KATHRYN NIKIRK VS. CONDUCTV BRANDS (L-3059-18, ESSEX COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1217-19T3
KATHRYN NIKIRK,
Plaintiff-Appellant/
Cross-Respondent,
v.
CONDUCTV BRANDS and
ONTEL PRODUCTS
CORPORATION,
Defendants-Respondents/
Cross-Appellants,
______________________________
Argued November 18, 2020 – Decided February 4, 2021
Before Judges Whipple, Rose and Firko.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Docket No. L-3059-18.
Thomas N. Sweeney argued the cause for
appellant/cross-respondent (Messa & Associates, PC,
attorneys; Thomas N. Sweeney, on the briefs).
Diane Fleming Averell argued the cause for
respondent/cross-appellant, ConducTV Brands (Porzio,
Bromberg & Newman, PC, attorneys; Diane Fleming
Averell, of counsel and on the briefs; Rahil Darbar, on
the briefs).
Catherine G. Bryan argued the cause for
respondent/cross-appellant, Ontel Products
Corporation (Connell Foley, LLP, attorneys; Catherine
G. Bryan, of counsel and on the briefs; Joseph C.
Megariotis, on the briefs).
PER CURIAM
Plaintiff Kathryn Nikirk appeals from a July 12, 2019, order dismissing
her complaint with prejudice for failure to join a party without whom the action
cannot proceed, and a November 21, 2019, order denying her motion for
reconsideration. Defendants ConducTV Brands (ConducTV) and Ontel
Products Corporation (Ontel) cross-appeal the portion of the July 12, 2019, and
November 21, 2019, orders which did not dismiss the complaint under the
doctrine of forum non conveniens. We affirm the order dismissing plaintiff's
complaint and denial of reconsideration. Accordingly, we need not reach the
cross-appeals.
On May 2, 2016, plaintiff, then a resident of Hawaii, was using the Iron
Gym Xtreme Total Upper Body Workout Bar (Iron Gym) 1 at her friend Felepe
1
Plaintiff describes the Iron Gym as a multi-function exercise bar that can be
used for pull-ups, chin-ups, push-ups, sit-ups, dips, arm, and shoulder exercises
that can be attached and removed from a door with no drilling or tools required
and is marketed to support up to 300 pounds.
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Barrios's home, in Hawaii, when the product became unlodged from the doorway
causing plaintiff to fall. She suffered injuries including an impact fracture of
her cervical spine. Plaintiff was treated at two Hawaiian hospitals, and later
underwent spinal fusion surgery in Indiana. She was not able to work and
alleged ongoing pain along with severe psychological and psychiatric injuries
from the incident.
Plaintiff filed her complaint in New Jersey against Ontel and ConducTV.
Both companies are headquartered and have their principal places of business in
New Jersey and both sell Iron Gym products. Plaintiff asserted four counts
against defendants: (1) strict liability under the New Jersey Products Liability
Act (NJPLA), N.J.S.A. 2A:58C-1 to -11, for defective product; (2) strict liability
under the NJPLA for manufacturing defect; (3) strict liability under the NJPLA
for failure to warn; and (4) breach of warranty.
Plaintiff did not purchase the Iron Gym, but asserts she was a foreseeable
user. She also alleges the Iron Gym did not contain warnings or instructions to
inform foreseeable users of its propensity to fall or slip off doorways during
ordinary use. She further asserts the product did not contain information
regarding dangers of catastrophic injury resulting from the equipment falling off
doorways from normal, routine and foreseeable use. But because she was not
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the owner of the product, she did not receive any literature that was provided
with it. And at some point during her case, plaintiff moved to Virginia.
Ontel began distributing and selling Iron Gym products in 2008 and
purchased all its Iron Gyms from Xiamen Evere Sports Goods Co. Ltd., which
designed, manufactured, assembled, and packaged the Iron Gyms at its China
location. Ontel advertises the Iron Gyms and sells them to 194 retailers both
itself and through its distributor World Pack USA. The retailers then sell the
Iron Gyms to third-party consumers. Iron Gyms are installed, serviced and
otherwise maintained by the owner: the third-party end user.
