CALENDER et al v. NVR, INC. et al

Filing 54

OPINION. Signed by Judge Noel L. Hillman on 9/26/2012. (dmr)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

JAMES S. CALENDER and DIANE
CALENDER,
Plaintiffs,

Civil No. 10-4277 (NLH/KMW)
OPINION

v.
NVR, INC., t/a RYAN HOMES, et
al.,
Defendants.

APPEARANCES:
Gary F. Piserchia, Esquire
Parker McCay P.A.
9000 Midlantic Drive, Suite 300
P.O. Box 5054
Mount Laurel, New Jersey 08054
Attorney for Plaintiffs James S. Calender and Diane Calender
Brian Michael Robinson, Esquire
Joseph Kernen, Esquire
DLA Piper L.L.P.
One Liberty Place
1650 Market Street
Suite 4900
Philadelphia, Pennsylvania 19103
David A. Haworth, Esquire
Ballard Spahr L.L.P.
210 Lake Drive East
Suite 200
Cherry Hill, New Jersey 08002
Attorneys for Defendant NVR, Incorporated, t/a Ryan Homes

HILLMAN, District Judge
This matter comes before the Court by way of motion [Doc.

No. 48] of Defendant NVR, Incorporated, trading as Ryan Homes,
(hereinafter, “Defendant” or “NVR”), seeking summary judgment
pursuant to Federal Rule of Civil Procedure 56.

The Court has

considered the parties’ submissions and decides this matter
pursuant to Federal Rule of Civil Procedure 78.
For the reasons expressed below, Defendant’s motion will be
granted.

I.

JURISDICTION
The Court exercises jurisdiction over this matter pursuant

to 28 U.S.C. § 1332 based on diversity of citizenship and an
amount in controversy in excess of $75,000.

Plaintiffs James and

Diane Calender are citizens of the State of New Jersey.
Defendant NVR is incorporated and maintains its principal place
of business in the Commonwealth of Virginia.
diversity exists between the parties.

Therefore, complete

The amount in controversy

is met because the allegations contained in Plaintiffs’ complaint
sufficiently demonstrate that the damages sought are in excess of
$75,000, exclusive of interest and cost.1

1. As the Court previously recognized in its September 30, 2011
Opinion, Plaintiffs’ complaint does not articulate a particular
amount in controversy. Defendant, however, correctly asserted,
and Plaintiff apparently agreed, that “a reasonable reading of
the value of the rights being litigated” suggests that the amount
in controversy may exceed $75,000. See Angus v. Shiley, Inc.,
989 F.2d 142, 146 (3d Cir. 1993). Plaintiffs’ complaint alleges
that he suffered severe and permanent bodily injuries, and the
Court previously found that there was no reason to doubt that the
2

II.

BACKGROUND
As the Court set forth in its September 30, 2011 Opinion,

James S. Calendar and Diane Calender brought this action against
Defendant for injuries James Calendar sustained from a fall which
allegedly occurred while he was exiting the attic of a home he
had recently purchased.

The home was designed, manufactured,

constructed, and sold by NVR.

In the complaint, Plaintiffs

alleged that the attic’s access panel/opening was unreasonably
dangerous and defective, and asserted 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).
By Opinion and Order dated September 30, 2011, the Court
previously precluded Plaintiffs from pursuing a products
liability cause of action under a theory of defective design with
respect to the attic’s access panel/opening based on Plaintiffs’
failure to file an affidavit of merit in support of that theory
of liability.

(Op. [Doc. No. 42] 22, Sept. 30, 2011.)

At this

time, the parties agree that other than the derivative loss of
consortium claim by Diane Calendar,2 only three causes of action

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 case.
2. To the extent Plaintiffs’ complaint asserts a claim for loss
of consortium on behalf of Diane Calendar, Plaintiff James
Calendar’s wife, the Court notes that this claim is derivative of
3

remain at issue in this litigation: (1) a failure to warn claim
under the New Jersey Products Liability Act (the “PLA” or “the
Act”); (2) a claim for breach of implied warranty; and (3) a
claim for negligence.

