On Appeal from the Superior Court of New Jersey, Law Division, Essex County, L-6309-02.
The opinion of the court was delivered by: S.L. Reisner, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Coburn, Lisa and S.L. Reisner.
Plaintiff, an employee of Baker Adhesive Co., was seriously injured when his arm was drawn into a glue mixing machine that Baker had bought from defendant Valer Guhr. Plaintiff sued Guhr under the Product Liability Act, N.J.S.A. 2A:58C-1 to -11, contending that Guhr was a product seller who was strictly liable for any defect in the mixing machine. The trial judge granted Guhr's motion for summary judgment, concluding that the evidence was insufficient to establish that he was a product seller as defined in the Act. N.J.S.A. 2A:58C-8.
We conclude that the trial judge erroneously viewed the evidence in the light most favorable to the defendant, contrary to the well-established summary judgment standard. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Giving plaintiff the benefit of all favorable inferences, he was entitled to a trial on the issue of whether defendant was a product seller. Because defendant's alleged status as a seller under the Act is an issue of duty which the court must decide, see Suter v. San Angelo Foundry, 81 N.J. 150, 172 (1979), and since it is a discrete issue readily separable from the underlying personal injury suit, the trial judge should have conducted a bench trial on the issue pursuant to R. 4:46-3(b).*fn1
Moreover, under all the circumstances, we find that plaintiff is entitled to an opportunity to re-depose the defendant who, on the day of the summary judgment motion, served a certification and supplemental interrogatory answers contradicting his prior deposition testimony and setting forth facts he had not previously disclosed concerning his alleged non-involvement in sales of machinery. We therefore remand the case to permit further discovery, to be followed by a bench trial on the limited issue of whether plaintiff was a product seller within the meaning of N.J.S.A. 2A:58C-8. Plaintiff's right to a jury trial on the underlying product liability and personal injury claim will depend on the outcome of the bench trial.
We briefly review the facts and procedural history of this matter. This action arose from an accident that occurred on October 30, 2000, while plaintiff, Jose Agurto, was operating a glue mixer or "disperser" at his place of employment, Baker Adhesive Company. While he was working on the mixer, the machine grabbed his shirt and pulled him in. As a result, his right arm became caught in the vat, was crushed, and had to be amputated. He sued Guhr, the seller of the mixer, and Special Machinery Corp., the manufacturer, on claims of strict liability and negligence.*fn2
The facts relating to the strict liability claim are as follows. Guhr obtained the machine in 1992 from a company called Malcom-Nickol in lieu of payment for work he had done for that company. He kept the machine in his warehouse for five years and then sold it to Baker in 1997. The machine was manufactured by Special Machinery Corp., an entity that was defunct by the time of plaintiff's lawsuit. Hence, Guhr was not protected by the exemption in the Product Liability Act for a seller that can identify the manufacturer of the defective product. N.J.S.A. 2A:58C-9(b) and (c).
At his deposition Guhr testified that he was an electrician who worked as an independent contractor providing installation and maintenance services for Baker and similar companies. He testified that he worked on production and packaging machinery, such as "[r]ibbon blenders, dryers, dispersers [and] pumps." He admitted selling the machine in question to Baker and he admitted having additional machines in his warehouse.
In Guhr's deposition, he also admitted having sold at least three machines to other companies besides Baker since 2000, although he claimed that sales of machinery were a very small part of his business. He claimed he could not recall how many machines he had sold between 1995 and 2000.
Stewart, the president of Baker, testified at one point in his deposition that Guhr "[b]ought equipment for us and maintained it." He testified that "if we needed a machine, we would just go to Valer Guhr and say we needed a machine." But later in his deposition he testified that Baker had bought machines from Guhr. He was asked "Do you know how many other machines, if any, Baker Adhesive has purchased from Mr. Guhr over whatever period of time?" He answered "[p]robably all of them." He was then asked "[a]nd by that you mean to say that Baker Adhesive has probably purchased all of the mixing machines from Mr. Guhr at one point or another?" He ...