On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-1016-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman and King.
Plaintiff Luis Suarez was employed by third-party defendant Cosmetic Essence, Inc. (Cosmetic), a cosmetics manufacturing company. Suarez' job responsibilities included pouring ingredients used to manufacture Cosmetics' products into opened-top mixing tanks. One of those tanks was a 2000 gallon tank manufactured by defendant Lee Industries, designated by Cosmetics as tank K6, which was approximately eleven feet tall and six-and-a-half feet in diameter. Cosmetics' standard operating procedure for pouring ingredients into this tank was to place the ingredients into a large drum, put the drum on a pallet located on a forklift, raise the forklift to the top of the tank, with the Cosmetics' employee responsible for mixing of the ingredients standing on the pallet, and then have the employee pour the drum into the tank. On February 23, 2010, while Suarez was pouring ingredients into the tank in accordance with this procedure, he fell headfirst into the tank. As a result, he suffered serious personal injuries.
Lee delivered the tank into which Suarez fell to Cosmetics in 1991 and modified the tank in 1994. The tank did not include any safety device to prevent a worker from falling into it. Instead, the operations manual Lee distributed with the tank recommended that the buyer install safety devices and offered such devices as an option at the buyer's request:
7. . . . Lee highly recommends the use of grates, or other safety methods, to assure solid objects will not be loaded into the vessel during agitator operation.
8. All agitators should have safety devices installed on the unit to help ensure safety to all operating personnel. These devices may include (but are definitely not limited to) limit switches, emergency stop buttons, safety grating, and tilting lock pins. These items are normally supplied by the user, but can be supplied by Lee if requested. Consult Lee if any safety controversies arise before an accident occurs. Don't take chances.
Cosmetics did not order any of the recommended safety devices from Lee or install such devices itself.
Suarez brought this personal injury action against Lee for the personal injuries he suffered when he fell into the tank. Suarez claimed that the tank was defective because it did not include safety devices required for safe use of the product. Suarez' product liability claim was supported by the opinions of Bartley Eckhardt, an engineering liability expert, who submitted a report and then was deposed.
Lee filed a third-party complaint against Cosmetics, which claimed that Cosmetics had committed an "intentional wrong" by failing to provide a safety platform for workers such as Suarez to use in pouring ingredients into the K6 tank and misusing the forklift to raise workers carrying ingredients to the top of the tank, and therefore could not rely upon the workers' compensation bar to tort liability. After completion of discovery, Cosmetics moved for a summary judgment dismissing Lee's third-party complaint, which the trial court granted.
Lee filed a motion for a summary judgment dismissing Suarez's complaint on two alternative grounds: (1) the tank manufactured by Lee was only a component part of the Cosmetics manufacturing process and therefore Lee could not be held liable for any unsafe condition created by Cosmetics' use of the tank; and (2) the opinion of Suarez's expert, Eckhardt, was a "net opinion" that could not support a finding that the tank manufactured by Lee was defective.
The trial court concluded that the question whether the tank is a component part or a finished product presented a question of fact to be determined by the jury and rejected Lee's motion for summary judgment on that theory. However, the court agreed with Lee's argument that Eckhardt's opinion that the tank Lee sold to Cosmetic was defective because it did not include the safety devices required to make the product safe was a "net opinion." Therefore, the court granted Lee summary judgment dismissing Suarez's complaint.
Suarez appeals from the summary judgment dismissing his complaint, and Lee appeals from the summary judgment dismissing its third-party complaint against Cosmetics. We now consolidate the appeals. We reverse the summary judgment dismissing Suarez' complaint. We ...