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Gantes v. Kason Corp.

Decided: November 16, 1993.

SAMUEL GANTES, ADMINISTRATOR AD PROSEQUENDUM OF GRACIELA GONZALEZ, ON BEHALF OF THE ESTATE OF GRACIELA GONZALEZ AND ON BEHALF OF THE HEIRS-AT-LAW OF GRACIELA GONZALEZ, PLAINTIFF,
v.
KASON CORPORATION, OTTO CUYLER ASSOCIATES AND XYZ CO. I-V (BEING FICTITIOUS BUSINESS ENTITIES WHOSE IDENTITIES ARE CURRENTLY UNKNOWN), DEFENDANTS.



Beglin, A.j.s.c.

Beglin

BEGLIN, A.J.S.C.

On February 27, 1991, Graciela Gonzalez, a resident of Gainesville, Georgia, was employed at the Dutch Quality House, a food processing plant in Gainesville. It is alleged that while working on a shaker machine used to separate chicken parts, she was struck in the head by one of the machine's moving parts, causing her death.

Kason Corporation, the defendant, is a New Jersey corporation with its principal place of business in Linden, New Jersey. It manufactured the machine in question, a 48" Kason Vibroscreen, and sold it to Salvo Corporation, of Fall River, Massachusetts, for shipment to Synder's Potato Chips, of Berlin, Pennsylvania in 1977. Snyder sometime after April 1985 sold the machine to Otto Cuyler Associates, who in turn sold it to Dutch Quality House. There is some question as to whether Kason manufactured the machine at its New Jersey plant or at its facility in Champlain, New York, as the Order itself is stamped "Received, September 9,

1977, Kason Corporation, Champlain, N.Y.", but all subsequent documentation including order confirmation from both buyer and seller, and shipment instructions and order appear to have issued from the New Jersey facility. For purposes of this motion, the Court will assume the machine was manufactured by Kason in New Jersey. It should be noted, however, that the machine appears to bear a serial number with the prefix KC, indicating according to defendant that the place of manufacture was Champlain, New York.

Defendant has moved for dismissal of the complaint on conflict of laws and forum non conveniens grounds. Because the motion introduces facts outside the pleadings, it is to be treated as one for summary judgment. R. 4:6-2.

The parties agree that if this action were instituted in Georgia, it would be subject to that jurisdiction's 10 year statute of repose:

No action shall be commenced...with respect to any injury after ten years from the date of the first sale for use...of the personal property causing or otherwise bringing about the injury. O.C.G.A. 51-1-11(b)(2).

By its terms, the statute applies to a product liability action such as this, and the period of repose commences to run when the manufactured item is placed in the stream of commerce. Thorpe v. Robert F. Bullock, Inc., 179 Ga. App. 867, 348 S.E.2d 55 (Ga.Ct.App. 1986) aff'd. 256 Ga. 744, 353 S.E.2d 340 (Ga.S. Ct. 1987). Here, the vibroscreen was shipped to Snyder's Potato Chips on November 1, 1977, more than ten years before plaintiff's decedent sustained her injuries. Clearly, if this motion is granted, plaintiff is barred from instituting a comparable negligence and strict liability action in Georgia. Hatcher v. Allied Products Corp., 796 F.2d 1427 (11th Cir. 1986), LFE Corp. v. Edenfield, 187 Ga. App. 785, 371 S.E.2nd 435 (Ga.Ct.App. 1988).

In Heavner v. Uniroyal, Inc., 63 N.J. 130, 305 A.2d 412 (1973), a case not unlike this, residents of North Carolina brought suit in New Jersey for injuries sustained in an accident in North Carolina allegedly caused by a defective tire manufactured by a New Jersey company which was on a truck trailer purchased by the

plaintiff in North Carolina. At the time of commencement of the action, the applicable North Carolina statute of limitations had expired and any action in that state was barred. By bringing the action in New Jersey, the plaintiffs raised the choice of law question of whether New Jersey as the forum state should apply its statute of limitations or that of North Carolina. The Court decided "to discard the ...


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