This products liability case, brought under New Jersey law,
presents claims relating to injuries allegedly resulting from the
premature activation of airbags in a low-speed automobile
collision. Plaintiff Eric Thomas ("Thomas") is suing Defendants
Ford Motor Company ("Ford"), Breed Technologies, Inc. ("Breed"),
and TRW, Inc. ("TRW") for injuries allegedly related to airbags
installed on Thomas's 1996 Ford Explorer. Specifically, Thomas
contends that the Explorer's airbags deployed improperly when the
Thomas family was involved in a minor traffic accident. Thomas
claims that he suffered injuries as a result of the improper
deployment of the airbags and that the airbags caused the deaths
of his pregnant wife and the unborn fetus she was carrying.
At this preliminary stage of the litigation, I must address
motions by Ford and TRW to dismiss several of Thomas's claims
pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure
to state a claim upon which relief may be granted. One of the
claims for which dismissal is sought is a negligence claim
brought against Ford. Ford's motion to dismiss this claim raises
a novel issue not yet addressed by the New Jersey courts,
specifically, whether a common-law claim for
negligent installation of a product can be brought against a
party separate and apart from a claim brought under New Jersey's
Product Liability Act, even though a recent amendment to the Act
provides that "installers" are covered by the Act for certain
purposes. For the reasons that follow, I find that a separate
common-law claim for negligent installation of a product may
still be maintained. Accordingly, I shall deny Ford's motion to
dismiss Thomas's negligence claim against it. I shall now discuss
Ford's and TRW's motions.
I. FACTUAL AND PROCEDURAL BACKGROUND
On February 1, 1999, Thomas filed a Complaint against Ford,
Breed, and TRW. See Compl. (filed Feb. 1, 1999). The Complaint
alleges that on February 9, 1997, Thomas and his family were
traveling in the Thomas's 1996 Ford Explorer on Hand Avenue in
Cape May Court House, New Jersey. See id. ¶ 15. Thomas's wife,
Tracy Rose Thomas ("Tracy Thomas"), who was six-months pregnant
at the time, was driving. See id. Thomas and his daughter, Alix
Thomas, were passengers. See id. Thomas claims that his wife
noticed a deer in the road, and attempted to avoid hitting the
deer, but in doing so struck a utility pole. See id. ¶ 18.
Thomas further alleges that the accident was a relatively minor
one because his wife was driving slowly when the accident
occurred because of inclement weather conditions. See id. ¶¶
17, 19, 20-21. Nevertheless, the Explorer's driver's side and
passenger-side airbags deployed. See id. ¶¶ 21, 24. Thomas
alleges that the airbags should not have deployed because the
accident involved a relatively low-speed collision with the
utility pole. See id. ¶¶ 21, 23. He also claims that the
deployment of the airbags proximately caused his wife's death and
the death of his unborn child, as well as his and his daughter's
injuries. See id. ¶¶ 21-24. He filed this action on his own
behalf, on behalf of the Estate of Tracy Rose Thomas, and on
behalf of his daughter, Alix Thomas, see id. ¶ 4, seeking
recovery from Ford, the manufacturer of the Explorer, and from
Breed and TRW, the alleged manufacturers of airbag components
installed in the Thomas's Explorer. See id. ¶¶ 5-7. On October
12, 1999, Thomas voluntarily dismissed Breed as a party to the
action. See Notice of Voluntary Dismissal (filed Oct. 12,
On April 5, 1999, Ford filed a motion pursuant to Federal Rule
of Civil Procedure 12(b)(6) to dismiss certain of Thomas's claims
for failure to state a claim upon which relief may be granted.
See Ford Mot. to Dismiss (filed Apr. 5, 1999). On May 26, 1999,
TRW also filed a motion to dismiss pursuant to Rule 12(b)(6),
moving for a dismissal of the same claims Ford seeks to dismiss.
See TRW Mot. Dismiss (filed May, 26, 1999).
