JAMES REARDON v. PEACHTREE DOORS AND WINDOWS INC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1469-11T1

JAMES REARDON and

KATHLEEN REARDON, h/w,

Plaintiffs-Appellants,

v.

PEACHTREE DOORS AND WINDOWS,

INC.,

Defendant/Third-Party

Plaintiff-Respondent,

v.

DAC PRODUCTS, INC.,

Third-Party Defendant-

Respondent.

____________________________

December 3, 2012

Submitted October 24, 2012 - Decided

Before Judges Simonelli and Accurso.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-4224-09.

Raymond A. Scarpato, Jr. and Libro G. Taglianetti, Jr. of the Pennsylvania bar, admitted pro hac vice, attorneys for appellant (Mr. Scarpato, Jr., on the brief).

Lavin, O'Neil, Ricci, Cedrone & Disipio, attorneys for respondent Peachtree Doors and Windows, Inc. (Matthew D. Garson, of counsel and on the brief).

Naulty, Scaricamazza & McDevitt,LLC., attorneys for respondent DAC Products, Inc. (Gerard X. Smith, on the brief).

PER CURIAM

Plaintiff James Reardon appeals from the September 9, 2011 Law Division order, which granted summary judgment to defendant/third-party plaintiff Peachtree Doors and Windows, Inc. (Peachtree).1 Plaintiff also appeals from the October 14, 2011 order, which denied his motion for reconsideration. We affirm.

The following facts are derived from evidence submitted by the parties in support of, and in opposition to, the summary judgment motion, viewed in a light most favorable to plaintiff. See Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540 (1995).

Plaintiff was employed as an in-home sales specialist by Lowe's Home Centers, Inc. In the course of his in-home demonstrations, plaintiff used a sample window that was encased in a strand board display having an attached handle. On August 23, 2007, plaintiff was allegedly injured when a screw on one end of the handle "popped out" strand board display while he was removing the sample window from the trunk of his car. Plaintiff had the sample window in his possession for approximately one month prior thereto, and had used it approximately fifteen times without incident.

On August 20, 2009, plaintiff filed a complaint against Peachtree, alleging that Peachtree had negligently attached the handle to the strand board display with two screws instead of the four screws indicated by the handle assembly. Plaintiff also alleged that Peachtree was strictly liable for the sample window's design and manufacturing defects and failure to properly affix the handle to the strand board display. Plaintiff did not name any fictitious parties.

In its answer filed on October 9, 2009, Peachtree denied liability, and asserted that individuals and/or entities over whom it had no control were liable for plaintiff's alleged injuries. In its answers to plaintiff's interrogatories, Peachtree admitted it manufactured the sample window, but denied it designed or manufactured the strand board display and handle, or attached the handle to the strand board display. Peachtree stated that DAC Products, Inc. (DAC) had designed and manufactured the strand board display and handle, and attached the handle to the strand board display.

Peachtree filed a motion for leave to file a third-party complaint against DAC, which was granted. On September 24, 2010, Peachtree filed a third-party complaint against DAC, seeking contribution and indemnification. On December 16, 2010, DAC filed an answer, denying it had manufactured the strand board display or attached the handle.

Plaintiff did not file a motion to amend the complaint to add DAC as a direct defendant. He also did not depose any Peachtree or DAC representative, serve any discovery requests on DAC, or serve an expert's report. Plaintiff also admitted in his interrogatory answers that the sample window "was probably manufactured properly."

After the close of discovery, Peachtree filed a motion for summary judgment. It argued that the New Jersey Product Liability Act (NJPLA), N.J.S.A. 2A:58C-1 to -11 subsumed plaintiff's negligence claim, the record lacked expert evidence establishing a products liability claim, and the record lacked evidence establishing Peachtree's liability. In opposition, plaintiff argued there was no need for an expert because res ipsa loquitur applied. Plaintiff also argued there was a material factual dispute based on a contradiction between DAC's answer to the third-party complaint, denying it had manufactured the strand board display or attached the handle, and the admission by DAC's attorney during an arbitration that DAC did so.

The trial judge granted the motion. The judge held that the NJPLA subsumed plaintiff's negligence claim, there was no evidence of a design or manufacturing defect, res ipsa loquitur did not apply, and expert evidence was required to prove Peachtree's liability. The judge noted there was no evidence showing who removed the screws from the handle, and no proof that Peachtree had exclusive control of the instrumentality. Noting that plaintiff had control of the instrumentality for a period of time before the incident, the judge questioned whether plaintiff had removed the screws. The judge memorialized his decision in a September 9, 2011 order.2

Plaintiff filed a motion for reconsideration. He again argued that res ipsa loquitur applied, and also argued that the judge erred by not examining the sample window, which plaintiff's counsel had brought to court on the day of oral argument of the summary judgment motion. Plaintiff further argued that the judge improperly inferred that plaintiff may have removed the screws from the handle.

