On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-06-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges R. B. Coleman, Sabatino and Simonelli.
Plaintiff, Daniel Aquilino Calva Calle, individually and as Administrator ad prosequendum on behalf of the Estate of Christian Daniel Calva Siguenza, appeals from separate orders dated November 16, 2007, granting summary judgment in favor of defendants, Hitachi Power Tools, American Style Construction, Inc. (American Style) and Hitachi Koki, USA, Ltd. (Hitachi). Hitachi manufactured a nail gun, or nailer, that Christian Daniel Calva Siguenza, the decedent, was using immediately prior to the time of his death. American Style was decedent's employer. We reverse the judgment entered in favor of the manufacturer, Hitachi; we affirm the judgment in favor of the employer, American Style.
On the morning of December 31, 2002, the decedent, Christian, a carpenter employed by American Style, went to work at his jobsite at 25 Montgomery Street, Yonkers, New York. At approximately 8:55 a.m., Christian was standing on a ladder working outside the second story of the building structure when he asked a co-worker, Lider Onteneda, who was on the second floor interior of the building, to pass a nail gun to him. After handing Christian the nail gun, Onteneda went back to work and noticed nothing further out of the ordinary. Jose Cevallas, working on a separate ladder alongside the decedent, saw him suddenly fall forward and "hug" the ladder he was standing on. Another co-worker, Rogerio Silva, observed him from the second floor "limp on the ladder" with a nail gun that dropped from his hand to the ground. Co-workers then removed him from the ladder, pulling him through a second story window.
Decedent was pronounced dead at the scene by paramedics at 9:20 a.m. The cause of death was a puncture wound to the chest created by a large nail. Investigators from the Yonkers Police Department interviewed everyone at the worksite and retrieved four pneumatic nailers which were photographed, marked and collected as evidence. No eyewitnesses saw the actual discharge of the nail into decedent's body.
Later in the morning, Occupational Safety and Health Administration (OSHA) officials arrived to conduct an investigation of the worksite and equipment. Defendant American Style initially denied access to OSHA. However, it eventually acquiesced to the Department's investigation. In its narrative report, OSHA concluded that all four of the nailers used by American Style construction workers were in disrepair. The dust shields had been removed from three of the nailers, and the compression safety springs had been removed from two. The OSHA investigation report also concluded that the three-inch nail which caused decedent's death was discharged from the Hitachi NV-83A nailer he was using on the jobsite, and that the nailer was missing its safety spring mechanism.
Plaintiff, the father of the decedent, filed a complaint in the Law Division, Essex County, alleging, among other things, that the decedent's personal injury and wrongful death were caused by defects in the design and manufacture of the nail gun and by the intentional conduct of decedent's employer in altering the nail gun. In the complaint, plaintiff alleges that it is foreseeable that workers or employers seeking to lessen the physical exertion or to maximize efficiency on the jobsite may be tempted to remove the safety device.
Upon completion of discovery, defendant Hitachi and defendant American Style filed separate motions for summary judgment. Hitachi argued, among other things, that plaintiff could not establish how the nail was caused to be fired into decedent's chest and could not establish that a defect existed in the nailer at the time of the incident. American Style argued it is protected by the exclusive remedy provision of the Workers' Compensation Act, N.J.S.A. 34:15-8, and that there is no evidence that it committed an intentional wrong.
Plaintiff opposed both motions, relying upon a report prepared by his proposed mechanical engineering expert, Clifford B. Anderson, P.E. Anderson, who has a master's degree in mechanical engineering, and has over thirty years of experience in the field, has taught upper level courses on mechanical engineering and pneumatics.
Anderson explains in his report that the Hitachi NV-83A nailer is a hand-held compressed air powered tool for driving nails into building materials. The tool's coil-style magazine discharges nails using a dual-action triggering mechanism consisting of a finger trigger and point-of-operation push lever. The purpose of the dual-action design is to prevent unintentional operation of the tool. A safety device, an externally mounted compression spring, keeps the nose-mounted push lever in an extended position until a specified amount of pressure is applied causing actuation when the trigger is concurrently pulled.
Anderson observed, however, that the compression spring can be removed easily, without tools or disassembly of the unit, and once the spring is removed, the amount of pressure at the point-of-operation required to discharge a nail is greatly reduced. With that premise, Anderson opines that the design of the subject nail gun is defective due to the compression spring's susceptibility to removal. In his report, Anderson lists remedial measures, which in his opinion, Hitachi could have implemented to reduce or eliminate the potential disengagement of the nail gun's safety features.
Anderson noted, and American Style acknowledges, that in addition to being intentionally removed, the compression spring, due to its external location, is also subject to being dislodged during normal construction use. Anderson claims the latter possibility is problematic in that visual inspections by users would not necessarily alert them to a missing spring due to the design of the tool. Finally, Anderson compared the design of the Hitachi NV-83A to other designs on the market and offered specific examples ...