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McGarvey v. G.I. Joe Septic Service

August 6, 1996

A-352-93T1 DENNIS MCGARVEY, PLAINTIFF,
v.
G.I. JOE SEPTIC SERVICE, INC., JOSEPH LOMBARDO, SR. AND STEPHEN DEPALMA, DEFENDANTS-APPELLANTS, V. FORD MOTOR COMPANY, INC., RICE & HOLMAN FORD, INC., RICE & HOLMAN LEASING AND/OR AUTOMOTIVE RENTALS, INC., THIRD-PARTY DEFENDANTS-RESPONDENTS. A-354-93T1 DENNIS MCGARVEY, PLAINTIFF-APPELLANT, V. FORD MOTOR COMPANY AND RICE & HOLMAN FORD, DEFENDANTS-RESPONDENTS, AND G.I. JOE SEPTIC SERVICE, INC., JOSEPH LOMBARDO AND STEPHEN DEPALMA, DEFENDANTS.



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

Approved for Publication August 6, 1996.

Before Judges A.m. Stein, Kestin and Cuff. The opinion of the court was delivered by A.m. Stein, J.A.D.

The opinion of the court was delivered by: Stein

The opinion of the court was delivered by A.M. STEIN, J.A.D.

We consolidate these appeals for Disposition.

We reverse the no cause for action verdict as to defendants Ford and Rice & Holman. We remand for retrial of all strict liability and negligence issues except as to Rice & Holman. We conclude that the Ford LTL-9000 chassis-cab delivered by Rice & Holman to defendants DePalma and G.I. Joe was defective as a matter of law.

At approximately 8:30 p.m. on November 24, 1986, Dennis McGarvey's car collided with the rear frame of a 1987 Ford LTL-9000 incomplete truck chassis-cab driven by Stephen DePalma. G.I. Joe Septic Service, Inc., owned by Joseph Lombardo, purchased the LTL-9000 that evening from Rice & Holman Ford in Merchantville, New Jersey, an authorized Ford dealer. The LTL-9000 is an incomplete vehicle, consisting of a truck cab and rails. Although it can be driven with its own power, the LTL-9000 is usually sent via motor carrier to a second stage manufacturer who customizes it according to the purchaser's specifications. Lombardo planned to use the LTL-9000 as a platform for a septic tank.

DePalma picked up the LTL-9000 that night as a favor to Lombardo. He drove it out of Rice & Holman's lot and travelled south on Route 73. When he turned left into the median strip to make a u-turn onto Route 73 north, the chassis rails protruded into the left southbound lane of Route 73. While DePalma was waiting in the median for traffic to clear, McGarvey's car, which was travelling south on Route 73 in the left lane, struck the protruding rails of the chassis. Although its left-hand turn signal was flashing and its rear lights were on, the chassis did not have rear side lights and reflectors which might have warned McGarvey in time to react to the obstruction.

McGarvey sued G.I. Joe, Lombardo and DePalma for negligence and Ford Motor Co. and Rice & Holman for product defect.

When Lombardo ordered the LTL-9000, he was told by Al Branch, the salesman at Rice & Holman, that the chassis could be shipped directly to the second stage manufacturer if Lombardo advised him of the destination prior to the shipping date. Lombardo did not choose a destination in time and the chassis was shipped to Rice & Holman. Branch testified that the selling dealer was the default destination whenever a purchaser failed to specify a second stage manufacturer destination.

When the chassis arrived, Branch called Lombardo and suggested that he hire a professional carrier to transport the truck to the second stage manufacturer. However, no mention was made of inadequate lighting issues or other safety problems. Lombardo therefore "took it for granted" the vehicle would have all necessary lighting. Lombardo ultimately decided to transport the chassis himself.

At approximately 3:30 p.m. on November 24, 1986, Lombardo telephoned Branch to tell him he wanted to pick up the chassis that evening and take it to his shop. According to Branch, Lombardo said "he was sending his son to pick it up." Branch then "scrambled" to get the paperwork ready. Lombardo's son Ron, who was familiar to Branch, his other son Joe, and DePalma arrived at Rice & Holman at approximately 5:00 that evening.

Branch took them outside to inspect the chassis, and then returned inside with Ron, who paid for the chassis, to prepare the delivery papers. Branch also issued a temporary registration for the chassis. This process took approximately ten to thirty minutes.

Branch testified that he did not recall seeing the three leave, and that "I don't know whether it was night or not. I wasn't out there." However, on cross-examination, he conceded that he assumed they would be driving the truck off the premises:

Q And, as far as you knew when Mr. Lombardo or the folks that he had sent to pick up that truck got possession of that truck they were going to drive that truck out of your lot; is that correct?

A. That's correct.

Q. You didn't see them come in with any motor carriers; did you?

A. I don't know how they came in.

Q. But you didn't see any motor carriers on the premises, did you?

A. I wasn't looking for any. I don't know how they came.

Q. You assumed they were going to drive the truck off the lot; didn't you, sir?

A. I assume they are, sure.

Q. Sure. And, that's one of the reasons why you went to the trouble to prepare the temporary registration; is that correct?

A. Yes.

DePalma inspected the truck by checking its parking lights, emergency flashers, turn signals, headlights, high beams, rear lights and mud flaps. He was not aware that it was missing side marker lights and reflectors necessary for safe night operation. Neither was Branch nor John M. Repholz, general manager of Rice & Holman Truck Center. Branch had "no idea" whether the chassis could be legally operated on public roads after dark. Both Branch and Repholz stated that the vehicle was delivered in "drive-away condition." As a result, nobody at Rice & Holman advised DePalma or Lombardo's sons that the chassis needed additional lighting to be safely driven after dark.

There were no prominent warnings within the cab concerning additional lighting. Although the incomplete vehicle manual and the certification decal indicated that the chassis did not comply with certain Federal Motor Vehicle Safety Standards, Branch did not suggest reading these items. Moreover, although Branch had reviewed them himself, he was not alerted to the inadequate lighting problem. When asked whether the Rice & Holman representatives generally tell purchasers of incomplete vehicles to read the manual before driving, Repholz replied:

You're talking about approximately 400 pages of literature to read and I would say that if we did tell them to do that they would say okay, thank you, and get in the truck and drive away. . . . No, we do not tell them to do it.

Ford Motor Co. never told Branch that additional lighting was necessary before the chassis could be driven after dark, nor did Ford require the dealership to put any additional equipment on an LTL-9000 chassis cab before delivering it to a customer. Branch did not even know whether temporary lighting kits were available at Rice and Holman, although Repholz said that Rice & Holman had the capacity to add intermediate side marker lamps and side reflex ...


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