CALENDER et al v. NVR, INC. et al
Filing
42
OPINION. Signed by Judge Noel L. Hillman on 9/30/2011. (dmr)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
:
:
:
:
Plaintiffs,
:
:
v.
:
:
NVR, INC., t/a RYAN HOMES, et :
al.,
:
:
Defendants.
:
:
:
JAMES S. CALENDER and DIANE
CALENDER,
Civil Action No.
10-cv-4277 (NLH) (KMW)
OPINION
APPEARANCES
Gary F. Piserchia, Esquire
Parker McCay P.A.
Three Greentree Centre
7001 Lincoln Drive West
P.O. Box 974
Marlton, N.J. 08053
Attorney for Plaintiffs James S. Calender and Diane Calender
Brian Michael Robinson, Esquire
and
Joseph Kernen, Esquire
DLA Piper L.L.P.
One Liberty Place
1650 Market Street
Suite 4900
Philadelphia, PA 19103
and
David A. Haworth, Esquire
Ballard Spahr L.L.P.
210 Lake Drive East
Suite 200
Cherry Hill, N.J. 08002
Attorneys for Defendant NVR, Incorporated, t/a Ryan Homes
HILLMAN, District Judge
Plaintiffs, James S. Calendar and Diane Calender (hereafter,
“Plaintiff”),1 brought this action against Defendant, NVR,
Incorporated (or, “Defendant” or “NVR”), trading as Ryan Homes,
after James sustained injuries in a home he had recently
purchased.
sold by NVR.
The home was designed, manufactured, constructed, and
Plaintiff claims that he fell while exiting the
attic through its access panel/opening.
Plaintiff alleges that
the attic’s access panel/opening was unreasonably dangerous and
defective, and states causes of action sounding in negligence
(Count One), product liability and/or strict liability (Count
Two), breach of contract (Count Three), breach of warranties
(Count Four), and loss of consortium (Count Five).
Presently
before the Court is NVR’s motion to dismiss Plaintiff’s claims
for failure to file an affidavit of merit insofar as those claims
rely on a theory of design defect.
For the reasons expressed below, NVR’s motion to dismiss
Plaintiff’s design defect claims under the New Jersey Affidavit
of Merit Statute is granted.
I.
JURISDICTION
This Court has jurisdiction pursuant to 28 U.S.C. § 1332.
James and Diane Calender are citizens of the State of New Jersey.
1
Though both James and Diane Calender are named as
plaintiffs, the relevant events and the majority of claims in
this case involve only James Calender. Thus, in the interests of
clarity and simplicity, and unless otherwise noted, the Court
will refer to a singular “Plaintiff,” while recognizing that both
Calenders are plaintiffs in this matter.
2
NVR is incorporated and maintains its principal place of business
in the Commonwealth of Virginia.
exists between the parties.
Therefore, complete diversity
The amount in controversy is met
because the allegations contained in Plaintiff’s complaint
sufficiently demonstrate that damages sought are in excess of
$75,000, exclusive of interest and cost.2
II.
BACKGROUND
According to Plaintiff’s complaint, NVR is “a corporation
specializing in the sale, design and construction of residential
homes and is a mass-developer and/or professional builder,
specializing in constructing full communities.”
(Compl., ¶ 5).
Plaintiff entered into an agreement with NVR to purchase a newly
constructed home on March 23, 2008.
NVR designed, manufactured,
built, and sold the home purchased by Plaintiff.3
2
Plaintiff’s complaint does not articulate a particular
amount in controversy. But, as Defendant correctly opines and
Plaintiff ostensibly agrees, “a reasonable reading of the value
of the rights being litigated” suggests that the amount in
controversy may exceed $75,000. Angus v. Shiley, Inc., 989 F.2d
142, 146 (3d Cir. 1993). Plaintiff alleges that he suffered
severe and permanent bodily injuries. There is no reason to
doubt that the amount of damages associated with such injuries,
including pain and suffering, medical expenses, and loss of
wages, could exceed the minimum threshold in a diversity-ofcitizenship case.