ConducTV sold 161 Iron Gyms directly from its New Jersey headquarters
between October 1, 2015, and February 8, 2019, which it bought from Ontel.
ConducTV denies selling an Iron Gym to plaintiff, Barrios, or any other
customer in the state of Hawaii. ConducTV also asserts that based on photos
provided by plaintiff, the Iron Gym depicted would have included the written
materials provided by the manufacturer, and ConducTV denies repairing,
altering or otherwise changing the design or specifications of the Iron Gyms sold
and shipped from New Jersey.
In lieu of filing an answer, Ontel moved to dismiss plaintiff's complaint
pursuant to the doctrine of forum non conveniens and Rule 4:6-2(f) for failure
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to join an indispensable party, which the court denied without prejudice and with
instructions to complete limited discovery to determine whether defendant had
any basis to renew its application. Plaintiff's answers to Ontel's interrogatories
revealed the incident occurred at Barrios's residence in Hawaii. Plaintiff
obtained the Iron Gym at issue from Barrios and sent it to counsel, asserting it
was in the same condition as the date of plaintiff's injuries, and claiming she
used the product in accordance with the manufacturer's labeling, instructions
and warnings.
The Iron Gym was inspected by Ontel's product manager Scott Barlettano,
who submitted an affidavit stating, based on his inspection, the Iron Gym had
gone through "numerous alterations." These changes included a crossbar that
was assembled upside-down, a broken plastic connector securing the two steel
crossbars in the middle of the Iron Gym with two-thirds of it missing, several
bolts missing and numerous other faults.
Ontel filed its answer asserting affirmative defenses, including a claim the
Iron Gym was altered and assembled improperly after leaving Ontel's control.
Ontel cross-claimed for contribution under the New Jersey Joint Tortfeasors
Act, N.J.S.A. 2A:53A-1 to -48, and the New Jersey Comparative Negligence
Act, N.J.S.A. 2A:15-5.1 to -5.8. ConducTV filed its answer on January 2, 2019,
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also asserting affirmative defenses. In April 2019, Ontel again moved to dismiss
plaintiff's complaint pursuant to the doctrine of forum non conveniens and Rule
4:6-2(f) for failure to join an indispensable party. ConducTV joined Ontel's
motion.
In his July 12, 2019 decision granting the motion, the trial judge noted the
current discovery end date was October 24, 2019, and no arbitration or trial date
had yet been scheduled. He found plaintiff was a resident of Hawaii at the time
of the incident but had since moved and plaintiff was not a New Jersey
domiciliary or legal resident. The judge noted defendant's previous motion to
dismiss was denied simply to "complete 'some discovery' prior to renewing the
motion," which Ontel did, by having its product manager inspect the Iron Gym
at issue "within weeks" of the order on August 24, 2018. This led to Ontel's
assertion that numerous alterations were made, including evidence of improper
assembly and maintenance. The judge also noted plaintiff did not disclose the
location of the accident or identify Barrios as the owner of the residence where
the incident occurred until May 21, 2019.
Ultimately, the judge agreed any negligence claim against Barrios was
related to the matter and must be adjudicated together under Kent Motor Cars,
Inc. v. Reynolds & Reynolds Co., 207 N.J. 428, 443 (2011), and the Comparative
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Negligence Act, N.J.S.A. 2A:15-5.2(a), requiring the trier of fact to determine
the comparative fault of each defending party in all negligence actions in which
liability is disputed. Without considering Barrios as a party, defendants may be
held liable for more than their percentage of fault.
The judge granted Ontel's motion to dismiss "subject to filing a new
complaint in the more appropriate forum pursuant to . . . Rule 4:6-2(f)," but
"reject[ed] defendant's motion to the extent it seeks dismissal as to forum non
conveniens."
