recounting the "why and wherefore."

At oral argument, plaintiffs' counsel suggested that if the opinion were truly a net opinion, it was because no expert report was actually necessary, as the jury could reasonably assess on its own the dangers inherent in the use of hard floor glides. We disagree.

That a specific opinion is a net opinion, not informed by scientific standards, industry standards, or scientific experimentation, does not necessarily mean expert information or calculations are unnecessary. In this case, the claim that the hard floor glides constituted a design defect required an expert opinion because the defect was not self-evident. See Dreier, Keefe, Sr., & Katz, N.J. Products Liability & Toxic Torts Law, 9:4-1(a) at 249-50 (2010).

While an expert opinion was necessary, this expert's report simply expressed his personal views after experimenting with the chair, without any scientific explanation. See Taylor v. DeLosso, 319 N.J. Super. 174, 180-81 (App. Div. 1999). Plaintiffs' proofs lacked facts which supported proximate cause, and the expert's report should have filled the void. It did not have the desired effect.

1 We were advised at oral argument that the appeal would be withdrawn as to Seatz as the parties had reached a settlement.