ARJAN LEKA VS. HEALTH QUEST FITNESSÂ (L-0016-13, HUNTERDON COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-2213-15T4
ARJAN LEKA,
Plaintiff-Appellant,
v.
HEALTH QUEST FITNESS,
HEALTHQUEST OF CENTRAL
JERSEY, LLC, and COULTER
VENTURES, LLC,
Defendants-Respondents,
and
RAE CROWTHER HOLDINGS, LLC,
Defendant.
——————————————————————————————
Argued October 11, 2017 – Decided October 26, 2017
Before Judges Hoffman, Gilson and Mayer.
On appeal from Superior Court of New Jersey,
Law Division, Hunterdon County, Docket No.
L-0016-13.
Kathleen Cehelsky argued the cause for
appellant (Law Office of James C. DeZao, PA,
attorneys; James C. DeZao, on the briefs).
Timothy E. Haggerty argued the cause for
respondent Health Quest Fitness and
HealthQuest of Central Jersey, LLC (Law
Offices of Stephen E. Gertler, PC,
attorneys; Kenneth A. Seltzer, on the
brief).
David S. Osterman argued the cause for
respondent Coulter Ventures, LLC (Goldberg
Segalla, LLP, attorneys; Mr. Osterman and
Leah A. Brndjar, on the brief).
PER CURIAM
Plaintiff Arjan Leka commenced this suit against defendants
HealthQuest of Central Jersey, LLC (HealthQuest) and Coulter
Ventures d/b/a Rogue Fitness (Coulter) alleging he sustained
injuries on June 9, 2012, in an accident involving a hack squat
machine at HealthQuest's fitness facility. Plaintiff also alleged
HealthQuest wrongfully appropriated his likeness for commercial
gain without his knowledge or consent.
Plaintiff now appeals from April 28, 2015 and September 18,
2015 orders granting summary judgment in favor of defendants, and
an August 20, 2015 order denying plaintiff's motion for
reconsideration. For the reasons that follow, we affirm.
I.
The following facts are derived from evidence the parties
submitted in support of, and in opposition to, summary judgment,
viewed in a light most favorable to plaintiff, the non-moving
party. Polzo v. Cty. of Essex, 209 N.J. 51, 56-57 n.1 (2012)
2 A-2213-15T4
(citing Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523
(1995)).
Around the time of the accident, HealthQuest employed
plaintiff as a personal trainer; plaintiff was also a weight-
lifter and body-builder. On June 9, 2012, during his off-hours,
plaintiff was lifting weights at HealthQuest's facility. He placed
an estimated six to seven hundred pounds of evenly distributed
weight on a hack squat machine. After performing at least two
repetitions, plaintiff "went to push up [when] the machine dropped
and crushed [him] under it." He suffered serious injuries, which
have significantly impacted his lifestyle and career.
In this action, plaintiff argues his injuries resulted from
the hack squat machine's defective design. He asserts causes of
action sounding in products liability and negligence. Plaintiff
also contends HealthQuest wrongfully appropriated his likeness for
commercial gain. Specifically, he alleges a baseball academy
distributed a promotional email that included a photograph of him
teaching a class at the HealthQuest facility.
Regarding the products liability and negligence claims,
plaintiff contends HealthQuest allowed the hack squat machine to
remain in the stream of commerce despite known risks. He also
argues that Coulter, an Ohio-based sporting and recreational
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equipment retailer, markets and sells the product as successor to
Nebula Fitness, LLC (Nebula), the subject machine's manufacturer.
In support of these claims, plaintiff furnished expert
reports from Harry Ehrlich, an industrial engineer, and Dr. Gordon
Schmidt, a kinesiology specialist. Ehrlich determined the machine
in question lacks lower safety stops1 and product warnings and
safety instructions. Schmidt stated that the machine's lacking
lower stops "deprived [plaintiff] of the protection provided in
other comparable hack squat machines." He further opined
"HealthQuest's failure to provide a safe hack squat machine created
an unreasonably dangerous condition that [caused plaintiff's]
injury."
