Before Judges Baime, Conley and Kimmelman.
The opinion of the court was delivered by: Conley, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from Superior Court of New Jersey, Law Division, Essex County.
Plaintiff's Bordentown Roy Rogers restaurant sustained substantial damage from a fire in November 1993 that originated in one of the restaurant's deep-fat chicken fryers. The fryer was manufactured by defendant Henny Penny in 1976. Along with the entire restaurant, the fryer was purchased by plaintiff from Gino's in 1985. No evidence exists as to its use and maintenance from 1976 to 1985 while the restaurant was owned by Gino's. Similarly, no evidence exists as to its use and maintenance while under plaintiff's ownership, except for the two-year period before the fire, and that evidence is skimpy, at best. At the time of the summary judgment in favor of Henny Penny and the denial of plaintiff's motion for reconsideration, from which plaintiff appeals, plaintiff's products liability theory as to Henny Penny was premised upon an alleged manufacturing flaw in the fryer's high-limit thermostat. It was plaintiff's expert's position that had the thermostat been operating properly, it would have shut down the fryer prior to the fire's outbreak.Summary judgment was granted Henny Penny because of the deficiencies in plaintiff's evidence as to whether Henny Penny had manufactured the fryer with the same high-limit thermostat that was on the fryer in 1993 at the time of the fire. *fn1 The motion Judge also thought plaintiff's expert's manufacturing defect opinion constituted a net opinion, a determination we need not reach. We are convinced summary judgment was properly granted because, even viewing the evidence most favorably for plaintiff, no reasonable juror could conclude that the preponderance of the evidence establishes that the high-limit thermostat in the fryer in 1976 when Henny Penny placed it into the stream of commerce was the same high-limit thermostat in the fryer in 1993. We are convinced the scant evidence on this issue presents precisely the type of case that, perhaps, may have survived a motion for summary judgment prior to Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520 (1995), but no longer can.
The record before the motion Judge revealed the following. According to the statements obtained from plaintiff's employees, on November 10, 1993, at 7:25 a.m., one of plaintiff's employees, Michelle Brown, saw flames rising from a fryer located in plaintiff's Bordentown Roy Rogers restaurant. The restaurant's manager, Mickie Greene, had turned on the fryer at 6:30 a.m. that morning. By the time Brown discovered the fire, the flames had reached the bottom of the overhead exhaust hood. Brown alerted Greene, who initially extinguished the flames with a portable fire extinguisher. Greene immediately called the fire department. However, within seconds, the fire reignited. This time Greene was unable to extinguish the flames and was unable to reach the manual lever to activate the dry powder fire extinguishing system. Greene and Brown then left the building. At that point, the automatic extinguishing system had not activated and, ultimately, the entire store with all of its equipment was substantially damaged.
The fryer in which the fire originated was located in the middle of a bank of three fryer units. All three units were gas-fired, deep-fat pressure fryers, consisting of an eighteen-inch wide stainless steel cabinet containing a built-in cook pot, a gas burner, and a tub for collecting drained fat. The fryers' cook pot had a sloping bottom which was shallow in the front and eighteen inches deep in the rear. The gas burner was centered beneath the cook pot, towards its shallow end. A drain pipe and pump drained fat from the cook pot into the tub located beneath it through a filter screen, and pumped the filtered fat back into the cook pot. Periodically, all of the fat was drained and replaced by a solid block of fresh fat.
The fryers were equipped with two thermostats, an operating thermostat that regulated the temperature of the fat, and a high-limit thermostat that was designed to automatically shut off the unit in the event the fat temperature exceeded the maximum possible temperature of the operating thermostat. The shut down was designed to occur before the overheating fat could auto-ignite and start a fire. The thermostats protruded into the cook pot from an area behind the control panel. Their sensor bulbs did not extend down the entire depth of the cook pot; it is unclear exactly how far down they did extend.
Plaintiff hired Paul Zamrowski Associates, Inc. to examine the fryer and the "engineering aspects" of the fire. It seems there was also another expert, Patrick J. McGinley Associates, as to the fire's cause and origin, but that report does not appear in the record provided to us. It was, however, one of the number of sources of information considered by plaintiff's expert, Frederic M. Blum.
Blum, a mechanical engineer, provided plaintiff with an initial report dated January 4, 1994. In that report, he concluded that the "fire clearly originated because of a malfunction of the operating thermostat in the fryer plus a malfunction of the high-limit thermostat which failed to shut off the fryer after the operating thermostat failed." However, the actual condition of either of the thermostats "could not be determined due to fire damage." Moreover, as to the operating thermostat, it seems that Blum has never contended it failed because of a manufacturing or design defect, but simply because it wore out, a normally expected event.