This Court has jurisdiction over this case pursuant to
28 U.S.C. § 1332 (1994).*fn1
II. THE GOVERNING LEGAL STANDARD FOR A MOTION TO DISMISS
PURSUANT TO FED. R. CIV. P. 12(b)(6)
"In considering a motion to dismiss under Rule 12(b)(6), the
court may dismiss a complaint if it appears certain that the
plaintiff cannot prove any set of facts in support of its claims
which would entitle it to relief." Mruz v. Caring, Inc.,
39 F. Supp.2d 495, 500 (D.N.J. 1999) (Orlofsky, J.) (citing Ransom
v. Marrazzo, 848 F.2d 398, 401 (3d Cir. 1988)). "While all
well-pled allegations are accepted as true and reasonable
inferences are drawn in the plaintiff's favor, the Court may
dismiss a complaint where, under any set of facts which could be
shown to be consistent with a complaint, the plaintiff is not
relief." Id. (citing Gomez v. Toledo, 446 U.S. 635, 636, 100
S.Ct. 1920, 64 L.Ed.2d 572 (1980); Schrob v. Catterson,
948 F.2d 1402, 1405 (3d Cir. 1991); Markowitz v. Northeast Land
Co., 906 F.2d 100, 103 (3d Cir. 1990)); see also Conley v.
Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).
Finally, "Rule 12(b)(6) authorizes a court to dismiss a claim on
the basis of a dispositive issue of law." Neitzke v. Williams,
490 U.S. 319, 326-27, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989)
(noting that this procedure "streamlines litigation by dispensing
with needless discovery and factfinding").
A. A Claim on Behalf of the Fetus
Ford and TRW claim that the Complaint contains ambiguous
language concerning the death of Thomas's unborn child. See
Ford Mem. Law Supp. Mot. Dismiss at 2 (filed Apr. 5, 1999); TRW
Mem. Law. Supp. Mot. Dismiss at ii (filed May 26, 1999).
Specifically, Ford and TRW contend that Thomas is attempting to
state a statutory claim relating to the death of his unborn child
even though such claims are not cognizable under New Jersey's
Wrongful Death Act or New Jersey's Survival Act. See Ford Mem.
Law Supp. Mot. Dismiss at 2-3; TRW Mem. Law. Supp. Mot. Dismiss
at ii-iii. Ford and TRW move to dismiss any such claims for
failure to state a claim upon which relief may be granted. See
Ford Mem. Law Supp. Mot. Dismiss at 3; TRW Mem. Law. Supp. Mot.
Dismiss at iii. Thomas agrees that claims relating to the death
of a fetus are not cognizable under New Jersey statutory law, but
argues that it is sufficiently clear from the language of the
Complaint that Thomas is not impermissibly seeking recovery on a
statutory ground. See Pl.'s Answer in Opp'n to Mot. to Dismiss
(filed April 5, 1999).
I begin by noting that Ford's, TRW's, and Thomas's
understanding of New Jersey law is correct. The Supreme Court of
New Jersey held in Giardina v. Bennett, 111 N.J. 412,
545 A.2d 139 (1988) that a fetus is not a "person" within the meaning of
New Jersey's Wrongful Death Act and that a claim brought under
the Wrongful Death Act because of the death of a fetus is barred.
See id. at 428, 545 A.2d at 147. Moreover, while New Jersey
courts have not addressed the issue, at least one federal court
has ruled that the Giardina holding and the language of the
Survival Act imply that an action brought on behalf of a deceased
fetus pursuant to the Survival Act is similarly barred. See
Alexander v. Whitman, 114 F.3d 1392, 1399-1400 (3d Cir. 1997).
This is not to say, however, that parents are without legal
recourse when their unborn fetus dies as a result of the tortious
conduct of another. As Ford and Thomas recognize, see Ford Mem.
