MARCOS GALINDO v. PIONEER FOOD EQUIPMENT

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2561-04T12561-04T1

MARCOS GALINDO,

Plaintiff-Appellant,

v.

PIONEER FOOD EQUIPMENT,

Defendant-Respondent,

and

AMERICAN FOOD EQUIPMENT

COMPANY and ROBERT REISER

& COMPANY, INC.,

Defendants,

and

GROEZINGER PROVISIONS, INC.,

Third-Party Defendant.

_______________________________________

 

Submitted October 11, 2005 - Decided

Before Judges A. A. Rodr guez and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. MON-L-438-02.

Drazin & Warshaw, attorneys for appellant (Steven L. Kessel, on the brief).

Edward Hoagland, Jr., attorney for respondent.

PER CURIAM

Plaintiff Marcos Galindo appeals from an order entered January 21, 2005 graining summary judgment in favor of defendant Pioneer Food Equipment (Pioneer) and denying plaintiff's motion for partial summary judgment. We affirm.

We briefly summarize the relevant facts. In 1981, defendant American Food Equipment Company (American Food) manufactured mixer/blender Model 510, a machine designed for the mixing and blending of meats and other food products into a homogenous consistency. The mixer/blender contains a stainless steel mixing compartment at the bottom of which are two parallel semi-circular troughs, in which two parallel agitators are mounted. Two semi-circular discharge gates are located at one end of the mixing compartment. A stainless steel safety guard is positioned over the discharge gates on the outside of the mixing compartment. As initially designed and manufactured, the safety guard was mounted on pins welded to the sides of the mixing compartment and held in place on those pins by hairpin cotters. Michael D. Botto of American Food testified in depositions that the company would have affixed the original discharge safety guard onto the machine before it was shipped to a customer.

In 1981, American Food sold the mixer/blender to an affiliated distributor, defendant Robert Reiser & Company, Inc. (Reiser). Reiser sold the machine to Country Pride Foods in Arkansas. The machine was later sold to Con Agra and, after that sale, American Food lost track of the product. Pioneer purchased the used mixer/blender from an entity in Williamsport, Pennsylvania in April or May 2000. Pioneer is in the business of selling new and used machines to process meat.

Jack Strauss, President of Pioneer, testified that when Pioneer acquired the mixer/blender, the machine was in good condition. Pioneer kept the mixer in its warehouse and did not refurbish, repair or perform any maintenance on the machine. In July 2000, Pioneer sold the machine "as is" to plaintiff's employer, defendant Groezinger Provisions, Inc. Strauss testified that he inspected the machine and he was satisfied with its condition. Strauss did not recall whether the machine was equipped with a safety guard on the discharge gates. Strauss also said that he did not recall whether there were any warnings or instruction labels affixed to the mixer/blender when Pioneer delivered the machine to Groezinger.

Groezinger's foreman Roman Hnat testified that after the machine was delivered, he advised Laurie Cummings, Groezinger's President, that certain safety features for the mixer were missing, specifically the grating on the top of the machine and the safety guard in front of the discharge gates. Groezinger purchased the grate and a safety guard, however, the safety guard that was delivered did not fit the machine. As of October 13, 2000, the safety guard had not been installed on the machine and a worker was injured using the mixer. Cummings testified that the grate and guard were installed within 24 or 48 hours after the October 13, 2000 accident.

On December 1, 2000, plaintiff was using the mixer. At the time, plaintiff had been working for Groezinger for about six weeks. Plaintiff placed his hand into one of the machine's discharge doors for the purpose of dislodging processed meat and his hand became caught by one of the rotating agitators. Plaintiff sustained serious injuries including the loss of four fingers. An inspector for the United States Department of Labor, Occupational Safety and Health Administration (OSHA), conducted an investigation and issued a "Citation and Notification of Penalty" to Groezinger. Cummings and Hnat testified that, at the insistence of the OSHA inspector, the company installed an "additional" piece to the safety guard in front of the discharge gates.

On January 25, 2002, plaintiff filed a single count complaint action in the Law Division against American Food, Reiser and Pioneer. Plaintiff alleged that that the mixer/blender was not reasonably fit, suitable or safe for its intended purpose because the machine deviated from the manufacturer's design specifications and performance standards, failed to contain adequate warnings and instructions and was designed and assembled in a defective manner. Plaintiff also alleged that the mixer was in a defective condition when it left the possession and control of American Food, Reiser and Pioneer. Defendants filed answers denying the allegations and, with leave of the trial court, American Food and Reiser subsequently filed a third-party complaint against Groezinger.

In support of his claims, plaintiff presented reports dated January 11, 2002 and February 27, 2003 from an expert, Louis Howarth, P.E. In his initial report, Howarth asserted that the mixer/blender should have been manufactured with a two-hand push button control feature for operating the machine. The safety manual for the machine stated that this feature was not to be disconnected or modified in any way. Howarth's inspection revealed that the machine did not contain the two-hand push button control and it appeared the device had never been installed on the machine. Howarth stated that without the device, "[t]he operator could easily turn on the [agitators] in either direction, open the discharge covers, and walk in front of the machine, reach under the rectangular cover and place his hand into the mixer/blender contacting the [agitator] blades." Howarth also said that the manufacturer failed to provide "an auxiliary tool" that could be used by a worker to scrape material out of the discharge opening.

