On appeal from the Superior Court, Law Division, Essex County.
Botter and Pressler. The opinion of the court was delivered by Pressler, J.A.D.
This is an appeal in a multi-issue, multi-party products liability case having its genesis in a kitchen fire which occurred at a restaurant owned and operated by plaintiff Lee's Hawaiian Islanders, Inc. (Lee's). The fire damage which Lee's sustained was allegedly caused by defects in two distinct and separate products. The first was a deep fat fryer manufactured by third-party defendant Pitco., Inc., which, because of an alleged safety device failure, caused the oil to reach its combustion point and ignite. The second was an automatic fire suppression system designed and manufactured by defendant Chemetron Fire Systems (Chemetron) and installed by defendant Safety First Products, Inc. (Safety First). It is alleged that the fire suppression system failed to operate properly and therefore failed to extinguish or reasonably contain the fire caused by the igniting oil. Ultimately, Safety First and Pitco were held liable, and both appeal.
The issues raised on appeal can best be understood in the context of the procedural history of the litigation. Lee's initially instituted this action against Safety First only, alleging negligence, breach of warranty, and strict liability in tort.*fn1 Safety First then filed two separate third-party complaints, one against Chemetron and the other against Pitco, each of which sought contribution or, in the alternative, indemnification from the third-party defendants. Lee's amended its complaint to assert an affirmative claim against Chemetron but did not do so
as against Pitco. Pitco's liability, therefore, was limited to Safety First's claim for indemnification or contribution.
Prior to trial, Chemetron moved for summary judgment dismissing all affirmative claims made against it. Its contention was that no facts of record supported the inference that there was either a design or a manufacturing defect in the system. This motion was granted, and trial proceeded against Safety First and Pitco. Following the close of all of the evidence and after Safety First's unsuccessful motion for dismissal of the complaint, plaintiff moved for a directed verdict against Safety First. This motion was granted, and partial judgment was entered in plaintiff's favor for that portion of the damages which had been stipulated, namely, the damage to the building and the kitchen equipment in the amount of $56,408. Two questions were then submitted to the jury. The first was the amount, if any, of the balance of plaintiff's damages, which it sought on the basis of loss of profits, the value of food destroyed or rendered unusable by the fire, and the cost of other work that had to be done in the restaurant in order for plaintiff to resume its operation. The second question submitted to the jury was whether there was a defect in Pitco's fryer which was also a proximate cause of the fire. The jury returned a verdict finding that the balance of Lee's damages was $103,000 and holding Pitco liable for manufacturing a defective product. The trial judge awarded prejudgment interest pursuant to R. 4:42-11(b) on the total damages of $169,408, for a total award to plaintiff of $200,854. Having denied Safety First's request that the jury allocate percentages of negligence as between it and Pitco, the judge then divided the verdict in half, holding that Safety First and Pitco were joint tortfeasors equally responsible for the payment of the total award and each entitled to pro rata contribution from the other. Both Safety First and Pitco unsuccessfully moved for a new trial or, in the alternative, for a remittitur, and both appeal from the pretrial summary judgment in favor of Chemetron,
from the jury verdict, from the directed verdict against Safety First, and from the denial of their post-trial motions.
The questions before us implicate both damages and liability issues. The liability issues are, first, whether summary judgment dismissing the claims as to Chemetron was properly entered, and second, whether Safety First's liability was properly determined by way of a directed verdict. The damages questions are, first, whether plaintiff's loss of profits claim was properly submitted to the jury; second, whether Pitco, who was first made a party to the action some 15 months after the filing of the initial complaint, should have been held liable for a pro rata share of interest calculated as of the date of the complaint; and third, whether principles of comparative negligence applied to Safety First's contribution claim against Pitco require an allocation of percentage of liability as between them rather than an equal pro rata sharing.
We address first the liability issues. Preliminarily Pitco does not claim that there was insufficient proof to warrant the jury's finding of an actionable defect in its product, the fryer. Its argument is, rather, that since it had not been made a direct defendant by Lee's, its liability is only to Safety First for contribution. Thus, as it correctly contends, if Safety First is not liable to plaintiff, then Pitco would have no liability at all. Pitco therefore argues, as does Safety First, that Safety First was entitled to a directed verdict of dismissal or, in the alternative, that the question of Safety First's liability should have been submitted to the jury. Both Safety First and Pitco also argue that the summary judgment dismissing the action as against Chemetron was erroneously entered and that both therefore are entitled to indemnification from Chemetron or to contribution by it as a third tortfeasor.
Since there is no real dispute as to the existence of the defect in the fryer, we need only address the proofs respecting the alleged defects in the fire suppression system. In this respect, we are satisfied tht Chemetron was improperly let out of the
case and that the question of both Chemetron's and Safety First's liability should have ...