HealthQuest filed a motion for summary judgment and a motion
to bar the Ehrlich and Schmidt reports. First, HealthQuest argued
it did not place the hack squat machine into the stream of
commerce, and therefore, as a matter of law it cannot be held
liable under the New Jersey Product Liability Act. N.J.S.A.
2A:58C-1 to -11. Furthermore, it alleged the experts' conclusions
constituted net opinions.
1
Ehrlich states that lower safety stops would "limit the range of
downward motion such that the sled [would] be prevented [from]
moving beyond the user's intended range of motion, allowing the
user to exit the machine without the need to raise the weights."
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The trial court granted HealthQuest's summary judgment
motion. In its written opinion, the court found HealthQuest never
manufactured, distributed, or sold the hack squat machine, to wit:
HealthQuest never placed the machine into the stream of commerce.
Regarding plaintiff's negligence claim, the court found plaintiff
failed to submit any proof that HealthQuest had notice of the
machine's defective design. It asserted that plaintiff's
proffered evidence — that he heard the machine injured another
employee in 2008 — was inadmissible hearsay as defined by N.J.R.E.
801(c). Finally, the court dismissed plaintiff's appropriation
of likeness claim because he failed to submit any supporting
evidence.
Subsequently, plaintiff filed a motion for reconsideration
arguing the court failed to "analyze whether a user of equipment
at a gym is the equivalent to a person renting or leasing equipment
and that HealthQuest was in the superior position to inspect,
maintain[,] and warn of safety hazards to the equipment." The
court denied plaintiff's motion, holding plaintiff failed to
demonstrate HealthQuest was part of the chain of distribution, and
his reliance on Cintrone v. Hertz Truck Leasing and Rental
Services, 45 N.J. 434 (1965), was misplaced. Further, regarding
plaintiff's appropriation of likeness claim, the court held his
proffered evidence, a former HealthQuest employee's witness
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statement, constituted an impermissible lay opinion on an expert
matter.
In a separate motion, Coulter filed a motion for summary
judgment arguing plaintiff failed to demonstrate it was a successor
in interest. In a written opinion, the court granted Coulter's
motion, holding that plaintiff failed to present evidence that
Coulter continued to manufacture or market the hack squat machine.
II.
We review summary judgment rulings de novo, applying the same
legal standard as the trial court. Townsend v. Pierre, 221 N.J.
36, 59 (2015) (citing Davis v. Brickman Landscaping, Ltd., 219
N.J. 395, 405 (2014)). "Summary judgment must be granted if '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 challenged and that the
moving party is entitled to a judgment or order as a matter of
law.'" Town of Kearny v. Brandt, 214 N.J. 76, 91 (2013) (quoting
R. 4:46-2(c)).
Thus, we consider whether "the competent evidential materials
presented, when viewed in the light most favorable to the non-
moving party, are sufficient to permit a rational factfinder to
resolve the alleged disputed issue in favor of the non-moving
party." Ibid. (quoting Brill, supra, 142 N.J. at 540). We accord
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no deference to the trial judge's conclusions on issues of law and
review issues of law de novo. Nicholas v. Mynster, 213 N.J. 463,
478 (2013).
A.
In support of his contention the trial court erred in granting
summary judgment in favor of HealthQuest, plaintiff first argues
the court failed to consider whether HealthQuest essentially
leased the hack squat machine to its customers, thus qualifying
it as a product seller under New Jersey's Product Liability Act
(the Act). See N.J.S.A. 2A:58C-8.
N.J.S.A. 2A:58C-2 states:
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
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.
The Act defines a "product seller" as:
[A]ny person who, in the course of a business
conducted for that purpose: sells;
distributes; leases; installs; prepares or
assembles a manufacturer's product according
to the manufacturer's plan, intention, design,
specifications or formulations; blends;
packages; labels; markets; repairs; maintains
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or otherwise is involved in placing a product
in the line of commerce.