3
In its submissions to the Court, Defendant represents
that, in accordance with New Jersey law, the home’s architectural
plans were designed, reviewed, and approved by Lawrence T.
Bassett, a New Jersey licensed architect employed by NVR. The
Court does not rely on this fact for its analysis, but mentions
it simply to highlight the obvious, as discussed infra: an
architect must design building plans.
3
On or around October 21, 2008, Plaintiff accessed the home’s
attic in order to change the filters on air conditioning units
and HVAC systems.
While exiting the attic, Plaintiff fell
through its access panel/opening, and suffered severe and
permanent injuries.
Plaintiff commenced this action by filing a complaint
against NVR on June 30, 2010, in the Superior Court of New
Jersey, Law Division, Camden County.
The complaint alleged,
inter alia, that NVR: (1) negligently designed, manufactured,
constructed, and/or sold the home; (2) is subject to product
liability because the access panel/opening was unreasonably
dangerous and defective, and/or due to the failure to adequately
warn of such conditions; (3) breached its contract to provide a
safe, suitable home; and (4) breached its express and implied
warranties.
The complaint also includes a per quod claim for
loss of consortium, and a plea for punitive damages.
NVR removed the suit to this Court on August 20, 2010.
On
January 21, 2011, NVR filed the motion to dismiss Plaintiff’s
complaint with respect to the design defect claims.
III.
DISCUSSION
A.
Standard for Motion to Dismiss
When considering a motion to dismiss a complaint for failure
to state a claim upon which relief can be granted pursuant to
Federal Rule of Civil Procedure 12(b)(6), a court must accept all
4
well-pleaded allegations in the complaint as true and view them
in the light most favorable to the plaintiff.
Fisher, 423 F.3d 347, 350 (3d Cir. 2005).
Evancho v.
It is well settled
that a pleading is sufficient if it contains “a short and plain
statement of the claim showing that the pleader is entitled to
relief.”
Fed. R. Civ. P. 8(a)(2).
A district court, in weighing a motion to dismiss, asks
“‘not whether a plaintiff will ultimately prevail but whether the
claimant is entitled to offer evidence to support the claim.’”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 563 n.8 (2007) (quoting
Scheuer v. Rhoades, 416 U.S. 232, 236 (1974)); see also Ashcroft
v. Iqbal, 129 S. Ct. 1937, 1953 (2009) (“Our decision in Twombly
expounded the pleading standard for ‘all civil actions[.]’”
(citation omitted)).
Under the Twombly/Iqbal standard, the Third
Circuit has instructed a two-part analysis.
First, a claim’s
factual and legal elements should be separated; a “district court
must accept all of the complaint’s well-pleaded facts as true,
but may disregard any legal conclusions.”
Fowler v. UPMC
Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009) (citing Iqbal, 129
S. Ct. at 1950).
Second, a district court “must then determine whether the
facts alleged in the complaint are sufficient to show that the
plaintiff has a ‘plausible claim for relief.’”
(quoting Iqbal, 129 S. Ct. at 1950).
5
Id. at 211
“[A] complaint must do more
than allege the plaintiff’s entitlement to relief.”
Id.; see
also Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir.
2008) (“The Supreme Court’s Twombly formulation of the pleading
standard can be summed up thus: ‘stating . . . a claim requires a
complaint with enough factual matter (taken as true) to suggest’
the required element.
This ‘does not impose a probability
requirement at the pleading stage,’ but instead ‘simply calls for
enough facts to raise a reasonable expectation that discovery
will reveal evidence of’ the necessary element.” (quoting
Twombly, 550 U.S. at 556)).
The defendant bears the burden of
showing that no claim has been presented.
Hedges v. U.S., 404
F.3d 744, 750 (3d Cir. 2005).
B.
The New Jersey Affidavit of Merit Statute
Defendant argues that to the extent Plaintiff’s claims
allege or rely on design defects, those claims must be dismissed
because Plaintiff did not file an affidavit of merit.