(See Def.’s Statement of Undisputed

Material Facts in Supp. of Mot. for Summ. J. [Doc. No. 48-1] ¶
49); (see also Pl.’s Reply to Def.’s Statement of Facts [Doc. No.
52] ¶ 49) (admitting paragraph forty-nine of Defendant’s
Statement of Facts regarding the remaining claims at issue in
this litigation).

III. DISCUSSION
Summary judgment is appropriate where the Court is satisfied
that “‘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 and
that the moving party is entitled to a judgment as a matter of
law.’”

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)

(citing FED. R. CIV. P. 56).
An issue is “genuine” if it is supported by evidence such
that a reasonable jury could return a verdict in the nonmoving

James Calendar’s personal injury claim, and “the viability of
[that claim] is subject to the survival of [her husband]’s
claim.” Ryan v. Renny, 999 A.2d 427, 442 n.1 (N.J. 2010) (citing
Sciarrotta v. Global Spectrum, 944 A.2d 630, 633 n.3 (2008);
Kibble v. Weeks Dredging & Constr. Co., 735 A.2d 1142, 1149
(1999)).
4

party’s favor.
248 (1986).

Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

A fact is “material” if, under the governing

substantive law, a dispute about the fact might affect the
outcome of the suit.

Id.

“In considering a motion for summary

judgment, a district court may not make credibility
determinations or engage in any weighing of the evidence;
instead, the nonmoving party’s evidence ‘is to be believed and
all justifiable inferences are to be drawn in his favor.’”
Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004)
(citing Anderson, 477 U.S. at 255).
Initially, the moving party bears the burden of
demonstrating the absence of a genuine issue of material fact.
Celotex, 477 U.S. at 323 (“[A] party seeking summary judgment
always bears the initial responsibility of informing the district
court of the basis for its motion, and identifying those portions
of ‘the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,’ which
it believes demonstrate the absence of a genuine issue of
material fact.” (citation omitted); see also Singletary v. Pa.
Dept. of Corr., 266 F.3d 186, 192 n.2 (3d Cir. 2001) (“Although
the initial burden is on the summary judgment movant to show the
absence of a genuine issue of material fact, ‘the burden on the
moving party may be discharged by “showing” –- that is, pointing
out to the district court –- that there is an absence of evidence

5

to support the nonmoving party’s case’ when the nonmoving party
bears the ultimate burden of proof.”) (citing Celotex, 477 U.S.
at 325).
Once the moving party has met this burden, the nonmoving
party must identify, by affidavits or otherwise, specific facts
showing that there is a genuine issue for trial.
U.S. at 324.

Celotex, 477

Thus, to withstand a properly supported motion for

summary judgment, the nonmoving party must identify specific
facts and affirmative evidence that contradict those offered by
the moving party.

Anderson, 477 U.S. at 256-57.

A party

opposing summary judgment must do more than just rest upon mere
allegations, general denials, or vague statements.

Saldana v.

Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001).
IV.

ANALYSIS
In the present motion, Defendant seeks the entry of summary

judgment in its favor with respect to all of Plaintiffs’
remaining claims which include: (1) a failure to warn claim under
the PLA; (2) a breach of implied warranty claim; (3) a negligence
claim; and (4) a derivative claim for loss of consortium.

A.

Subsumption of Claims Under the PLA

With respect to Plaintiffs’ claims for negligence and breach
of implied warranty, Defendant argues it is entitled to the entry

6

of summary judgment because these claims are subsumed under the
PLA because the Act constitutes the exclusive remedy for personal
injury claims arising out of the use of a product under New
Jersey law.3

(Br. in Supp. of Mot. for Summ. J. by Def. NVR,

Inc. [Doc. No. 48-2] (hereinafter, “Def.’s Br.”), 29.)
The PLA was enacted by the New Jersey Legislature in 1987
“based on an ‘urgent need for remedial legislation to establish
clear rules with respect to certain matters relating to actions
for damages for harm caused by products.’”