[N.J.S.A. 2A:58C-8]
In Cintrone, our Supreme Court imposed liability on a truck
lessor for the injuries a lessee sustained due to its vehicle's
apparent brake failure. Cintrone, supra, 45 N.J. at 452. Relying
on Cintrone, plaintiff argues HealthQuest is a product seller
because, in essence, it leases its heavy weight-lifting equipment
to its members.
We reject this argument and instead agree with the trial
court that the instant facts are more analogous to Dixon v. Four
Seasons Bowling Alley, Inc., 176 N.J. Super. 540 (App. Div. 1980).
In Dixon, we held a bowling alley was not strictly liable when a
defective bowling ball injured a patron. Dixon, supra, 176 N.J.
Super. at 547. In so holding, we focused on several critical
factors, including "that furnishing the ball was a part of a larger
service supplied by the owner, that there was no separate fee
charged for use of the ball, and that the patron's possession of
the ball was intended to be short term." Ranalli v. Edro Motel
Corp., 298 N.J. Super. 621, 626 (1997) (citing Cintrone, supra,45 N.J. at 547). Accordingly, we held the patron's use of the
bowling ball in Dixon was incidental to her use of the defendant's
premises. Ibid.8 A-2213-15T4
Similarly, plaintiff's use of the hack squat machine was
incidental to his use of the HealthQuest facility. Plaintiff's
contention that his hack squat use was not incidental lacks
support. He provides no support for his assertion that "the
average consumer" joins fitness centers "for the heavy equipment."
Furthermore, plaintiff's attempt to differentiate "immovable,
heavy [gym] equipment" from bowling balls puts form over substance.
HealthQuest did not manufacture, sell, or distribute the
subject hack squat machine. Plaintiff's argument that HealthQuest
became a product seller because it leases its equipment to members
lacks merit. Accordingly, HealthQuest is not subject to liability
under New Jersey's Product Liability Act, N.J.S.A. 2A:58C-1 to -
11.
B.
Plaintiff also contends the trial court erred in dismissing
his common law negligence claim. Namely, he argues the trial
court incorrectly held he failed to produce admissible evidence
demonstrating HealthQuest had notice of the hack squat machine's
defective design.
Preliminarily, common law negligence requires notice and an
opportunity to cure the defect before liability can be imposed.
See Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 434 (1993); see
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also Carter Lincoln Mercury, Inc. Leasing Div. v. EMAR Grp., Inc.
135 N.J. 182, 195-96 (1994). Furthermore, Rule 1:6-6 provides:
If a motion is based on facts not
appearing of record or not judicially
noticeable, the court may hear it on
affidavits made on personal knowledge,
setting forth only facts [that] are
admissible in evidence to which the
affiant is competent to testify and which
may have annexed thereto certified copies
of all papers or parts thereof referred
to therein.
Plaintiff's proffered evidence of prior notice consists of a
former HealthQuest employee's hand-written witness statement
describing an incident where a hack squat machine injured him in
2008. Notably, the former employee neither made the statement
under oath or affirmation, nor did he include a certification
subjecting himself to punishment in the event he willfully made
false statements. See R. 1:4-4(b).
The former employee's indication that his statement "is true
and correct to the best of [his] knowledge and belief" is
inadequate to satisfy our court rules. Ibid.; see also Pascack
Cmty. Bank v. Universal Funding, LLP, 419 N.J. Super. 279, 288
(App. Div. 2011) (holding the plaintiff's "certification had no
evidentiary value" because it failed to conform to Rule 1:6-6 and
1:4-4(b)'s requirements.). Further, contrary to plaintiff's
assertion, his experts' reports do not address the notice issue.
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Additionally, as the trial court correctly determined, the
former employee's statement "does not constitute admissible
evidence because it is a lay opinion on a matter that requires
expert testimony, namely[,] that the 2008 accident was caused by
a defective machine." The trial court correctly ruled inadmissible
plaintiff's proffered evidence of prior notice of the hack squat
machine's alleged defect.
