                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-23-2008

Toms v. JC Penney Co Inc
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4232




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008

Recommended Citation
"Toms v. JC Penney Co Inc" (2008). 2008 Decisions. Paper 59.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/59


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2008 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                                                 NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ___________

                                        No. 07-4232
                                        ___________

                                     JOANNE TOMS;
                                      COLIN TOMS,
                                                          Appellants

                                              v.

                            J.C. PENNEY COMPANY, INC.
                          JOHN DOES 1-10 (fictitious entities)
                       ____________________________________

                     On Appeal from the United States District Court
                              for the District of New Jersey
                          (D.C. Civil Action No. 05-cv-02582)
                      District Judge: Honorable Peter G. Sheridan
                      ____________________________________

                     Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   December 9, 2008

                   Before: MCKEE, SMITH, and ROTH, Circuit Judges

                            (Opinion filed: December 23, 2008 )

                                        ___________

                                         OPINION
                                        ___________

SMITH, Circuit Judge.

       Joanne Toms appeals from the District Court’s entry of summary judgment against

her in this products liability action. For the reasons that follow, we will affirm.
       Appellant purchased a terry cloth robe from the J.C. Penney store in Freehold,

New Jersey on August 25, 2002. On April 25, 2003, while living at an Easter Seals

resident group home in Freehold, Appellant went outside to smoke a cigarette on the

porch of the home at some point between 12:30 and 1:00 in the morning. Appellant

claimed that she dropped a match she was using to light her cigarette onto the collar of

the robe, “heard an ‘explosion’ as the match came in contact with the collar, and the

flames immediately spread upward from the collar towards her face, down her sleeve, and

down the remaining portion of the robe towards her legs.” (At. Br. 7.) She ran down the

steps of the exterior porch, “and was eventually able to take the burning robe off of her

body while it was still in flames.” (Id.)

       Philip Wilensky, Appellant’s only supporting witness, stated that he saw Appellant

exit the building to smoke a cigarette, heard her scream a few minutes later, opened the

door, and observed that Appellant’s robe had caught fire. At his deposition, he testified:

“I noticed her arms and her shoulders were aflame. You could see the flames coming up.

I just noticed like her shoulders. It seemed like both arms had smoke and flames coming

up from them.” (App. 192.) Wilensky helped Appellant remove the robe, attended to her

wounds, called 911, and then assisted a police officer in putting out the fire by pouring

water on the robe. (App. 197-99, 257-59.)

       Appellant sustained burns over nineteen percent of her body, primarily her upper

body and arms. By the time the fire had been extinguished, what remained of the robe



                                             2
was insufficient to permit flammability testing pursuant to the protocols outlined in the

Flammable Fabrics Act. See 16 C.F.R. § 1610 et seq. However, at the request of Easter

Seals, Affiliated Engineering Laboratories subjected the remnants to “simplified” tests,

from which it concluded that the robe was “not highly flammable” and was made of

material “suitable for clothing.” (App. 78-79.) Appellee also performed flammability

tests on an exemplar robe from the same manufacturer. According to Appellee’s textile

consultant, based on her review of the data, “the face side of the fabric burned at a rate

two to three times more slowly than the minimum burning rate permitted by law” and the

back side “had a much slower burn rate.” (App. 75.)

       Appellant filed a complaint in New Jersey Superior Court on April 1, 2005,

alleging, in relevant part:

       Defendants placed into the stream of commerce a defective product,
       namely, the aforesaid robe, in violation of the New Jersey Product Liability
       Act, N.J.S.A. 2A:58C-1 et seq. Specifically, defendants designed,
       manufactured, distributed and/or sold an unreasonably flammable robe, and
       failed to adequately warn plaintiff Joanne Toms of the unreasonable
       flammability of the robe.

(App. 5, ¶ 5.) Appellee removed the action to the United States District Court for the

District of New Jersey on May 16, 2005 based on diversity jurisdiction. After Appellant

indicated that she would not be submitting an expert report to support her product liability

claim, the District Court authorized the parties to move for summary judgment, which

Appellee did. On September 28, 2007, the District Court entered summary judgment in

favor of Appellee. Toms appeals.

