when an employee is injured in an industrial setting while using a defective product supplied by the employer for its intended or foreseeable purposes. Suter, 81 N.J. at 167-68. Because an industrial employee has no choice but to use the product to complete his or her assigned task, "the law does not accept the employee's ability to take care of himself as an adequate safeguard" of the interests society seeks to protect. Id. at 167.
Id. Thus, the clear import of the Suter decision prevents defendants in a products liability action from asserting the defense of contributory or comparative negligence against a plaintiff/employee injured at the workplace. The Suter court announced:
In our view an employee engaged at his assigned task on a plant machine . . . has no meaningful choice. Irrespective of the rationale that the employee may have unreasonably and voluntarily encountered a known risk, we hold as a matter of policy that such an employee is not guilty of contributory negligence.
Suter, 81 N.J. at 167 (citations omitted) (footnote omitted). In the omitted footnote the court stated: "We are not passing upon other situations wherein an employee may similarly be held to have had no meaningful choice." Id. at 167 n.5.
Seizing upon the court's ambiguous language in the footnote, defendant argues that Suter is inapplicable to this case because plaintiff did have a "meaningful choice." Specifically, defendants assert that plaintiff could have used a ladder instead of climbing up the form itself, or plaintiff could have obtained another safety belt which was equipped with a safety hook large enough to fit into the form.
To the contrary, plaintiff asserts that the Suter court, as a matter of policy, barred use of the contributory negligence defense in all actions where an employee is engaged in an assigned task. Plaintiff contends that even if other options were theoretically available Suter precludes this type of analysis.
Because the New Jersey Supreme Court has not defined the contours of a purported "meaningful choice" distinction, this court, a federal court sitting in diversity, must predict how the New Jersey Supreme Court would rule if presented with the facts of this case. Erie R.R. v. Tompkins, 394 U.S. 64, 78 (1938). In making this determination the court may look to the state lower court decisions as "indicia of how the state's highest court might decide" the issue. Pennsylvania Glass Sand Corp. v. Caterpillar Tractor Co., 652 F.2d 1165, 1167 (3d Cir. 1981). It should be noted, however, that "state intermediate appellate courts are not automatically controlling where the highest court of the state has not spoken on the point and there is evidence that the higher court would rule otherwise." Butler v. Sherman, Silverstein & Kohl, P.C., 755 F. Supp. 1259, 1265 (D.N.J. 1990)(citing National Surety Corp. v. Midland Bank, 551 F.2d 21, 29 (3d Cir. 1977)).
It is the opinion of this court that if confronted with the facts of this case the New Jersey Supreme Court would strike the defendants' comparative negligence defense. This conclusion is bolstered by the clear and unambiguous language of the court in Suter.
As previously noted, the Suter court held that an employee engaged in his assigned task has no meaningful choice. Hence, the court unambiguously stated that as a matter of policy such employee would not be guilty of contributory negligence. The state intermediate appellate courts, however, have obscured the issue.
In Crumb v. Black & Decker, Inc., 204 N.J. Super. 521, 499 A.2d 530 (App. Div. 1985), certif. granted, 102 N.J. 386 (1985), appeal dismissed, 104 N.J. 432 (1986), the New Jersey Superior Court, Appellate Division, rejected an argument similar to the one employed by the plaintiff in this case. The court, without benefit of supporting citation, stated that the Suter test "is not simply whether plaintiff was injured while performing a task in the course of his employment. Such is a worker's compensation standard, not that applied in a products liability case." Id. at 527. The Crumb court stated that the "essence of the Suter rule is that the employee had no meaningful choice." Id. The court, however, never discussed what was meant by "meaningful choice"; instead, the court reiterated the Suter court's intent: "[the employee] either worked at his assigned task or was subject to discipline or being labeled as a troublemaker." Id. After taking note of this principle, the Crumb court decided the case on another ground.
Similarly, the Appellate Division's discussion of "meaningful choice" in Tirrell v. Navistar Int'l, Inc., 248 N.J. Super. 390, 401, 591 A.2d 643 (App. Div. 1991), is not helpful. In Tirrell, the court held that the plaintiff "had no meaningful choice" in the performance of his job. Id. The appellate court reached this conclusion without discussion of what was meant by "meaningful choice." Id.
Recently, the New Jersey Supreme Court has been less ambiguous. In Johansen, the court was not called upon to address the precise issue presented to this court. Nevertheless, the court's discussion is instructive. In its recitation of the Suter standard no mention is made of any meaningful choice distinction; instead, the court reminds that "in determining a manufacturer's liability for an allegedly defective product, the inquiry should focus on the condition of the product, not the plaintiff's use of care in operating the product." Johansen, 128 N.J. at 95. Thus, it is apparent that in a workplace, products liability action the issue is confined to whether the product was defective and, if so, whether the defect rendered the product unfit for its intended or reasonably foreseeable purposes.
This result is bolstered by the court's overriding rationale established in Suter, namely that "it would be anomalous to hold that defendant has a duty to install safety devices but a breach of that duty results in no liability for the very injury the duty was meant to protect against." Suter, 81 N.J. at 167.
Therefore, the court will grant the plaintiff's motion to strike defendants' comparative negligence defense. An order accompanies this opinion. No costs.
ORDER - August 6, 1992, Filed and Entered
This matter having been brought before the court on the motion of plaintiff, James Edwin Glendenning, to strike the defense of comparative negligence as to all defendants; and the court having considered the submissions and arguments of the parties; and for good cause shown;
It is on this 3rd day of August, 1992
ORDERED that plaintiff's motion to strike the defense of comparative negligence as to all defendants be and is hereby granted.
CLARKSON S. FISHER
United States District Judge
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