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June 20, 2000


The opinion of the court was delivered by: Brotman, District Judge.


Presently before this Court, pursuant to 28 U.S.C. § 1332 (diversity of citizenship), is Plaintiff Universal Underwriters Insurance Group's Motion for Summary Judgment regarding its products liability and implied warranty claims against Defendant Public Service Electric & Gas Company ("PSE & G").


On April 8, 1997 a fire occurred which destroyed a building located in Woodbridge, New Jersey. As a result the Plaintiff was required to pay out over 2.5 million dollars to its insureds Jay & Jay Associates (the owner of the building), Hertz Corp. (a sublessor of the building) and Woodbridge Power Sports (the building's tenant). (See Pl.'s Br. at 1)

At about 6:30 p.m. on the evening of April 8th, employees of Woodbridge Power Sports ("WPS") allegedly smelled smoke and traced its origin to the main service panel located in the building's basement. (See Pl.'s Br. at 2) In response the owner of the building, Thomas Orlando, allegedly attempted to disconnect all electricity into the building by accessing a disconnect device located "after the main service panel." (See id.) The building's service manager purportedly then called the fire department, as well as WPS' private electrician. (See id.)*fn1

Shortly thereafter WPS' electrician, Peter Tucker, arrived at the scene. Mr. Tucker allegedly inspected the basement and attempted to address the problem, but was ordered by the fire department to vacate the premises. (See Pl.'s Br. at 2) According to Plaintiff, the fire department informed Tucker that no one would be allowed to enter the building until PSE & G arrived. (See id.) At 7:29 p.m. the fire department notified PSE & G about the incident. (See id.)

At approximately 8:12 p.m., PSE & G trouble shooter John Morgan arrived at the scene. (See id.) Morgan concluded that it would be unsafe to disconnect the electric service by either cutting wires outside the building (see Def.'s Br. at 2; see also Dep. of John Morgan, attached as Ex. D to Certification of Jeffrey C. Sotland (hereinafter "Sotland Cert.") at 33)*fn2, or by cutting secondary switches on transformers.*fn3 (See Pl.'s Br. at 4) After Morgan communicated his assessment of the situation to a PSE & G dispatcher,*fn4 a traveling operator was sent to a substation located approximately one tenth of a mile from the building.*fn5 (See Pl.'s Br. at 5) The traveling operator, Charles McCord, shut the electricity off at approximately 9:00 p.m. (See id. at 6) By the time the electricity service to the building was discontinued, smoke and flames were emanating from the premises. (See Dep. of John Morgan, attached as Ex. D to Sotland Cert., at 46)

Asserting that the damage resulting from the fire would have been prevented had PSE & G properly trained its employees and implemented appropriate response procedures, the Plaintiff filed suit against PSE & G in this Court in April of 1998. The lawsuit alleges counts of negligence, strict liability and breach of warranty against the Defendant. (See generally Compl.) The Plaintiff now brings this motion for summary judgment, claiming that it is entitled to judgment as a matter of law with respect to its strict liability and implied warranty claims.


The standard for granting summary judgment is a stringent but surmountable one. That is, summary judgment is appropriate only when the materials of record "show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); Serbin v. Bora Corp., 96 F.3d 66, 69 n. 2 (3d Cir. 1996). In deciding whether there is a disputed issue of material fact, the court must grant all reasonable inferences from the evidence in favor of the non-moving party. Serbin, 96 F.3d at 69 n. 2. The threshold inquiry is whether there are "any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

Supreme Court decisions mandate that a motion for summary judgment must be granted unless the party opposing the motion "provides evidence `such that a reasonable jury could return a verdict for the non-moving party.'" Lawrence v. National Westminster Bank of New Jersey, 98 F.3d 61, 65 (3d Cir. 1996) (quoting Anderson, 477 U.S. at 248, 106 S.Ct. 2505). Moreover, once the moving party has carried its burden of establishing the absence of a genuine issue of material fact, "its opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Instead, the non-moving party must "by affidavits or by depositions and admissions on file `mak[e] a showing sufficient to establish . . . [that a genuine issue of material fact exists as to each] . . . element essential to that party's case.'" Equimark Commercial Fin. Co. v. C.I.T. Fin. Servs. Corp., 812 F.2d 141, 144 (3d Cir. 1987) (declaring that a non-movant may not "rest upon mere allegations, general denials, or . . . vague statements"). Thus, if the non-movant's evidence is merely "colorable" or is "not significantly probative," the court may grant summary judgment. Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505.


a) Plaintiff's Product Liability Claim

In count two of the complaint, Plaintiff asserts a strict products liability claim against PSE & G. (See Compl. at Count Two) Actions grounded in the principles of products liability law have been codified by the legislature in New Jersey's Products Liability Act ("NJPLA"), which applies to "any claim or action brought by a claimant for harm caused by a product, irrespective of the theory underlying the claim[.]" See N.J. Stat. Ann. § 2A:58C-1(b)(3)(West 1987)(emphasis added). New Jersey courts interpreting the Act have consistently held that, as a general rule, common law actions for negligence and breach of implied warranty are subsumed by the NJPLA when the claims asserted fall within the act's purview. See e.g., Potwora v. Grip, 319 N.J. Super. 386, 725 A.2d 697, 704 (1999); Tirrell v. Navistar Int'l, Inc., 248 N.J. Super. 390, 591 A.2d 643, 647-48 (1991); Walus v. Pfizer, Inc., 812 F. Supp. 41, 43 (D.N.J. 1993); see also Repola v. ...

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