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Deprimo v. Lehn & Fink Products Co.

Decided: December 18, 1987.

ADELE DEPRIMO, ET AL., PLAINTIFFS,
v.
LEHN & FINK PRODUCTS CO., ET AL., DEFENDANTS. ARDITH BURT, ET AL., PLAINTIFFS, V. LEHN & FINK PRODUCTS CO., ET AL., DEFENDANTS



Arnold, P.J.Cv.

Arnold

[223 NJSuper Page 267] On January 13, 1984 a flash fire erupted at the Lehn and Fink aerosol packing facility in Hillsborough Township, New Jersey. Several minutes later, there was a severe explosion. Plaintiffs, Adele DePrimo and Ardith Burt, employees of Lehn and Fink, were injured in the fire. In this action, they allege, among other things, that the manufacturer of each piece of machinery in the aerosol packaging facility had a duty to warn all the other manufacturers of machinery to make their machinery "explosion proof." These manufacturers now move for summary judgment arguing that the law does not impose such a duty to warn upon them. The research of counsel and the court indicates that this is a novel issue, and this opinion is intended to supplement the court's earlier oral opinion dealing with this issue.

The aerosol packaging facility was housed in one large room. The production line within that room was in the shape of a "U." Empty aerosol cans were loaded on a conveyor at one end of the "U," and traveled down one leg of the "U" where the cans were filled with certain ingredients and stamped with a code number. After making the first turn in the "U," the cans went through a "K-P" gassing room located in the base of the "U" where a flammable propellant, iso-butane, was inserted into the cans. Upon exiting the "K-P" room, the cans went through a weight check area where underweight cans were discarded. The conveyor line then turned to the other leg of the "U" and passed through a water bath designed to locate cans with pin hole leaks. After the cans emerged from the water bath, they were blown dry and carried to the end of the line where they were packed into cartons.

According to the report of plaintiff-DePrimo's expert, there were 12 processes performed at 12 stations on this "U" shaped production line. At station one there was a machine called a can depalletizer manufactured by defendant Wyard Industries. Between stations two and three there was a date coder, manufactured by defendant Dennison Corporation, which placed a date stamp on each can. At station three there were photoelectric controls manufactured by defendant Peco Controls Corporation. A filler machine manufactured by defendant Pacific Packaging was at station four, and a machine called a valve inserter manufactured by defendant PMC Industries was at station five. The "K-P" room was station six, and this room within a room was "explosion proof," meaning that all the equipment and machinery in the "K-P" room did not have an energy source capable of igniting flammable gas. Other machinery manufactured by defendants seeking summary judgment in their favor were at stations nine, ten and eleven. At station nine there was a machine called a case former manufactured by defendant Elliott Manufacturing Co. Consolidated Packaging manufactured a machine called a capping unit which was at station ten. A case picker manufactured by defendant

Vickers Miller Hydro loaded the cans into cartons at the end of the production line. Somewhere in the production line, other than in the vicinity of the water bath, there was a vacuum pump manufactured by Nash Engineering Company. None of the machinery at any of the stations, except station six, the "K-P" room, was "explosion proof." The manufacturers of the machinery mentioned above have moved for summary judgment.

According to the report of plaintiff-DePrimo's expert, the point of origin of the fire and resulting explosion was at the water bath at station eight. He was of the opinion that an energy source in the area of the water bath ignited iso-butane fumes leaking from aerosol cans in the area of the water bath, from the nearby can disposal area, and from the non-hermetically sealed "K-P" room. In his opinion, the fire and explosion would not have occurred if all the potential energy sources in the aerosol packaging facility had been "explosion proof." Plaintiff-Burt's expert is of the opinion that the ignition source was a button switch on the water bath at station eight.

This opinion deals only with the motions for summary judgment brought by equipment manufacturers whose machinery and equipment was not in the vicinity of the water bath. Each of these defendants argues that there is no proof that their machinery proximately caused the fire and explosion and that they do not have a duty to warn other equipment manufacturers to provide only "explosion proof" machinery.

In considering these motions for summary judgment, this court believes that recent events militate a conservative approach. In Anderson v. Liberty Lobby Inc., 477 U.S. 242, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986), the United States Supreme Court held that the test for determining whether a factual dispute is genuine for summary judgment purposes is whether a reasonable jury could find for the moving party. Such a determination requires the trial judge to weigh the evidence in light of the ultimate burden of proof. Our New

Jersey Supreme Court has taken a more conservative approach than the United States Supreme Court for evaluating a motion for summary judgment. In Dairy Stores, Inc. v. Sentinel Publishing Co., 104 N.J. 125 (1986) the New Jersey Supreme Court held that the traditional test, and not the Liberty Lobby test, is the test for deciding motions for summary judgment. It held that the test is not whether the finder of fact could, in light of the burden of proof, find for the non-moving party, but whether the affidavits have created a genuine issue of material fact. If there is such a genuine issue of material fact then the plaintiff is entitled to a trial on the merits and summary judgment is inappropriate. Dairy Stores, 104 N.J. at 156. This court, therefore, must use this traditional, conservative test to evaluate these defendants' motions for summary judgment.

Turning to the facts in this case, there is no factual dispute as to whether the equipment supplied by these defendants proximately caused the fire and explosion. Indeed, plaintiff-DePrimo's expert states in his report that the fire broke out at station eight and that it is "clear . . . that . . . the initial ignition source was not from any of the other major pieces of machinery in the aerosol line." Plaintiffs argue, however, that summary judgment is inappropriate because plaintiff-DePrimo's expert has also opined that each of these defendants had a duty to warn the manufacturer of every other piece of machinery and equipment in the aerosol packaging line that their equipment should be "explosion proof." Plaintiff-DePrimo's expert did not state how this duty arose, but opined that if all machinery and equipment in the line had been "explosion proof" the fire and resulting explosion would not have occurred.

Plaintiffs have not presented any authority to support their position. Indeed, the authority presented by defendants and the authority found by this court, while not directly on point, suggests that a manufacturer of a machine used in an assembly ...


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