Sinclair v. Merck &

Co., Inc., 948 A.2d 587, 593 (N.J. 2008) (citing N.J. Stat. Ann.
§ 2A:58C-1(a)).

As the New Jersey Supreme Court has explained,

by enacting the PLA “‘[t]he Legislature intended ... to limit the
liability of manufacturers so as to “balance[ ] the interests of
the public and the individual with a view towards economic
reality.”’”

Sinclair, 948 A.2d at 593 (citing Zaza v. Marquess &

Nell, Inc., 675 A.2d 620, 627 (N.J. 1996)).

Thus, under New

Jersey law, the PLA governs any “product liability action.”
A product liability action is statutorily defined as “any

3. In making this argument, Defendants cite to the Court’s
September 30, 2011 Opinion which previously concluded that “[t]o
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.” (Op.
[Doc. No. 42] 21 n.8, Sept. 30, 2011) (citing Koruba v. Am. Honda
Motor Co., 935 A.2d 787, 795 (N.J. Super. Ct. App. Div. 2007);
see also Calender v. NVR, Inc., No. 10-4277, 2011 WL 4593759, at
*8 n.8 (D.N.J. Sept. 30, 2011).
7

claim or action brought by a claimant for harm caused by a
product, irrespective of the theory underlying the claim, except
actions for harm caused by breach of an express warranty.”
Stat. Ann. § 2A:58C-1(b)(3).

N.J.

The PLA further defines the type of

“harm” caused by a product to include the following: “(a)
physical damage to property, other than to the product itself;
(b) personal physical illness, injury or death; (c) pain and
suffering, mental anguish or emotional harm; and (d) any loss of
consortium or services or other loss deriving from any type of
harm described in subparagraphs (a) through (c) of this
paragraph.”

N.J. Stat. Ann. § 2A:58C-1(b)(2).

In In Re Lead Paint Litigation,4 the New Jersey Supreme
Court set forth substantive guidance regarding the scope of the
PLA and explicitly recognized that “‘[w]ith the passage of the
Product Liability Act, ... there came to be one unified,
statutorily defined theory of recovery for harm caused by a
product[.]’”

924 A.2d 484, 503 (N.J. 2007) (citation omitted).

4. In Lead Paint, the New Jersey Supreme Court examined whether
the plaintiffs, twenty-six municipalities and counties, stated a
cognizable claim based on the common law tort of public nuisance
in seeking to recover the costs of detecting and removing lead
paint from homes and buildings and of providing medical care to
residents affected with lead poisoning. 924 A.2d 484, 486-87
(N.J. 2007). In concluding that plaintiffs’ allegations could
not be understood to state a public nuisance claim under either
“traditional [or] modern concepts of the tort[,]” the Supreme
Court expressly noted the “inescapable fact that carefully read,
the claims asserted would instead be cognizable only as products
liability claims.” Id. at 503.
8

The New Jersey Supreme Court also observed that “[t]he language
chosen by the Legislature in enacting the PLA [was] both
expansive and inclusive, encompassing virtually all possible
causes of action relating to harms caused by consumer and other
products.”

Id. (citing N.J. STAT . ANN . § 2A:58C-1(b)(3) defining

a “product liability action”).
As this Court has previously explained, the “PLA does not
recognize either negligence or implied breach of warranty as
separate claims for harm caused by a defective product; those
claims have been ‘subsumed within the new statutory cause of
action.’”

West v. Am. Honda Motor Co., No. 08-0700, 2008 WL

4104683, at *3 (D.N.J. Aug. 28, 2008) (citing Tirrel v. Navistar
Intern., Inc., 591 A.2d 643, 647 (N.J. Super. Ct. App. Div.
2007)).

Under New Jersey law, “the 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. Super. Ct. App. Div. 2007) (citing Tirrell, 591
A.2d at 647).

“Rather, the exclusive method to prosecute such a

claim is under N.J.S.A. 2A:58C-2 [the PLA] 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

9

designed in a defective manner.”