By
Defendant’s estimation, an affidavit of merit is necessary for
any design defect claims in this case because those claims
implicate professional negligence involving a licensed
professional, an architect.
Plaintiff counters that no affidavit of merit is required
here because Plaintiff need not show any deviation in an
architect’s professional standard of care, but rather must
demonstrate only that the product was defective.
6
Plaintiff does
not believe that any expert testimony is necessary to carry that
burden.
Also, Plaintiff submits that no licensed person, as
contemplated by the Affidavit of Merit Statute, is a defendant in
this case.
1.
Applicability and Scope
The Third Circuit has concluded that the New Jersey
Affidavit of Merit Statute (“the AMS”), N.J.S.A. § 2A:53A-26 et
seq., at issue in the instant case, constitutes substantive state
law.
Chamberlain v. Giampapa, 210 F.3d 154, 161 (3d Cir. 2000).
As such, the AMS “must be applied by federal courts sitting in
diversity,” as is the case here.4
Id.
The AMS reads in
pertinent part:
In any action for damages for personal
injuries . . . resulting from an alleged act of
malpractice or negligence by a licensed person
in his profession or occupation, the plaintiff
shall, within 60 days following the date of
filing of the answer to the complaint by the
defendant, provide each defendant with an
affidavit of an appropriate licensed person
that there exists a reasonable probability that
the care, skill or knowledge exercised or
exhibited in the treatment, practice or work
that is the subject of the complaint, fell
outside acceptable professional or occupational
standards or treatment practices.
N.J.S.A. § 2A:53A-27.
The AMS provides guidance by defining a
4
“A [federal] court will consider the New Jersey
legislature’s purpose for enacting such a statute, as well as how
the New Jersey courts have interpreted and applied the statute.”
Fink v. Ritner, 318 F. Supp. 2d 225, 228 (D.N.J. 2004). As such,
this Opinion will rely on New Jersey legislative and judicial
treatment of the AMS.
7
“licensed person.”
N.J.S.A. § 2A:53A-26.
This list includes
architects, doctors, and engineers, among other professionally
licensed occupations.
Id.
The New Jersey courts have interpreted the main purpose of
the AMS as “requir[ing] plaintiffs in malpractice cases to make a
threshold showing that their claim is meritorious, in order that
meritless lawsuits readily could be identified at an early stage
of litigation.”
1997).
In re Petition of Hall, 688 A.2d 81, 87 (N.J.
Put differently, the thrust of the AMS is “to weed out
frivolous lawsuits early in the litigation while, at the same
time, ensuring that plaintiffs with meritorious claims will have
their day in court.”
2001).
Hubbard v. Reed, 774 A.2d 495, 500 (N.J.
The New Jersey courts also have understood a goal of the
AMS to be that “the resources and time of the parties will not be
wasted by the continuation of unnecessary litigation.”
Smeal, 836 A.2d 794, 798 (N.J. 2003).
Knorr v.
The New Jersey Supreme
Court has cautioned, though, that the AMS should not serve “‘to
create a minefield of hyper-technicalities in order to doom
innocent litigants possessing meritorious claims.’”
Ferreira v.
Rancocas Orthopedic Assocs., 836 A.2d 779, 783 (N.J. 2003)
(quoting Mayfield v. Cmty. Med. Assocs., 762 A.2d 237, 244 (N.J.
App. Div. 2000)).
Failure to provide an affidavit of merit in the required
instances and within the prescribed time period will be deemed a
8
failure to state a cause of action.
N.J.S.A. § 2A:53A-29.
When
a complaint is dismissed under the AMS, it is done “with
prejudice,” and “[s]uch a dismissal concludes the rights of the
parties as if the suit had been prosecuted to final adjudication
adverse to the plaintiff.”
Cornblatt v. Barow, 708 A.2d 401, 413
(N.J. 1998) (citation and internal quotation marks omitted).
2.
