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Shen v. Do Do Plastics

June 24, 2008

WEN XUE SHEN, PLAINTIFF-APPELLANT,
v.
DO DO PLASTICS INC. CO., LTD., AND POLY PRO PLASTICS, INC., DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-6762-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 13, 2008

Before Judges Simonelli and King.

Plaintiff Wen Xue Shen sought damages against his employer, defendant Poly Pro Plastics, Inc., for injuries he sustained on October 23, 2003, while attempting to change a heat seal on a converter machine. Plaintiff appeals from the order of July 20, 2007, granting summary judgment to defendant dismissing his complaint with prejudice. We affirm.

I.

Defendant filed a summary judgment motion after the close of discovery. In support of the motion, defendant submitted the transcript of plaintiff's deposition testimony and photographs marked during the deposition, and the transcript of the deposition of one of defendant's employees. Plaintiff did not oppose the motion. The following undisputed facts were considered by the motion judge.

Plaintiff was employed by defendant as a maintenance worker. Plaintiff's job duties included overseeing defendant's machines and fixing any electrical or mechanical problems that caused the machines to shut down. On October 23, 2003, plaintiff injured his fingers while attempting to change the heat seal on the lower part of the converter machine at issue.

The converter machine was delivered to defendant in 2002, and was installed by the manufacturer's representatives. After the machine's delivery, defendant obtained a heat shield, which "was used during spring and fall to regulate the temperature so that the seals and the bags which were being cut would not stick together." The heat shield was not a protective device, which was removed when the heat seal tape had to be changed. The machine was also equipped with a gear lock.

Plaintiff was neither trained nor authorized to change the heat seal tape on the converter machine; no one instructed him to change the heat seal tape; and he changed the heat seal on his own when he discovered a problem with the seal. Plaintiff also failed to use the gear lock when changing the heat seal tape, which would have prevented the sealing bar from dropping onto his fingers. Prior to plaintiff's injury, no employee had ever been injured by the converter machine.

We use the standard the trial court uses in deciding a summary judgment motion. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.) (citing Antheunisse v. Tiffany & Co., Inc., 229 N.J. Super. 399, 402 (App. Div. 1988), certif. denied, 115 N.J. 59 (1989)), certif. denied, 154 N.J. 608 (1998). Summary judgment must be granted 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 challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 528-29 (1995). "Genuine" means "only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact." R. 4:46-2(c).

In determining whether there is a genuine issue of material fact for summary judgment purposes, the trial court must ascertain "what reasonable conclusions a rational jury can draw from the evidence[.]" Brill, supra, 142 N.J. at 535. To make the determination, the judge "'must accept as true all evidence which supports the position of the party defending against the motion and accord him [or her] the benefit of all legitimate inferences which can be deduced therefrom[.]'" Ibid. (quoting Pressler, Current N.J. Court Rules, comment 1 on R. 4:40-2 (2007)). If reasonable minds could differ, the motion must be denied. Ibid.

The "essence of the inquiry" is "'whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Id. at 536 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 2512, 91 L.Ed. 2d 202, 214 (1986)). The trial court is required to consider "whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Id. at 540. The opposing party must nevertheless offer facts which are substantial or material in opposing the motion, in order to defeat the grant of summary judgment. Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 75 (1954).

Even though the allegations of the pleadings may raise an issue of fact, if the other papers show that, in fact, there is no real material issue, then summary judgment can be granted. Ibid. Thus, "[b]are conclusions in the pleadings, without factual support in tendered affidavits, will not defeat a meritorious application for summary judgment." U.S. Pipe & Foundry Co. v. Am. Arbitration Ass'n, 67 N.J. Super. 384, 399-400 (App. Div. 1961) (citing Gherardi v. Bd. of Educ. of the City of Trenton, 53 N.J. Super. 349, 358 (App. Div. 1958)). Furthermore, disputed issues that are "of an insubstantial nature" cannot overcome a motion for summary judgment. Brill, supra, 142 N.J. at 530 (citing Judson, supra, 17 N.J. at 75). Therefore, "when the evidence 'is so one-sided that one party must prevail as a ...


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