Law Supp. Mot. Dismiss at 2-3; Pl.'s Answer in Opp'n to Mot. to
Dismiss at 4, parents of deceased fetuses may bring a common-law
claim for compensatory damages for emotional distress and mental
anguish suffered as a result of the loss of a fetus. See
Giardina, 111 N.J. at 420, 545 A.2d at 143.
Consequently, the question of whether or not to grant Ford's
and TRW's motions to dismiss depends upon whether Thomas is, in
fact, seeking relief under the Wrongful Death and Survival Acts
for the death of his unborn child. I conclude that Thomas has not
asserted a claim for the death of his unborn child under either
New Jersey's Wrongful Death Act or the Survival Act. Although
there are references throughout the Complaint to the death of
Thomas's unborn child, none of these references can be construed
to articulate a barred claim. Most of these references appear in
Counts wholly unrelated to the Complaint's Wrongful Death and
Survival Acts Counts. See, e.g., ¶¶ 46, 49, 58-60, 69-71, 89,
94, 97, 99 (concerning product liability and breach of warranty
claims). In fact, Counts I and II of the Complaint, which set
forth Thomas's Wrongful Death and Survival Acts claims, make no
direct mention of the death of Thomas's unborn
child at all. Only one paragraph in the Complaint even
potentially supports Ford's and TRW's view that a barred claim is
alleged: "Individually, Dr. Thomas claims as damages any and all
damages recoverable as a result of the death of Tracy Rose Thomas
and his unborn baby as well as any damages to which he is
entitled under N.J.S. 2A:31-1 et seq. and N.J.S. 2A:15-3."
Compl. ¶ 26. This language is potentially ambiguous because the
death of Thomas's unborn child and the statutory citations to the
Wrongful Death and Survival Acts appear in the same paragraph.
Nevertheless, I find that it is clear that the paragraph seeks
recovery under the Wrongful Death and Survival Acts as
alternatives to recovery for the death of Thomas's unborn child.
It is especially clear that relief is not sought on behalf of
Thomas's unborn fetus pursuant to the Survival Act. No Estate is
raised on behalf of the fetus and paragraph twenty-six indicates
from the outset that the claim is being made on behalf of Thomas
"individually." Given the language of the Complaint and that on a
motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6), I must draw all reasonable inferences in favor of the
Plaintiff, see Mruz, 39 F. Supp.2d at 500, I find that Thomas
has not pled any barred statutory claims. Accordingly, I shall
deny Ford's and TRW's motions to dismiss any claim by Thomas
attempting to recover for the death of his unborn child under
either New Jersey's Wrongful Death Act or New Jersey's Survival
B. Claim for Hedonic Damages
Ford and TRW also move to dismiss Thomas's claim for "hedonic
damages." See Ford Mem. Law Supp. Mot. Dismiss at 3-7; TRW Mem.
Law. Supp. Mot. Dismiss at iii-iv. They contend that hedonic
damages, or damages for the "loss of life's pleasures," are
available only under New Jersey's Survival Act and not New
Jersey's Wrongful Death Act. See Ford Mem. Law Supp. Mot.
Dismiss at 3-4; TRW Mem. Law. Supp. Mot. Dismiss at iii.
Furthermore, they assert that hedonic damages are only available
to the extent that Tracy Thomas's death was not instantaneous and
that she survived the deployment of the airbags for some interval
of time before she died. See Ford Mem. Law Supp. Mot. Dismiss
at 5-6; TRW Mem. Law. Supp. Mot. Dismiss at iv. TRW argues
additionally that Tracy Thomas had to be conscious during this
interval for hedonic damages to be available. See TRW Mem. Law.
Supp. Mot. Dismiss at iv. Ford and TRW contend that the Complaint
in this case is insufficient in that it does not allege that
Tracy Thomas's death was not instantaneous. See Ford Mem. Law
Supp. Mot. Dismiss at 6-7; TRW Mem. Law. Supp. Mot. Dismiss at
iv. Again, Thomas substantially agrees with Ford and TRW's legal
analysis. See Pl.'s Answer in Opp'n to Mot. to Dismiss at 5. He
contends, however, that the Complaint need not allege with any
specificity whether and to what degree Tracy Thomas survived the
deployment of the airbags. See id.