Substantive Analysis of New Jersey Affidavit of
Merit Statute
On its face, the statutory language does not support the
contention that the AMS is applicable to claims other than those
sounding in malpractice or negligence.
See N.J.S.A. § 2A:53A-27
(“In any action for damages . . . resulting from an alleged act
of malpractice or negligence . . . ”).
However, the New Jersey
Supreme Court has repeatedly asserted that, when deciding whether
an affidavit of merit is required, the courts should focus on the
nature of the legal inquiry rather than on the label placed on
the action.
See, e.g., Couri v. Gardner, 801 A.2d 1134, 1141
(N.J. 2002).
“[R]ather than focusing on whether the claim is
denominated as tort or contract, . . . courts should determine if
the claim's underlying factual allegations require proof of a
deviation from the professional standard of care applicable to
that specific profession.”
Id.
“If such proof is required, an
affidavit of merit is required for that claim, unless some
exception applies.”
Id.
In order to assist courts in determining whether an
9
affidavit of merit is required, the Couri Court articulated a
three-element test.
Courts should ask:
(1) whether the action is for “damages for
personal injuries, wrongful death or property
damage” (nature of injury); (2) whether the
action is for “malpractice or negligence”
(cause of action); and (3) whether the “care,
skill or knowledge exercised or exhibited in
the treatment, practice or work that is the
subject of the complaint [ ] fell outside
acceptable
professional
or
occupational
standards or treatment practices” (standard of
care).
Id. at 1137 (quoting N.J.S.A. § 2A:53A-27).
If all three
elements are satisfied, then the claim falls within the purview
of the AMS, and the affidavit is required.
C.
Application of the AMS to Plaintiff’s Claims
As all three of the Couri elements are satisfied with regard
to Plaintiff’s design defect claims, the AMS applies and an
affidavit of merit is required.
1.
Defendant is a “licensed person” within the
meaning of the AMS, satisfying the first Couri
element.
Plaintiff argues that, having named the construction company
in his complaint rather than the individual architect employed by
the company, the AMS does not apply because the company is not a
“licensed person.”
The AMS, however, must be interpreted more
broadly than Plaintiff’s restricted reading.
The substance of
Plaintiff’s design defect theory implicates, directly or
indirectly, Defendant’s architectural expertise and, in turn, its
10
architects and their judgment.
To allow Plaintiff “to circumvent
the affidavit requirement by naming only” an entity –- in this
matter, NVR –- as a defendant in lieu of the architect
responsible for designing the access panel/opening, would lead to
an “‘entirely anomalous’” result, consequently bypassing the
affidavit requirement due to an overly technical reading of the
statute.
Shamrock Lacrosse, Inc. v. Klehr, Harrison, Harvey,
Branzburg & Ellers, L.L.P., 3 A.3d 518, 532 (N.J. App. Div.
2010).
The AMS focuses “on the resulting harm, not on the
business forms of the named defendants.”
Id. at 531.
“A statute
should not be read in a crabbed fashion that leads to anomalous
results.”
Id. at 532-33.
Allowing this sort of exception would
encourage plaintiffs to file tort actions without regard for the
important statutory tort reform requirements imposed by the New
Jersey Legislature.
And, after all, an individual employee’s
negligence within the scope of his employment may be imputed to
the employer under the doctrine of respondeat superior.
See
Martin v. Perinni Corp., 37 F. Supp. 2d 362, 366 (D.N.J. 1999).
Moreover, a business composed of licensed individuals may
itself be considered a “licensed person” within the meaning of
the AMS.
See, e.g., Shamrock Lacrosse, 3 A.3d at 532 (ruling
that it would be “anomalous” to circumvent the AMS requirement by
simply naming a law firm as defendant rather than the individual
lawyer whose alleged malpractice is implicated, therefore
11
considering a law firm a “licensed person” under the AMS);
Bonnieview v. Homeowners Ass’n, LLC v. Woodmont Builders, LLC,
2005 WL 2469665 (D.N.J. 2005) (holding that a company composed of
licensed environmental engineers is considered a “licensed
person” for purposes of affidavit of merit requirement); Martin,
37 F. Supp. 2d at 366 (holding that “a business organization
whose leadership is composed of ‘licensed persons’ within the
meaning of N.J.S.A. 2A:53A-26 is also considered a ‘licensed
person’ for purposes” of the AMS).