Koruba, 935 A.2d at 795.

Here, Plaintiffs allege that Defendant failed to warn
Plaintiffs regarding the dangers of entering or exiting the attic
through the access panel/opening, and that as a result James
Calendar was injured.

These claims by Plaintiffs clearly

constitute “personal injury claims arising from product use”
which fall within the scope of the PLA.

Moreover, Plaintiffs

concede that they are proceeding under the PLA.
Pls.’ Compl. 3-9.)

(See generally

Having brought this action pursuant to the

Act, the Court agrees with Defendant that Plaintiffs cannot
simultaneously proceed with their common law claims for
negligence and implied breach of warranty because these claims
are subsumed by the PLA.

See, e.g., Kaur v. Standex Intern.

Corp., No. 06-2425, 2009 WL 2016073, at *2 n.4 (D.N.J. July 7,
2009) (recognizing that plaintiffs’ “various common law personal
injury claims ... have been subsumed under the Products Liability
Act (“PLA”) in New Jersey.”); Durand ex rel. Durand v. Kolcraft,
No. 05-4348, 2007 WL 4440165, at *3 n.4 (D.N.J. Dec. 14, 2007)
(explaining that to the extent plaintiff’s complaint couched any
of its product liability allegations as claim for negligence,
“the PLA eliminate[d] the legal basis for this negligence claim”
because the Act “provides the exclusive remedy for all personal
injury claims arising out of the use of a product”).
Accordingly, Defendant has met its burden and is entitled to the

10

entry of summary judgment on Plaintiffs’ claims for negligence
and implied breach of warranty.5

B.

Failure to Warn Claim under the PLA

With respect to Plaintiffs’ failure to warn claim asserted
under the PLA, Defendant argues that summary judgment should be
entered in its favor because NVR did not have a duty to warn or
instruct Plaintiffs regarding the dangers of entering or exiting
the attic on a ladder or when or how to use a ladder in
Plaintiffs’ home because the “danger of falling while entering
and exiting an attic is ‘open and obvious’ and requires no
accompanying warnings or instructions as a matter of law under
the PLA.”

(Br. in Supp. of Mot. for Summ. J. by Def. NVR, Inc.

5. In their opposition brief, Plaintiffs failed to offer any
arguments addressing the issue of whether their claims for
negligence and implied breach of warranty are subsumed by the
PLA, nor did Plaintiffs offer any evidence in support of the
continuing viability of these claims despite simultaneously
proceeding with their PLA claim. Defendant has met its burden in
moving for summary judgment on these claims, and the Court finds
that Plaintiffs have not demonstrated that there is a genuine
issue of fact for trial with respect to claims for negligence or
breach of implied warranty. Moreover, the Court notes the
“‘well-settled rule that a party opposing a summary judgment
motion must inform the trial judge of the reasons, legal or
factual, why summary judgment should not be entered. If it does
not do so, and loses the motion, it cannot raise such reasons on
appeal.’” Dempsey v. Del. Dep’t of Public Safety, 359 F. App’x
347, 349 (3d Cir. 2009) (citing Liberles v. Cook Cnty., 709 F.2d
1122, 1126 (7th Cir. 1983)).

11

[Doc. No. 48-2] (hereinafter, “Def.’s Br.”), 13.)

Additionally,

NVR asserts that as a matter of fundamental fairness and public
policy, “a home builder has no duty to instruct a home owner on
when and how to safely use other products, such as ladders, when
performing routine maintenance of his home.”6

(Def.’s Br. 14.)

In New Jersey, the PLA allows a plaintiff to prove that a
product was defective (i.e., not reasonably fit, suitable or safe
for its intended purpose) by demonstrating that (1) the product
at issue deviated from the design specifications, formulae, or
performance standards of the manufacturer or from otherwise
identical units manufactured to the same ... specifications or
formulae; (2) the product failed to contain adequate warnings or
instructions; or (3) the product was designed in a defective
manner.

