RONALD POLLANDER v. DESIMONE BMW OF MT LAUREL, LTD.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3204-10T3

RONALD POLLANDER AND FRANCES

POLLANDER,

Plaintiffs-Appellants,

v.

DESIMONE BMW OF MT. LAUREL, LTD. AND

BMW OF NORTH AMERICA, LLC.,

Defendants-Respondents.

_____________________________________

January 18, 2012

Argued: November 1, 2011 - Decided

Before Judges Yannotti, Espinosa and Kennedy

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-2703-09.

J. Craig Currie argued the cause for appellants.

Jeffrey N. Pypcznski argued the cause for respondent BMW of North America, LLC (Porzio, Bromberg & Newman, attorneys; Mr. Pypcznski and Roy Alan Cohen, on the brief).

Bertrand C. Harris argued the cause for respondent Desimone BMW of Mt. Laurel, LTD. (Law Offices of Styliades, Jackson and Burghardt, attorneys; Mr. Harry, on the brief).

PER CURIAM

Plaintiffs, Ronald and Frances Pollander,1 appeal from orders entered by the trial court on December 17, 2010, granting summary judgment to defendants BMW of North America, LLC, (BMW) and DeSimone BMW of Mt. Laurel, LTD (DeSimone) dismissing plaintiffs' complaint, and from an order of January 21, 2011, denying reconsideration. For reasons which follow, we affirm.

Because this appeal arises in the context of a summary judgment application, we, like the trial court, are obliged to view the facts in a light most favorable to the non-moving party, here the plaintiffs. Estate of Hanges v. Met. Prop. & Cas. Ins. Co., 202 N.J. 369, 374 (2010). We accord no special deference to a trial judge's assessment of the documentary record, as the decision to grant or withhold summary judgment does not hinge upon the trial judge's determination of the credibility of testimony in court, but instead amounts to a ruling on a question of law. See Manalapan Realty, L.P. v. Manalapan Twp., Comm., 140 N.J. 366, 378 (1995) (noting that no "special deference" applies to a trial court judge's legal determination).

The statement of facts which follows is discerned from the submissions made by the parties on the motions for summary judgment. The facts appear uncontested for the purposes of the motions for summary judgment.

On June 1, 2007, Ronald Pollander (Pollander), an insurance adjuster, was dispatched to DeSimone to examine the rear seat of a 2002 BMW two-door convertible that had been damaged by vandals. He was an experienced adjuster who had examined hundreds of vehicles with power seats and seat memory functions. The vehicle had been repaired but Pollander was asked to supplement the original estimate which did not cover damage to the rear seat.

Pollander arrived at DeSimone's lot that morning and obtained the key for the car. He opened the driver's side door and located the power seat switch on the base of the driver's seat and pressed it so that the front seat moved all the way forward. He then activated the power recline button which moved the seat back into its full forward position.

Pollander placed his right foot into the rear footwell and knelt with his left knee in the doorjamb. He was examining the rear seat and trying to take a picture when, after "a couple of minutes", he felt something hit his left shoulder and saw the power seat moving backwards into him. He could not extract himself and was injured. He was certain he had not made any contact with the driver's seat before it moved backward.

On June 1, 2009, plaintiffs filed a complaint against BMW and DeSimone alleging that the movement of the seat "was due to negligence . . . or . . . to the defective condition of the seat movement/mechanism . . . ." Pollander asserted that "because of the propensity and/or capability of the BMW's front seat movement mechanism/motor to operate in the manner described . . . [it] was a product that was not reasonably fit, suitable and safe for its intended or reasonably foreseeable usage." The claim against DeSimone was predicated upon an alleged dangerous condition of property arising from the condition of the vehicle. The alleged dangerous condition was a failure to warn of the purported product defect.

The vehicle's manual describes power seat controls and three position memory "storage" buttons along the lower left driver's seat base. A horizontal bar moves the seat back and forward and operates as long as the bar is pressed backward or forward. The storage positions are pre-set and can be accessed as follows: 1) by electronic fob when the remote control entry is employed; 2) by "briefly" pressing one of the memory settings when the ignition key has been inserted into the ignition and turned to position "1"; or (3) if the driver door is closed and the ignition key is either removed or it is in positions "0" or "2" by pressing a memory button and maintaining pressure on the button until the adjustment is completed.

Pollander at his deposition indicated that he had manually turned the key in the driver's side door lock to enter the vehicle. However, the theory advanced by plaintiffs' counsel is that Pollander had the "car key in his hand or in his pocket, and he inadvertently put pressure against the fob and activated the seat positioning motor." While other theories might also be advanced explaining the seat's movement, we accept the theory of plaintiffs' counsel for purposes of this appeal.