C.
Plaintiff further argues the trial court erred in granting
Coulter's summary judgment motion because Coulter purchased assets
from Nebula, thus subjecting Coulter to successor liability. We
disagree.
The general rule is that "when a company sells its assets to
another company, the acquiring company is not liable for the debts
and liabilities of the selling company simply because it has
succeeded to the ownership of the assets of the seller." Lefever
v. K.P. Hovanian Enters. Inc., 160 N.J. 307, 310 (1999). However,
the product-line exception to the general rule, adopted by our
courts and other jurisdictions, provides that a corporation that
continues to manufacture and market the same product line after
purchasing a substantial part of the previous manufacturer's
assets "may be exposed to strict liability in torts for defects
in the predecessor's products." Ibid.11 A-2213-15T4
Our Supreme Court emphasized that courts should focus "on the
successor's continuation of the actual manufacturing operation and
not on commonality of ownership and management between the
predecessor's and successor's corporate entities." Ramirez v.
Amsted Indus., Inc., 86 N.J. 332, 347 (1981). Furthermore,
"[p]laintiff bears the burden of establishing that a party is a
successor corporation." Potwora v. Land Tool Co., Inc., 319 N.J.
Super. 386, 406 (citing Ramirez, supra, 86 N.J. at 332), certif.
denied, 161 N.J. 151 (1999).
Here, plaintiff merely established that Coulter purchased
assets from Nebula. He fails, however, to put forth any evidence
that Coulter continued to manufacture or market the hack squat
machine. Accordingly, the product-line exception is inapplicable,
and the trial court correctly held plaintiff did not carry his
burden.
III.
Finally, plaintiff argues the trial court erred in dismissing
his appropriation of likeness claim because it required him to
produce evidence that is not required as a matter of law. Again,
we disagree.
"One who appropriates to his own use or benefit the name or
likeness of another is subject to liability to the other for
invasion of his [or her] privacy." Restatement (Second) of Torts
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§ 652C. Therefore, to establish a prima facie case for invasion
of privacy by appropriation of likeness, a plaintiff must
establish: 1) the defendant appropriated the plaintiff's likeness,
2) without the plaintiff's consent, 3) for the defendant's use or
benefit, and 4) damages. See Faber v. Condecor, Inc., 195 N.J.
Super. 81, 86-90 (App. Div.), certif. denied, 99 N.J. 178 (1984).
Notably, courts have consistently required plaintiffs to show
that defendants received a commercial benefit through the
unauthorized use of plaintiff's likeness. See McFarland v. Miller,
14 F.3d 912, 919 n.11 (3d Cir. 1994) ("In New Jersey, to sustain
an action claiming misappropriation of the image of another, a
commercial purpose must be present."). Furthermore, in Castro v.
NYT Television, we held:
[n]o one has the right to object merely
because his [or her] name or his [or her]
appearance is brought before the public,
[because] neither is in any way a private
matter and both are open to public
conversation. It is only when the publicity
is given for the purpose of appropriating to
the defendant['s] benefit the commercial or
other values associated with the name or the
likeness that the right of privacy is invaded.
[Castro v. NYT Television, 370 N.J. Super.
282, 297 (App. Div. 2004) (quoting Restatement
(Second) of Torts § 652(c) comment d (1977)).]
Here, the sole support for plaintiff's claim is his statement
that someone told him a baseball academy distributed promotional
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materials that included a photograph of him training a client at
the HealthQuest facility. Plaintiff fails to submit any proofs,
including the email in question, to support his assertion, and the
record is devoid of any evidence that HealthQuest used plaintiff's
likeness to obtain commercial benefit. Because plaintiff failed
to establish that HealthQuest used his image in a manner that
furthered a commercial or trade purpose, or that his likeness was
used in anything more than an incidental manner, we discern no
basis to disturb the dismissal of this claim.
Affirmed.
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