The judge found dismissal proper under Rule 4:6-2(f) because defendant
was incapable of adding Barrios, an indispensable party. Barrios's alleged
actions arose from the same transaction or occurrence, and defendants should be
permitted to bring whatever third-party claims for relief as were appropriate in
the same action as plaintiff's claim for relief against defendants.
The judge considered four factors under Rule 4:28-1(b), noting (i)
rendering judgment without Barrios prejudices defendant because defendant is
precluded from asserting claims or crossclaims; (ii) the prejudice cannot be
mitigated by the court, as it had no jurisdiction over Barrios, and defendant
would have to pursue a subsequent action in Hawaii relating to the same claims;
therefore the principle of judicial economy would not be well-served when all
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facts could be resolved at a single time and all assessment of liability could be
made simultaneously; (iii) a judgment rendered in Barrios's absence would be
inadequate as defendants may be held liable for Barrios's misconduct or
negligence; and (iv) plaintiff is not without recourse merely because the court
here dismissed the case, as she could file and prosecute her action in Hawaii , or
any other appropriate forum to join Barrios. Therefore, the judge dismissed
plaintiff's complaint for failure to join an indispensable party.
Plaintiff moved for reconsideration asserting a previously undiscussed
arbitration clause governed any dispute between defendant ConducTV and
Barrios. The phantom arbitration clause was not supported by any of
ConducTV's literature, plaintiff did not produce any such document during
discovery, and she did not purchase the Iron Gym at issue.
The judge denied plaintiff's motion for reconsideration, refusing to expand
the record and reargue a motion under Capital Financial Company of Delaware
Valley, Inc. v. Asterbadi, finding that plaintiff was attempting to revive a motion
that was already litigated. 398 N.J. Super. 299, 310 (App. Div. 2008). The
judge did, however, take the opportunity to expand on his previously stated
reasons for the earlier ruling. As to the four factors a court is to consider under
Rule 4:28-1(b) where joinder of a person is not feasible and the absent person is
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indispensable, the court first explained how at least one, and likely both,
defendants will suffer clear prejudice. Neither would be able to add Barrios to
the case on a third-party basis for acts he may have committed, which might
have caused or contributed to plaintiff's injuries. The judge found this
"weigh[ed] heavily in favor of dismissal."
Second, the judge found prejudice could not be avoided by any procedural
device, in that two parties would face liability for a claim that may involve a
third-party who could never have his conduct considered by a New Jersey jury.
Further, obtaining relief against him at a later point might prove elusive or
impossible and would involve a second action when a single suit could resolve
the case in its entirety, which weighs in favor of dismissal.
Third, the judge found Barrios's role as an owner of the Iron Gym and as
a participant in the event, giving rise to the injury, was "no doubt central to the
story of this case" and it seems "categorically inadequate to proceed in the
absence of the product owner." This also weighed in favor of dismissal.
Finally, the trial judge found an adequate remedy existed for plaintiff if
the action was dismissed. No argument was made that defendants were out of
the jurisdictional reach of Hawaii, where Barrios was subject to process, and it
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was neither clear nor relevant why plaintiff did not choose to prosecute the case
in Hawaii. The judge found this final factor to favor dismissal or be neutral.
The heavy weight of factor one favoring dismissal, and the prejudice to
the current parties in the absence of Barrios, combined with factors two and
three, which also weighed in favor of dismissal, without more, was sufficient to
defeat plaintiff's motion. The judge stated "[i]ntegrity of the ultimate judgment
and the need to avoid prejudice to all, despite that proceeding here and now is
favorable and non-prejudicial to one, outweighs plaintiff's desire to have her
case heard in New Jersey." This appeal followed.
We review a trial court's decision to grant a motion to dismiss de novo,
owing no deference to the trial court's conclusions. Flinn v. Amboy Nat. Bank,
436 N.J. Super. 274, 287 (App. Div. 2014). The appeal of the order denying
plaintiff's motion for reconsideration was not briefed, so it is deemed waived.
