states that "a manufacturer cannot escape its duty to employees by 'merely sending a warning letter and a new [safety device] to be installed on the machine.'" Coffman, 133 N.J. at 606 (quoting Seeley, 256 N.J. Super. at 14.
Leach attempts to distinguish Seeley as a case involving only a manufacturer's obligation to correct a design defect as distinguished from its continuing duty to warn. An examination of cases upon which both Seeley and Coffman relied, however, suggests that that distinction is not as crucial as Leach purports.
In one of those cases, Stephenson v. R.A. Jones & Co., Inc., 103 N.J. 194, 510 A.2d 1161 (1986), the court held that a "manufacturer that knows its machines are defective has a duty to employees of the purchaser to correct the defect and may not rely on the purchaser-employer to make the necessary correction." Id. at 200 (citing Michalko v. Cooke Color & Chem. Corp., 91 N.J. 386, 400, 451 A.2d 179 (1982)). Michalko itself, which was also independently cited by both Seeley and Coffman, held that "a manufacturer is under a duty to warn owners and foreseeable users of the dangers of using a particular machine if, without such a warning, the machine is not reasonably safe." Michalko, 91 N.J. at 403. Furthermore, Michalko pointed out that a duty to warn arises, in the same way as a duty to correct a design defect, because without adequate warnings, a product is deemed defective. Id. at 402 (citing Beshada v. Johns-Manville Corp., 90 N.J. 191, 208-09, 447 A.2d 539 (1982); Freund v. Cellofim properties, 87 N.J. 229, 239-41 (1981)).
The holdings in Seeley and Coffman are therefore not logically limited to a manufacturer's duty to correct a physical design defect, but include Michalko's recognition that inadequate warnings are themselves a design defect. The crucial distinction between the two is that a manufacturer has no duty to correct a physical design that was considered state of the art at the time of its manufacture, whereas it does have a duty to warn of dangers in its product exposed by advances in the state of the art. Seeley, 256 N.J. Super. at 14-15 & n.7.
Seeley's holding that sending a warning letter and a corrective component to an employer was legally insufficient to satisfy its duty to correct design defects is therefore properly recognized through Coffman as applying both to its continuing duty to warn and to correct physical design defects. Therefore, where a physical correction is not required because the original design was considered state of the art, a manufacturer is still under a continuing duty to warn foreseeable users of its product and cannot legally satisfy that duty by merely sending warning letters to an employer. Although Leach's position would be defensible if there were a greater duty to warn of dangers posed by a state of the art product than those exposed through advances in the state of the art, no such distinction is apparent in the case law. Furthermore, such a distinction would seem contrary to the public policy justification for a imposing a continuing duty to warn, that being "because a warning could make [the product] safer at virtually no added cost without limiting its utility." Michalko, 91 N.J. at 402 (quoting Besheda, 90 N.J. at 201.)).
Leach claims to have sent warning letters to customers including Sanitation Equipment, but admits that it was unaware of the existence of Circle Carting and therefore sent it no letters. (Pls.' Br. at 75; Leach's Opp'n Br. at 28-29.) Even if it had sent letters to Circle Carting, however, it still would have failed as a matter of law to satisfy its continuing duty to warn foreseeable users of dangers posed by its product.
The plaintiff's tenth motion in limine will therefore be granted with respect to Leach.
II. Defendants' Motions for Summary Judgment
SUMMARY JUDGMENT STANDARDS
Summary judgment is appropriate where the moving party establishes that "there is no genuine issue as to any material fact and that [it] is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). The moving party must show that if the evidentiary material of record were reduced to admissible evidence in court, it would be insufficient to permit the non-moving party to carry its burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).
Once the moving party has carried its burden under Rule 56, "its opponent must do more than simply show that there is some metaphysical doubt as to the material facts in question." Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986), rev'g, 723 F.2d 238 (3d Cir. 1983). The opposing party must set forth specific facts showing a genuine issue for trial and may not rest upon the mere allegations or denials of its pleadings. Sound Ship Building Co. v. Bethlehem Steel Co., 533 F.2d 96, 99 (3d Cir. 1976), cert. denied, 429 U.S. 860, 50 L. Ed. 2d 137, 97 S. Ct. 161 (1976).
At the summary judgment stage the court's function is not to weigh the evidence and determine the truth of the matter, but rather to determine whether there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The mere existence of some alleged factual dispute between the parties, however, will not otherwise defeat a properly supported motion for summary judgment. Id. at 247-248.