In his report, Blum explained that the night before the fire, the middle fryer had been drained of fat entirely, with a block of fresh fat placed in the cook pot. It is undisputed that this particular cook pot had been out of use for several weeks to a month prior to the day of the fire. None of plaintiff's witnesses professed to recall why, or whether, if the problem was some malfunction, it had been fixed. One of the employees did recall that it was "broken."
After the fire, Blum found "a small quantity of black, gooey, burned fat" that remained in the middle fryer. The fat tub also contained "a small quantity of black, gooey, burned fat." He found evidence of fire damage in the tub area to be minimal and thought that "only a limited fire occurred in the tub which involved only a small quantity of fat." On the other hand, Blum found unburned fat on the top surface of the middle fryer and in the pots of the adjoining fryers, indicating that "fat boiled over from the middle fryer's cook pot." Also, the floor in the vicinity of the fryers was "covered with a quarter-inch thick layer of white, solidified, unburned fat.
Somewhat complicating the picture, Blum discovered the cook pot drain valve in the "OPEN" position after the fire, indicating that plaintiff's employees had not properly closed the valve the night before after cleaning and preparing it for use the next day. Leaving the valve open could mean that as the fat melted during the heating process the next day, it would empty from the cook pot into the drain tub, with the cook pot continuing to heat. Moreover, the fat tub was "shifted forward" from its normal position so that its rear wall was almost directly below the fat drain pipe outlet. Blum observed that "[i]n this position, fat running out of the outlet pipe would fall partially into the tub and mostly onto the floor," thus the fat found on the floor. Blum also found the sensor bulb on the high-limit thermostat to have been broken off, but he could not tell when this had occurred.
Blum acknowledged in his report that it was possible for a fire to occur in a fryer if it is not full of fat when it is turned on "because the temperature sensors of the thermostats must be submerged in order for them to heat." He also acknowledged that the fryer had been left in an improper condition by plaintiff's employees the night before the fire. But he was positive that this did not contribute to the fire. This was because it was his factual assertion, from which he never diverted, that at the time the fire started, the cook pot was still full of fat, despite the open valve. He was convinced the drain pipe was clogged by the fresh block of solid fat placed in the cook pot the night before and had not yet completely melted before the fire began.
Based on his determination that the fryer remained filled with fat during the fire and the thermostats consequently remained submerged in the fat, Blum concluded that both the operating and high-limit thermostats "failed." As to the operating thermostat, though, he said "[a]n operating thermostat is not expected to last forever" and this thermostat "undoubtedly just wore out." But because, he thought, the high-limit thermostat should activate rarely, if ever, it should never wear out and, thus, he concluded the high-limit thermostat on the fryer in November 1993 must have been defective because had it been operable, it would have shut the burner down. Although having no knowledge as to how many times during the seventeen or eighteen year existence of the fryer its high-limit thermostat triggered a shut down, Blum thought that "a component that operates so seldom should never fail." So, in its interrogatory answers, dated June 7, 1995, plaintiff informed defendant of its theory of products liability against Henny Penny thusly:
The high temperature thermostats of the Henny Penny fryer failed to operate shutting the fryer off. The temperature increased thereby causing the fire in question. See Zamrowski report for further detail.
Blum was deposed on May 6, 1996. He adamantly maintained his position that the cook pot was full of fat at the time the fire started. That was fundamental to his opinion of defect, as that opinion was premised upon his Conclusion that the high-limit thermostat had failed. But he also considered another possibility as to why the thermostat did not work, that is, "it wasn't exposed to heat in the first place because the fat level was not high enough." In that event, he opined, for the first time, that the fryer suffered from a design defect in that it did not have a high-limit thermostat for low level fat. He said:
"By the way, [this] possibility I did not list in my report, but I'm introducing it now [and it] represents [a] design defect in the fryer. The reason is that the high limit thermostat must be designed for all unforeseeable conditions, because the hazard is so immense from five pounds, or how much fat is in a fryer, the hazard is so immense, if that fat were to ignite, that all reasonable means must be taken to make sure that the high limit function is absolute and cannot readily be violated during ordinary use of the fryer or in foreseeable misuse of the fryer. . . .
Insufficient fat can occur because whoever fills the fryer doesn't put enough fat in it, or fat can be used up. Fat is used up in the frying process. It clings to the food, and our arteries suffer from it.
You do periodically have to add more fat. If the fat level goes too low, even though the manufacturer does not intend it to go too low, it's ...