Pressler & Verniero, Current N.J. Court Rules, cmt. 5 on R. 2:6-2 (2021).
Plaintiff argues that if the NJPLA precludes contributory negligence, a
comparatively negligent product purchaser cannot be indispensable in a strict
liability case. As such, the trial judge erred because a consumer cannot be an
indispensable party when his potential negligence cannot reduce a
manufacturer's strict liability. Plaintiff also contends the trial judge erred by
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injecting prohibited negligence concepts in a strict liability case governed by the
NJPLA. We disagree.
With the 1987 passage of the NJPLA, there came to be one unified,
statutorily defined theory of recovery for harm caused by a product, which is
"for the most part, identical to strict liability as defined by Suter v. San Angelo
Foundry & Machine Co., 81 N.J. 150 (1979)." Dreier, Karg, Keefe & Katz,
Current N.J. Products Liability & Toxic Torts Law, § 1:2-1 (2020). The NJPLA
"melded elements of all previous theories of recovery into one" and established
causes of action for manufacturing defect, design defect and warning defect,
which are the "same causes of action which had been developed under the
common law." Dreier, Karg, Keefe & Katz, § 2:1.
To succeed in making a prima facie case of products liability, the plaintiff
must show "(1) the product design was defective; (2) the defect existed when
the product was distributed by and under control of the defendant; and (3) the
defect caused injury to a reasonably foreseeable user." Michalko v. Cooke Color
& Chem. Corp., 91 N.J. 386, 394 (1982). N.J.S.A. 2A:58C-1(b)(3) was
interpreted by Tirrell v. Navistar Intern., Inc., 248 N.J. Super. 390, 398 (App.
Div. 1991), to mean that negligence and other common law claims, other than
for breach of express warranties, are subsumed within the NJPLA, but
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"[n]evertheless, harm arising from allegedly negligent conduct can give rise to
negligence actions despite the presence of products and related 'harm' as defined
by the [NJPLA]." Dreier, Karg, Keefe & Katz, §1:2-2.
As a "fundamental prerequisite," plaintiff must prove causation, both but-
for and proximate, in a strict-liability action. Coffman v. Keene Corp., 133 N.J.
581, 594 (1992). The plaintiff need not prove the defect was the sole cause of
her injury; the manufacturer or seller will be liable if the defect was a concurrent
or substantial contributing cause. Ibid. (citing Perez v. Wyeth Labs, Inc., 161
N.J. 1, 26-27 (1999)). Further, "[c]ontribution law does not by its terms require
that tortfeasors be liable on the same theory of recovery" to be considered joint
tortfeasors. Cartel Capital Corp. v. Fireco of N.J., 81 N.J. 548, 567-68 (1980).
Therefore, a defendant "whose responsibility is due to negligence and another
whose responsibility arises out of strict liability may be joint tortfe asors for
purposes of that law." Ibid. The pro rata share of damages of each tortfeasor is
calculated pursuant to the Comparative Negligence Act. See N.J.S.A. 2A:15-
5.2. Therefore, a negligence claim against Barrios, as the installer and potential
modifier of the product, is not precluded by the NJPLA and may be brought in
tandem with the strict liability claims brought against defendants.
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Here, a judgment in Barrios's absence may prejudice defendants Ontel and
ConducTV, insofar as they would be precluded from asserting claims or cross-
claims against Barrios, arguing his installation or modification of the Iron Gym
was the cause or a contributing cause of plaintiff's injuries. Even if defendants
were able to depose him, they would not be permitted to add him to the case
where the questions of liability and damages were to be disposed. The trial
judge found this futility to weigh heavily in favor of dismissal. And although
defendants would be permitted to assert an "empty chair" defense against
Barrios, see Brodsky v. Grinnell Haulers, Inc., 181 N.J. 102, 114, 116 (2004);
Fabian v. Minster-Mach. Co., Inc., 258 N.J. Super. 261, 276-77 (App. Div.
