SUSAN SCHERTL v. EMSAR EQUIPMENT COMPANY and FERNO WASHINGTON, INC.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2347-04T22347-04T2

SUSAN SCHERTL,

Plaintiff-Appellant,

v.

EMSAR EQUIPMENT COMPANY and

FERNO WASHINGTON, INC.,

Defendants-Respondents,

and

EMSAR, INC.,

Third-Party Plaintiff/

Respondent,

v.

YTB EQUIPMENT MAINTENANCE, INC.,

Third-Party Defendant/

Respondent.

_________________________________________________

 

Submitted September 27, 2005 - Decided:

Before Judges Skillman and Payne.

On appeal from Superior Court of New

Jersey, Law Division, Union County,

L-5169-00.

Gill & Chamas, attorneys for appellant

(Michael J. Hanus, on the brief).

Law Offices of Joseph Carolan,

attorney for respondent Emsar, Inc.

(Judy L. Creelman on the brief).

Bolan Jahnsen Reardon, attorneys for

respondent Ferno Washington, Inc.

(Elizabeth A. Wilson on the brief).

Sherlock, Dougherty & Zirulinik

attorneys for respondent YTB

Equipment Maintenance, Inc. (John

P. Gillespie on the brief).

PER CURIAM

Plaintiff Susan Schertl appeals from an order of summary judgment in her product liability and negligence action against defendants Ferno Washington, Inc., a gurney manufacturer, and Emsar Equipment Company, the entity contractually retained to service Ferno's gurneys, arising from injuries sustained in the collapse of a Ferno Washington gurney. Judgment was premised upon a determination by the motion judge that a gurney is a complex instrumentality, that expert testimony was required to establish defect or negligence, and such testimony was lacking. The judge additionally found no evidence of negligence. We affirm.

Upon appeal from an order of summary judgment dismissing a plaintiff's complaint, we must view the evidence in a light most favorable to the plaintiff. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Viewed in that fashion, the evidence discloses that the Berkeley Heights Rescue Squad utilized two Ferno Washington gurneys. Because of prior problems with the locking mechanisms of the gurneys, the Squad contacted YTB Equipment Maintenance, Inc., a local entity with which Emsar had contracted to fulfill its service responsibilities, to inspect the equipment and provide any necessary repairs. YTB responded on January 2, 2001 and following inspection, found both gurneys to be in good working condition. Schertl, a volunteer emergency medical technician (EMT) working with the Squad, was injured on January 3, 2001 when a gurney carrying a patient collapsed after the EMTs unsuccessfully attempted to unlock the gurney's legs so as to place it in an ambulance. Schertl suffered a nondisplaced leg fracture as a result. The Squad was unable to identify which of its two gurneys had allegedly malfunctioned. Post-accident inspection and testing by Ferno Washington, performed at the Squad's request, disclosed no defect in the leg locking mechanism, and none has been disclosed by Schertl, who did not retain an expert in connection with any aspect of this litigation.

Suit was filed by Schertl against Ferno Washington and Emsar, and Emsar filed a third-party complaint against YTB. After the period for discovery had expired and court-sponsored arbitration of the claims had occurred, resulting in a finding of no cause for action as the result of the lack of an expert report, the defendants moved for summary judgment.

In opposing defendants' motion, counsel for Schertl focused solely on the issue of whether expert testimony was required to demonstrate a defect in the gurney. Counsel argued that no such testimony was necessary because a gurney was not a complex instrumentality, and that the requisite proofs could be presented through the testimony of lay witnesses. However, counsel declined to identify the defect to which the witnesses would attest or to provide through affidavits or by any other means the substance of the testimony of those witnesses. Evidence was similarly lacking on Schertl's claim of negligence.

At oral argument, the following exchange occurred between the court and plaintiff's attorney with respect to Schertl's claim of product defect:

THE COURT: But what is your - what is the opinion of the defect in this case?

ATTORNEY: With all due respect, Your Honor, I'm not 100 percent certain.

THE COURT: Well then how can I know if it's something that someone of common experience can render?

ATTORNEY: Because I'm hoping it's in the papers, Your Honor.