The BMW manual contains a warning about using the remote opener with a programmed adjustment feature set in place. The warning states as follows:

Before activating the programmed adjustment feature, ensure that the footwell behind the driver's seat is empty and unobstructed. If you fail to do so, persons, animals or objects could be injured or damaged if the seat should move backward.

In response to uniform interrogatory question 16 on form A(2) which asks, "Do you contend that the product contained a design defect? If so, set forth your contention as to how the product should have been designed and in a safer, more appropriate manner",2 plaintiffs indicated,

Yes. The seat moving mechanism, at a minimum, should have had some type of sensor which would have stopped the movement of the front driver's seat upon contact with another object. Plaintiffs anticipate supplementing or amending this answer upon completion of discovery and evaluation of the product by their own expert, if necessary.

Plaintiff engaged no expert and, in fact, never even inspected the vehicle itself.

Discovery ended October 3, 2010, and trial was set for January 3, 2011. Following the completion of discovery, both defendants moved for summary judgment. In response to the motions for summary judgment, plaintiffs argued that upon activation of a memory setting for a rearward movement, "the seat will automatically move and will not stop attempting to move to the selected spot regardless of obstacles." In their brief in opposition to summary judgment, plaintiffs also asserted:

Plaintiffs contend that no expert testimony is required to establish that the presence of the hazard is unacceptable and that alternatives were available. Most simply, the seat movement motor should have been equipped with an anti-trap feature that was used in the same car to prevent powered windows and sunroofs (in the coupe version) from injuring children.

Assuming, for discussion purpose[s], that such technology was not yet available (in 2001) to prevent "trapping,["] the BMW convertibles and coupes with such minimum clearance between the seat and the doorjamb (lock pillar) should have been sold without any rearward motorized capability. Those desiring to adjust the seat forward or rearward could easily do it the way many if not most auto consumers were doing it in 2002, manually.

During oral argument on the motions for summary judgment, which occurred on December 17, 2010, plaintiffs' counsel argued that the owner's manual for the BMW convertible should be regarded as an admission that the front seat is designed improperly. Plaintiffs' counsel conceded that they could uncover no evidence suggesting that an automatic, anti-trapping technology was available when the BMW convertible at issue was produced. Plaintiffs' counsel admitted at argument that he "probably was not going to get an expert who could say that the technology back in 2002 permitted an anti-trap device" and so he came up with this alternate theory of product defect.

Plaintiffs' counsel also conceded that "I don't know that I specifically alleged that there was a safer alternative design, however, I think that's implicit in the allegation that the seat mechanism was defective." He then requested an opportunity to amend the complaint or to amend the answers to interrogatories to specifically allege that a manual seat adjustment system is an alternative design. The trial court denied that request because plaintiffs failed to show the amendment was warranted by "exceptional circumstances" and because trial was scheduled for January 3, 2011.

The trial judge granted summary judgment after finding that plaintiffs' theory of product liability, as advanced in the complaint and in answers to interrogatories, required expert support. The trial judge, as noted, also determined that plaintiffs' alternative theory, advanced for the first time in opposition to summary judgment, constituted an attempt to amend answers to interrogatories well after the discovery end date and after a trial date had been fixed. The judge found no exceptional circumstances which would have justified such a late amendment to answers to interrogatories and as a consequence granted BMW's motion for summary judgment as well as the Desimone motion for summary judgment. The court reasoned that plaintiffs were unable to sustain a cause of action against BMW on a product liability claim and held that the claim against DeSimone based upon an alleged "dangerous condition" of property must also fail because the claim was predicated upon the same defect claim plaintiffs had advanced against BMW.

Plaintiffs' theory in this case, as noted earlier, is that the installation of a motorized seat adjustment feature in the 2002 BMW convertible which can be remotely activated and which does not stop upon contact with an obstructing object constitutes a design defect. A design defect is defined by the Products Liability Act, N.J.S.A. 2A:58C-1 to -11, as something that renders a product not reasonably fit, suitable or safe for its intended purpose. N.J.S.A. 2A:58C-2. A design defect is further defined as a danger inherent in a product that has been manufactured as intended when that danger, as a public policy matter, is greater than can be justified by the product's utility. See Jurado v. Western Gear Works, 131 N.J. 375, 385 (1993); Johansen v. Makita U.S.A., Inc., 128 N.J. 86, 95 (1992); Cepeda v. Cumberland Eng'g, Inc., 76 N.J. 152, 173 (1978), overruled on other grounds by Suter v. San Angelo Foundry & Mach. Co., 81 N.J. 150, 177 (1979); Suter, supra, 81 N.J. at 172-73. In other words, when a product is manufactured as intended but the design renders the product unsafe, the first element of a design defect case exists. See Cepeda, supra, 76 N.J. at 169, 172, 179; Suter, supra, 81 N.J. at 170-71, 174-76. Thus, not only must the defect have existed when the product left the hands of the manufacturer, the defect also must have caused injury to a reasonably foreseeable user. Jurado, supra, 131 N.J. at 385.