1. White Brothers
Defendant White Brothers asserts three points in its motion for summary judgment: (1) that it was not a "seller" of the garbage truck within the meaning of N.J.S.A. 2A:58C-1 and is therefore entitled to summary judgment on the plaintiffs' products liability claims; (2) that its alleged negligence could not have been a proximate cause of Straley's injuries and that it is therefore entitled to summary judgment on the plaintiffs' negligence claims; and (3) that in the alternative, the testimony of plaintiffs' investigator Al Cafferata should be barred at trial.
Although strict products liability applies to a party "engaged in the business" of selling a product which is defective, such liability does not apply to an occasional seller not engaged in the activity as a regular part of its business. Acevedo v. Start Plastics, Inc., 834 F. Supp. 808, 811 (E.D. Pa. 1993); Santiago v. E.W. Bliss Div., Gulf & Western Mfg. Co., 201 N.J. Super. 205, 216, 492 A.2d 1089 (App. Div. 1985); Restatement (Second) of Torts § 402A & Comment F (1965).
White asserts that its purchase of the garbage truck in question was merely an occasional sale and that the sale of used trucks is not a regular part of its business. The plaintiffs counter, however, that three years following White's purchase of the truck from Waste Disposal for $ 32,000, it traded in the truck to Cambria and received $ 33,000 in credit toward the purchase of new vehicles. Cambria, in turn, sold the truck to Circle Carting. The plaintiffs assert that White has engaged in more than 200 similar transactions with Cambria and that its accrual of economic benefits from those transactions is significant and regular enough to make it a "seller" for purposes of products liability.
Neither party has succeeded in providing case law that resolves its position as a matter of law in light of the facts of this case. Rather, this is clearly a situation in which the characterization of White's activities is within the proper province of the jury. White's motion for summary judgment on the plaintiffs' product liability claims will therefore be denied.
As to the negligence claims, White argues that its alleged negligence could not be deemed the proximate cause of Straley's injuries because even if it was negligent in failing to add or maintain a backup alarm, the subsequent owners' failure to do the same would constitute a superseding cause of the injuries. (White's Moving Br. at 13 (citing Restatement, supra, § 452(2)).)
The plaintiffs point out, however, that subsequent supervening causes, including the negligence of a third party, will not serve to break the chain of causation if those causes are foreseeable to the originally negligent party. (Pls. Opp'n Br. at 16.); Torsiello v. Whitehall Laboratories, 165 N.J. Super. 311, 327, 398 A.2d 132 (App. Div. 1979), certif. denied, 81 N.J. 50 (1979). The foreseeability of such intervening causes is properly a jury question. Id.
Because the foreseeability of subsequent negligence cannot be resolved as a matter of law based on the facts of this case, the issue is a jury question and White's motion for summary judgment on the plaintiffs' negligence claims will therefore be denied.
Finally, in the alterative to its summary judgment motions, White contends that the testimony of the plaintiffs' investigator, Al Cafferata, should be barred as violative of Fed. R. Civ. P. 401 or 403. Plaintiffs intend to call Cafferata as a rebuttal witness to challenge the credibility of White's president, Vincent Apice. At his deposition, Apice stated that when White purchased the truck in question, it did not contain warning decals. (Pls.' Opp'n Br. at 20.) Apice additionally stated that he had never seen a decal warning of the dangers posed by the riding step on any truck manufactured by Mack or Leach and that he was unaware of the existence of such a decal on any truck owned by White. (Id. at 20-21.)
Cafferata intends to testify that one month after Apice's deposition, on May 13, 1993, he photographed nineteen garbage trucks entering or leaving White Brothers, each of which had a Leach compactor and every one of which bore a warning decal above the right rear riding step. White contends that the testimony should be excluded under Fed. R. Civ. P. 401 as irrelevant because it fails "to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Id. The plaintiffs' point out, however, that the evidence is relevant to Apice's credibility because White denies receiving any safety bulletins from Leach regarding the need for affixing warning decals to the garbage trucks and the need for functioning backup alarms. Apice's credibility is at issue on this point and that the proposed testimony is relevant for that reason. A jury could permissibly construe the testimony as detracting from Apice's credibility on an issue relevant to the case.
White next contends that the evidence should be excluded as unfairly prejudicial under Fed. R. Civ. P. 403. I find no convincing basis for that assertion. White avoids the fact that the presence of the decals on so many trucks directly calls into question the credibility of its president's assertion that he was unaware of such decals. Accordingly, the testimony will not be barred.
White's motion will be denied in its entirety.
