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Mowrey v. Duriron Co.

Decided: November 13, 1992.

GEORGE C. MOWREY AND JUDITH A. MOWREY, HIS WIFE, PLAINTIFFS-APPELLANTS,
v.
DURIRON COMPANY, INC., A NEW JERSEY*FN1 CORPORATION, W.J. BARNEY COMPANY; JOHN DOE, A FICTITIOUS NAME, ABC COMPANY, INC., A FICTITIOUS NAME, DEFENDANTS-RESPONDENTS



On appeal from the Superior Court of New Jersey, Law Division, Morris County.

Dreier, Skillman and Villanueva. The opinion of the court was delivered by Dreier, J.A.D.

Dreier

Plaintiffs, George and Judith Mowrey, appeal from a dismissal of their complaint on forum non conveniens grounds. On March 22, 1991, plaintiffs filed their complaint against Duriron Company, Inc., W.J. Barney Corporation (incorrectly named as "Company" in the caption), and fictitious individuals and entities. Plaintiffs sought damages for personal injuries sustained by George Mowrey on March 25, 1989, when, during the course of his employment at Pfizer, Inc. in Groton, Connecticut, steam escaped from a hose he was carrying. Plaintiffs alleged that a valve in the hose was defective and improperly installed. Plaintiffs named as defendants Duriron, the manufacturer of a valve sold to Pfizer in 1975, and W.J. Barney, the installer of the valve.

Duriron filed its answer on July 19, 1991, and on July 26, 1991 filed a motion to dismiss on the grounds of forum non conveniens. The Judge initially denied that motion. W.J. Barney later filed its answer and similarly filed a motion to dismiss on the grounds of forum non conveniens. Duriron joined in that motion. After hearing oral argument, the Judge granted defendants' motions.*fn2

Plaintiff's injury occurred when he began to move a hose manually from one vat to another at the Pfizer plant. As he was doing this, a co-worker turned a connecting valve several feet away. Steam escaped through the open end of the hose and inflicted first, second and third degree burns over forty percent of plaintiff's body.

Plaintiffs George and Judith Mowrey are residents of Westerly, Rhode Island. John Chandler, the Pfizer employee who gave plaintiff George Mowrey job training and who is a potential witness, also lives in Westerly, Rhode Island.

Plaintiff received all of his medical treatment in Connecticut hospitals. All medical witnesses are in Connecticut. Plaintiff filed his worker's compensation claim in Connecticut. Plaintiff's co-worker, Neil Campbell, who turned the Duriron valve and witnessed the accident, lives in Stonnington, Connecticut.

Duriron is a New Jersey corporation but manufactured the valve, model "FAG341," in Dayton, Ohio,*fn3 where it also maintains its principal place of business. Bernard Green, a Senior Engineer for Duriron, who possesses knowledge of the valve and who is a potential witness, is employed by Duriron in Dayton, Ohio. Duriron also operates a plant in Pine Brook, New Jersey. It maintains no contacts with the state of Connecticut beyond the mere shipping of valves.

W.J. Barney is a New York corporation with its principal place of business in New York City. Barney is authorized to do business in New Jersey and maintains an agent in the state.

Under the doctrine of forum non conveniens a court may decline jurisdiction whenever "the ends of Justice" suggest that plaintiff's chosen forum is inappropriate. Civic Southern Factors v. Bonat, 65 N.J. 329, 332-333, 322 A.2d 436 (1974); Gore v. United States Steel Corp., 15 N.J. 301, 305, 104 A.2d 670, cert. denied, 348 U.S. 861, 75 S. Ct. 84, 99 L. Ed. 678 (1954). In evaluating whether the "ends of Justice" require rejection of plaintiff's chosen forum, the court may determine whether defendant will suffer a serious inconvenience if the case proceeds in plaintiff's chosen forum. See Wangler v. Harvey, 41 N.J. 277, 286, 196 A.2d 513 (1963). More importantly, the transfer must not result in any significant hardship to plaintiffs. Ibid.

Once it is determined that plaintiffs will not be adversely affected by the transfer of jurisdiction, the defendant must demonstrate that the plaintiff's chosen forum is "demonstrably inappropriate." Kreuzer v. Kreuzer, 230 N.J. Super. 182, 186, 553 A.2d 55 (App.Div.), certif. denied, 117 N.J. 118, 564 A.2d 848 (1989); see Civic Southern Factors, supra, 65 N.J. at 333, 322 A.2d 436. A mere balancing of conveniences is not sufficient to defeat plaintiff's choice and warrant dismissal. D'Agostino v. Johnson & Johnson, Inc., 225 N.J. Super. 250, 262, 542 A.2d 44 (App.Div.1988), aff'd o.b., 115 N.J. 491, 559 A.2d 420 (1989) (" D'Agostino I").

Courts may consider both public and private interest factors in determining whether plaintiff's forum is demonstrably inappropriate. Private interest factors include the accessibility of proof, availability of compulsory process, availability of witnesses and the necessity of viewing the premises. D'Agostino I, 225 N.J. Super. at 263, 542 A.2d 44 (incorporating the factors proposed in the seminal case of Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-509, 67 S. Ct. 839, 843, 91 L. Ed. 1055, 1062-1063 (1947)); Westinghouse v. Liberty Mutual ...


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