THE COURT: Okay, I appreciate your candor.

ATTORNEY: And that's my story and I'm sticking to it, Your Honor, and I don't know if I'm Herculean but I'm a pretty strong arguer and I can make this case . . . .

Following oral argument, the motion judge granted summary judgment to Emsar, finding no evidence of negligence on its part or on that of its contractee, YTS. It also granted summary judgment to Ferno Washington on Schertl's product liability claim, holding that the cause of action was governed by the legal principles that we set forth in Lauder v. Teaneck Ambulance Corps., 368 N.J. Super. 320 (App. Div. 2004), in which we found a gurney to be a complex instrumentality and affirmed dismissal of the plaintiff's claim of product defect as the result of the absence of an expert report establishing the nature of that defect.

On appeal, Schertl does not offer any evidence of negligent inspection or maintenance on the part of Emsar or YTB. As a consequence, we affirm the summary judgment in their favor.

With respect to her product liability claim against Ferno Washington, plaintiff argues that she should be allowed to proceed with her case without expert testimony regarding the gurney's locking mechanism, and that the mechanism is not sufficiently complex as to require expert testimony to explain its proper functioning. She argues additionally that "circumstantial evidence," otherwise undescribed, will prove that a defect existed. We disagree and, as did the motion judge, rely on our decision in Lauder as establishing the legal framework applicable to this case and the deficiencies existing in Schertl's proofs.

In Lauder, as here, the legs of a gurney manufactured by Ferno Washington collapsed causing, in that case, injuries to the patient and his eventual death. We affirmed summary judgment in Ferno Washington's favor as the result of the absence of an expert report establishing any defect in the locking mechanism of Ferno Washington's equipment. 368 N.J. Super. at 330-33.

As here, the allegedly malfunctioning gurney was not identified following the accident, and there was nothing in the record to indicate that the gurney at issue, or any other utilized by the Teaneck Ambulance Corps., was defective. "The mere fact that the legs collapsed," we found, "does not prove that 'the product causing the harm was not reasonably fit, suitable or safe for its intended purpose.'" Id. at 331 (quoting the relevant provision of the New Jersey Product Liability Act, N.J.S.A. 2A:58C-2); see also Myrlak v. Port Authority, 157 N.J. 84, 97 (1999) (requiring proof that the product was defective, that the defect existed when the product left the control of the manufacturer, and that the defect proximately caused injuries to the plaintiff, a reasonably foreseeable or intended user).

We observed additionally that to prove defect, a plaintiff may rely on the testimony of an expert who has examined the product or offered an opinion as to its improper design or the plaintiff may produce circumstantial evidence of a defect. Ibid. (citing Scanlon v. General Motors Corp., 65 N.J. 582, 591 (1974)). However, when the malfunctioning aspect of the product is a complex instrumentality, as we found the locking mechanism of a gurney to be, the existence of the defect must be demonstrated by expert testimony who can assist the jury in understanding the mechanical intricacies of the device and excluding other possible causes of the malfunction. Ibid. (citing Rocco v. NJ Transit Rail Operations, 330 N.J. Super. 320, 341 (App. Div. 2000) and Jimenez v. GNOC Corp., 286 N.J. Super. 533, 546 (App. Div), certif. denied, 145 N.J. 374 (1996)).

We observed that "the occurrence of an accident and the fact that someone was injured are not sufficient to demonstrate a defect." Id. at 332. And, evidence of a defect is required. "Plaintiffs must 'negat[e] other causes of the failure of the product for which the defendant would not be responsible, in order to make it reasonable to infer that a dangerous condition existed at the time the [manufacturer] had control of the product.'" Ibid. (quoting Myrlak, supra, 157 N.J. at 99).

In Lauder, we observed that the accident could have occurred because of the failure of EMS personnel to properly lock the gurney's legs, or a blanket or other material could have become lodged in the mechanism, causing it to operate improperly. Ibid. The same alternative causes of the accident exist in the present case and have not been negated in the manner we required in Lauder. For that reason, in the absence of direct proof of defect, summary judgment was appropriately granted here, as it was in Lauder.

Affirmed.

 

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A-2347-04T2

November 16, 2005