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Shelcusky v. Garjulio

August 09, 2001

RICHARD SHELCUSKY AND DONNA SHELCUSKY, PLAINTIFFS-APPELLANTS
v.
AL GARJULIO, INDIVIDUALLY AND/OR D/B/A INTERSTATE TRUCKING, JOHN MARTINEZ, STERLING WINTHROP, INC., D/B/A L&F PRODUCTS, KODAK, JOHN DOES #1-#16, JOHN DOES #17-#21 (UNKNOWN PERSONS AND/OR ENTITIES), JOHN DOES #22-#25 (UNKNOWN PERSONS AND/OR ENTITIES), DEFENDANTS, AND BROWN EQUIPMENT, CORP., DEFENDANT-RESPONDENT



On appeal from the Superior Court, Law Division, Somerset County, L-1552-98.

The opinion of the court was delivered by: Lintner, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 30, 2001

Before Judges Lintner and Weissbard.

Plaintiff, Richard Shelcusky,*fn1 an employee of Reckitt and Coleman (R&C), was injured as the result of an explosion that occurred while he was operating a standard E-type electrically- powered fork lift manufactured by defendant Crown Equipment Company. At the time of the explosion, he was loading pallets into a tractor trailer. The pallets contained rejected and leaking aerosol cans, which had been shrink-wrapped and packaged in cardboard boxes. The aerosol cans contained a flammable hydrocarbon propellant blend of isobutane and propane gas. The standard E-type fork lift that was being used by plaintiff was not rated for moving flammable product.

Plaintiff instituted a products-liability action against defendant contending that defendant failed to provide an adequate warning on the forklift that would have alerted him not to use an E-type forklift when moving flammable gases. After participating in discovery, defendant filed a motion for summary judgment. Following argument on the motion, Judge Guterl granted defendant's motion and posted his findings of fact and conclusions of law on the Internet on June 6, 2000. Plaintiff's motion for reconsideration filed on June 15, 2000, was heard and denied in a written decision, posted on the Internet on July 31, 2000. Plaintiff filed a second motion for reconsideration, after which notification was received from the judge's chambers that the motion would not be heard. This appeal ensued.

Plaintiff contends that the judge erred because there was a genuine issue of material fact established to show that defendant's failure to warn was a proximate cause of plaintiff's injuries. We disagree with plaintiff's contention and affirm.

We recount only the facts essential to our disposition of the issues presented. At the time of the explosion, plaintiff was moving flammable materials with a forklift that was not rated for use with flammable product. The essential issue was not whether a warning should have been provided, but rather, whether the failure to supply a warning was a proximate cause of plaintiff's injuries. Plaintiff testified at depositions that, at the time of the explosion, he had "no idea what [he] was loading." He testified that all he was told was to help load the trailer. He indicated that no one told him that the material was flammable. According to plaintiff, no one at R&C told him that there was flammable material on the premises. However, he was aware from common sense that things filled with gas could ignite. He could not recall ever being instructed that special forklift trucks should be used around certain materials. He denied being told how to handle flammable materials and any knowledge of different procedures used by R&C respecting such items.

Robert King, R&C's human resource manager, testified that the material that was being loaded by plaintiff was finished product that had been removed for either disposal or de-gassing of the aerosol cans. According to King, R&C did not consider finished products to be flammable. He testified that employees, like plaintiff, were trained to use E-type forklifts when moving flammable raw materials. He distinguished flammable raw materials from finished products as material contained in drums.

An OSHA investigation following the explosion concluded that (1) the forklift used to transport the aerosol cans of household products such as "Wizard Air Freshener" and "Resolve Carpet Cleaner," presented a source of ignition, which posed a fire and explosion hazard; (2) the aerosol cans were stored and prepared for removal from the storage area without being adequately checked to assure they were not leaking; and (3) the employees required to handle the rejected aerosol containers were not provided with instructions as to leaking and vapor hazards associated with them. The investigation related that employees stated "the containers were leaking." Some of the containers had been removed for repackaging. The report noted: "There was an EE fork lift truck available for use, but was not used" at the time. The investigation confirmed the following regarding the employer's operation procedure at the time of the explosion:

Employer . . . did not see this operation as a hazard. They considered the product in the cans a finished product, although 'rejected.' As a finished product, a regular fork lift truck for general warehouse use was deemed to be ok by employer.

In support of his motion for summary judgment, plaintiff submitted a certification dated May 12, 2000, reiterating the following information previously testified to by him at depositions:

At the time I was injured I did not know what I was loading, and I had no reason to inquire as to the contents of what I was loading. If it was important to determine what I was loading I would have discovered that the items I was loading ...


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