Here, the conduct of a
licensed professional -- the architect who designed the attic
access panel/opening -- is clearly at issue.
In fact, Plaintiff
names “John Does #1-10" in his complaint, and explicitly states
that they “are pled to temporarily suffice for the presently
undetermined identities of such persons, contractors, subcontractors, designers, architects, [etc.] . . . who participated
in the design, manufacture, construction, planning, [etc.] . . .
of the house.”
(Compl., ¶ 3) (emphasis added).
Plaintiff cannot
avoid the vital involvement of the “licensed person” at the heart
of his design defect claims in order to excuse the absence of an
affidavit of merit.
For all the foregoing reasons, NVR is considered a “licensed
person” within the scope of the AMS.
2.
Plaintiff is seeking damages for personal
injuries, satisfying the second Couri element.
As indicated by the plain language of the statute, N.J.S.A.
12
§ 2A:53A-27 (“In any action for damages for personal injuries . .
. ”), and reinforced via the second Couri element, the action
must be one seeking damages for personal injuries in order for
the AMS to apply.
In the present case, Plaintiff clearly seeks
damages for personal injuries.
As such, the second Couri element
is satisfied.
3.
Because proving a design defect claim requires
expert testimony regarding a professional standard
of care and conduct, the third Couri element is
satisfied.
The third Couri element makes the Court ask “whether the
care, skill or knowledge exercised or exhibited in the treatment,
practice or work that is the subject of the complaint fell
outside acceptable professional or occupational standards or
treatment practices.”
Couri, 801 A.2d at 1137 (citation,
internal quotation marks, and brackets omitted).
Following the
mandates of Couri, in order to assess this it is crucial to
examine the nature of the claim at issue -- the design defect.
In essence, one theory of Plaintiff’s claims is that the
attic access panel/opening was designed or planned defectively.
In New Jersey, only registered architects or licensed engineers
are permitted to design a home’s plans and specifications.5
5
In
Under the New Jersey Building Code, N.J.A.C. § 5:23-2.21,
(b) Professional architecture or engineering
services:
1.
Design: All new, renovation, alteration,
13
claiming that NVR’s building plans were designed defectively,
Plaintiff presupposes that the “care, skill or knowledge
exercised or exhibited . . . in the . . . work” of the licensed
architect “fell outside acceptable professional or occupational
standards.”
Id.
In essence, the design defect aspect of
Plaintiff’s claim is one of professional malpractice or
negligence in the field of architecture.
Clearly, such claims
were meant to be protected by the AMS as demonstrated by not only
the plain language of the AMS but also the case law interpreting
it.
In order to prove the existence of a duty and that NVR –and, more specifically, its architect -- breached its
professional standard of care in designing the attic access
panel/opening, Plaintiff would have to rely on the expert
reconstruction,
expansion,
addition
or
modification work involving the practice of
professional architecture or engineering, as
defined by the statutory requirements of the
professional registration and licensing laws
of this State, shall be prepared by registered
architects or licensed engineers. All plans,
computations and specifications required for a
construction
permit
application must
be
prepared by or under the direct supervision of
a registered architect or licensed engineer
and bear his or her signature and seal in
accordance with the State’s statutes and
regulations
governing
the
professional
registration and licensing of architects and
engineers.
N.J.A.C. § 5:23-2.21(b)(1).
14
testimony of another licensed architect, a registered engineer,
or an expert of comparable skill or knowledge.
Assessing the
existence or alleged breach of a duty of care regarding an
architectural design defect clearly “concern[s] a subject matter
that is beyond the ken of the average juror.”
Kuehner, 942 A.2d 769, 774 (N.J. 2008).