                                              3
       The District Court had jurisdiction pursuant to 28 U.S.C. § 1332. We have

appellate jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review over the

District Court’s entry of summary judgment, viewing the underlying facts and all

reasonable inferences therefrom in the light most favorable to Appellant, the non-moving

party. See Norfolk Southern Ry. v. Basell USA Inc., 512 F.3d 86, 91 (3d Cir. 2008).

Summary judgment is appropriate only if “there is no genuine issue as to any material fact

and . . . the moving party is entitled to judgment as a matter of law.” See Fed. R. Civ. P.

56(c). Summary judgment must be granted if the party responding to the motion fails “to

make a sufficient showing on an essential element of her case with respect to which she

has the burden of proof.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

       Throughout the course of this action, Appellant has alleged two strict liability

claims: a defective product claim and a failure to warn claim. However, it has not been

clear at any point during this litigation whether her defective product claim was based on

a design defect or a manufacturing defect theory.1 The District Court proceeded under a




1
 In her complaint, Appellant alleged that “defendants designed, manufactured, distributed
and/or sold an unreasonably flammable robe.” (App. 5.) In her opposition to Defendant’s
motion for summary judgment, she alleged that based on the lay testimony, she was able
to “establish a prima facie case for the unreasonable flammability of the robe,” while
disclaiming any intention to rely on the doctrine of res ipsa loquitor. (Pl.’s Opp. to Def.’s
Mot. for Summ. Judg., D. Ct. Dkt. # 24, 10.) Most recently, in her appeal brief, she states
that she “brought the within action alleging . . . strict liability in tort for a defective robe.”
(At. Br. 6.) None of these descriptions of her claim differentiate between design and
manufacturing defects, nor does Appellant at any time clearly delineate the law on which
she relies.

                                                4
theory of defective design, although its analysis at times conflated the legal principles

under which the two types of claims are evaluated. We conclude that, under either theory,

the entry of summary judgment in favor of Appellee was proper.

       Under New Jersey law, a defective product claim may proceed as follows:

       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.

N.J. Stat. Ann. § 2A:58C-2.

       The District Court construed Appellant’s claim as one of a design defect and

concluded that summary judgment was proper because Appellant did not assert an

alternative design theory, nor did she offer testimony sufficient to rule out other possible

causes of the incident. The District Court emphasized Appellant’s failure to submit

expert testimony in support of her claim. A design defect claim posits that the product

was designed in such a way that renders it “not reasonably fit, suitable or safe for its

intended purpose.” N.J. Stat. Ann. § 2A:58C-2. To prevail on such a claim, “[a] plaintiff

must prove either that the product’s risks outweighed its utility or that the product could

have been designed in an alternative manner so as to minimize or eliminate the risk of

harm.” Lewis v. Am. Cyanamid Co., 715 A.2d 967, 980 (N.J. 1998); see also Smith v.

Keller Ladder Co., 645 A.2d 1269, 1271 (N. J. Super. Ct. App. Div. 1994). New Jersey

                                              5
has adopted a seven-factor “risk-utility” test to gauge whether a product was defectively

designed. See Johansen v. Makita U.S.A., 607 A.2d 637, 642 (N.J. 1992); see also Smith,

645 A.2d at 1271. As the District Court observed, the existence of a design defect is

frequently proven through the testimony of an expert who has examined the product and

offers an opinion on its design. See, e.g., Diluzio-Gulino v. Daimler Chrysler Corp., 897

A.2d 438, 441 (N.J. Super. Ct. App. Div. 2006); Rocco v. New Jersey Transit Rail

Operations, Inc., 749 A.2d 868, 879 (N.J. Super. Ct. App. Div. 2000). Here, with or

without expert testimony, Appellant has neither offered evidence of a reasonable

alternative design for the robe, nor has she made a showing that the risks involved in

wearing the robe in question outweigh its utility notwithstanding the lack of a reasonable

alternative design. Thus, while Appellant may be correct that New Jersey law does not

require proof of a reasonable alternative design or expert testimony to prove a design

defect, we agree that, to the extent that Appellant intended to allege a design defect claim,

she has failed to carry her burden and, accordingly, that summary judgment was

appropriate.