For the most part, the parties have set forth the law
concerning hedonic damages with substantial accuracy. Hedonic
damages are available under New Jersey's Survival Act and not
under New Jersey's Wrongful Death Act. See Clement v. Consol.
Rail Corp., 734 F. Supp. 151, 156 (D.N.J. 1989) (Fisher, J.).
Moreover, hedonic damages are available only to the extent that
Tracy Thomas survived the tortious act that proximately caused
her death for some period of time. See id. at 155-56. She need
not have been conscious during this interval, however, for
hedonic damages to be available. See Eyoma v. Falco, 247,
N.J.Super. 435, 445-46, 247 N.J. Super. 435, 589 A.2d 653, 658
(App. Div. 1991).
That being said, I find that the Complaint in this case
adequately states a claim for hedonic damages upon which relief
may be granted. Federal Rule of Civil Procedure 8(a) requires
that a plaintiff's
complaint set forth "a short and plain statement of the claim
showing that the pleader is entitled to relief. . . ." Fed.
R.Civ.P. 8(a)(2). Under the liberal pleading regime that Rule
8(a)(2) establishes, a complaint "need only  `give the
defendant fair notice of what the plaintiff's claim is and the
grounds upon which it rests.'" High Tech Enterprises, Inc. v.
Semon, No. CIV.A. 96-6017, 1997 WL 59323, at *1 (E.D.Pa. Feb.10,
1997) (quoting Conley, 355 U.S. at 47, 78 S.Ct. 99); Blackwell
v. Power Test Corp., 540 F. Supp. 802, 814 (D.N.J. 1981) (Meanor,
J.). Conversely, Rule 8(a)(2) does "not require a complainant to
set forth in detail the facts upon which the claim is based."
Breslin v. Vornado, Inc., 559 F. Supp. 187, 191 (E.D.Pa. 1983);
see also Schaedler v. Reading Eagle Publication, Inc.,
370 F.2d 795, 798 (3d Cir. 1967). "The Federal Rules of Civil Procedure
reject the notion that pleading is a game of skill in which one
misstep by counsel may decide the outcome." Breslin, 559
F. Supp. at 191. In this case, the Complaint alleges that Ford's
and TRW's airbags caused Tracy Thomas's death by improperly
deploying, see Compl. ¶¶ 4-7, 21-24, and states that:
Dr. Thomas, as Administrator of the Estate of Tracy
Rose Thomas, deceased, claims damages for the
conscious pain and suffering and loss of life's
enjoyment and hedonic damages suffered by Tracy Rose
Thomas, resulting from Defendants' acts and/or
omissions, as set forth herein, from the time of the
infliction of the injuries, up to and including the
time of her death on February 9, 1997 as permitted
under N.J.S. 2A:15-3.
Compl. ¶ 39. I find that this pleading gives Ford and TRW
adequate notice of Thomas's claim for hedonic damages. It informs
Ford and TRW that hedonic damages are being sought and why. It
also cites the relevant statutory authority and notifies Ford and
TRW of the essential factual issue that such a claim raises,
i.e., whether the decedent survived the infliction of her
injuries for any interval of time. Moreover, the claim set forth
in paragraph thirty-nine is one that the parties agree is
cognizable under New Jersey law. Ford's and TRW's primary
contention is that the pleading does not allege that Tracy did in
fact live for any period of time after the Explorer's airbags
deployed. See Ford Mem. Law Supp. Mot. Dismiss at 6-7; TRW Mem.
Law. Supp. Mot. Dismiss at iv. The liberal pleading regime
established by the Federal Rules of Civil Procedure, however,
does not require such a fact to be alleged. It can reasonably be
inferred, see Mruz, 39 F. Supp.2d at 500, that if Thomas is
seeking hedonic damages for the interval of time Tracy Thomas
lived after the airbags were deployed, Thomas also alleges that
Tracy Thomas did not die instantaneously.