Hisenaj v.
It is true that the
“doctrine of common knowledge permits exception to the general
rule,” Estate of Chin v. St. Barnabas Med. Ctr., 734 A.2d 778,
785 (N.J. 1999), allowing a jury, through common knowledge and
experience, “to conclude without expert testimony that a standard
of care applied and was breached,” Lucia v. Monmouth Med. Ctr.,
775 A.2d 97, 103 (N.J. App. Div. 2001).
However, the common
knowledge doctrine is only applicable “where the carelessness of
the defendant is readily apparent to anyone of average
intelligence and ordinary experience.”
A.2d 371, 375 (N.J. 1985).
Rosenberg v. Cahill, 492
The architectural design defects in
this case are of a complex nature, involving instrumentalities
the details and nuances of which are not readily apparent, and
thus cannot be said to fall within this exception.
See Rocco v.
N.J. Transit Rail Operations, Inc., 749 A.2d 868, 879 (N.J. App.
Div. 2000) (noting that when a case “involves a complex
instrumentality, expert testimony is needed in order to help the
fact-finder understand ‘the mechanical intricacies of the
instrumentality’ and help to exclude other possible causes of the
15
accident” (quoting Jimenez v. GNOC Corp., 670 A.2d 24, 30 (N.J.
App. Div. 1996))).6
This conclusion is further borne out by an examination of
the proof necessary for a negligence-based products liability
claim and a strict liability claim under New Jersey law.7
6
The
A brief survey of product liability cases leads to the
conclusion that, for purposes of a design defect claim, an attic
access panel/opening constitutes a complex instrumentality in
need of expert testimony. See, e.g., Scanlon v. General Motors
Corp., Chevrolet Motor Div., 326 A.2d 673, 677 (N.J. 1974)
(finding that an automobile is a complex instrumentality
requiring expert testimony); Wojcik v. Borough of Manville, 2010
WL 322893 (N.J. App. Div. 2010) (motorcycle helmet as complex
instrumentality); Tluczek v. Prestige BMW of Ramsey, 2009 WL
2601625 (N.J. App. Div. 2009) (steering column); Huszar v. Greate
Bay Hotel & Casino, Inc., 868 A.2d 364 (N.J. App. Div. 2005)
(elevator door); Lauder v. Teaneck Volunteer Ambulance Corps, 845
A.2d 1271 (N.J. App. Div. 2004) (hospital gurney); Gore v. Otis
Elevator Co., 762 A.2d 292 (N.J. App. Div. 2000) (elevator);
Rocco, 749 A.2d 868 (lock/unlock mechanism on a train door);;
Hunt v. Kmart, 2006 WL 799189 (N.J. App. Div. 2006) (lawn chair);
but see, e.g., Henning v. Casa DiBertacci, Inc., 2007 WL 1461170
(N.J. App. Div. 2007) (finding that a cardboard box is not a
complex instrumentality requiring expert testimony, falling
instead within the common knowledge exception); Mathews v.
University Loft Co., 903 A.2d 1120 (N.J. App. Div. 2006) (finding
that the danger of falling off a bunk bed is open and obvious,
not requiring expert testimony); Warrington v. Paint Creek
Supply, Inc., 2008 WL 51459 (N.J. App. Div. 2008) (finding that a
latch is not a complex instrumentality).
7
The New Jersey Products Liability Act, codified at
N.J.S.A. § 2A:58C–1 et seq. provides in pertinent part:
A manufacturer or seller of a product
shall be liable in a product liability action
only if the claimant proves 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: a.
deviated from the design specifications,
formulae, or performance standards of the
16
elements of proof under a strict liability theory are that “(1)
the product design was defective; (2) the defect existed when the
product was distributed by and under the control of defendant;
and (3) the defect caused injury to a reasonably foreseeable
user.”
Michalko v. Cooke Color & Chem. Corp., 451 A.2d 179, 183
(N.J. 1982).
In order to prove the first prong -- that the
product design was defective -- it is necessary to employ a riskutility analysis.
