UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY
August 1, 2007
JOSEPH FERRIOLA JR. AND KELLY FERRIOLA, PLAINTIFFS,
STANLEY FASTENING SYSTEMS, L.P., AND LOWE'S COMPANIES, INC., DEFENDANTS / THIRD PARTY PLAINTIFFS,
THOMAS PARKS, THIRD PARTY DEFENDANT.
The opinion of the court was delivered by: Honorable Joseph E. Irenas
Plaintiff Joseph Ferriola ("Ferriola") brings this product liability suit against Defendants/Third Party Plaintiffs Stanley Fastening Systems, L.P. ("Stanley") and Lowe's Home Centers, Inc. ("Lowe's") for negligence, strict liability, and breach of implied and express warranties after he suffered injuries from the alleged misfiring of a pneumatic nailer manufactured by Stanley. Stanley and Lowe's filed a Third Party Complaint against Third Party Defendant Thomas Parks ("Parks") seeking indemnification and contribution. Parks presently moves for summary judgment on all claims against him. For the reasons stated below, summary judgment will be granted.
On December 4, 2006, Parks purchased a Bostitch Stanley SB80 pneumatic nailer "as is" from Lowe's Home Improvement Center in Maple Shade, New Jersey.*fn1 (Def's Ex. B, Dep. of Parks at 17-18.) Parks had used the nailer on many occasions since the date of purchase. (Id. At 20: 21-25.) The nailer came equipped with a contact trip mechanism, and included in the box were an instruction manual and a sequential trip mechanism that a purchaser can install on his own.*fn2 (Id. at 19-20.) It is undisputed that Parks did not install the sequential trip mechanism or in any way modify the nailer after the date of purchase.
Ferriola, an experienced carpenter who has owned and used pneumatic nailers with contact trip mechanisms, borrowed Parks' nailer because he had recently returned two of his own since they double fired and his third one was broken. (Def's Ex. D, Dep. of Ferriola at 25-26, 145:13-18.) Parks, Ferriola's longtime friend and neighbor, did not provide the manual and sequential trip mechanism to Ferriola when he lent him the nailer, and Ferriola did not request them. (Id. at 146:21-147:1.) Parks claims that he did not do so because he believed that Ferriola was experienced in the operation of the nailer. (Def's Ex. B, Dep. of Parks at 36:1-7.)
While using the nailer on March 3, 2004, Ferriola was injured when it double fired.*fn3 Ferriola brought suit against Stanley and Lowe's on April 28, 2004, in the Superior Court of New Jersey, Law Division, Camden County, for negligence, strict liability, and breach of implied and express warranties.*fn4 On August 18, 2004, Stanley removed the case to this Court.*fn5
In June, 2005, Stanley and Lowe's both brought identical third-party complaints against Parks seeking contribution and indemnification. Stanley and Lowe's claim that while they have a continued duty to provide safe products and warn the user of any hazards, Parks, as the party controlling the nailer, also had an independent duty to deliver all warnings and safety equipment to Ferriola. Since Parks failed to do so, they reason, he is contributorily negligent. Parks moves for summary judgment asserting that he owed no duty to Ferriola. For the reasons set forth below, summary judgment will be granted.
"[S]ummary judgment is proper 'if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed. R. Civ. P. 56c). In deciding a motion for summary judgment, the Court must construe the facts and inferences in a light most favorable to the non-moving party. Pollock v. Am. Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3d Cir. 1986). The role of the Court is not "to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
"'With respect to an issue on which the non-moving party bears the burden of proof, the burden on the moving party may be discharged by 'showing'-- that is, pointing out to the district court -- that there is an absence of evidence to support the nonmoving party's case.'" Conoshenti v. Public Serv. Elec. & Gas, 364 F.3d 135, 145-46 (3d Cir. 2004) (quoting Celotex). "The plain language of Rule 56(c) mandates the entry of summary judgment . . . against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be 'no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex, 477 U.S. at 322; Fed. R. Civ. P. 56(e) (A party opposing summary judgment cannot rest upon the "mere allegations or denials of the adverse party's pleading" but must respond with affidavits or depositions setting forth "specific facts showing that there is a genuine issue for trial."). III.
Under New Jersey law, indemnification is only available when a party without fault is liable for the torts of another party as a result of constructive, secondary, or vicarious liability. See Allied Corp. v. Frola, 730 F.Supp. 626, 639 (D.N.J. 1990).*fn6 Two different situations can give rise to indemnification: either when a contract expressly provides for it, or when a special legal relationship creates an implied right of indemnity. See Id. See also Nivens v. Seivers Hauling Corp., 424 F.Supp. 82, 87-88 (D.N.J. 1976).
If the latter, "it is the existence of a special legal relationship sufficient to impose certain duties and a subsequent breach of those duties that permits an implied indemnification." Ruvolo v. United States Steel Corp., 133 N.J. Super. 362, 367 (1975). Examples of special legal relationships that can give rise to liability include lessor-lessee, principal-agent, and bailor-bailee. See Ramos v. Browning Ferris Indus. of S. Jersey, 103 N.J. 177, 189 (1986) (citing cases that specifically address various special legal relationships); see also Allied, 730 F.Supp. at 639 n.7 (discussing special legal relationships such as lessor-lessee, union-member, and employer-employee).
Stanley and Lowe's cannot claim indemnification from Parks as a matter of law. No contract exists between either Parks and Stanley or Parks and Lowe's. Likewise, no special legal relationship exists between Parks and either Stanley or Lowe's. The undisputed evidence merely demonstrates that Parks had an attenuated relationship with both Defendants. He was only a purchaser of a product manufactured by Stanley and sold by Lowe's. Accordingly, Stanley and Lowe's indemnification claims fail, and this Court will grant summary judgment in favor of Parks.