In his supplemental report, Howarth identified certain features that he said could have prevented the incident in which plaintiff was injured. Howarth again stated that the machine should have been equipped with the two-hand control device for operating the machine. He also said that the mixer/blender should have had a physical guard extending down from the discharge gates to the bucket used to collect the processed meat products. In addition, Howarth suggested that the machine should have been equipped with an interlock system at the discharge gates so that the agitators would not be able to turn if the bucket was removed from beneath the machine. Howarth stated that such modifications would be minimal in cost and would prevent an individual from inadvertently placing his or her hands in the path of the rotating agitator while the machine was in operation.

American Food and Reiser submitted an expert report dated May 21, 2004 from David F. Toler, P.E., in which Toler disputed Howarth's contentions and asserted that the accident did not occur because of any defect in the design or manufacture of the machine. Toler stated that the accident occurred because plaintiff intentionally violated certain safety standards. He also stated that Groezinger was responsible for this accident because it failed to implement appropriate work procedures, did not train plaintiff properly and failed to adequately supervise his activities.

By order entered November 19, 2004, the judge granted summary judgment in favor of Groezinger on the claims asserted against it in the third-party complaint. Plaintiff settled the claims against American Food and Reiser. On December 22, 2004, Pioneer filed a motion for summary judgment and plaintiff filed a cross-motion for partial summary judgment, seeking a determination that the mixer/blender was defective when placed by Pioneer in the stream of commerce.

The motion judge rejected plaintiff's contention that the Products Liability Act, N.J.S.A. 2A:58C-1 to -11 (the Act), did not apply to Pioneer, as a seller of used products. The judge found that Pioneer was a "product seller" as that term is defined in N.J.S.A. 2A:58C-8. The judge further found that Pioneer was exempt from liability under N.J.S.A. 2A:58C-9(c) because Pioneer had identified American Food as the manufacturer of the machine, the company did business in the United States and had sufficient assets to satisfy a judgment against it. In addition, the judge found no basis in N.J.S.A. 2A:58C-9(d) to impose liability upon Pioneer because Pioneer was unaware that the mixer/blender was defective and did not create the alleged defect that caused plaintiff's injuries. The judge accordingly granted Pioneer's motion for summary judgment and denied plaintiff's motion for partial summary judgment. This appeal followed.

Plaintiff raises the following contentions for our consideration. He argues that Pioneer is not a "product seller" as defined in N.J.S.A. 2A:58C-8, a section of the Products Liability Act, because Pioneer sold a used product that is substantially different from the product initially manufactured or distributed by American Food. Plaintiff also asserts that, as a dealer in used products, Pioneer is strictly liable under New Jersey law because it placed a defective product into the stream of commerce. Plaintiff further contends that he was entitled to partial summary judgment on the limited issue of whether Pioneer had placed a defective product into the stream of commerce. We disagree with these contentions and affirm substantially for the reasons stated by the motion judge in his decision from the bench on January 21, 2005. We add the following.

In reviewing an order granting summary judgment, we apply the same standard that is employed by the trial judge under R. 4:46-2(c). Turner v. Wong, 363 N.J. Super. 186, 198-99 (App. Div. 2003). Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. R. 4:46-2(c). "An issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact." Ibid. We are convinced that in this case the motion judge correctly determined that there was no genuine issue of material fact relevant to his decision and Pioneer was entitled to judgment as a matter of law.

The Act defines a products liability action as "any claim or action brought by a claimant for harm caused by a product, irrespective of the theory underlying the claim, except actions for harm caused by breach of an express warranty." N.J.S.A. 2A:58C-1(b)(3). The Act provides in pertinent part that a manufacturer or seller of a product shall be liable in a product liability action

if the claimant proves by a preponderance of the evidence that the product causing the harm was not reasonably fit, suitable or safe for its intended purpose because it: a. deviated from the design specifications, formulae, or performance standards of the manufacturer or from otherwise identical units manufactured to the same manufacturing specifications or formulae, or b. failed to contain adequate warnings or instructions, or c. was designed in a defective manner.

[N.J.S.A. 2A:58C-2.]

The Act defines the term "product seller" in N.J.S.A. 2A:58C-8 to mean:

any person who, in the course of a business conducted for that purpose: sells; distributes; leases; installs; prepares or assembles a manufacturer's product according to the manufacturer's plan, intention, design, specifications or formulations; blends; packages; labels; markets; repairs; maintains or otherwise is involved in placing a product in the line of commerce.