Ford and TRW also contend that Thomas cannot prove that Tracy
Thomas survived impact because he was knocked unconscious by the
Explorer's passenger-side airbags, rendering him unavailable as a
witness to Tracy's death and its timing. See Ford Mem. Law
Supp. Mot. Dismiss at 6; TRW Mem. Law. Supp. Mot. Dismiss at iv.
Medical reports not yet in evidence and testimony from other
potential witnesses may support Thomas's claim, however, without
the need for Thomas to testify. In other words, there are facts
that Thomas could prove in support of his claim for hedonic
damages which would entitle him to relief. See Mruz, 39
F. Supp.2d at 500. In short, I find that Thomas has adequately
alleged a valid claim for hedonic damages and that Ford and TRW
are essentially seeking dismissal of this claim by raising
factual disputes better resolved after a fuller record has been
developed in this case. They are attempting to shoehorn a summary
judgment motion into a motion to dismiss for failure to state
claim. Accordingly, I shall deny Ford's and TRW's 12(b)(6)
motions to dismiss Thomas's claim for hedonic damages.*fn2
C. Negligence and Breach of Warranty Claims and the Product
Ford and TRW move to dismiss Thomas's negligence and breach of
warranty claims. They argue that New Jersey's Product Liability
Act provides the sole avenue of recovery in product liability
cases and that claims for negligence and breach of warranty do
not exist outside of the Product Liability Act. See Ford Mem.
Law Supp. Mot. Dismiss at 7-8; TRW Mem. Law. Supp. Mot. Dismiss
at iv-v. Thomas counters that breach of warranty claims for
breaches of express warranties have not been subsumed by New
Jersey's Product Liability Act. See Pl.'s Answer in Opp'n to
Mot. to Dismiss at 6-7. He further maintains that New Jersey's
Product Liability Act does not preclude a common-law claim for
negligent installation of a product. See id.
Thomas's breach of warranty claims against Ford and TRW shall
be dismissed for failure to state a claim upon which relief may
be granted. New Jersey courts have interpreted the language of
New Jersey's Product Liability Act to preclude independent claims
for breach of an implied warranty in products liability cases
but have found that independent claims for a breach of an
express warranty are still permitted by the Act. See Potwora
v. Grip, 319 N.J. Super. 386, 400-01, 725 A.2d 697, 704 (App. Div. 199
9); Ramos v. Silent Hoist & Crane Co., 256 N.J. Super. 467,
473, 607 A.2d 667, 669-670 (App. Div. 1992); Tirrell v. Navistar
Int'l, Inc., 248 N.J. Super. 390, 398, 591 A.2d 643, 647
(App. Div. 1991). In Counts IX and XI of the Complaint, Thomas
alleges that Ford and TRW "breached the aforesaid warranties . .
. both express and implied." Compl. ¶¶ 88, 98. Because as a
matter of law Thomas is not entitled to relief for a breach of
implied warranty separate from the relief he may seek under New
Jersey's Product Liability Act, I shall grant Ford and TRW's
motion to dismiss Counts IX and XI of the Complaint and grant
Thomas leave to amend the Complaint to replead breach of express
warranty claims, which may still be pled independently of Product
Liability Act claims under New Jersey law.