In addition to the indemnification claim against Parks, Stanley and Lowe's also assert claims for contribution under the New Jersey Joint Tortfeasors Contribution Act, N.J. Stat. Ann. §2A:53A-1 et seq., and the New Jersey Comparative Negligence Act, N.J. Stat. Ann. §2A:15-5.1 et seq.
Under New Jersey's Joint Tortfeasors Contribution Act, one tortfeasor "shall be entitled to recover contribution from the other joint tortfeasor or joint tortfeasors for the excess so paid over his pro rata share." N.J. Stat. Ann. 2A:53A-3 (2000).*fn7 The Act defines "joint tortfeasors" as "two or more persons jointly or severally liable in tort for the same injury to person or property." N.J. Stat. Ann. 2A: 53A-1 (2000). Stanley and Lowe's claim that they are entitled to contribution because Parks, the end purchaser, failed to give Ferriola the sequential trip mechanism and product manual and is thus contributorily negligent.
Analogizing this case to employment situations, Stanley and Lowe's argue that while they may be liable for Ferriola's injuries since they have a non-delegable duty to provide warnings and safety equipment, Parks is also partially liable because he received and was in control of the safety equipment and warnings. Since Parks was the party controlling the safety devices and warnings, Stanley and Lowe's claim that he had a duty to pass them along to the ultimate user, Ferriola. In failing to do so Parks breached his duty, they assert, and is therefore liable for contributory negligence.
In a products liability case, the manufacturer has a non-delegable duty to provide adequate warnings and safety devices to the ultimate user. See Lally v. Printing Mach. Sales and Serv. Co., 340 N.J. Super. 181, 184 (1990); see also Butler v. PPG Indus., Inc., 201 N.J. Super. 558, 563-4 (1985) (holding that a manufacturer still remains liable even when the defective product is not the sole cause of the injury). On the other hand, New Jersey courts have generally declined to impose a duty to provide safety devices or warnings on end purchasers. See Lally, 340 N.J. Super. at 186. As one court has said, manufacturers cannot escape liability by relying on the "haphazard conduct of the ultimate purchaser." Bexia v. Havir Mfg. Corp., 60 N.J. 402, 410 (1972).*fn8
The issue is what duty Parks owed to Ferriola. Because Parks merely lent Ferriola the nailer, a bailor-bailee relationship was created between them. According to New Jersey law, a gratuitous bailment exists when one party entrusts personal property to the care of another but receives no consideration for it. See Banks v. Korman Assoc., 218 N.J.
Super. 370, 372-3 (1987) (defining a gratuitous bailment for the purpose of assessing liability of a landlord who evicted a tenant but agreed to temporarily allow her to leave her furniture in the apartment, which was later damaged).
If parties create a bailment for the sole benefit of the bailee, the bailor's only duty is to disclose defects of which he knows or should know. See Nelson v. Fruehauf Trailer Co., 20 N.J. Super. 198, 202 (1952), aff'd, 11 N.J. 413 (1953); see also Rigby, 548 F.Supp. at 204. The Restatement (Second) of Torts states:
One who supplies directly or through a third person chattel for another to use is subject to liability . . . if the supplier knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied . . . and fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous. Restatement (Second) of Torts § 388 (1965).*fn9
Therefore, if bailor Parks failed to inform bailee Ferriola of a dangerous condition or defect of which he knew or should have known, he could be liable for Ferriola's injuries. Id; See Nelson, 20 N.J. Super. at 202.
However, if the bailee has affirmative knowledge of the product and its dangerous condition, the bailor can be absolved of liability. See Restatement (Second) of Torts § 388. The bailor is only required to disclose product defects when he "has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition." Id. Therefore, a bailor has no duty to disclose a defect if he reasonably believes that the bailee has knowledge of the dangerousness of the bailed item, or if the nature of the danger is open and obvious such that it is reasonable for the bailor to believe that the bailee will understand the danger. Id. In such situations, the bailor is not liable for any injury to the bailee as a result of the bailed item.
Thus, the question presented is whether or not Parks knew or should have known of the nailer's tendency to misfire. However, Stanley and Lowe's focused on whether or not Parks had a duty to pass along safety devices and product manuals. In short, because the parties misapprehended the nature of Parks' duty to Ferriola, their focus on his failure to provide safety devices and the product manual (i.e. the alleged breach) is misplaced. Moreover, while Parks stated that he often used the nailer himself, Stanley and Lowe's provide no evidence that Parks, based on his own knowledge and experience, knew of the alleged defect. The record is silent as to Parks' knowledge of any product defect or whether or not he should have known about it.*fn10
Furthermore, Stanley and Lowe's, the non-moving parties who bear the burden of proof at trial, have not submitted any affidavits, depositions, interrogatories, or other evidence to set forth "specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Instead, they rely solely on their opposition brief, which, besides misapprehending the nature of Parks' duty, fails to put forth any evidence that Parks knew of the nailer's alleged tendency to double fire or otherwise malfunction. As a result, Stanley and Lowe's have failed to prove that Parks breached the duty he owed to Ferriola and cannot establish a claim of contribution. Because of this fatal lack of evidence, the Court will grant summary judgment in favor of Parks on the contribution claim as well.
Based on the foregoing, Parks' Motion for Summary Judgment will be granted. This Court will issue an appropriate order.
JOSEPH E. IRENAS, S.U.S.D.J