See Mathews v. Univ. Loft Co., 903 A.2d 1120, 1124-25

(N.J. Super. Ct. 2006) (citing N.J. STAT . ANN. 2A:58C-2). “In a
failure to warn case, the alleged defect is not in the design or
the manufacturing of the product[, but rather,] ‘the defect is in
the failure to warn unsuspecting users that the product can
potentially cause injury.’”

Durkin v. Paccar, Inc., No. 10-2013,

2010 WL 4117110, at *9 (D.N.J. Oct. 19, 2010) (citing Zaza, 675
A.2d at 632).
While a manufacturer can avoid liability on a failure to

6. In light of the Court’s disposition of Plaintiffs’ PLA claim
as set forth infra, the Court need not address the merits of this
argument by Defendant.
12

warn claim if the product contains an adequate warning or
instruction, Mathews, 903 A.2d at 1125, the adequacy of a warning
need only be addressed if it is first established that the
manufacturer in fact had a duty to warn.

Id.

In New Jersey,

“[n]o duty to warn exists where a product presents no danger, ...
or when the danger is obvious.”

Perkel v. Apex Furniture Mfg.

Co. Ltd., 2011 WL 2447938, at *3 (N.J. Super. Ct. App. Div. June
21, 2011) (citing Mathews, 903 A.2d at 1125, certif. denied, 911
A.2d 69 (2006)).

Specifically, section 2A:58C-3a(2) of the PLA

addresses the duty to warn and provides that a “manufacturer or
seller shall not be liable if ... [t]he characteristics of the
product are known to the ordinary consumer or user, and the harm
was caused by an unsafe aspect of the product that is an inherent
characteristic of the product and that would be recognized by the
ordinary person who uses or consumes the product with the
ordinary knowledge common to the class of persons for whom the
product is intended[.]”

Mathews, 903 A.2d at 1127 n.8 (citing

N.J. STAT . ANN. 2A:58C-3a(2)).
After a thorough review of this statutory defense and
related New Jersey case law, the Appellate Division of the New
Jersey Superior Court held in Mathews “that the obviousness of
the danger is an absolute defense to [a] plaintiff's failure to
warn action” under Section 2A:58C-3a(2).

Id. at 1128-29.

However, “‘[w]hen reasonable minds may differ as to whether the

13

risk was obvious or generally known, the issue is to be decided
by the trier of fact.’”
RESTATEMENT (THIRD)

OF

Mathews, 903 A.2d at 1127 (citing

TORTS: PRODUCTS LIABILITY § 2 cmt. j (1998)).

Here, Defendant represents that the attic entrance at issue,
similar to that utilized in thousands of homes, consists of a
hole in the ceiling which is covered by an access panel.
Br. 16-17.)

(Def.’s

Defendant further asserts that there are no harmful

moving parts and no latent dangers with respect to the access
panel/opening to the attic.

(Id. at 17.)

Thus, Defendant argues

that “the danger that one might fall while attempting to enter or
exit the attic through that opening in the ceiling” is “open and
obvious” and analogizes the facts of this case to those set forth
in Mathews to support this argument.

(Id. at 15-16.)

In Mathews, the plaintiff was a college senior who lived in
an on-campus apartment where he slept in a “loft bed” which was
six feet off the floor and essentially constituted a bunk bed,
but rather than a top bed and a bottom bed, the loft bed had a
top bed and an empty space below for the student to place other
dorm furniture such as a desk or a dresser.
n.3.

903 A.2d at 1122

The plaintiff had never slept in a loft bed or bunk bed

before.

Id. at 1122.

One particular morning, after having slept

in the loft bed over the course of several weeks, the plaintiff
was startled awake by yells from his roommate to turn off a pager
that was making noise on the desk or dresser located below the

14

plaintiff’s loft bed.

Id.

According to the plaintiff in

Mathews, after being awakened by his roommate’s yells, the next
thing the plaintiff knew, he had fallen from the bed and was on
the floor.

Id.

The plaintiff suffered injuries to his shoulder

and a jury later found in his favor on a failure to warn claim
brought pursuant to the PLA.