       To the extent Appellant was alleging a manufacturing defect claim, we similarly

conclude that she has not offered evidence sufficient to sustain her burden of proof. To

demonstrate a manufacturing defect, a plaintiff must prove that the product was not

manufactured according to its design specifications. See Myrlak v. Port Auth. of N.Y. &

N.J., 723 A.2d 45, 52 (N.J. 1999). In Scanlon v. General Motors Corp., 326 A.2d 673


                                              6
(1974), the New Jersey Supreme Court set out three means by which a plaintiff could

demonstrate the existence of a manufacturing defect: (1) direct evidence that the defect

arose in the hands of the manufacturer; (2) circumstantial evidence which would permit

an inference that a dangerous condition existed prior to sale; for instance, “the age and

prior usage of the product in relation to its expected life span, durability and effective

operability without maintenance”; or (3) by negating other causes of the failure of the

product for which the defendant would not be responsible, in order to create an inference

that the defect was attributable to the manufacturer.2 See id. at 678-79. Depending on the

complexity of the product, a plaintiff might be required to present expert testimony in

order to rule out other likely explanations for the incident. See id. at 679; see also Lauder

v. Teaneck Volunteer Ambulance Corps, 845 A.2d 1271, 1277 (N.J. Super. Ct. App. Div.

2004) (“[W]here the allegedly defective product involves a complex instrumentality, a

plaintiff is required to provide expert testimony.”). As the Scanlon court further noted,

“the mere occurrence of an accident is not sufficient to establish that the product was not



   2
        A plaintiff may also rely on an inference that a product is defective where the
incident that harmed the plaintiff was (1) of a kind that ordinarily occurs as a result of a
product defect; and (2) was not, in the particular case, solely the result of causes other
than a product defect existing at the time of sale or distribution. See Restatement (Third)
of Torts: Products Liability § 3 (1997), as adopted by Myrlak v. Port Auth. of N.Y. &
N.J., 723 A.2d 45, 55-56 (N.J. 1999). This test has been labeled the indeterminate
product defect test, “because its use is limited to those product liability cases in which the
plaintiff cannot prove a specific defect.” Myrlak, 723 A.2d at 56. Because Appellant
here argues that the defect is the robe’s unreasonable flammability, we conclude that this
test does not apply and, therefore, do not consider it any further.

                                              7
fit for ordinary purposes.” Id. at 677.

       Appellant clearly does not offer any direct evidence of a manufacturing defect.

We agree with the District Court that Appellant failed, through expert testimony or

otherwise, to negate other possible causes of the incident, such as that the weather

conditions caused the match to explode, or that the match contained an unusual

accelerant. Rather, Appellant claims that she may rely on her own testimony and that of

Philip Wilensky to demonstrate that the robe was defective in that it was unreasonably

flammable.

       Appellant summarizes her testimony as follows:

       First, the robe exploded upon contact with a match. Second, following the
       explosion, the fire expeditiously spread over Mrs. Toms’ body in a matter of
       seconds. Third, Mr. Wilensky observed the flames leaping from Mrs.
       Toms’ body thereby evidencing that the flames were more than a mere fire,
       but, rather, were burning at an increased rate. Fourth, the robe disintegrated
       into almost nothing leaving little of the robe left for testing.

(At. Br. 14.) Appellant relies on five cases to support her assertion that she can prove her

claim solely through lay evidence demonstrating the existence of a defect in the robe. See

Hollister v. Dayton Hudson Corp., 201 F.3d 731 (6th Cir. 2000); Wilson v. Bradlees of

New England, Inc., 96 F.3d 552 (1st Cir. 1996); Howard v. McCrory Corp., 601 F.2d 133

(4th Cir. 1979); LaGorga v. Kroger Co., 275 F. Supp. 373 (W.D. Pa. 1967), aff’d, 407

F.2d 671 (3d Cir. 1969); DiMaso v. Wieboldt Stores, Inc., 347 N.E. 2d 466 (Ill. App. Ct.

1976). While we do not quarrel with Appellant’s argument that she is not required to

present expert testimony to demonstrate that the robe was unreasonably flammable, we

                                             8
agree with the District Court that Appellant’s reliance on these cases for support is

misplaced. The facts presented by Appellant differ in significant respects from those in

Howard and LaGorga. See Howard, 601 F.2d at 138 (“When first seen, the flames were

shooting a foot over Bobby’s head and Bobby looked much like a ball of fire. Such

evidence would indicate that the clothing worn by Bobby ignited quickly and burned

rapidly with intensity.”); LaGorga, 275 F. Supp. at 377-78 (reciting testimony that “[y]ou

could see flames shooting out the back of the jacket,” that several people tried but were

unable to extinguish the fire, that a retired firefighter saw the child “coming down the

street full blaze, up over his head, just like a ball of fire coming down” and that in his

experience as a firefighter, “‘no cloth that [he had] seen burned like that’”).

