Superior Court Of New Jersey, Appellate Division
Decided June 10, 2019
Joseph Tripodi and Denise Tripodi, v. Big Top Arcade/ Patricia Hershey
Submitted by New Jersey Personal Injury Lawyer, Jeffrey Hark.
Plaintiffs appeal the trial court order granting defendants’ motion for summary judgment. Plaintiffs alleged, “they sustained severe permanent injuries including significant hearing loss.“ Plaintiff alleges significant hearing loss as a direct and proximate result of firing a defective paintball gun at a shooting gallery amusement stand operated on the Seaside Heights boardwalk. However, Plaintiffs did not present any expert testimony establishing “duty or breach” (also known as negligence) and as a result the trial court ruled, without any expert opinions plaintiff could not meet his evidentiary burden by a preponderance of a doubt establishing defendant’s legal responsibility for said injuries. As a matter of procedure, defendant moved for summary judgment and the court provided the plaintiff the opportunity to supplement the record with such n expert. However, plaintiff instead argued no such expert was required and relied upon the legal principles of res ipsa loquitur. Facts:
The Zombie Paintball stand on the boardwalk provided 100 paintballs to shoot at targets. There was a sign that stated, “Play your own risk. Zombie paintball is not liable for any injuries. Have fun.“ While the plaintiffs were using the pain ball gun it exploded. Plaintiff alleged they had immediate pain and ringing in their ears after the explosion. Plaintiff flagged down two police officers, however they denied treatment until the following days to come. Plaintiffs suffer from a number of conditions including hearing loss and tinnitus. Plaintiffs argue the defendant was negligent in failing to warn or maintain or care for the paintball gun that resulted in their injuries. After filing suit, plaintiffs do not produce an expert opinion establishing negligence during the discovery period. When the discovery period closed defendant filed a motion for summary judgment. The defendant asserted without an expert testimony plaintiff cannot prove defendant was negligent. Plaintiff never filed a response to the summary judgment motion. The judge granted defendants motion and dismiss the complaint. He noted, negligence may not be presumed and had to be demonstrated by the plaintiff. The judge relied upon the principle, “expert testimony is required when a subject is so esoteric that jurors of common judgment and experience cannot form a valid conclusion.” Plaintiffs failed to present evidence that the paper gun or equipment was Inspected by an expert knowledge of paintball guns or compression air lines. In the record there’s no pictures or any evidence that the gun was in poor form or the equipment was in poor form. Plaintiffs also failed to present any information concerning the sound that came from the explosion. The trial judge ruled these complex matters were beyond the ‘ken of the average juror.’ This means if a concept is beyond any juror’s common knowledge an expert must provide an opinion connecting the defendant’s conduct to a breach of a standard as well as an expert connecting the plaintiff’s damages to defendant’s conduct. Because plaintiff in this case proceeded without the appropriate liability and damages experts the judge granted motion for summary judgment. Plaintiffs filed a motion for reconsideration after their attorney asserted he was not aware of the motion for summary judgment. Plaintiffs submitted opposition to the motion and the judge allowed plaintiff to file their response of the papers. Yet again the plaintiffs did not submit an expert report in response to the motion for summary judgment. Instead they argued under the ‘res ispa loquitur.’ Plaintiff thought that the loud bang they allegedly heard would not occur unless defendant was responsible and no expert was necessary to establish the defendant negligent.
Following oral argument the trial judge rejected the plaintiffs ‘res ispa loquitur’ arguments as well. The trial court outlined the threshold test for any res spa argument: a) the act in question bespeaks of negligence, b) the instrumentality was within the defendant’s exclusive control, c) there is no indication in the circumstances that the injury was the result of the plaintiffs own voluntary act of negligence. The judge found plaintiffs were unable to establish any of the three prongs of the Buckelew test. There were numerous questions left unanswered and an expert was needed to fill in the answers to these questions. The judge concluded the plaintiff still did not show the loud bang they heard bespeaks of negligence. Finally, the judge found the paintball game was not within the exclusive control of the defendant at the time of the injury.
The appellate court found there was no question of material fact since no expert was hired to proved any facts. The appellate court also found the trial judge to have properly granted summary judgment to defendant.
Here at Hark & Hark during every personal injury case we handle we make sure to hire the proper experts. In this specific case an expert should have been hired to inspect the gun at question and the machine linked to the gun as well as an audiologist to confirm the alleged hearing loss. Without these experts the jury is not knowledgeable enough in this specific field to make the determination if the machinery was faulty or not. The defendant properly filed for summary judgment and it was properly granted.