Id. at 1122-23.

In proceeding on

his failure to warn claim, the plaintiff demonstrated that there
were no warning labels on the bed, and later testified that “it
had never ‘cross[ed his] mind’ or ‘occurred to’ [him] that he
could fall or that the bed was dangerous in any way.”
1123.

Id. at

The plaintiff in Mathews further “testified that had he

seen a warning, he would have been ‘aware of the hazard that was
present’ and slept closer to the wall, as he had done after the
accident.”

Id.

On appeal, the Appellate Division reversed the jury verdict
in plaintiff’s favor.

Id. at 1122.

Specifically, the court held

that “the [trial] judge should have granted summary judgment” in
favor of the defendant because the “[d]efendant had no duty to
warn against the danger of falling from the loft bed because the
danger was ‘open and obvious.’”

Id. at 1124.

Significantly, the

Appellate Division explained that “warnings would lose their
efficacy and meaning if they were placed on every instrument
known to be dangerous, such as a knife, scissor, glass, bat,
ball, bicycle, or other product that poses a generally-known risk

15

of injury if misused, dropped, or fallen from.”
(citing RESTATEMENT (THIRD)

OF

(1998)) (emphasis added).

Id. at 1129

TORTS : PRODUCTS LIABILITY § 2 cmt. j
The court further concluded that

“[t]he risks [of falling from the loft bed] are so obvious here
that we fail to see ... what a warning could have advised in
addition to the obvious.”

Mathews, 903 A.2d at 1129 (emphasis

added).
In this case, the Court agrees with Defendant NVR that just
as in Mathews, no duty to warn existed here because the dangers
of falling while attempting to enter or exit the attic through
the access panel/opening in the ceiling of Plaintiffs’ home were
open and obvious.

The Court fails to see how Defendant NVR could

have provided a warning regarding the potential danger of falling
from an access panel/opening in the ceiling that advised of
anything in addition to the obvious without otherwise diminishing
the “efficacy and meaning” of the warning itself by virtue of its
placement on a “product that poses a generally-known risk of
injury if ... fallen from.”
(emphasis added).

See Mathews, 903 A.2d at 1129

It is generally well known that the attic of a

home is located just below the roof,7 and that to access that
space, a homeowner must necessarily ascend some measure of
vertical height.

Under the circumstances of this case, where the

7. The term attic is defined as “a room or a space immediately
below the roof of a building[.]” MERRIAM -WEBSTER ’S COLLEGIATE
DICTIONARY 80 (11th ed. 2003).
16

means of access is through a clearly visible panel opening in the
ceiling of the home, it cannot fairly be said that a duty exists
to warn the homeowner that accessing the attic through this
ceiling panel is potentially dangerous.

This is particularly

true where the ceiling access panel can readily be observed at a
height that ordinary people understand poses a risk of falling
and causing injury.
In this case, the Court finds as a matter of law that
reasonable minds could not differ in concluding that the risk of
falling while utilizing the ceiling panel to access the attic was
open and obvious — no matter what means the homeowner might have
employed in doing so (i.e., the use of a ladder, a step stool,
pull-down attic stairs, a chair, etc.).

Much like the risk of

falling from a six foot loft bed was held to be open and obvious
under New Jersey law in Mathews, the Court finds that any alleged
harm in this case arising from Plaintiff’s use of the access
panel/opening was the result of an unsafe aspect of the access
panel/opening itself, (i.e., its height), which is an inherent
characteristic that would be recognized by the ordinary person
with the ordinary knowledge common to those who use this type of
access panel/opening.

A reasonable person observing an attic

access panel in the ceiling would recognize, almost immediately,
that attempting to reach a panel located at a height above one’s
head (or attempting to come down from it), could result in a fall

17

from that height.

Cf. Mathews, 903 A.2d 1128-29.

