Opinion
DOCKET NO. A-4252-13T1
04-27-2015
JOSEPH POUKISH, Plaintiff-Appellant, v. MAGICAL ENTERPRISES, INC., Defendant-Respondent, and CITY OF NORTH WILDWOOD, and DIOCESE OF CAMDEN, and WILDWOOD CATHOLIC HIGH SCHOOL, and NOTRE DAME de la MER PARISH, and ST. ANN'S PARISH, and INFLATABLE ATTRACTIONS INTERACTIVE, INC., and INFLATABLE ATTRACTIONS INTERNATIONAL, INC., and INFLATABLE ATTRACTIONS, Defendants.
Leonard, Sciolla, Hutchinson, Leonard & Tinari, LLP, attorneys for appellant (Anthony J. Leonard, on the brief). Thompson Becker & Bothwell, LLC, attorneys for respondent (John H. King, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner and Haas. On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-2912-12. Leonard, Sciolla, Hutchinson, Leonard & Tinari, LLP, attorneys for appellant (Anthony J. Leonard, on the brief). Thompson Becker & Bothwell, LLC, attorneys for respondent (John H. King, on the brief). PER CURIAM
Plaintiff Joseph Poukish appeals from a March 14, 2014 order granting summary judgment in favor of defendant Magical Enterprises, Inc., and from an April 25, 2014 order denying reconsideration. We affirm.
I
We summarize the most pertinent undisputed facts. In April 2010, the seventeen-year-old plaintiff injured his knee while using a bungee run at his high school's post-prom party. The party was held at a local community center. The school's prom committee had contracted with defendant to provide a hypnotist to entertain the students at the party. The contract also required defendant to deliver, set up, and operate the bungee run, a "Money Machine," and a laser tag game during the event. The instructions for the bungee run stated that a trained operator was required to be present at all times. According to the deposition testimony of defendant's owner, defendant provided a trained operator to supervise the bungee run during the party.
Plaintiff referred to this as an "event," designed to keep the prom-goers occupied during the early morning hours after the prom ended.
The Department of Community Affairs (DCA) had inspected the bungee run in 2009 and granted a permit for its use. According to the owner, the Department inspected the run again in February 2010 and certified it for use. The bungee run featured a written warning, approved by the DCA, stating: "THIS IS AN AMUSEMENT DEVICE. WITH ALL AMUSEMENT DEVICES THEIR [sic] ARE INHERENT RISKS. IF YOU CHOOSE TO USE THIS AMUSEMENT DEVICE YOU ARE DOING SO AT YOUR OWN RISK!" At his deposition, plaintiff testified that he did not see the warning sign. However, he also testified that, had he seen it, he would have gone on the bungee run anyway.
According to plaintiff, the bungee run consisted of two lanes, which were ribbed, inflated surfaces, with a solid, velcro-covered divider between them. During the game, two players would each "race" down one of the lanes, carrying a velcro-covered foam ball, while wearing a harness attached to a bungee cord. When they reached as far as the bungee cord allowed, the players would then leap forward to "plant" the ball as far as possible, while the bungee cord pulled them back. "Planting" was accomplished by attaching the ball to the velcro-covered divider. The winner was determined by how far down the lane each player planted the ball. Each race consisted of three "runs" down the lanes.
After watching a number of other students race on the bungee run, plaintiff thought it looked like fun and decided to participate. During plaintiff's first race, he completed two runs without injury. During the third run, however, he "felt [his] foot slip when [he] went to jump [and] kind of hit the crevice in between" the inflated "logs" or ribs on the floor of the bungee run. He testified, "[T]hat's when I felt the pain in my knee."
Plaintiff testified that he competed in another race about forty-five minutes later. On the first run of the second race, he planted his foot before leaping and felt "the most amount of pain I've ever felt in my life," and he "could barely stand up" afterwards. On the second run, he "limped halfway down" and quit the race.
Plaintiff sued defendant, alleging that the bungee run had a design defect and a manufacturing defect, and that defendant failed to warn plaintiff of the dangers of using the run. During discovery, plaintiff produced a report from Stephen B. Wilcox, Ph.D., an expert in the field of "human factors." Wilcox, who had a doctoral degree in experimental psychology but was not an engineer, examined the bungee run and "analyze[d the] accident from a human factors point of view."