The next element of the definition invokes public policy matters. Analysis of the danger posed by the product first examines either (i) the reasonable expectations of the consumer; or (ii) a list of factors that balances the risk posed by the product against its utility within the marketplace, the ultimate question being whether, under all the circumstances, the manufacturer was reasonable in marketing the product as designed. See Suter, supra, 81 N.J. at 171-72; Cepeda, supra, 76 N.J. at 172; Johansen, supra, 128 N.J. at 95. These "risk/utility" factors are: the usefulness and desirability of the product; the likelihood that it could cause injury (and the seriousness of the injury); the availability of a safer substitute product or design; the manufacturer's ability to eliminate the danger without impairing the usefulness of the product or making it too expensive; the user's ability to avoid the danger by the exercise of care; the user's likely awareness of the danger; and the feasibility, on the part of the manufacturer, of spreading the loss through the price of the product or by carrying liability insurance. Cepeda, supra, 76 N.J. at 174; Suter, supra, 81 N.J. at 172-72.

To establish a design defect under N.J.S.A. 2A:58C-2, a plaintiff must "prove . . . by a preponderance of the evidence that the product causing the harm was not reasonably fit, suitable or safe for its intended purpose because it . . . was designed in a defective manner . . . ." Moreover, a plaintiff must also "prove that a practical and feasible alternative design existed that would have reduced or prevented [the] harm." Lewis v. American Cyanamid Co., 155 N.J. 544, 560 (1998); Dewey v. R.J. Reynolds Tobacco Co., 121 N.J. 69, 74 (1990).

Throughout the litigation, and up to the point that defendants moved for summary judgment, plaintiffs maintained that the design should have incorporated "some type of sensor" or an "anti-trap feature" which should have halted the seat movement when it encountered an obstacle. Plainly, such a claim would have required support by expert opinion that the proposed alternative design was available at the time of manufacture and that it was practical, feasible and safer. Diluzio-Gulino v. Daimler Chrysler Corp., 385 N.J. Super. 434, 438-39 (App. Div. 2006). We need not consider this issue further, given that plaintiffs expressly conceded they had no expert and no evidence that such technology was even available when the vehicle was manufactured.

Despite these concessions, plaintiffs urged for the first time in opposition to the motions for summary judgment that they should be permitted to proceed on a previously unasserted "alternative design" theory; to wit, that a motorized, remotely activated seat adjustment feature in a 2002 BMW convertible "with this very narrow space between the door and the doorjamb" should never have been utilized and that, instead, the vehicle should only have had a "manual front and rear [seat] movement." This claim was advanced over two months after the close of discovery with a trial date seventeen days away.

The trial court denied the request by plaintiffs' counsel to amend the complaint or to amend plaintiffs' discovery responses and explained, "[this theory] obviously doesn't appear to have ever been part of your case, at least, in a way that would put the defense -- it may have been in your brain, but it was not in any meaningful way presented in answers to interrogatories or in any other way." The trial court added that such a late amendment would be prejudicial since defendants were not given an opportunity to obtain an expert on the issue or marshal evidence as to why BMW even offered an electronic seat adjustment feature as opposed to a manual system.