Moreover,

considering “that the obviousness of the danger is an absolute
defense to [a] plaintiff's failure to warn action” under Section
2A:58C-3a(2), see id., the Court finds that there is no genuine
issue of material fact for trial with respect to Plaintiffs’
failure to warn claim under the PLA, and Defendant is entitled to
summary judgment in its favor.8
Although Plaintiffs oppose the entry of summary judgment for
Defendant on the failure to warn claim under the PLA, Plaintiffs
concede the basic premise underlying Defendant’s argument – that
a manufacturer does not have a duty to warn of dangers or risks
that are obvious.

(Pls.’ Br. 5); (see also Pl.’s Br. 6-7)

(noting that “... Defendant might be correct in that there is no
duty to warn of dangers that are open and obvious...”).

However,

in an attempt to avoid the entry of summary judgment for
Defendant based on the open and obvious defense, Plaintiffs
assert that their “failure to warn claim is predicated on
Defendant’s failure to instruct or warn purchasers as to what
should or should not be done to safely access the home’s attic.”
(Id. at 6.)

More specifically, Plaintiffs claim that Defendant

8. Defendant argues in the alternative that if the Court holds
that a duty to warn existed in these circumstances, Plaintiffs’
failure to warn claim should be dismissed because Plaintiffs
failed to file an affidavit of merit. Because the Court finds
that no duty to warn existed here in light of the open and
obvious nature of the danger, the Court need not address
Defendant’s alternative argument.
18

failed to warn “users not to utilize A Frame, step ladders to
access the attic” and thereby put Plaintiff James Calendar at
risk of serious and significant injury.

(Id.)

Thus, according

to Plaintiffs it cannot be determined as a matter of law “that
the risks inherent in the use of an A-Frame, step ladder to
access the attic ... are open and obvious.”

(Id. at 7.)

Plaintiffs’ argument in this regard misunderstands the basic
nature of the issue presently before the Court.

As Plaintiffs

readily acknowledge, “[t]o succeed on a failure to warn claim, a
plaintiff must show that a ‘manufacturer did not warn the
consumer of the risks attendant to the product[.]’” (Pls. Br. 4)
(citation omitted).

As set forth throughout Plaintiffs’

complaint, the product at issue in this case is the attic access
panel/opening itself.
36.)

(See Pls.’ Compl. ¶¶ 11–13, 16b-16e, 35-

Whether Defendant had a duty to warn here is determined by

assessing the inherent risks attendant to an attic access
panel/opening located in the ceiling of a home – i.e., falling
from a height which could cause injury — in order to determine if
those risks are generally well-known.

Here, the Court has

already found that these risks are of an open and obvious nature
generally known to ordinary persons of ordinary knowledge.

Thus,

Plaintiffs’ argument that Defendant owed a duty to warn
Plaintiffs about how to safely access the attic and the proper
use of A Frame step ladders because the risks of using an A Frame

19

step ladder are not obvious presupposes that the risk of falling
while utilizing the access panel itself is not open and obvious.
Plaintiffs’s logic fails in this regard, and Defendant is
entitled to summary judgment on the PLA claim for failure to warn
because Plaintiffs have not demonstrated a genuine issue of trial
with respect to this claim.
Additionally, Plaintiff Diane Calendar’s claim for loss of
consortium in this case is derivative of Plaintiff James
Calendar’s personal injury claims and therefore its viability is
dependant upon the survival of her husband’s claims.
Renny, 999 A.2d 427, 442 n.1 (N.J. 2010).

Ryan v.

In light of the fact

that Defendant is entitled to the entry of summary judgment on
Plaintiffs’ remaining claims for negligence, breach of implied
warranty, and failure to warn under the PLA, Plaintiff Diane
Calendar’s loss of consortium claim is no longer viable, and
Defendant is entitled to summary judgment on that claim as well.

V.

CONCLUSION
For the foregoing reasons, Defendant’s motion for summary

judgment [Doc. No. 48] is granted and judgment shall be entered
in favor of Defendant on all of Plaintiffs’s remaining claims.
An Order consistent with this Opinion will be entered.
Dated: September 26, 2012
At Camden, New Jersey

/s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

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