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Shelcusky v. Garjulio

May 22, 2002

RICHARD SHELCUSKY AND DONNA SHELCUSKY, HIS WIFE, PLAINTIFFS-APPELLANTS,
v.
AL GARJULIO, INDIVIDUALLY AND/OR DOING BUSINESS AS INTERSTATE TRUCKING, JOHN MARTINEZ, STERLING WINTHROP, INC., DOING BUSINESS AS L&F PRODUCTS, KODAK, JOHN DOES #1-#16, JOHN DOES 17-21 (UNKNOWN PERSONS AND/OR ENTITIES) AND JOHN DOES 22-25 (UNKNOWN PERSONS AND/OR ENTITIES), DEFENDANTS, AND CROWN EQUIPMENT CORPORATION, DEFENDANT-RESPONDENT.



On certification to the Superior Court, Appellate Division, whose opinion is reported at 343 N.J. Super. 504 (2001).

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

In this appeal, the Court considers for the first time the appropriateness of using the sham-affidavit doctrine in a summary judgment setting.

Richard Shelcusky was severely burned in an explosion that occurred while he was operating a standard Etype electrically powered forklift at his place of employment, Reckitt & Coleman, Inc. (R&C), a production facility that manufactures household aerosol products. Crown Equipment Corporation (Crown) manufactured the Type-E forklift.

At the time of the accident, Shelcusky had been working for R&C for sixteen years. On a daily basis, he operated forklifts. Prior to the explosion, Shelcusky was using a Crown type-E forklift to load pallets of boxes filled with damaged aerosol cans into an enclosed forty-foot tractor-trailer. During his deposition, Shelcusky testified that he did not know what was contained in the boxes he was loading at the time of the accident. Although Shelcusky was aware that there were explosive and flammable materials on R&C's premises, he did not know that he was loading rejected and leaking aerosol cans. Shelcusky asserts that he did not know that the specific type of forklift he was using could ignite flammable gases and vapors because there was no warning on the forklift. Shelcusky testified in deposition that had there been a warning, he would have followed it.

According to R&C's Human Resources Manager, there were three types of forklifts used at the facility. Type-E forklifts generally were used by employees to move finished products. R&C considered boxed, rejected aerosol cans, like the ones being moved by Shelcusky on the day of the accident, to be finished products. Crown contends that neither R&C nor its employees knew that the rejected, damaged, and leaking cans were flammable. Shelcusky's expert prepared a report stating that the Type-E forklift should not have been used to move the damaged and leaking cans because they posed a fire hazard. In addition, the Occupational Safety and Health Administration's investigative report citing R&C with several violations, concluded that employees were led to believe that the aerosol cans, even the leaking ones, were safe to handle once they became finished product and/or once the material was in the container. The report also noted that all employees interviewed indicated that they did not consider the damaged cans to be a hazard.

In his personal-injury lawsuit, Shelcusky alleges that Crown violated provisions of the New Jersey Products Liability Act because the forklift was not reasonably fit, suitable, or safe for its intended purposes in that Crown failed to place a warning on the Type-E forklift that would have alerted a user that it should not be used in the presence of flammable materials.

After the close of discovery, Crown moved for summary judgment, contending that there was no genuine issue of material fact in dispute demonstrating that Crown's failure to warn was the proximate cause of Shelcusky's injuries. The trial court agreed, finding that Shelcusky had failed to prove that Crown's failure to warn proximately caused his injuries because his employer, R&C, did not consider the leaking cans he was loading to be flammable. The court reasoned that, even if a warning had existed, Shelcusky would have had to ask R&C officials if the leaking cans he was loading were flammable. Because R&C would have answered no, Shelcusky would have disregarded a warning.

Shelcusky moved for reconsideration, submitting a certification from a co-employee noting that employee's awareness that products manufactured at R&C were flammable. Shelcusky submitted this certification to show that he would not have to ask his employer whether the items he was moving were flammable. The court rejected that argument and denied the motion. Shelcusky moved for a second reconsideration, submitting a certification stating that he knew prior to the accident that the rejected and leaking aerosol cans he was loading were flammable and that a warning on the forklift would have prevented him from using it to load the rejected aerosol cans. The trial court refused to consider the reconsideration motion.

The Appellate Division affirmed the decision of the trial court, concluding that no genuine issue of material fact existed to demonstrate Crown's failure to warn was the proximate cause of Shelcusky's injuries. In regard to Shelcusky's second affidavit, the panel determined that it contradicted his earlier deposition testimony and his prior affidavit and, therefore, raised only a sham factual dispute.

The Supreme Court granted certification.

HELD: The sham-affidavit doctrine calls for the trial court to evaluate an alleged contradictory affidavit consistent with the holding in Brill v. Guardian Life Insurance Co. When not applied mechanistically to reject any and all affidavits that contain a contradiction to earlier deposition testimony, the doctrine requires a court to evaluate whether a true issue of material fact still exists, notwithstanding the affiant's earlier deposition testimony.