       Appellant claims that the District Court failed to address the “facts” that “(1) the

fire spread abnormally quickly over Mrs. Toms’ robe and body; (2) Mr. Wilensky saw the

flames leap from Mrs. Toms’ head; and (3) the fire burned so thoroughly that nearly

nothing remained of the robe except disintegrated charred remains.” (At. Br. 19.)

Contrary to Appellant’s suggestions, her testimony does not establish a time frame for the

fire, nor that it burned “abnormally quickly” or had unusual burning characteristics. In

fact, Mr. Wilensky’s testimony establishes that he assisted Mrs. Toms’ in removing the

clothing from her body, brought her inside, called 911, and returned outside to assist the

police officer in putting out the fire. (App. 197-99, 257-59.) The fact that the robe had

nearly burned itself out by the time all of these events had transpired does not establish



                                              9
that the robe was unusually flammable. While we agree with Appellant that under certain

circumstances, lay testimony may be sufficient to make out such a claim, under these

circumstances it was not. Accordingly, we will affirm the District Court’s entry of

summary judgment on Appellant’s manufacturing defect claim.

       Appellant also alleged that the robe failed to contain an adequate warning of its

unreasonable flammability. The statute defines an “[a]dequate product warning or

instruction” as “one that a reasonably prudent person in the same or similar circumstances

would have provided with respect to the danger and that communicates adequate

information on the dangers and safe use of the product, taking into account the

characteristics of, and the ordinary knowledge common to, the persons by whom the

product is intended to be used . . . .” N.J. Stat. Ann. § 2A:58-C-4.

       Appellant supports her failure to warn claim with the same cases as her product

defect claim, positing that her lay testimony is sufficient to establish that the robe was

unreasonably flammable and that it therefore should have contained a warning. In a

failure to warn claim, “the defect is the absence of a warning to unsuspecting users that

the product can potentially cause injury.” Coffman v. Keene Corp., 628 A.2d 710, 716

(N.J. 1993); Campos v. Firestone Tire & Rubber Co., 485 A.2d 305, 308 (N.J. 1984),

superseded by statute on other grounds as stated in Dewey v. R.J. Reynolds Tobacco Co.,

577 A.2d 1239 (N.J. 1990) (explaining that, under New Jersey law, manufacturers have a

duty to warn “foreseeable users of all hidden or latent dangers that would arise out of a



                                              10
reasonably anticipated use of [their] product[s]”). Thus, before reaching the question of

whether the product contained an adequate warning, plaintiff must first establish that

there was a latent danger of which the manufacturer had a duty to warn. See Mathews v.

University Loft Co., 903 A.2d 1120, 1125 (N.J. Super. Ct. App. Div. 2006); see also

Magistrini v. One Hour Martinizing Dry Cleaning, 109 F. Supp. 2d 306, 311 (D.N.J.

2000) (“In a failure to warn case, to show that a product is defective, and ultimately to

establish product-defect causation, the plaintiff must first establish that defendant had a

duty to warn.”); James v. Bessemer Processing Co., Inc., 714 A.2d 898, 908 (N.J. 1998)

(“Initially, the plaintiff must establish that the defendant had a duty to warn. To establish

such a duty, the plaintiff must satisfy ‘a very low threshold of proof in order to impute to

a manufacturer sufficient knowledge to trigger the duty to provide a warning of the

harmful effects of its product.’”); Michalko v. Cooke Color & Chem Corp, 451 A.2d 179,

187 (N.J. 1982) (holding that “a manufacturer is under a duty to warn owners and

foreseeable users of the dangers of using a particular machine if, without such a warning,

the machine is not reasonably safe”). Because Appellant failed to offer evidence

sufficient to demonstrate that her robe was excessively flammable, she has not

demonstrated that Appellee had a duty to warn her of such a risk. Accordingly, we agree

with the District Court that summary judgment in favor of Appellee on this claim was

proper.

       Based on the foregoing, we will affirm the judgment of the District Court.



                                             11
