On appeal from the Superior Court of New Jersey, Law Division, Middlesex County.
Dreier, Gruccio and Brochin. The opinion of the court was delivered by Dreier, J.A.D.
Plaintiff appeals by leave granted from an interlocutory order determining that defendant Foremost Electro-Service Co. was neither a manufacturer nor seller within the meaning of the 1987 Product Liability Act, N.J.S.A. 2A:58C-1 et seq., and that plaintiff's claim against Foremost could only be founded on
the theory of negligence to which a defense of comparative negligence would be applicable. The matter had been partially tried before a different Judge who determined to bar the comparative negligence defense. That trial ended in a mistrial. We here explore (1) the meaning of the terms "manufacturer or seller" as used in N.J.S.A. 2A:58C-2, and (2) the limited application of comparative negligence in a workplace injury setting.
Plaintiff Carlos Ramos, then 20 years old, was injured on September 10, 1986 while attempting to tie a line from a docking tanker to a capstan at the Linden terminal dock owned by his employer, Citgo Petroleum Corporation. The capstan was installed in 1974 by defendant Silent Hoist & Crane Co., which along with the owners of the tanker, have settled with plaintiff, leaving Foremost as the sole defendant. The capstan was installed by Silent Hoist and was equipped with an electric motor so that it could rotate after a line was secured to one of its horizontal posts.
Citgo's predecessor, Cities Service Oil Co., determined not to have Silent Hoist provide the electricity to the capstan, but rather to have Foremost, an electrical contracting company which Cities Service maintained on retainer, run the electric line to the capstan and provide the controls. Foremost was under an annual contract "to supply labor, material and equipment to provide inspection, repairs, maintenance and wiring on all electric equipment as requested by Cities Service Oil Company, Linden, New Jersey Terminal." The invoice from Foremost to Cities Service dated August 30, 1975 shows that from August 7 to August 20 Foremost had installed the conduit for new winches at the dock, mounted the "motor, starter and stop-start station" for the winch and made all connections, both for the winch that caused plaintiff's injuries and a second winch at the north end of the dock. There is no dispute that Foremost chose the location of the switch and to this extent designed the
electrical system connecting the motorized winch to a power source.*fn1 The total charge for labor and material was $1,870.46.
On the day of the accident, a crew member of the Netherlands tanker Jo Birk, about to dock at the Citgo pier, indicated to plaintiff by hand motions that he should tie a messenger line (a one inch line which is used to draw in a four inch docking hawser) to the capstan. The messenger line was to be drawn in by the rotating capstan, after which the hawser would be attached to a large dock-side cleat, whereupon an on-board winch would bring the ship against the dock. Ordinarily, a four-man docking crew would perform this maneuver on the Citgo dock.*fn2 The docking crew was not there, and plaintiff assumed, apparently incorrectly, that since he was at the location he should perform this service, although it was not part of his regular job.
Plaintiff walked over to the on-off switch located approximately ten feet from the capstan and turned on the power. He then returned to the capstan and attached one end of the messenger line to the rotating capstan, causing the messenger line to begin to be wrapped around the capstan, and creating a pinch-point between the incoming line and the capstan surface. There was no guard on the capstan, and plaintiff's hand became caught in the pinch-point drawing the rest of his body into the area between the line and the surface of the capstan. Since the controls were far away and the capstan as originally manufactured provided for no emergency safety switch on the capstan
or itself within reach of it, plaintiff could not stop the rotation of the capstan. The messenger line wrapped around plaintiff's body causing multiple fractures and other substantial injuries, requiring the eventual amputation of his leg.
II -- Duties of Manufacturer or Servicer
Plaintiff contends that Foremost, as the designer and installer of the electrical connections to the rotating capstan, is a "manufacturer or seller of a product" within the meaning of N.J.S.A. 2A:58C-2. Foremost asserts that it merely provided the service of designing and installing electric wiring and a switch, and thus it falls outside of the ambit of the statute. Although the parties belatedly came to realize that this action could be controlled by the Product Liability Act, the issue was distinctly framed before the trial Judge who held that Foremost was not a "manufacturer or seller," and thus plaintiff was relegated to his negligence claims against Foremost.
In this case there is a fine line separating the designations of a seller or manufacturer as opposed to a supplier of a service. But, as we will demonstrate, in this case such designations provide a distinction without a difference.
As we noted in Tirrell v. Navistar Int'l., Inc., 248 N.J. Super. 390, 398, 591 A.2d 643 (App.Div.1991), certif. denied, 126 N.J. 390, 599 A.2d 166 (1991), the Legislature has consolidated the negligence, breach of warranty and strict liability theories for product liability claims into a single "product liability action" under N.J.S.A. 2A:58C-1 et seq. We there stated:
Since a product liability action encompasses " any claim or action brought by a claimant for harm caused by a product," N.J.S.A. 2A:58C-1, (emphasis added), and section 2 describes the sole method of proof, namely that recognized for strict liability claims, it is clear that common-law actions for negligence or breach of warranties (except express warranties) are subsumed within the new ...