Essentially, Wilcox's report opined that because the floor of the bungee run was composed of convex (ribbed) inflated plastic surfaces, which the runners traversed in stocking feet, and because the players were attached to bungee cords, it would be easy for a player to lose balance, slip and fall. Wilcox opined that falls can cause injuries. He opined that knee injuries may happen when a person's foot is "planted during weight bearing while the body undergoes rotation." He opined that such injuries could occur while using the bungee run, because "when [users] have to face unpredictable forces [,e.g., the pull of the bungee cord,] and surfaces, they lose the ability to maintain control, resulting in injury." Based on that information, he opined that the bungee run was "inherently dangerous in that it presents participants with forces and surfaces that interact with him/her in unusual and unpredictable ways, inviting injury."
Wilcox asserted that "according to" the Consumer Product Safety Commission (CPSC) there had been "a significant number of injuries associated with Bungee Runs." However, in support of that proposition, he cited to an undergraduate student thesis project, rather than to any source published by the CPSC. Wilcox also opined that the warnings on the run were inadequate because they were not conspicuously placed. However, he also opined that "I cannot see how any warning could have prevented accidents such as Mr. Poukish's, that are caused by the inherently dangerous character of the Bungee Run," and "there was nothing in the warnings to alert participants to the potential for such injuries."
At his deposition, Wilcox admitted that he was unaware that the ride had been inspected and approved by the DCA for safety and conformity to applicable State regulations. Wilcox did not know whether the bungee run violated any code, regulation or rule. He admitted that he was not familiar with the ASTM F-24 and F-2374-10 standards practice for the design, manufacture, operation and maintenance of inflatable devices, cited by defendant's expert. He admitted he had no basis to disagree with defendant's expert's opinion that the bungee run was in compliance with those standards when manufactured and at the time of the accident, and complied with all other applicable codes and standards.
Wilcox further admitted that he was not qualified to measure the "coefficient of friction" to which he referred in his report as creating a risk of falling, and admitted that he had not made such a measurement. He stated that a civil engineer would be qualified to make that calculation. Wilcox further admitted that plaintiff stated in his deposition that he knew there were inherent risks in any kind of sports activity. Wilcox conceded that he "expected that [plaintiff] knew" that "walking on vinyl or even running on vinyl in your stocking feet involved a risk of slipping" and knew that "in being pulled back by the bungee cords he would bounce around off the walls and off the surface."
Wilcox further admitted that the undergraduate student thesis he cited in his report was "the only piece of literature or document that [he cited] which [he said] specifically identifies the bungee run as a dangerous product." He conceded that he knew nothing about the qualifications or expertise of the college students who wrote the thesis. Nor did the thesis conclude that a bungee run was an inherently dangerous product. He also conceded that the student thesis did not actually document that any injuries had occurred on bungee runs.
Wilcox also was unfamiliar with the National Association of Amusement Ride Safety Officials and did not consult any literature issued by that group in preparing his report. He had not reviewed "any standards, codes, statutes, rules or regulations in New Jersey that would apply to inflatable devices generally" and did not know if the ride violated any such standards. He insisted that even if the ride was in compliance with all applicable engineering and safety standards, it was still inherently dangerous. However, he was unaware of any professional literature on that subject. He admitted that the student thesis was "the only empirical evidence that [he] came across in the course of [his] services in this matter."
In granting defendant's summary judgment motion, the trial judge ruled that defendant fell within an exception to the Product Liability Act (PLA) definition of "product seller." See N.J.S.A. 2A:58C-8 ("product seller" includes a person who is in the business of leasing equipment). The exception applies to a provider of professional services in which "the sale or use of a product is incidental to the transaction and the essence of the transaction is furnishing . . . services." N.J.S.A. 2A:58C-8(2). The judge reasoned that defendant was not leasing equipment but rather was providing "an entertainment package" for the party, which included the hypnotist and various other amusements including the bungee run. He found that the various elements of the package were inseparable, because defendant was providing "an entertainment experience" which happened to use the various pieces of equipment.
