Opinion
DOCKET NO. A-1227-13T3
11-10-2014
THOMAS HICKEY and GERYL HICKEY, Plaintiffs-Appellants, v. WOLFF, HELIES, DUGGAN, SPAETH & LUCAS, Defendant-Respondent.
Law Offices of Steven J. Sico & Associates, P.C., attorneys for appellants (Mr. Sico, of counsel; Mr. Sico and Amanda L. Benevento, on the brief). Law Offices of William E. Staehle, attorneys for respondent (Bernard J. Tkaczynski, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher and Nugent. On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-3996-11. Law Offices of Steven J. Sico & Associates, P.C., attorneys for appellants (Mr. Sico, of counsel; Mr. Sico and Amanda L. Benevento, on the brief). Law Offices of William E. Staehle, attorneys for respondent (Bernard J. Tkaczynski, of counsel and on the brief). PER CURIAM
In this appeal, we review a summary judgment dismissing a claim of negligence asserted by plaintiff Thomas Hickey, a guest in defendant's law offices, who fell out of a chair during a deposition. Because plaintiff's expert found no defect in the chair and opined only that defendant failed to adjust the chair's degree of reclinability, we conclude no such duty of care in that regard may be fairly imposed on defendant and affirm.
Plaintiff's wife asserted a derivative per quod claim.
The facts alleged are relatively simple. On May 20, 2010, defendant, who had been seated for his wife's deposition at defendant's Manasquan law office for approximately ninety minutes, allegedly "leaned back" and somehow fell to the floor, causing the injuries claimed in this suit. In his complaint, plaintiff generally asserted defendant was negligent in maintaining the premises and the chair. After a period of discovery and exchange of expert reports, defendant moved for summary judgment, focusing on the sufficiency of plaintiff's expert report and whether a duty should be imposed on defendant with regard to a chair that was reasonably fit, suitable and safe for its intended purpose. Defendant's motion was granted by Judge Dennis R. O'Brien for reasons set forth in a thorough oral decision.
In appealing, plaintiff asserts summary judgment was improvidently granted. He argues defendant "had a duty to maintain the chair in a safe condition and breached that duty by keeping the chair at a low tension setting"; plaintiff also contests the determination that his expert's report constituted "an impermissible net opinion." Finding insufficient merit in plaintiff's arguments to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E), we add only the following brief comments.
Plaintiff's expert described the chair as having a "starburst leg structure" out of which a pedestal arose to a point where it was attached to the underneath of the seat by way of a metal structure containing springs, which "could be adjusted to increase or decrease the tension in the seat for tilt." The expert found no defect in the design or manufacture of the chair but asserted instead an obligation on the chair owner to reset the tilting mechanism before every use. That is, despite acknowledging "[t]his was not a matter of the [chair] not meeting a standard of design," the expert asserted a duty on a property owner to "maintain[]" a chair's tension mechanism at "a mid-range level of tension on the back so that a person who sits in the chair expecting the back to provide them resistance is not suddenly surprised with the low tension and the loose back that causes them to move into a position where their center of gravity becomes so eccentric to the star base of the chair that an overturn occurs."
In his original report, the expert stated there were four legs. A later amendment recognized the starburst structure had five legs.
--------
Assuming such a duty, we agree with Judge O'Brien that in light of plaintiff's vague deposition testimony about how he fell and the admitted length of time he had used the chair, it could not be concluded that such an alleged duty had been breached. In other words, the theory posed by the expert presupposes a user faced with an unexpectedly low setting of the tension mechanism. Here, plaintiff acknowledges he had been seated in the chair for ninety minutes before the mishap.
We also agree with Judge O'Brien that the expert's opinion is insufficient to kindle a triable issue because the expert expressed nothing more than a personal opinion about the scope of Manasquan's property maintenance code's mandate to businesses that their office equipment be maintained "in good repair." That general duty evokes no obligation to adjust equipment already "in good repair" and reasonably fit for its intended purpose; the expert's proposal for the imposition of a duty to reset a chair's reclining mechanism was cut from whole cloth.
Ultimately, courts determine when to impose a common law duty of care, Carvalho v. Toll Bros. & Developers, 143 N.J. 565, 572 (1996), by considering concepts of fairness and policy, Clohesy v. Food Circus Supermkts., 149 N.J. 496, 502 (1997). See also Robinson v. Vivirito, 217 N.J. 199, 208-09 (2014). The inquiry, as Chief Justice Weintraub observed for the Court in Goldberg v. Housing Authority of Newark, 38 N.J. 578, 583 (1962), "involves a weighing of the relationship of the parties, the nature of the risk, and the public interest in the proposed solution." This inquiry "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." Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439 ( 1993).
We find it contrary to these principles to impose on defendant, and others similarly situated, a duty to adjust to a medium setting the tension of a properly designed and manufactured chair prior to an invitee's use. As we have observed, plaintiff had been seated in the chair for approximately ninety minutes before the mishap occurred, sufficient time for him to learn the chair was designed to tilt and to appreciate its tension setting. It would be neither fair to land-occupiers nor beneficial to the public to impose in such circumstances a duty to warn of a non-defective chair's commonplace tendencies.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF APPELLATE DIVIDION