On appeal from the Superior Court, Law Division, Union County.
Furman, Petrella and Cohen. The opinion of the court was delivered by Furman, P.J.A.D.
Both infant plaintiffs and defendant General Electric Company (GE) appeal from summary judgments in favor of defendants The Clorox Company (Clorox) and Elizabethtown Gas Company (Elizabethtown), which, although interlocutory, were certified by the trial court as final judgments. Defendant GE appeals without leave of court from the denial of summary judgment in its favor, also an interlocutory order.
GE's interlocutory appeal without leave was calendared before us by administrative error. We discern no good cause for exercising our jurisdiction under R. 2:4-4(b)(2) to grant
leave to appeal nunc pro tunc. We dismiss GE's appeal from the denial of summary judgment in its favor.
The trial court's certification of the summary judgments in favor of Clorox and Elizabethtown as final judgments was a mistaken application of R. 4:42-2. The intention of that rule, as clarified by the amendment to it effective January 2, 1986, is to permit execution on a partial judgment fully adjudicating a separable claim for affirmative relief of all claims by or against a single party; its intention is not to provide a mechanism for interlocutory appellate review. Pressler, Current N.J. Rules, Comment R. 4:42-2 (1986).
On this record the trial court's certification leads to truncation of the litigation by partial appellate review of the issues pleaded, while other issues, including the issues of liability against defendants Taylor and Abate Amoco Station, remain unresolved and awaiting trial. Granting leave for interlocutory appeal should be within our exclusive authority as an exercise of our discretion "in the interest of justice," R. 2:2-4. An improvident certification by a trial judge is not binding upon us. As we said in Delbridge v. Jann Holding Company, 164 N.J. Super. 506, 510 (App.Div.1978), "[ R. 4:42-2] was not intended to permit trial judges to control appellate calendars by granting, in effect, a motion for leave to appeal."
Nevertheless under the circumstances, including the extensive briefing of the issues and the elapse of more than a year and a half, we do not dismiss plaintiffs' and GE's appeals from the summary judgments in favor of defendants Clorox and Elizabethtown. We affirm both summary judgments on the merits.
Infant plaintiffs, then aged 4 and 2, were burned in a flash fire in the cellar of their home. Gasoline vapors were ignited by an intermittent electric spark ignition system, which was exposed by air venting, in their parents' GE clothes dryer. The dryer was gas-fired. Elizabethtown supplied the gas. The
gasoline had been stored in a used and empty Clorox bottle on the third stair from the bottom of an outside flight of stairs leading to the cellar. The dryer was in the cellar, several feet from the door to the outside stairwell. Sometime before, the injured plaintiffs' mother had taken the Clorox bottle to defendant Abate Amoco Station and had it filled with gasoline for use in the family's power lawn mower. Infant plaintiffs had been playing in the general area of the cellar and the outside stairwell. Without explanation in the record, the Clorox bottle upset and its cap loosened and fell off. Gasoline spilled down the stairs, through the open cellar doorway and along the cellar floor approaching the dryer.
Indisputably on the record, gas from the dryer did not cause or contribute to causing the flash fire or any intensification of it; no residue of Clorox in the Clorox bottle contributed in any way to ...