(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
II. STANDARD FOR SUMMARY JUDGMENT
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. Morbark Indus., Inc., 934 F.2d 483, 492 (3d
Cir. 1991)(applying New Jersey law). Thus, when the NJPLA applies to a
plaintiff's cause of action, "the surviving cause of action is one of
strict liability[.]" Tirrell, 591 A.2d at 647 n. 5.
The basis of Plaintiff's products liability claim against PSE & G is
that a design defect rendered the product unreasonably unsafe.
Specifically the design defect alleged by the Plaintiff is PSE & G's
"failure to have procedures and properly trained [personnel] which
directly affects the safety of the product at issue." (See Pl.'s Br. at 8
n. 2) However the facts that Plaintiff cites in support of this assertion
focus not on any defect inherent in the product itself, but rather in PSE
& G's alleged failure to act promptly and efficiently in shutting off its
Although neither the New Jersey Supreme Court nor the appellate
division have addressed the issue of whether an electric company may be
held strictly liable under the NJPLA,*fn6 the Court need not address
this important legal issue because it finds that the conduct complained
of by the Plaintiff is not cognizable under the Act. In Ridenour v. Bat
Em Out, 309 N.J. Super. 634, 707 A.2d 1093, 1097 (1998), New Jersey's
appellate division held that a negligence standard applied to claims
related to the maintenance and installation of a change making
machine.*fn7 In addition to the negligent maintenance and installation
claims raised against the owner and provider of the machine, the
Ridenour court permitted the plaintiff to pursue a failure to warn claim
under the NJPLA. See id. at 1096. By so doing the appellate division
implicitly recognized that claims related to the maintenance of a product
fell outside the scope of New Jersey's Product Liability Act, which
subsumes all common-law negligence claims grounded upon injuries
resulting from defective products. Were the Ridenour court to
conclude that claims based on improper maintenance and installation
were actionable under the NJPLA,
the negligence claim would have been subsumed by the Act. Thus Ridenour
makes it clear that actions based upon conduct related to the improper
installation and maintenance of a product are not subject to strict tort
Here the Court finds that the claim asserted by the Plaintiff is not
related to a defect in the product (i.e. the electricity), but rather to
the maintenance and oversight of PSE & G's emergency response service.
This conclusion is supported by an examination of Plaintiff's brief*fn8
and expert reports,*fn9 which do not allege that the fire was caused by
any defect in the electricity, but rather by PSE & G's failure to
promptly discontinue electrical service to the building. Because this
conduct relates to the maintenance of the electrical service, and not a
defect inherent in the product, it does not qualify as "harm caused by a
product" and is therefore not cognizable under the NJPLA. See Potwora v.
Grip, 319 N.J. Super. 386, 725 A.2d 697, 704 (1999)(concluding that when
an injury does not result from a defective product, but rather from a
service, the NJPLA is inapplicable because the plaintiff's claim is "not
`for harm caused by a product' within the meaning of the Act"); see also
Ridenour, 707 A.2d at 1097 (holding that claims of improper maintenance
and installation are governed by negligence law, not the NJPLA).
A similar result was reached in Thomas v. Ford Motor Co.,
70 F. Supp.2d 521 (D.N.J. 1999). In Thomas, the district court held that
a claim for negligent installation of an airbag was not governed by the
NJPLA. See id. at 529. The court explained that the Act applied only to
injuries resulting from defective products, not to those which were
caused by improper conduct related to a product's installation. See id.
at 530. The Court finds that the rationale of Thomas applies with equal
force here, where the alleged conduct relates to the termination (as
opposed to installation) of the electrical service; in both cases the
alleged injury is not caused by a defect in the product itself, but by
the service attendant to its use.
In addition, the Court finds this decision consistent with the
underlying purpose of the NJPLA. In Zaza v. Marquess and Nell, Inc., the
New Jersey Supreme Court explained that the NJPLA "has been interpreted
as evincing a legislative policy `to limit the expansion of
products-liability law.'" 144 N.J. 34, 675 A.2d 620, 627 (1996)(quoting
Roberts v. Rich Foods, Inc., 139 N.J. 365, 654 A.2d 1365, 1369 (1995)).
Expanding the scope of the Act to include instances similar to the
present case would drastically increase the liability of manu
facturers and product sellers by effectively removing the statutory
requirement that the harm be caused by a defect in the product. This the
Court refuses to do. As a result the Plaintiff's motion for summary
judgment regarding its strict liability claim is denied. Because the
Court has determined that the conduct complained of by the Plaintiff does
not fall within the purview of the Act, it need not address whether the
NJPLA may, under a different set of circumstances, apply to electric
b) Plaintiff's Implied Warranty Claim
Count three of Plaintiff's complaint asserts an implied warranty claim
against PSE & G. In Dawson v. Chrysler Corporation, the Third Circuit
observed that "under the law of New Jersey, the governing principles of
strict liability and the implied warranty theory are identical."
630 F.2d 950, 955 (3d Cir. 1980); see also Heavner v. Uniroyal,
63 N.J. 130, 305 A.2d 412, 426-27 (1973)(explaining that when a party
seeks to recover in tort for consequential physical injury and property
damages, the action sounds in strict liability "and no advantage can
be gained by pleading [it] in terms of breach of [an implied]
warranty").*fn10 Given that these claims are premised upon the same
underlying principles, it follows that the Court's determination that
the conduct complained of fails to state a valid basis for a strict
products liability claim necessarily precludes the Plaintiff from
asserting a similar claim under an implied warranty theory. Therefore
Plaintiff's motion for summary judgment is denied as to its implied
For the reasons stated above, the Plaintiff's motion for summary
judgment is denied.
The Court will enter an appropriate order.
ORDER ON PLAINTIFF UNIVERSAL UNDERWRITERS INSURANCE GROUP'S
MOTION FOR SUMMARY JUDGMENT
THIS MATTER having come before the Court on Plaintiff Universal
Underwriters Insurance Group's motion for summary judgment regarding
Plaintiff's strict liability and implied warranty claims against
Defendant Public Service Electric & Gas Company;
The Court having considered the parties' submissions; and
Having heard argument on the matter on the 6th of June, 2000;
For the reasons set forth in the Court's opinion of this date;
IT IS on this day 20th day of June, 2000 HEREBY
ORDERED that the Plaintiff's motion for summary judgment is DENIED.