Cepeda v. Cumberland Engineering Co., Inc.,
386 A.2d 816, 826 (N.J. 1978), rev’d. on other grounds, Suter v.
San Angelo Foundry & Mach. Co., 406 A.2d 140 (N.J. 1979).
Factors to be considered in the risk-utility analysis include:
(1) The usefulness and desirability of the
product, its utility to the user and to the
public as a whole.
(2) The safety aspects of the product, the
likelihood that it will cause injury, and the
probable seriousness of the injury.
manufacturer or from otherwise identical units
manufactured
to
the
same
manufacturing
specifications or formulae, or b. failed to
contain adequate warnings or instructions, or
c. was designed in a defective manner.
N.J.S.A. § 2A:58C-2. Plaintiff seems to suggest that, because
this claim was brought pursuant to and falls under the Products
Liability Act, it is somehow precluded from the strictures of the
AMS. However, the only case that Plaintiff cites in support of
this contention, Darwin v. Gooberman, 772 A.2d 399 (N.J. App.
Div. 2001), was specifically overturned by the New Jersey Supreme
Court on the basis of that contention. See Couri, 801 A.2d at
1141 (holding that it is not the label attached to the claim, but
the substance of that claim which should inform the application
of the AMS).
17
(3) The availability of a substitute product
which would meet the same need and not be as
unsafe.
(4) The manufacturer's ability to eliminate the
unsafe character of the product without
impairing its usefulness or making it too
expensive to maintain its utility.
(5) The user's ability to avoid danger by the
exercise of care in the use of the product.
(6) The user's anticipated awareness of the
dangers inherent in the product and their
avoidability,
because
of
general
public
knowledge of the obvious condition of the
product, or of the existence of suitable
warnings or instructions.
(7) The feasibility, on the part of the
manufacturer, of spreading the loss by setting
the price of the product or carrying liability
insurance.
Id. at 826-27 (citing John Wade, “On The Nature of Strict Tort
Liability For Products,” 44 Miss. L.J. 825, 837-838 (1973)).
Under a negligence-based product liability theory, the plaintiff
not only examines the care or skill of the designer, but also
“‘must prove under a risk-utility analysis the existence of an
alternate design that is both practical and feasible,’ and
‘safer’ than that used by the manufacturer.”
Diluzio-Gulino v.
Daimler Chrysler Corp., 897 A.2d 438, 441 (N.J. App. Div. 2006)
(quoting Lewis v. Am. Cyanamid Co., 715 A.2d 967, 980 (N.J.
1998)).
Proceeding under either rubric, it is clear that in the
instant case, Plaintiff is necessarily challenging the
18
architectural designs and plans -- which only the licensed
architect was able to craft.
In order to do so, he would need
the expert testimony of another licensed architect or a
comparable expert.
For example, under the strict liability
design defect rubric, Plaintiff would first need to prove that
the product design was defective.
See Michalko, 451 A.2d at 183.
This necessarily entails an analysis of the design plans, an
assessment that could only be performed by an expert capable of
opining on the professional standard of care.
Similarly, under
either design defect theory, it would be necessary to propose a
safer, alternative design.
expert testimony.
This, too, would necessarily entail
The testimony would have to compare the safer
alternate design with the allegedly unsafe earlier design,
thereby demanding an examination of the original architect’s work
product and, as such, the care or skill with which he designed
the access panel/opening.
Without such referential testimony, it
would be difficult to satisfy the “safer alternate design”
requirement.
And, of course, the negligence-based theory of
product liability, by its definition and nature, must delve into
the professional standard of care and determine whether any
deviation from that standard has occurred.
It therefore is clear that proof of a design defect in this
case would require expert testimony of a licensed architect,
engineer, or other expert that addresses the “care, skill or
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knowledge exercised or exhibited” in the design.
Couri, 801 A.2d
at 1137 (citation and internal quotation marks omitted).