1992), it may be difficult for them to obtain evidence of the specifications of
Barrios's door jamb, and obtain his testimony, since there is no evidence Barrios
is subject to New Jersey court jurisdiction. Such circumstances would certainly
be unduly prejudicial.
We agree that the prejudice could not be lessened or avoided by court
order, because there is no indication in the record that the New Jersey court has
jurisdiction over Barrios. Accordingly, defendants would be forced to pursue
the same claims in Hawaii, if that were even possible, which would not serve
the principle of judicial economy when all facts could be resolved, and liability
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assessed, at a single time. Further, a different jury and potentially different law
may lead to inconsistent and irreconcilable judgments.
Moreover, the judgment may not be adequate because the jury would not
have the opportunity to consider Barrios's fault, whether total or contributing.
Thus, Ontel and ConducTV may be held liable for Barrios's actions as a result,
and nothing precludes plaintiff from filing and prosecuting her claim in a court
where Barrios is subject to jurisdiction.
Therefore, considering the factors under Rule 4:28-1(b), we agree that
Barrios is an indispensable party to this action, and because he cannot be joined,
it was appropriate to dismiss the matter under Rule 4:6-2(f), failure to join a
party without whom the action cannot proceed, as provided by Rule 4:28-1.
We reject plaintiff's additional arguments concerning the NJPLA and
whether the Comparative Negligence Act has no effect, because there could be
no contributory negligence in a strict liability case as a matter of law, under
Suter, 81 N.J. at 164, and Cartel Capital, 81 N.J. at 563. Notably, Suter and
Cartel do not eliminate comparative negligence in all products liability matters,
but rather eliminate it as to the plaintiff where the plaintiff encounters the risk
as part of his workplace activities, and limit the plaintiff's own comparative
negligence in products liability claims outside of the workplace to those
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instances where the plaintiff's conduct was an unreasonable and voluntary
exposure to a known risk. Suter, 81 N.J. at 164, 167-68; Cartel, 81 N.J. at 562-
63.
The NJPLA, N.J.S.A. 2A:58C-1 to -11, was enacted in 1987 to limit the
liability of manufacturers by establishing "clear rules with respect to certain
matters . . . including certain principles under which liability is imposed and the
standards and procedures for the award of punitive damages." Kendall v.
Hoffman-La Roche, Inc., 209 N.J. 173, 194 (2012) (quoting N.J.S.A. 2A:58C–
1(a)). However, as stated in N.J.S.A. 2A:58C-1(a), the NJPLA was not intended
to codify all issues relating to product liability, "and basic common law
principles of negligence and strict liability remain intact, except to the extent
that the [NJPLA] sets new limits on liability and punitive damages." Kendall,
209 N.J. at 194.
"The focus in a strict liability case is on the product itself," and "[a]
prerequisite of any recovery under strict tort liability is the existence of a
defective condition." Zaza v. Marquess & Nell, Inc., 144 N.J. 34, 48-49 (1996).
"An inference of defectiveness may not be drawn from the mere fact that
someone was injured. Liability should be imposed only when the manufacturer
[or seller] is responsible for the defective condition." Id. at 49. Strict liability
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requires a plaintiff to prove a defect in the product, which distinguishes strict
liability from absolute liability and prevents a party sued under a products
liability claim from becoming an "insurer" of the product. Ibid. (quoting
O'Brien v. Muskin Corp., 94 N.J. 169, 179-80 (1983)).
Even if defendants were to employ an "empty chair" defense, if Barrios's
negligence was found to be the sole cause of plaintiff's injuries, it could preclude
complete relief to plaintiff. And any liability assigned to Barrios would not
necessarily be recoverable, as there is no evidence Barrios is subject to a New
Jersey's jurisdiction. See Brodsky, 181 N.J. at 114, 116. The installation and
modification of the Iron Gym is central to causation, so adjudicating the case in
New Jersey would require adjudging Barrios's negligence, or lack of negligence,
in his absence.
Plaintiff's remaining arguments are without sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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