LAURA VAZQUEZ v. MACGREGOR SPORTING GOODS, INC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

LAURA VAZQUEZ,

Plaintiff-Appellant,

v.

MACGREGOR SPORTING GOODS, INC.,

and RIDDELL SPORTS INC.,

Defendants-Respondents.

January 16, 2014

Argued January 7, 2014 Decided

Before Judges Alvarez and Carroll.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-4007-10.

Alfred V. Gellene argued the cause for appellant (Fusco & Macaluso, attorneys; Mr. Gellene, on the brief).

Scott D. Samansky argued the cause for respondents (Fishman McIntyre, attorneys; Mr. Samansky, on the brief).

PER CURIAM

Plaintiff Laura Vazquez appeals from the November 16, 2012 summary judgment dismissal of her products liability action, and a December 21, 2012 order denying reconsideration. We affirm.

Plaintiff was employed at a school in Newark when she was injured while moving a volleyball stanchion on June 16, 2008. On May 18, 2010, plaintiff filed her product liability action, naming MacGregor Sporting Goods, Inc. (MacGregor), and Riddell Sports Inc. (Riddell) as defendants. Plaintiff alleged that defendants designed, manufactured, distributed, or sold the volleyball stanchion that caused her injuries, and asserted claims for design defect, strict liability, breach of warranty, failure to provide an adequate warning, and violation of the New Jersey Product Liability Act, N.J.S.A. 2A:58C-1 to -11.

Defendants filed a joint answer, denying negligence. In their Thirteenth, Fourteenth and Fifteenth Separate Defenses, they asserted that they did not manufacture the stanchion, they had no connection with the company that manufactured it, and that plaintiff failed to name an indispensable party, i.e., the correct manufacturer of the product. In their Eighteenth Separate Defense, defendants further pled that they were unable to identify the stanchion as being a product manufactured by them, and they reserved the right to move to dismiss plaintiff's complaint.

The parties engaged in discovery which included defendants furnishing interrogatory answers that their President and Chief Operating Officer, Terrence M. Babilla, certified to on September 16, 2010. In their answers to the question whether they manufactured the stanchion, Riddell responded "No," and MacGregor replied "[t]he product has not been identified." Asked whether they sold or otherwise distributed the stanchion, both objected on the basis that the question was overly broad and unduly burdensome. Both defendants reserved their right to amend their answers upon further discovery.

A court-ordered inspection of the volleyball stanchion by the parties' respective experts occurred on December 15, 2011. Plaintiff's expert issued his initial and supplemental reports on April 23, 2012, and July 5, 2012, respectively, and was deposed by defense counsel. Thereafter, defendants moved to bar plaintiff's expert's reports as "net opinions," to preclude his testimony on that basis, and for summary judgment. In support of that relief, defendants' representatives averred that Riddell did not design, manufacture or distribute the stanchion, and that "MacGregor" was merely a trade name that was owned by MacMark, Inc., an entity that had entered into a licensing agreement with BSN Sports, Inc., to use the "MacGregor" name for certain products that BSN sold to its customers.

On September 4, 2012, Judge Thomas R. Vena issued a twelve-page written decision barring plaintiff's liability expert, and granting summary judgment to defendants on counts one, two, and three of plaintiff's complaint. However, the court found that plaintiff could potentially proceed on a theory alleging that defendants' warnings were insufficient, even in the absence of the expert's report and testimony, and denied summary judgment on the two remaining counts.

Plaintiff then moved to amend her complaint to name MacMark, Inc. and BSN Sports, Inc., as additional defendants, so as to allege that they were the manufacturer and licensee, respectively, of the product claimed to have caused plaintiff's injuries. Judge Vena denied the motion on October 12, 2012.1

On October 23, 2012, defendants moved to dismiss plaintiff's complaint with prejudice, on the basis that they "did not design, manufacture, distribute, nor sell the product which plaintiff claims caused her to sustain her injuries." On November 16, 2012, Judge Vena conducted oral argument, rendered an extensive oral opinion, and granted summary judgment to defendants. The judge first determined that, while captioned as a motion to dismiss, it was properly considered as a motion for summary judgment since matters outside the pleadings were presented. R. 4:6-2(e). Citing the appropriate standards enunciated in Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), the judge concluded:

Defendants rely on the affidavit of Brian P. Roche (phonetic), associate general counsel for Riddell Sports, Inc., which states that Riddell Sports, Inc. had no connection with the manufacture, design, distribution or sale of the volleyball stanchion in this case. Plaintiff neither disputes this fact nor presents any evidence to the contrary that would permit a rational fact finder to conclude the defendants negligently failed to warn plaintiff of the dangers of moving the volleyball stanchion.

For plaintiff to prevail, she must prove that these defendants failure to warn proximately caused her injuries. She's failed to do so. Since Riddell Sports, Inc. has no connection with the MacGregor volleyball stanchion in question and since the MacGregor trade name is owned by MacMark, Inc., which is not a party to the case, plaintiff does not set forth any viable theory of liability or any cause of action as to these defendants who are not the owners, manufacturers, designers or sellers of the product in question. Plaintiff does lack an essential element of causation in her prima facie failure to warn claim and cannot prevail against the named defendants as a matter of law. Thus the defendant[s]' motion to dismiss with prejudice is granted.

On December 21, 2012, Judge Vena denied plaintiff's motion for reconsideration. This appeal followed.

A trial court must grant a summary judgment motion if "the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that 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); see also Brill, supra, 142 N.J. at 529-30. "An issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact." R. 4:46-2(c). If the evidence submitted on the motion "'is so one-sided that one party must prevail as a matter of law,' the trial court should not hesitate to grant summary judgment." Brill, supra, 142 N.J. at 540 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214, (1986)). On appeal, we review summary judgment orders de novo, utilizing the same standards applied by the trial courts. Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 374 (2010).

Here, plaintiff does not challenge the trial court's orders barring her liability expert's report and testimony, and denying leave to amend her complaint to add MacMark, Inc. and BSN Sports, Inc. as parties responsible for the manufacture and licensing of the product that caused her injuries. Rather, plaintiff argues that the court erred by dismissing her complaint and granting summary judgment to defendants. Based on our examination of the record and the applicable law, we conclude that plaintiff's arguments are without sufficient merit to warrant discussion in a written opinion. R.2:11-3(e)(1)(E). We affirm substantially for the reasons expressed by Judge Vena in his oral opinion dated November 16, 2012.

1 The record does not contain a copy of the court's decision on the motion to amend, which plaintiff does not challenge on appeal. We note, however, that the case had a June 30, 2012 discovery end date, and a November 5, 2012 trial date.