1. The sham-affidavit doctrine permits a trial court to disregard an offsetting affidavit that is submitted in opposition to a motion for summary judgment when the affidavit contradicts the affiant's prior deposition testimony. The doctrine calls for rejection of the affidavit where the contradiction is unexplained and unqualified by the affiant. In such a case, the alleged factual issue in dispute can be viewed as a sham and, therefore, would not impede the grant of summary judgment. Although the majority of federal and state jurisdictions have adopted the doctrine, it has not been applied mechanistically. For example, courts have refused to reject an allegedly contradictory affidavit that explains aspects of the affiant's deposition testimony on an unclear point. (Pp. 12-21)

2. Brill v. Gu ardian Life Insurance Co. sets forth a standard for courts to apply when determining whether a genuine issue of material fact exists allowing a matter to proceed to trial. Sham facts proffered only to create disputed issues should not subject a party to the burden of trial. The determination that an offsetting affidavit creates only a sham factual dispute is well within the trial court's authority at the summary judgment stage, when the court must evaluate, analyze, and sift through evidence to determine whether the evidence, when viewed in the light most favorable to the opposing party, would permit a rational factfinder to resolve the issue in favor of the opposing party. The proper application of this doctrine does not intrude on the jury's function. (Pp. 21-24)

3. Courts should not reject alleged sham affidavits where the contradiction is reasonably explained, where an affidavit does not contradict patently and sharply the earlier deposition testimony, or where confusion or lack of clarity existed at the time of the deposition questioning and the affidavit reasonably clarifies the affiant's earlier statement. (Pp. 24-25)

4. The grant of summary judgment was inappropriate in this case because a rational factfinder could determine that: 1) Shelcusky's deposition testimony and initial certification were not inconsistent with his subsequent certification; and 2) Shelcusky had a plausible explanation for any perceived inconsistency in his representations to the court. Shelcusky's representations to the court reflect cumulatively his awareness that the materials he worked with on a daily basis were flammable. Moreover, a jury reasonably could find that Shelcusky would not have used the forklift on the day of the accident if Crown had provided an adequate warning. (Pp. 25-29)

Judgment of the Appellate Division is REVERSED and the matter is REMANDED to the trial court for further proceedings.

JUSTICE VERNIERO, concurring in part and dissenting in part, agrees with that portion of the Court's opinion incorporating the sham-affidavit doctrine into the State's jurisprudence. According to Justice Verniero, the proper inquiry is not whether Shelcusky submitted a sham affidavit but whether the existing pleadings, depositions, and certifications create a jury question in respect of whether the lack of warning on the forklift was the proximate cause of Shelcusky's injuries. Because no reasonable jury could find proximate causation on the record presented, Justice Verniero respectfully dissents from the majority's ultimate disposition.

CHIEF JUSTICE PORITZ and JUSTICES STEIN, COLEMAN, LONG and ZAZZALI join in JUSTICE LaVECCHIA'S opinion. JUSTICE VERNIERO filed a separate opinion concurring in part and dissenting in part.

The opinion of the court was delivered by: LaVECCHIA, J.

Argued March 12, 2002

Plaintiff was injured severely in an explosion at work while using a forklift to load pallets of rejected, leaking aerosol cans. In this failure-to-warn action against the manufacturer of the forklift, plaintiff alleges that if the defendant had supplied an adequate warning to alert potential users that that model of forklift could not be used to transport flammable materials, he would have found out what he was loading and not used that forklift. The trial court concluded that plaintiff had failed to establish a genuine issue of material fact concerning proximate cause and granted summary judgment to defendant. The court held that because no one in the workplace thought that finished aerosol cans, even if they were "rejects," were flammable, there was no triable issue on whether the failure to warn was the proximate cause of plaintiff's injuries. When plaintiff submitted moving papers that included a second affidavit related to that issue, the trial court refused to consider the motion.

The Appellate Division affirmed the trial court, including the court's refusal to consider the second affidavit. The panel determined that the affidavit contradicted plaintiff's earlier deposition testimony and his prior affidavit, and therefore raised only a sham factual dispute. Thus, in our review of the Appellate Division's determination, we have the opportunity to address the question whether to accept the "sham affidavit" doctrine that arose as a part of the federal law governing summary judgment practice under Rule 56(c) of the Federal Rules of Civil Procedure.

I.

Plaintiff Richard Shelcusky received severe burn injuries in an explosion that occurred in 1996 while he operated a standard E-type electrically powered forklift at his place of employment, Reckitt & Coleman, Inc. (R&C). The forklift was manufactured by Crown Equipment Corporation (Crown). R&C is a production facility that manufactures household aerosol products such as Lysol, Wizard Air Freshener, and Resolve Carpet Cleaner. The products contain an ignitable mixture of the aerosol gases isobutane and propane.

At the time of the accident plaintiff had been employed at R&C for sixteen years. Between 1984 and 1996 he worked as a material handler and later as a production worker. Both of those jobs required him to operate forklifts on a daily basis.

The explosion occurred while plaintiff was using a Crown forklift to load pallets of boxes filled with damaged aerosol cans into an enclosed forty-foot tractor-trailer. Plaintiff testified during his deposition that he did not know what was contained in the boxes he was loading at the time of the accident:

Q: And, again, do you know what kind of product you were loading on there? Was it all the same?

A: I have no idea.

Q: Was it all aerosol materials?

A: Like I said, I have no idea.

Q: You just don't know anything about the nature of the materials?

A: Correct.

The explosion occurred during plaintiff's seventh load. The forklift was halfway inside the tractor-trailer and plaintiff was about to put it into reverse when the forklift ignited flammable aerosol gases that had accumulated in the tractor-trailer's bay. The fire that erupted caused first- and second-degree burns over a significant portion of plaintiff's body.

After sixteen years of employment at the R&C facility, plaintiff was aware that there were explosive and flammable materials on the premises. During his ...


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