2. SCA and Waste Disposal
Defendant SCA argues that, as the parent corporation of Waste Disposal, it merely ordered the garbage truck in question to be drop shipped to its subsidiary, never took title or possession of the truck, and therefore cannot be considered a "seller" under N.J.S.A. 2A:58C-1 as a matter of law.
Waste disposal itself claims that by selling its entire Elizabeth operation to White, including the truck in question, it was acting merely as an occasional seller and that the nature of its activities cannot be considered those of a seller as a matter of law.
Both entities further argue that the plaintiffs' claims against them are barred by the two-year personal injury statute of limitations set forth in N.J.S.A. 2A:14-2. Finally each argues that the truck never violated any of the ANSI standards during its ownership and that no warning letters were received during its ownership.
Although the plaintiff argues that by ordering the truck on behalf of its subsidiary, SCA somehow entered the chain of distribution, there seems little basis for so holding. Rather, its actions were far more analogous to those of a broker, discussed in section seven above, in that it merely arranged for the transaction between two parties and never took title to the truck in its own name. Accordingly, SCA's motion for summary judgment will be granted with respect the products liability claims against it.
As to Waste Disposal, the plaintiff argues that it is common in the garbage collection industry for larger companies to resell their used trucks to smaller companies resulting in a "trickle down" effect. Based entirely on that assertion, the plaintiffs essentially argue that Waste Disposal's mere existence in the garbage collection industry is sufficient to conclude that it was a "seller" within the meaning of the products liability law. (Pls.' Opp'n Br. at 29-30.) Such an argument completely ignores the distinction between an occasional seller and one for which such sales are a regular part of its business.
Waste Disposal has come forward on its motion with evidence explaining the nature of its business and the sale of its Elizabeth operations to White Brothers sufficient to establish that it was an "occasional seller" of garbage trucks. The plaintiffs and other parties in opposition to the motion have failed to come forward with specific evidence that the sale of garbage trucks was a sufficiently regular part of its business to establish a genuine issue of material fact as to whether it was a "seller" within the meaning of the products liability law.
Accordingly, Waste Disposal's motion for summary judgment will be granted with respect to the products liability claims against it.
For the reasons set forth above, there is insufficient evidence under New Jersey law to establish that Straley or Gumaer were actually impaired as a result of their consumption of alcohol prior to the accident. Therefore, the probative value of evidence of their consumption of alcohol is substantially outweighed by the danger for unfair prejudice and such evidence will be barred. Accordingly, the plaintiffs' first and second motions in limine will be granted.
Gumaer's guilty pleas to motor vehicle offenses are subject to a proper order precluding their use as evidence in a civil matter and therefore, the plaintiffs' third motion in limine will be granted. Straley's use of the garbage truck constituted the use of industrial machinery in the workplace and the defendants are therefore not entitled to an "open and obvious danger" or comparative negligence defense. Accordingly, the plaintiffs' fourth and fifth motions in limine will be granted.
Although defendants cannot argue the comparative negligence of Gumaer in apportioning liability among them, they may permissibly argue that Gumaer's negligence was the supervening cause of Straley's injuries. Accordingly, the plaintiffs' sixth motion in limine will be granted with respect the issue of comparative negligence, but denied with respect to supervening causation. The nature of Cambria's activities was such that they constitute a "seller" within the meaning of New Jersey products liability law and, therefore, the plaintiffs' seventh motion in limine will be granted.
The plaintiffs have failed to establish circumstances bringing into play the doctrine of res ipsa loquitur and, accordingly, their eighth motion in limine will be denied. The plaintiffs have established that evidence of ANSI standards and post-manufacture warning letters is relevant with regard to Leach's duty to warn and that such evidence in not unduly prejudicial. However, they have failed to establish Mack's duty to warn. Accordingly, the plaintiff's ninth motion in limine will be denied with respect to Mack and granted with respect to Leach. Finally, the plaintiffs have established that Leach's mailing of warning letters did not satisfy its continuing duty to warn and their tenth motion in limine will therefore be granted.
Additionally, it cannot be resolved as a matter of law whether defendant White Brothers' activities made them a "seller" within the meaning of the product liability law. Accordingly, its motion for summary judgment will be denied. However, the nature of defendants SCA and Waste Disposal activities is sufficiently clear that it can be concluded as a matter of law that they were not "sellers" within the meaning of the products liability law. Accordingly, their motions for summary judgment will be granted with respect to the products liability claims against them.
An appropriate order follows.
Dickinson R. Debevoise, U.S.S.D.J.
Date: June 1, 1995
© 1992-2004 VersusLaw Inc.