On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket L-6321-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, Sapp-Peterson and Simonelli.
In this products liability matter, plaintiff Erick Ralda DeLeon appeals from the denial of his motion for reconsideration of the grant of summary judgment to defendant Graco, Inc. (Graco) and dismissal of plaintiff's complaint with prejudice. The motion judge concluded that plaintiff's liability expert rendered a net opinion on the cause of the injury plaintiff sustained while cleaning a high-pressure paint spray gun, which Graco manufactured. We conclude that plaintiff's expert rendered a net opinion as to some, but not all of, the defects of the spray gun that the expert concluded caused plaintiff's injury. We, thus, affirm in part, and reverse in part.
Plaintiff was employed as a painter by Garden State's Dun-Rite Painting (Dun-Rite). On August 31, 2004, plaintiff was injured by a spray gun when he attempted to clean it.
Plaintiff's liability expert, Paul Tutton, described the spray gun as follows. The spray gun has a handle grip with a four-finger trigger and removable nozzle assembly that has a cylindrical or plug valve referred to as the tip, through which the paint flows. In order for the spray gun to function, it had to be pressurized by a compressor, which was attached to the spray gun through hoses. According to Dun-Rite's policy, the pressure setting on the compressor had to be turned down before cleaning the spray gun.
The trigger is one feature of the spray gun that allows pressurized paint to flow through the spray gun. When the trigger is squeezed, the valve within the spray gun opens, allowing pressurized paint to pass through to the nozzle tip. When the trigger is not squeezed, it remains in a forward position. In this forward position, the valve is closed, and paint will not pass through to the nozzle. Thus, to open the valve to allow paint to pass through the spray gun, the trigger would have to be either pulled back or squeezed.
The trigger has a manual safety lock near the hinge of the trigger, which can lock the trigger in both the open-valve and closed-valve positions. To achieve the locked-open position, the user would squeeze the trigger, and the safety would rotate and manually engage. In the locked-open position, a slight squeeze of the trigger would allow a spring to release and disengage the safety. To achieve the locked-closed position, the user would have to manually push forward the trigger to allow the safety to be manually rotated into a locking position. There is no spring action associated with the locked-closed position.
The tip of the spray gun can be rotated to change the orientation and pattern of the nozzle. With the nozzle either forward or toward the handle, the paint would flow through the spray gun. Only rotating the nozzle completely to the side would block the flow of paint.
The rotating tip is inserted into a hole in the guard assembly. There are two stops to prevent over-insertion and rotation beyond an approximately 180-degree arc. Other than these two stops, the tip was only held in place by friction. Once the tip was inserted, only friction prevented rotation of the nozzle and tip from sliding out. The position of the arrow on the tip handle indicated the direction of the nozzle, but there was nothing to indicate whether the tip was fully inserted into the hole in the guard assembly. The spray gun also has a "retaining" nut that provides compression on the tip, making it stiffer and more difficult to move or remove when the nut is tightened.
Plaintiff testified at his deposition that after he finished spraying, his supervisor instructed him to clean the spray gun and to take out and replace the tip. The supervisor advised plaintiff that the spray gun was "ready" for cleaning. Plaintiff believed that the pressure had been turned down and did not check it because the compressor was off. However, by the time plaintiff picked up the spray gun, a co-employee had activated the compressor. Plaintiff then loosened the retaining nut "a little bit" and paint shot out from the front of the spray gun and the side where the tip was, injecting paint into the palm of his right hand. The tip apparently blew off and was never recovered.
Tutton stated in his report*fn1 that in order for spray to discharge from the spray gun, three conditions had to be in place: (1) the spray gun had to be pressurized; (2) the trigger had to be squeezed; and (3) the nozzle had to be open. Once the spray gun was pressurized, there are two features that would permit the paint to flow through it. The first feature is the trigger lock, mentioned above, which could be manually locked in an open position. Tutton concluded that the manual trigger lock was defective because "the lock could be easily left disengaged allowing for accidental discharge of the high pressure paint."
The second feature is the tip, which had to be in the proper position in order for paint to pass through the nozzle. Tutton concluded the tip was defective because "there was no positive means to prevent rotation of the tip or limit tip insertion or withdrawal, [making it] foreseeable that [the tip] could be left in a position that would allow flow, either forward or backward." Also, there was "nothing to prevent inadvertent rotation of the arrow-shaped tip handle. With the tip positioned to block flow, it was a simple matter to knock the arrow handle to a position allowing flow or to be knocked to a partially disengaged position."
Tutton concluded within a reasonable degree of engineering certainty that the spray gun "incorporated the hazard of skin injection from the high pressure nozzle spray" and the "high pressure dispensing system was . . . necessary to the function of the paint spray." He also concluded that the spray gun's design was "inherently unsafe and dangerous" and, therefore, "defective" because Graco failed to adequately guard against a skin injection hazard by not: (1) providing a self-activating trigger lock, which would have forced the user to take a conscious step in order to operate the spray gun; (2) providing a positive and secure means of assuring the position of the tip in shutting off flow; (3) guarding against inadvertent mis-positioning of the tip; and (4) providing a secure method of engaging the retaining nut and stabilizing the position of the tip. He further concluded that "[t]hese design defects, independently or in combination, were the cause of [plaintiff's] injuries."
At Tutton's deposition, he acknowledged that plaintiff testified that he did not touch the trigger. Accordingly, Tutton supplemented his opinion, concluding that the feature of a manual trigger lock in an open position was a defect, and Graco prohibited use of such a lock after 2005. He explained that because plaintiff testified he did not touch the trigger and spray came out of the front and side of the tip and also "blew out" the tip, the trigger was in a manually locked-open position when plaintiff attempted to clean it, which enabled the gun to be pressurized without operator interaction. Consequently, when plaintiff loosened the tip in order to clean the spray gun, the pressure caused the tip to effectively blow apart, causing plaintiff's injury.
Tutton also concluded that the tip was defective because a user could easily re-position the tip from closed to open, could use it as a shut-off valve when it was not designed for that purpose, and could manipulate the retaining nut on the tip. Thus, if the spray gun were pressurized and the trigger were locked open, the tip would be the only mechanism preventing discharge. Because Graco did not design the tip to prevent discharge as a last resort, a user might inadvertently manipulate the tip from an "off" position or loosen the retaining nut, causing the paint to discharge. Tutton explained that the loosening of the nut really frees up the tip to be manipulated in several directions and not the least of which is axial to the tip, which would allow it to come out all together and allow flow out [of] the side. [Plaintiff's] deposition testimony indicated that flow was coming out [of] the end and flow was coming out [of] the side and the tip was never recovered. So, what it suggests very strongly to me is that once this nut was loosened to provide the ability to clean it, [the tip] effectively blew apart.
Tutton also explained that the tip could be inadvertently nudged open because it did not have anything securing it in place, and inadvertent repositioning of the tip and instability would result if the retaining nut were not tight enough. Thus, either the user could accidentally nudge the tip open or fail to tightly screw the retaining nut, which if loose might cause the tip to fail.
Despite these opinions, Tutton could not opine within a reasonable degree of probability that each alleged defect in the tip independently caused plaintiff's injury. He agreed that it was "possible" that a defective tip caused plaintiff's injuries, which factor "certainly would have been one ...