Thomas's negligence claim against TRW shall be dismissed on
similar grounds. New Jersey's Product Liability Act had the same
impact on negligence claims as it had on breach of implied
warranty claims: Negligence claims against manufacturers of
defective products are no longer recognized by New Jersey courts
as independent claims in product liability actions. See
Potwora, 319 N.J.Super. at 400-01, 725 A.2d at 704; Ramos, 256
N.J.Super. at 473, 607 A.2d at 669-670; Tirrell, 248 N.J.Super.
at 398, 591 A.2d at 647; Canty v. Ever-Last Supply Co.,
296 N.J. Super. 68, 79, 685 A.2d 1365, 1371 (Law Div. 1996). Recovery
for negligence in a products liability action must be sought
under the Product Liability Act. See Potwora, 319 N.J.Super. at
400-01, 725 A.2d at 704; Ramos, 256 N.J.Super. at 473, 607 A.2d
at 669-670; Tirrell, 248 N.J.Super. at 398, 591 A.2d at 647;
Canty, 296 N.J.Super. at 79, 685 A.2d at 1371. As a result,
Thomas's common-law claim against TRW for TRW's alleged negligent
manufacture of airbag modules, see Compl.
¶¶ 82-84, cannot be maintained. Accordingly, I shall dismiss
Count VII of the Complaint, alleging negligent manufacture on the
part of TRW, see id., for failure to state a claim upon which
relief may be granted.
Thomas's negligence claim against Ford requires a slightly more
complicated analysis because New Jersey courts have recognized a
common-law claim for negligent installation of a product even in
the aftermath of the enactment of the New Jersey Product
Liability Act. In Ramos, plaintiff Carlos Ramos ("Ramos") sued
defendant Foremost Electro-Service Co. ("Foremost") because he
had received multiple injuries as a result of becoming stuck in a
winch. See Ramos, 256 N.J.Super. at 472, 607 A.2d at 669.
Foremost installed the electrical system that powered the winch.
See id. at 471-72, 607 A.2d at 668-69. While operating the
winch one day, Ramos became stuck between the winch and a cable
pulled by the winch. See id. at 472-73, 607 A.2d at 669. Ramos
could not extricate himself and because Foremost placed the
winch's power switch far from the winch, Ramos could not turn the
winch off. See id., 607 A.2d at 669. As a result, he was drawn
into the winch, suffering injuries so severe that his leg had to
be amputated. See id., 607 A.2d at 669. The Ramos court
concluded that a negligence action could be maintained against
Foremost separate from any claims that were required to be
brought under the Product Liability Act. See id. at 476-77, 607
A.2d at 671-72. The court acknowledged that the Product Liability
Act required the consolidation of all theories of product
liability into a single product liability action under the terms
of the Act. See id. at 473, 607 A.2d at 669-70. The court
noted, however, that the Act subjected only manufacturers and
sellers to liability under the Act's terms. See id. at 474-77,
607 A.2d at 670-71. Foremost had merely installed the electrical
system that powered the winch. See id. at 476, 607 A.2d at 671.
As a result, the Ramos court concluded that Foremost was a
service provider who fell outside the ambit of the Act and who
could be sued on a common-law negligence claim. See id. at 477,
607 A.2d at 672. Had Foremost installed a defective product — a
defective power switch, for example — the Ramos court would
have treated Foremost as manufacturer or seller of the product,
and Foremost would have been liable only under the Act. See id.
at 476-77, 607 A.2d at 671. Because no component of the
electrical system was defective and Foremost's installation was
the sole cause of Ramos's injuries, however, Foremost fell
outside of the Act. See id., 607 A.2d at 671-72.
Were Ramos to apply to this case, it might save Thomas's
negligence claim against Ford from dismissal. If the Explorer's
airbags were not defective and the injuries to Thomas and his
wife could be attributed to Ford's installation of the Explorer
airabgs, Ramos would allow Thomas to seek recovery against Ford
on a negligence claim brought separately from the Product
Liability Act. There would be a set of facts that, if proved,
would entitle Thomas to relief, see Mruz, 39 F. Supp.2d at 500,
and I would be obligated to deny Ford's motion to dismiss
Thomas's negligence claim for failure to state a claim upon which
relief could be granted.
Ford argues, however, that the holding in Ramos that a claim
for negligent installation exists outside the ambit of the
Product Liability Act has been superseded by an amendment to the
Product Liability Act. See Ford Reply Mem. at 2-3 (filed Apr.