We find no error in the trial judge's denial of plaintiffs' twelfth hour attempt to amend their answers to interrogatories. Rule 4:24-1(c) prohibits extensions of time for discovery after a "trial date has been set absent a showing of exceptional circumstances." Ponden v. Ponden, 374 N.J. Super. 1, 8 (App. Div.), certif. denied, 183 N.J. 212 (2005). To establish exceptional circumstances, a party seeking an extension of time for discovery after a trial date has been set, must show why the discovery was not completed on time; why the additional discovery is essential; an explanation for counsel's failure to request an extension of time within the original discovery period; and, lastly, how the circumstances presented were beyond the control of the attorney seeking the extension of time. Rivers v. LSC Partnership, 378 N.J. Super. 68, 79 (App. Div.), certif. denied., 185 N.J. 296 (2005) (citing Vitti v. Brown, 359 N.J. Super. 40 (Law Div. 2003)). Generally, an inexplicable delay by counsel to supply discovery in a timely manner does not constitute exceptional circumstances. Huszar v. Greate Bay Hotel & Casino, Inc., 375 N.J. Super. 463, 474 (App. Div.), remanded on other grounds, 185 N.J. 290 (2005). When a trial court's decision to deny an extension of time for discovery in such circumstances is raised on appeal, the scope of our inquiry is simply whether the trial court mistakenly exercised its discretion. Bender v. Adelson, 187 N.J. 411, 428 (2006).

We find no such abuse of discretion here. Trial was scheduled to begin in January 2011 and discovery had closed in October 2010. Plaintiffs first raised their alternative design theory in responding to defendants' motions for summary judgment after discovery had closed and after a trial date had been set. The assumption by plaintiffs' counsel that the defendants would have sought an adjournment of trial and an extension of discovery does not constitute an exceptional circumstance.

In addition, Rule 4:17-7 requires untimely requests to amend interrogatories be accompanied by a showing of due diligence:

[If] a party who has furnished answers to interrogatories thereafter obtains information that renders such answers incomplete or inaccurate, amended answers shall be served not later that 20 days prior to the end of the discovery period....Amendments may be allowed thereafter only if the party seeking to amend certifies therein that the information requiring the amendment was not reasonably available or discoverable by the exercise of due diligence prior to the discovery end date.

[Emphasis added.]

We find here no suggestion that plaintiffs employed due diligence in ascertaining the lack of a factual basis for their claimed "anti-trap" alternative design theory. Indeed, plaintiffs' counsel made no attempt to even comply with

Rule 4:17-7 in this case.

We observe that plaintiffs' arguments respecting judicial notice, that defendants "slept on their rights" and the perceived deficiencies in the uniform interrogatories are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

With respect to the grant of summary judgment to DeSimone, plaintiffs argue that because DeSimone did not provide Pollander with a warning about the motorized seat adjustment feature that was contained in the BMW owner's manual, it could still be liable to plaintiffs on a premises liability theory. The trial judge disagreed and we find that decision to be correct under the circumstances here. We find no duty to plaintiffs breached by DeSimone in providing a key for a vehicle with a automatic seat adjustment feature to an individual who was, by his own admission, well experienced in inspecting vehicles with such features.

The existence of a duty is a question of law for a court to determine. Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439 (1993). As the Supreme Court explained:

Determining the scope of tort liability has traditionally been the responsibility of the courts. Kelly v. Gwinnell, 96 N.J. 538, 552 (1984). The actual imposition of a duty of care and the formulation of standards defining such a duty derive from considerations of public policy and fairness. Ibid. "This Court has carefully refrained from treating questions of duty in a conclusory fashion, recognizing that '[w]hether a duty exists is ultimately a question of fairness.'" Weinberg v. Dinger, 106 N.J. 469, 485 (1987) (quoting Goldberg v. Housing Auth., 38 N.J. 578, 583 (1962)).

Whether a person owes a duty of reasonable care toward another turns on whether the imposition of such a duty satisfies an abiding sense of basic fairness under all of the circumstances in light of considerations of public policy, Goldberg, supra, 38 N.J. at 583. That inquiry involves identifying, weighing, and balancing several factors - the relationship of the parties, the nature of the attendant risk, the opportunity and ability to exercise care, and the public interest in the proposed solution. Ibid. The analysis is both very fact-specific and principled; it must lead to solutions that properly and fairly resolve the specific case and generate intelligible and sensible rules to govern future conduct.

[Ibid. ]

Evaluating the factors identified by the Supreme Court in Hopkins in light of the facts of this case, we discern no duty owed to Pollander by DeSimone. Pollander was an experienced adjuster whose job entailed examining vehicles and who, by his own admission, had entered vehicles with an automatic seat adjustment feature "hundreds" of times. In these circumstances, DeSimone owed no duty to Pollander to specifically explain to

him how the feature works. Summary judgment was properly granted.

Affirmed.

1 Frances Pollander filed a per quod claim. Unless otherwise indicated, references to plaintiff or to Pollander are to plaintiff, Ronald Pollander.

2 See Appendix II, Interrogatory Forms, Rules Governing the Courts of the State of New Jersey, prescribed by Rule 4:17-1(b)(1).