The judge denied the motion. He held he was not required to examine the sample window because he was not an expert or the fact-finder, and there was no evidence establishing a products liability claim or res ipsa loquitur. This appeal followed.

Our review of a ruling on summary judgment is de novo, applying the same legal standard as the trial court. Coyne v. N.J. Dep't of Transp., 182 N.J.481, 491 (2005); Tymczyszyn v. Columbus Gardens, 422 N.J. Super. 253, 261 (App. Div. 2011), certif. denied, 209 N.J.98 (2012). Thus, we consider, as the trial judge did, "'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, supra, 142 N.J. at 536). 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 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). If there is no genuine issue of material fact, we must then "decide 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). We review issues of law de novo and accord no deference to the trial judge's conclusions. Zabilowicz v. Kelsey, 200 N.J. 507, 512-13 (2009).

As for the denial of the motion for reconsideration, we have determined that

[r]econsideration itself is a matter within the sound discretion of the [c]ourt, to be exercised in the interest of justice[.] It is not appropriate merely because a litigant is dissatisfied with a decision of the court or wishes to reargue a motion, but should be utilized only for those cases which fall into that narrow corridor in which either 1) the [c]ourt has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the [c]ourt either did not consider, or failed to appreciate the significance of probative, competent evidence.

[Palombi v. Palombi, 414 N.J. Super. 274, 288 (App. Div. 2010) (citations omitted) (internal quotation marks omitted).]

We will not disturb a trial judge's denial of a motion for reconsideration absent an abuse of discretion. Id. at 289. Applying the foregoing standards, we conclude that the judge properly granted summary judgment and properly denied plaintiff's motion for reconsideration.

On appeal, plaintiff does not dispute that the NJPLA subsumed his negligence claim; rather, he argues that DAC's contradictory responses created a material factual dispute. He also argues that the judge should have examined the sample window to determine whether a defect existed and whether res ipsa loquitur applied, and improperly inferred that plaintiff may have removed the screws from the handle. We disagree with these arguments.

Although DAC should have amended its answer to correct an inaccurate and misleading pleading, we find the alleged contradiction was no reason to deny summary judgment to Peachtree. This is a strict products liability case in which plaintiff alleges a design and manufacturing defect. The evidence established that Peachtree only manufactured the sample window, which plaintiff admitted "was probably manufactured properly." There is no evidence establishing a design or manufacturing defect in the sample window. In any event, plaintiff alleged that the handle "popped out" from the strand board display, not the sample window, and caused his injury. There is no evidence that Peachtree designed or manufactured the strand board display or handle, or attached the handle to the strand board display.

Even assuming that DAC admitted it had fabricated the strand board display and attached the handle, those facts are immaterial to the issue of Peachtree's liability and would not defeat the entry of summary judgment in Peachtree's favor. Further, plaintiff did not name fictitious defendants and never asserted a direct claim against DAC. As the statute of limitations had already run on plaintiff's claim by the time DAC was identified and joined in the action, the judge was correct in refusing to reopen discovery to explore what was clearly a time-barred claim.

In addition, res ipsa loquitur generally does not apply in strict products liability cases alleging a manufacturing defect. Myrlak v. Port Auth. of N.Y. and N.J., 157 N.J. 84, 90 (1999). In such cases, the plaintiff must prove that the product was defective, the defect existed when the product left the manufacturer's control, and the defect proximately cause the plaintiff's injury. Id. at 97. There is no evidence of a manufacturing defect in the sample window that Peachtree manufactured or the handle.

Finally, a judge does not act as the fact-finder when deciding a motion for summary judgment. Judson v. Peoples Bank & Trust Co., 17 N.J. 67, 73 (1954). Thus, it would have been improper for the judge to examine the sample window and determine whether a defect existed.

1 Plaintiff's wife, Kathleen Reardon, who asserted a per quod claim, also appeals.

2 DAC had also filed a motion for summary judgment. In a September 16, 2011 order, the judge dismissed the motion "as moot" as a result of the grant of summary judgment to Peachtree. Plaintiffs do not appeal from the September 16, 2011 order.