A "product seller" may file an affidavit "certifying the correct identity of the manufacturer of the product which allegedly caused the injury, death or damage." N.J.S.A. 2A:58C-9(a). Pursuant to N.J.S.A. 2A:58C-9(b), upon the filing of the affidavit, the "product seller shall be relieved of all strict liability claims" other than the claims that are subject to N.J.S.A. 2A:58C-9(d). However, a "product seller" may be liable if the identity given to the claimant of the manufacturer is incorrect; the manufacturer has no known agents, facility or presence in the United States; or the manufacturer has no attachable assets to satisfy a judgment. N.J.S.A. 2A:58C-9(c)(1)-(3).

The Act additionally provides that a "product seller" shall be liable under N.J.S.A. 2A:58C-9(d) if

(1) The product seller has exercised some significant control over the design, manufacture, packaging or labeling of the product relative to the alleged defect in the product which caused the injury, death or damage; or

(2) The product seller knew or should have known of the defect in the product which caused the injury, death or damage or the plaintiff can affirmatively demonstrate that the product seller was in possession of facts from which a reasonable person would conclude that the product seller had or should have had knowledge of the alleged defect in the product which caused the injury, death or damage; or

(3) The product seller created the defect in the product which caused the injury, death or damage.

Plaintiff argues that Pioneer is not a "product seller" under the Act because Pioneer sold Groezinger a product that substantially deviated from the manufacturer's specifications. Plaintiff contends that the machine sold in 1981 by American Food had a safety guard over the discharge gates, whereas the mixer sold nineteen years later by Pioneer had no such guard. Plaintiff argues that, in these circumstances, Pioneer does not meet the statutory definition of a "product seller." We disagree.

Our goal in construing a statute is to discern and implement the legislative intent. Burt v. W. Jersey Health Sys., 339 N.J. Super. 296, 309 (App. Div. 2001). The process of interpretation begins with an examination of the plain language of the statute. O'Connell v. State, 171 N.J. 484, 488 (2002). The statute defines the term "product seller" to include any person who "sells" the product. The product was the Model 510 mixer/blender. Here, there is no dispute that Pioneer sold the mixer/blender to Groezinger. The statute also defines the "product seller" to include any person who "maintains" the product or "otherwise is involved in placing a product in the line of commerce." The record establishes beyond question that Pioneer was involved in placing the mixer/blender "in the line of commerce." Thus, Pioneer is a "product seller" according to the plain language of the statute.

Moreover, contrary to plaintiff's contentions, the definition of "product seller" in N.J.S.A. 2A:58C-8 does not require that the "product seller" sell a product "according to the manufacturer's plan, intention, design, specifications or formulations." As the motion judge pointed out in his decision from the bench, the definitions in N.J.S.A. 2A:58C-8 are each separated by semi-colons, which indicates that each definition should be read as having a separate and distinct meaning. The phrase relied upon by plaintiff modifies "prepares or assembles." It does not apply to either the term "sells" or the phrase "otherwise is involved in placing a product in the line of commerce." Thus, we are convinced that the motion judge correctly found that Pioneer was a "product seller" under N.J.S.A. 2A:58C-8.

We also are convinced that the judge correctly found that Pioneer is exempt from liability under N.J.S.A. 2A:58C-9(c). It is undisputed that American Food manufactured the mixer/blender. That entity does business in the United States. Moreover, the company has assets that are available to satisfy a judgment. Indeed, the record shows that plaintiff settled his claims against American Food for a substantial sum. Therefore, Pioneer was relieved of liability under N.J.S.A. 2A:58C-9(c).

In addition, Pioneer is not liable under N.J.S.A. 2A:58C-9(d) because plaintiff presented insufficient evidence to establish that Pioneer "knew or should have known of the defect" which caused plaintiff's injury. N.J.S.A. 2A:58C-9(d)(2). As Strauss testified, Pioneer was not aware that the safety guard was missing from the discharge gates when the machine was in its possession. Pioneer did not have a copy of the manufacturer's specifications and did not repair or refurbish the mixer/blender. Moreover, the record shows that after it purchased the mixer/blender, Groezinger installed a safety guard on the machine in front of the discharge gates. Plaintiff claims that the machine was still defective; however, this was not due to the absence of safety guards but rather to the alleged inadequacy of the guards and the absence of other safety features. Thus, it is clear that under plaintiff's theory of the case, the fault here was with the mixer/blender as manufactured by American Food, not something that Pioneer did or should have done to the machine.

 
Plaintiff also argues that the motion judge erred in denying its cross-motion for partial summary judgment because Pioneer had an independent duty under the common law to place a reasonably safe product into the stream of commerce. Again, we disagree. Under the Act, a products liability action encompasses "any claim or action brought by a claimant for harm caused by a product...." N.J.S.A. 2A:58C-1(b)(3). Common law claims, including those based on negligence, have been superseded and "only a single product liability action remains." Tirrell v. Navistar Int'l, Inc., 248 N.J. Super. 390, 399 (App. Div.), certif. denied, 126 N.J. 390 (1991). Accordingly, plaintiff is precluded from maintaining a common law negligence action against Pioneer.

Affirmed.

(continued)

(continued)

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A-2561-04T1

October 27, 2005