In
order to succeed, the expert testimony would have to assert that
the prior architectural design work “fell outside acceptable
professional or occupational standards or treatment practices.”
Id. (citation and internal quotation marks omitted).
For all the
foregoing reasons, the third Couri element is satisfied.
4.
The AMS applies to Plaintiff’s design defect
theory, and as such, an affidavit of merit was
required.
All three Couri elements are satisfied.
defendant is considered a “licensed person.”
seeks damages for personal injury.
First, the
Second, the claim
Third, the nature of the
claim necessarily involves a contention about the professional
standard of care for a protected, licensed class -- architect.
As all three elements are satisfied, the AMS applies to the
Plaintiff’s design defect claim.
An affidavit of merit was
therefore required to proceed under that theory of liability.
It
is undisputed, however, that Plaintiff did not file an affidavit
of merit.
As stated above, failure to file an affidavit of merit in
the required instances will result in dismissal with prejudice of
the claim.
Cornblatt, 708 A.2d at 413.
Defendant notes, and
Plaintiff seems to disregard, that Defendant’s motion to dismiss
is only to the extent that the counts are based on design defect
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allegations.
In fact, Defendant concedes that the AMS does not
apply to certain of Plaintiff’s other causes of action,
repeatedly acknowledging, expressly and impliedly, the limited
scope of the motion to dismiss and the application of the AMS to
this case.
Therefore, to the extent that Plaintiff’s theories of
liability are based on design defect, they are dismissed.
The
practical effect of this ruling is that Plaintiff is precluded
from trying to establish the existence of, or rely on a theory
of, design defect.
Absent an affidavit of merit, Plaintiff
cannot proceed in any way on such a claim.
However, Plaintiff’s claims that are separate and apart from
design defect -- manufacturing defect, failure to warn, breach of
express warranty,8 and breach of contract -- are still viable at
8
To the extent that the underlying claim is based on a
defective product (rather than negligence in construction or
installation), and hence governed by the Products Liability Act,
breach of implied warranty and negligence are not viable claims.
“[T]he PLA ‘no longer recognizes negligence or breach of warranty
(with the exception of an express warranty) as a viable separate
claim for ‘harm[,]’ [including personal injury,] caused by a
defective product’ or an inadequate warning.” Koruba v. Am.
Honda Motor Co., 935 A.2d 787, 795 (N.J. App. Div. 2007) (quoting
Tirrell v. Navistar Int’l, Inc., 591 A.2d 643, 647 (N.J. App.
Div. 1991)). “Rather, the exclusive method to prosecute such a
claim is . . . by proving that the product was not reasonably
fit, suitable or safe for its intended purpose because it either
contained a manufacturing defect, failed to contain adequate
warnings or instructions, or was designed in a defective manner.”
Id. It is therefore not possible to assert breach of implied
warranty or negligence as separate claims to the extent that they
are based on the product itself.
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this time.
The Court does not read Defendant’s motion as
challenging any of those other claims.
Moreover, it may be
possible to establish those claims absent any allegation of
design defect.
See, e.g., Myrlak v. Port Auth. of N.Y. & N.J.,
723 A.2d 45, 52 (N.J. 1999) (allowing a plaintiff to prove a
manufacturing defect using direct evidence, including expert
testimony, or circumstantial evidence).
Therefore, Defendant’s
motion is granted, and Plaintiff is precluded from pursing his
causes of action under a theory of design defect.
IV.
CONCLUSION
For all the foregoing reasons, Plaintiff’s design defect
claims fall under the purview of the New Jersey Affidavit of
Merit Statute, N.J.S.A. § 2A:53A-26 et seq.
Due to Plaintiff’s
failure to file an affidavit of merit to support this portion of
his complaint, Defendant’s motion to dismiss is granted.
Plaintiff may proceed with his action only to the extent that it
in no way relies on or attempts to establish the existence of a
design defect.
Date: September 30, 2011
At Camden, New Jersey
/s/ NOEL L. HILLMAN
Hon. Noel L. Hillman, U.S.D.J.
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