5, 1999). In 1995, approximately three years after Ramos was
decided, the New Jersey legislature passed an amendment to the
Product Liability Act extending the coverage of the Act to
"product sellers" and defined a "product seller" as:
any person who, in the course of a business conducted
for that purpose: sells; distributes; leases;
installs; prepares or assembles a manufacturer's
product according to the manufacturer's plan,
intention, design, specifications or formulations;
blends; packages; labels; markets; repairs; maintains
or is otherwise involved in placing a product in the
line of commerce.
N.J.S.A. 2A:58C-8 (emphasis added). While the New Jersey courts
have analyzed claims for negligent installation in only two cases
since the passage of this amendment, in neither case did they
address the effect of this amendment on the Ramos holding. See
Potwora, 319 N.J.Super. at 400-01, 725 A.2d at 704; Ridenour v.
Bat Em Out, 309 N.J. Super. 634, 642, 707 A.2d 1093, 1097
(App. Div. 1998). The injuries in those cases arose before the
effective date of the amendment, rendering the amendment
inapplicable to those claims. See Potwora, 319 N.J.Super. at
390, 725 A.2d at 699; Ridenour, 309 N.J.Super. at 641, 707 A.2d
at 1096. In instances where a state's highest court has not
addressed the precise issue presented to a federal court sitting
in diversity, a federal court must predict how the state's
highest court would resolve the issue. See Orson, Inc. v.
Miramax Film Corp., 79 F.3d 1358, 1373 & n. 15 (3d Cir. 1996);
Borman v. Raymark Indus., Inc., 960 F.2d 327, 331 (3d Cir.
1992); Gruber v. Owens-Illinois Inc., 899 F.2d 1366, 1369 (3d
Cir. 1990). Consequently, I must now predict how the New Jersey
Supreme Court would interpret the 1995 amendment to the Product
Liability Act to affect the Ramos holding. Ordinarily, I would
repair to the state's appellate court decisions for guidance,
see Rolick v. Collins Pine Co., 925 F.2d 661, 664 (3d Cir.
1991), a luxury unavailable to me in this instance because no New
Jersey appellate court — or trial court, for that matter — has
addressed the effect of the 1995 amendment on the Ramos
I hold that a claim for negligent installation can still be
brought as a separate claim from a claim brought under New
Jersey's Product Liability Act. In other words, I find that the
Ramos holding survived the 1995 amendment of the Act. First,
there is no indication that the New Jersey legislature intended
to supersede the Ramos holding. The New Jersey legislature's
intent in adopting the amendment was to rescue persons it
categorized as "product sellers" from strict liability in certain
This bill, as amended, provides that in a products
liability action against a product seller, the
product seller may file an affidavit certifying the
correct identity of the manufacturer. . . . Upon the
filing of the affidavit, the product seller would be
relieved of all strict liability claims against him.
N.J.S.A. 2A:58C-8, Senate Commerce Committee Statement. Second,
the language of the amendment suggests that it does not nullify
the holding in Ramos. The amendment provides that a product
seller may be held liable under the Product Liability Act if the
product seller exercises significant control over a defective
product, knows or should know a product is defective, or creates
a defect in a product. See N.J.S.A. 2A:58C-9d(1)-(3).
Regardless of whether the 1995 amendment imposes liability on
product sellers or relieves them from liability, the amendment
presupposes the existence of a defective product. For example,
liability is imposed on an installer under the terms of the Act
if the installer installs a product known to be defective. The
Ramos case, however, addressed a different situation. Ramos
involved a circumstance in which there was no defective product,
but only a defective installation. Put another way, it involved
the improper installation of an otherwise properly functioning
product. While the 1995 amendment brings installers within the
ambit of the Product Liability Act in instances where installers
trade in defective products, the amendment to the Act was not
adopted to bring installers within the coverage of the Act for
improperly installing properly-functioning products.