The opinion of the court was delivered by: Hillman, District Judge
Before the Court is defendant's motion for summary judgment. For reasons explained below, defendant's motion will be denied.
This product liability case arises out of a forklift accident that occurred on June 8, 2008. Plaintiff, Enrico Salvatore, was a truck driver for Rancocas Metals, a company which provides raw metals to customers. Plaintiff loaded his flat-bed truck with the day's deliveries including a bundle of aluminum angle iron, secured by shrink wrap, to be delivered to defendant, Viking Yacht Company. The bundle consisted of 30 pieces of 16-foot long angle aluminum weighing approximately 388 pounds. The metal bundle was placed in the middle of the flatbed and other materials for other deliveries were placed along the sides of the truck. Plaintiff drove to defendant's facility first and was anxious to get to his next stop which had requested an early morning delivery.
Plaintiff was familiar with defendant's facility having delivered materials to them approximately twice a week for some time. Viking's policy is that Viking employees are responsible for unloading materials delivered by vendors. Plaintiff went to defendant's receiving area and waited for defendant's employee, John Bramble, a forklift operator to remove the metal bundle. Bramble brought the forklift to the side of the truck and raised the forks to a level higher than the sides of the truck. Bramble could not insert the forks underneath the bundle because it was in the middle of the truck and the other materials were between it and the sides of the truck. Neither plaintiff nor Bramble suggested removing the other materials off the truck in order to insert the forks under the bundle.
To help unload the bundle, plaintiff used a canvas strap he had on his truck and looped one end around the bundle and the other end around one of the forks of the forklift in order to lift the bundle over the other materials in the truck. This procedure is known as "free rigging." Plaintiff and Bramble had used this procedure at Viking previously.
Plaintiff testified that he could not put the loop of the strap flush against the back of the fork because the bundle was in the middle of the truck and the forks only extended so far. The strap was placed approximately three to six inches from the front of the fork. After putting the strap on the fork, plaintiff signaled to Bramble to lift the bundle. Plaintiff then signaled for Bramble to stop because the load was not centered. Bramble lowered the fork and plaintiff readjusted the strap. After finding it stable, plaintiff signaled to Bramble to lift the fork. Bramble lifted the fork and then tilted the forks back so that the strap would not slip off the end. Bramble lifted the bundle with the forklift until it was high enough to clear the side gates of the truck. Plaintiff then signaled to Bramble to stop so that he could get off the truck. Plaintiff got off the truck and signaled to Bramble to back up, which he did, and then told him to lower the bundle.
While Bramble was lowering the bundle, the end of the bundle started to angle. Plaintiff testified that he reached up to grab the end of the bundle to help steady it, but the strap slid off the fork and the bundle came down before he touched it. Bramble testified that plaintiff touched the bundle before it slid off the fork. In any event, the bundle fell and struck plaintiff's arm, knocking him to the ground.
Plaintiff filed a complaint alleging that his injuries were caused by defendant's negligence.
This Court exercises subject matter jurisdiction pursuant to 28 U.S.C. § 1332 (diversity). Plaintiff is a citizen of Pennsylvania. Defendant is a New Jersey corporation with its principal place of business in New Jersey. Plaintiff has alleged the amount in controversy exceeds $75,000.00.
Summary judgment is appropriate where the Court is satisfied that "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 and that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986); Fed. R. Civ. P. 56©).
An issue is "genuine" if it is 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 considering a motion for summary judgment, a district court may not make credibility determinations or engage in any weighing of the evidence; instead, the non-moving party's evidence "is to be believed and all justifiable inferences are to be drawn in his favor." Marino v. Industrial Crating Co., 358 F.3d 241, 247 (3d Cir. 2004)(quoting Anderson, 477 U.S. at 255).
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. 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 party opposing summary judgment must do more than just rest upon mere allegations, general denials, or vague statements. Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001).
Defendant moves for summary judgment on grounds that it did not breach any duty of care owed to plaintiff, and that the actions of its employee did not cause plaintiff's injuries. Defendant also moves to exclude the opinions of plaintiff's expert.
A. Duty Owed by Defendant "In order to sustain a common law cause of action in negligence, a plaintiff must prove four core elements: (1) a duty of care, (2) a breach of that duty, (3) proximate cause, and (4) actual damages." Brunson v. Affinity Federal Credit Union, 199 N.J. 381, 400, 972 A.2d 1112 (2009) (internal citations and quotations omitted). "A major consideration in the determination of the existence of a duty of reasonable care under 'general negligence principles' is the foreseeability of the risk of injury." Alloway v. Bradlees, Inc., 157 N.J. 221, 230, 723 A.2d 960, 964 (N.J. 1999) (citing Carey v. Lovett, 132 N.J. 44, 57, 622 A.2d 1279 (1993); Weinberg v. Dinger, 106 N.J. 469, 485, 524 A.2d 366 (1987)). In addition, the determination of a duty turns on a sense of fairness and "involves identifying, weighing, and balancing several factors-the relationship of the parties, the nature of the attendant risk, the opportunity and ability to exercise care, and the public interest in the proposed solution." Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439 (1993); see Carter Lincoln-Mercury, Inc., Leasing Div. v. EMAR Group, Inc., 135 N.J. 182, 194, 638 A.2d 1288, 1294 (N.J. 1994) ("Subsumed in the concept of foreseeability are many of the concerns we acknowledge as relevant to the imposition of a duty: the relationship between the plaintiff and the tortfeasor, the nature of the risk, and the ability and opportunity to exercise care.").
"It is axiomatic that 'the mere showing of an accident causing injuries is not sufficient from which to infer negligence.'" Fedorczyk v. Caribbean Cruise Lines, Ltd., 82 F.3d 69, 74 (3d Cir. 1996) (citing Hansen v. Eagle-Picher Lead Co., 8 N.J. 133, 84 A.2d 281 (1951)). "Negligence is a fact which must be proved; it will not be presumed." Id. "The plaintiff must introduce evidence which provides a reasonable basis for the conclusion that it was more likely than not that the negligent conduct of the defendant was a cause in fact of the injury. Id. (citing W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 41, at 269 (5th ed. 1984)).
The facts show that plaintiff loaded the bundle in the middle of the truck necessitating the use of a canvas strap or "free rigging" rather than allowing the forks to fit underneath the bundle. There is no OSHA regulation against this practice and plaintiff and Bramble had used this procedure without incident at Viking previously.*fn1 After putting the strap on the fork, plaintiff signaled to Bramble to lift the bundle. There is no OSHA regulation prohibiting the use of "spotters" or requiring that the forklift driver come down off the forklift in order to inspect a load before lifting it. There is an OSHA regulation, however, stating that "only stable or safely arranged loads shall be handled." See 29 CFR 1910.178(o)(1). Bramble relied on plaintiff to secure the strap in place which, as we have noted, could not have been placed flush to the back of the fork because of the placement of the bundle. There is no dispute that ...