The opinion of the court was delivered by: Hon. Joseph H. Rodriguez
Presently before the Court are cross motions of the parties for summary judgment. Plaintiffs George and Mary Worrell ("Plaintiffs") filed a complaint against Defendant Elliott & Franz under theories of negligence and products liability.*fn1 George Worrell ("Worrell") was injured at work when he attempted to secure a hose on an excavator that he was responsible for transporting from New Jersey to Pennsylvania. Worrell was employed by Defendant Winzinger, Inc., which is an excavating company and named as a defendant for discovery purposes only. Complaint ("Compl.") ¶ 5. Defendant Elliott & Frantz ("Defendant") services heavy equipment and allegedly installed certain components on Winzinger's equipment. Id. at ¶¶ 1, 14-15.
Count I of the Complaint seeks liability against Defendant Elliott & Franz under a theory of products liability. In general terms, Plaintiffs claim that Defendant's improper installation of a wet kit onto Winzinger's Hitatchi excavator caused a hose component to protrude above the boom arm in a manner that compromised the ability to safely transport the excavator, rendering it unsafe and defective. Id., Count I at ¶¶ 1-16. Count II seeks liability under a negligence theory, alleging that Defendant's improper installation of the wet kit is the proximate cause of George Worrell's injuries. Id., Count II at ¶¶ 1-5. Defendant has moved for summary judgment and Plaintiffs cross move for summary judgment barring Plaintiff George Worrells' comparative fault.
George Worrell was responsible for transporting a Hitachi EX450 LC-5 excavator, Winzinger No. 351 (the "excavator") from Voorhees, New Jersey to a job site in Pennsylvania on July 19, 2007. Ex. A, Compl.; Ex. B, Dep. of George Worrell, 8:11-13, 10:5-16; 14:9-24; 24:3-23; 30:4-32:5; 32:24-33:10. The parties agree that the excavator had been fitted with a "wet kit" or an auxiliary system subsequent to its original manufacture. The hoses on the wet kit were installed in a manner that caused them to protrude over the highest or tallest point of the boom arm of the excavator. The resulting additional height caused by the addition of the hoses presented transportation concerns for Worrell.
For the most part, Worrell transported the excavator for four years without incident. Ex. B, Dep. of George Worrell 98:15-102:11. However, on one occasion he transported the excavator on New Jersey State Route 73 and the hoses on the unit rubbed the undercarriage of a bridge. Id. at 26:8-29:14. Worrell also had an incident with the excavator while transporting it in Philadelphia, where he failed to clear an eleven foot overpass. Id. at 25:1-26:3. For his July 19, 2007 transport of the excavator, Worrell was planning to travel on State Route 73 in New Jersey. Id. at 20:19-21:4. Given his previous incident on this road, Worrell felt that he had to secure the hydraulic hoses of the wet kit and he climbed the arm of the boom to reach them. Id. at 8:11-13, 10:5-16; 14:9-24; 24:3-23; 30:4-32:5; 32:24-33:10. However, Worrell fell off of the boom arm and was injured. Ex. D, Dep. of Kenneth Cockerill.
Worrell agrees that he alone decided to attempt to tie down the hydraulic hoses and that no one from Winzinger instructed or required that he do so. Ex B., Dep. of George Worrell, 28:10-14. Worrell further agrees that, to his knowledge, he is the only person who secures the hoses or has had a problem transporting the excavator in question. Id. at 29:9-30:3, 44:19-45:1, see also, Ex D. Cockerill Dep. 43:23-44:2.
B. Worrell's Expert Report
Paul Stephens is Plaintiffs' expert. He was commissioned to examine the excavator involved in Worrell's injury. Ex. I, Stephens' Report. Stephens claims he compared his measurements of the excavator with the State of New Jersey's statutory clearance minimum and the clearance of the anticipated hauling routes and concluded that the height of the excavator, including the installed wet kit, rendered the machine defective. Id. Stephens attributes the defect to the improperly installed wet kit, which not only caused regulatory height transportation violations, but also was "an integral part of the 'as manufactured' content of the machine." Id. at 11. "[T]he excavator, with an improperly installed wet kit that increased the excavator's transport height and potentially shortened wet kit hose life, had a manufacturing defect." Id.
Stephens' report, by implicit and explicit means, validates Worrell's transportation clearance concerns. Id. at 11-12. It also identifies the theory underscoring Worrell's products liability claim as a manufacturing defect.
A. Summary Judgment Standard "Summary judgment is proper if there is no genuine issue of material fact and if, viewing the facts in the light most favorable to the non-moving party, the moving party is entitled to judgment as a matter of law." Pearson v. Component Tech. Corp., 247 F.3d 471, 482 n.1 (3d Cir. 2001) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)); accord Fed. R. Civ. P. 56 (a). The Court will enter summary judgment in favor of a movant who shows that it is entitled to judgment as a matter of law, and supports the showing that there is no genuine dispute as to any material fact by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations . . . admissions, interrogatory answers, or other materials." Fed. R. Civ. P. 56 (c)(1)(A).
An issue is "genuine" if supported by evidence such that a reasonable jury could return a verdict in the nonmoving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" if, under the governing substantive law, a dispute about the fact might affect the outcome of the suit. Id. In determining whether a genuine issue of material fact exists, the court must view the facts and all reasonable inferences drawn from those facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Initially, the moving party has the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met this burden, the nonmoving party must identify, by affidavits or otherwise, specific facts showing that there is a genuine issue for trial. Id.; Maidenbaum v. Bally's Park Place, Inc., 870 F. Supp. 1254, 1258 (D.N.J. 1994). Thus, to withstand a properly supported motion for summary judgment, the nonmoving party must identify specific facts and affirmative evidence that contradict those offered by the moving party. Anderson, 477 U.S. at 256-57. "A nonmoving party may not 'rest upon mere allegations, general denials or . . . vague statements . . . .'" Trap Rock Indus., Inc. v. Local 825, Int'l Union of Operating Eng'rs, 982 F.2d 884, 890 (3d Cir. 1992) (quoting Quiroga v. Hasbro, Inc., 934 F.2d 497, 500 (3d Cir. 1991)). Indeed, the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, 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.
Celotex, 477 U.S. at 322. That is, the movant can support the assertion that a fact cannot be genuinely disputed by showing that "an adverse party cannot produce admissible evidence to support the [alleged dispute of] fact." ...