The judge also found that Wilcox rendered a net opinion. He reasoned that Wilcox had "done no scientific testing. He's done nothing other than . . . give me his opinion without any scientific basis, any scientific testing, not referencing any standards regarding the material used, the . . . coefficients of friction, anything that was named [in his report]."
II
On appeal of an order granting summary judgment, our review is de novo, using the same standard as the trial court. Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). A motion for summary judgment should be granted if there are no material facts in dispute and if the undisputed evidence, viewed most favorably to the non-moving party, entitles the moving party to judgment as a matter of law. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). On the other hand, we owe deference to a trial court's discretionary determination to grant or deny a motion to strike expert testimony. Townsend v. Pierre, ___ N.J. ___, ___ (2015) (slip op. at 17).
We conclude that summary judgment was properly granted, because we agree with the trial judge that Wilcox rendered a net opinion.
N.J.R.E. 703 . . . mandates that expert opinion be grounded in "'facts or data derived from (1) the expert's personal observations, or (2) evidence admitted at
the trial, or (3) data relied upon by the expert which is not necessarily admissible in evidence but which is the type of data normally relied upon by experts.'" The net opinion rule is a "corollary of [N.J.R.E. 703] . . . which forbids the admission into evidence of an expert's conclusions that are not supported by factual evidence or other data."
[Townsend, supra, ___ N.J. at ___ (slip op. at 18-19) (citations omitted) (alteration in original).]
Thus, "'an expert's bare conclusions, unsupported by factual evidence, [are] inadmissible.'" Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 410 (2014) (alteration in original) (quoting Buckelew v. Grossbard, 87 N.J. 512, 524 (1981)); Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 372 (2011) (citing Polzo v. Cnty. Of Essex, 196 N.J. 569, 583 (2008)). An expert must "give the why and wherefore that supports the opinion, rather than a mere conclusion." Davis, supra, 219 N.J. at 410 (citation and internal quotation marks omitted). An expert's opinion may not be grounded on "unquantified possibilities." Townsend, supra, ___ N.J. at ___ (slip op. at 21) (citation and internal quotation marks omitted); see Koruba v. American Honda Motor Co., Inc., 396 N.J. Super. 517, 526-27 (App. Div. 2007), certif. denied, 194 N.J. 272 (2008).
An expert may rely on what he has learned from professional experience and personal observation, as well as on treatises and documentary support. See Rosenberg v. Tavorath, 352 N.J. Super. 385, 403 (App. Div. 2002). However, "a trial court may not rely on expert testimony that lacks an appropriate factual foundation and fails to establish the existence of any standard about which the expert testified." Pomerantz, supra, 207 N.J. at 373. In other words, an expert may not simply give his personal opinion without relying on empirical evidence or documented industry standards. Ibid.
Stripped of jargon, Wilcox's opinion consisted of little more than an observation that the bungee run had a vinyl, ribbed surface, that someone running on it in stocking feet was liable to fall, and that falls present a risk of injury. He provided no scientific data, such as a calculation of the coefficient of friction, to quantify the risk of falling. He knew nothing about the State's regulatory scheme for inspecting inflated amusement activities, or whether this amusement conformed to or violated any industry standard or government regulation.
Of course, as plaintiff's deposition testimony illustrated, the possibility of bouncing around and falling is one of the attractions of an inflated "bouncing" amusement, such as a children's bounce house or a bungee run. The possibility of falling and getting hurt is also inherent in virtually any sport.
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Wilcox admitted that his only source of "empirical" data was a thesis prepared by college students. And even that document did not actually support his contention that bungee runs are a frequent cause of injuries. Nor did Wilcox present anything more than his personal opinion to support his view that the unquantified risk of falling rendered this regulated. State-permitted activity "inherently dangerous." In short, he rendered a net opinion that was properly stricken. See Pomerantz, supra, 207 N.J. at 372-73.
On this record, plaintiff's alternate argument, that he did not need an expert to establish that the bungee run was defectively designed and contained inadequate warnings, is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Even if defendant was subject to the PLA as an equipment lessor instead of exempt as a provider of professional services — an issue we need not decide here — plaintiff's complaint would be properly dismissed for lack of an expert report.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION