On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-3583-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: February 24, 2010
Before Judges Axelrad, Sapp-Peterson and Espinosa.
Plaintiff Thomas Gregory appeals summary judgment dismissal of his complaint for personal injuries sustained while operating a drill rig manufactured by defendant, Mobile Drilling Company, Inc. (Mobile), and refurbished by defendant, Acker Drilling (Acker). Plaintiff had alleged a number of design defects primarily centered on the fact that the drill rotation controls were set up differently from other hydraulic drill rigs used by plaintiff and owned by his employer, Warren George, Inc. (Warren George); violation of the New Jersey Product Liability Act, N.J.S.A. 2A:58C-1 to -11; failure to adequately warn of the risks and dangers posed by the rig on the part of Mobile; and negligent refurbishment of the rig by Acker. The court found plaintiff's expert report constituted a net opinion insufficient to create a triable issue of fact that the rig was defective in design or warnings, that either defendant created significant increased risk factors for injury, or that Acker had a duty to provide a safety hazard analysis at the time of its refurbishment. We affirm.
The facts are not in dispute.*fn1 Plaintiff worked as a geotechnical driller for Warren George for twelve years when he was assigned to a job site in Manhattan on January 7, 2005. The day of the accident was the first time he operated a Mobile B80 drill rig. The accident occurred at about 12:30 p.m., which was after plaintiff had been using the rig for about two to three hours. Plaintiff needed to attach another drill rod, requiring that he first "break the pipe" already attached, i.e., unscrew the rod from the drill head. Plaintiff injured his jaw when he was breaking the connection between the rod and the drill head on the rig. The Mobile B80 was not equipped with either a hydraulic break-out wrench or clamp attached to the rig, or a break-out table that prevents the rod from falling, thus requiring the manual application of a pipe wrench. To break the connection between the rod and the drill head, plaintiff or his helper affixed a 36-inch pipe wrench to the drill rod and backed the handle of the wrench up against the rig's derrick to prevent the wrench and rod from rotating with the drill head. This way, the drill head could be operated in reverse while the wrench held the rod steady, causing the rod to become unscrewed from the drill head. The rig's drill head rotation is controlled by a lever that requires pushing the lever in toward the rig to turn the head in reverse and pulling the lever out away from the rig to go forward. The parties do not dispute that plaintiff mistakenly operated the drill head to rotate in the wrong direction, pulling back on the controls, causing the drill head to rotate forward as it engaged and the handle of the wrench to swing quickly towards him and strike him in the jaw, knocking him unconscious.
Plaintiff admitted that he and his helper became aware of the direction that the rotation control operated when they used the drill rig at the job site that morning. They both saw that when plaintiff hit the control, the wrench they had attached turned in the opposite direction than what they had expected. Plaintiff's helper testified that when that happened, both he and plaintiff commented to each other that the wrench "came out." The helper testified that when he asked plaintiff if he saw that the wrench moved differently than how they expected, plaintiff told him that he did. The helper further testified that plaintiff told him to re-attach the wrench, which the helper did, and they then proceeded to use the rotation control correctly and without incident to attach the drill rod to the drill head.
Plaintiff explained, however, that although he noticed the unusual direction of the rotation control on the drill rig that morning, he, like other drill operators, typically operates the machines "by feel" and inadvertently pushed the lever in the direction to which he had grown accustomed. He related that the rotation control on the Mobile B80, which he had used for the first time in his career that day, operated in a direction that was the opposite of the considerable number of machines he had used while employed by Warren George. He explained that on the other machines the operator pushes the lever up to rotate the drill forward and pulls it down to rotate it in reverse.
Mobile had manufactured and delivered the rig to Warren George in 1987. The rig came equipped with black and yellow decals that indicated, among other things, the name of the controls and the direction that the controls functioned. Mobile's inspection sheet for the rig indicates that at the time of manufacture and delivery to Warren George, the rig's "serial number plate, decals, signs and warning plates are in place."
At the time of delivery Mobile also provided Warren George with a drilling safety manual authored by the National Drilling Association along with instructions for the rig itself.
Acker refurbished the rig in February 2004. William Jones of Acker testified that the work done on the rig consisted of changing the drill head from the original Mobile head to an Acker head and replacing various parts such as hoses, clamps and fluids, as described in the February 4, 2004 invoice. Acker made no changes to the design and left the head's rotation control lever operating in the same direction as the original rig. As part of the refurbishment, Acker installed new placards on the rig that identified the various levers on its control panel and indicated how they operated. Plaintiff acknowledged that the placard was legible on the day of his accident and correctly indicated the direction in which the rotation control lever operated. He also confirmed the rig's rotation control lever operated properly and consistently with the direction indicated by the placard.
Plaintiff's amended complaint asserted two causes of action against Mobile - strict liability and failure to warn. Plaintiff's claim against Mobile was that the rig was defective in design and failed to have adequate warnings at the time it was manufactured because he was injured at a job site when, despite using the rig without incident for some time on the date of the accident and admittedly knowing the direction of the rotation controls, he mistakenly placed the rotation control on the rig in reverse, causing the wrench attached to the drill rod to swing around and hit him in the face, breaking his jaw. He asserted three causes of action against Acker - strict liability, failure to warn, and negligence. Plaintiff alleged that Acker failed to warn of the dangers of the rig and created a defect and was negligent in reconfiguring the rig's controls in the manner it did.
In support of his position plaintiff presented a July 24, 2008 report by his engineer, Howard Medoff, PhD. In his report, Medoff posited, in pertinent part:
* there was no product safety signs and labeling alerting and reminding [plaintiff] of the potential personal safety hazards due to the ...