Products Liability Law Daily Wrap Up, DEFENSES TO LIABILITY—SPORTS AND RECREATIONAL EQUIPMENT—N.J.Super. App. Div.: Injured user’s suit against exercise equipment sellers dismissed for failure to join necessary party, (Feb 9, 2021)

By Joshua Frumkin, Esq.

The court held that the potential comparative negligence of the product’s purchaser was not obviated by the sellers' strict liability under the New Jersey Products Liability Act.

In an action brought by an individual who was injured when an Iron Gym home workout product she was using allegedly collapsed, a New Jersey appellate panel affirmed the trial court's dismissal of the case against the product’s sellers. The panel noted that the user’s failure to include the consumer who had purchased, assembled, and installed the product was prejudicial to both the sellers and the user, as the Hawaii-based consumer might not be subject to New Jersey jurisdiction (Nikirk v. ConducTV Brands, February 4, 2021, per curiam).

In May 2016, a woman (the user) used an Iron Gym Xtreme Total Upper Body Workout Bar (the Iron Gym bar) that was purchased and installed by her friend (the consumer) in the consumer's home. The user and consumer were both residents of Hawaii at the time. Iron Gym products are typically installed, serviced, and otherwise maintained by the consumer. While being used, the Iron Gym bar became dislodged from the doorway and caused the user to fall and sustain serious injuries. The user sued ConducTV Brands (ConducTV) and Ontel Products Corporation (Ontel) (collectively, the sellers) in New Jersey. The sellers are both headquartered and have their principal places of business in New Jersey. Ontel purchased Iron Gym products from a Chinese manufacturer and sold them to retailers, who, in turn, sold them to third-party consumers. ConducTV sold Iron Gym products it purchased from Ontel.

The user argued that she was a foreseeable user and that the Iron Gym bar did not contain warnings or instructions to warn foreseeable users of its risks. ConducTV denied selling the Iron Gym bar to the consumer and asserted, based on photos provided by the user, that the consumer would have received written warnings and instructions provided by the manufacturer. Moreover, the Iron Gym bar was inspected by Ontel's product manager, who found that the device had undergone "numerous alterations" and was assembled improperly. The sellers moved to dismiss the complaint in April 2019.

Trial court proceedings. The trial court granted the motion to dismiss for failure to join a necessary party (the consumer) and dismissed the action subject to filing a new complaint in a more appropriate forum. The trial court ruled that the consumer should have been included because her alleged conduct arose from the same transaction, and that the sellers should be permitted to bring third-party claims against her. However, the trial court rejected the sellers’ motion to the extent that it sought dismissal under forum non conveniens. The user moved for reconsideration under a previously undiscussed arbitration clause between ConducTV and the consumer; this was denied because the arbitration clause was not supported by ConducTV's documentation. The user then appealed.

Necessary party. The court rejected the user's argument that under the New Jersey Products Liability Act (NJPLA), a comparatively negligent consumer cannot be indispensable to a strict liability action because comparative negligence cannot reduce the liability of a party being held to strict liability. To make a prima facie case of products liability under the NJPLA, a claimant must establish that the design was defective, that the defect existed when the product was distributed by the manufacturer, and that the defect caused injury to a reasonably foreseeable party. Harms that arise from allegedly negligent conduct can give rise to negligence actions under the NJPLA. Parties who are liable for negligence may be joint tort feasors with parties who are strictly liable under New Jersey's Comparative Negligence Act.

Here, the court held that a judgment issued without the consumer's inclusion could prejudice the sellers. The consumer's absence would prevent the sellers from asserting claims or cross-claims against her. Moreover, the court found that New Jersey might not have jurisdiction over the consumer, who was a Hawaii resident. Any supplementary action against the consumer would be subject to different state laws and risk an inconsistent and irreconcilable judgment. The court also rejected the user's argument that the Comparative Negligence Act had no effect on strict liability cases as a matter of law. The court explained that the user had misapprehended case law: the cases she cited eliminated comparative negligence when the party encountered risk as part of workplace activities, not in all products liability cases. Further, the court explained that strict liability for a defective product requires that the manufacturer or seller be responsible for the defective product. Here, if the consumer was the sole cause of the user's injuries, the user could be barred from recovery in New Jersey because the consumer might be outside the state's jurisdiction. Consequently, the court held that the consumer was an indispensable party to the action; because she could not be joined, the court upheld the trial court's dismissal of the action.

The case is No. A-1217-19T3.

Attorneys: Thomas N. Sweeney (Messa & Associates, PC) for Kathryn Nikirk. Diane Fleming Averell (Porzio, Bromberg & Newman, PC) for ConducTV Brands. Catherine G. Bryan (Connell Foley, LLP) for Ontel Products Corp.

Companies: ConducTV Brands; Ontel Products Corp.

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