WAYNE KIST et al. v. SABERT CORPORATION

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4729-04T54729-04T5

WAYNE KIST and INEZ MARY

KIST, his wife,

Plaintiffs-Appellants,

v.

SABERT CORPORATION,

Defendant-Respondent.

_____________________________________

 

Argued March 8, 2006 - Decided August 22, 2006

Before Judges Wefing, Wecker and Graves.

On appeal from the Superior Court of New

Jersey, Law Division, Middlesex County,

L-6495-03.

Peter Ouda argued the cause for appellants

(Shain, Schaffer & Rafanello, attorneys;

Mr. Ouda, on the brief).

Kathleen S. Murphy argued the cause for

respondent (Connell, Foley, attorneys;

Ms. Murphy, of counsel; Catherine G.

Bryan, on the brief).

PER CURIAM

Plaintiffs Wayne Kist and Inez Mary Kist appeal from a summary judgment dismissing their negligence complaint against defendant, Sabert Corporation. We affirm.

These are the facts that appear in the record, viewed most favorably to plaintiff. Plaintiff was a truck driver whose employer supplied equipment to its customers. On the day of his fall, plaintiff was delivering to Sabert an eighty-pound steel shaft, which sat on a single pallet loaded on a flat-bed trailer that plaintiff was driving.

Plaintiff had previously delivered equipment or supplies to Sabert on numerous occasions. He testified at depositions that it was not his duty to off-load deliveries at Sabert's facility, but only to make the pallet available for off-loading by Sabert's employees. The usual mode of delivery was for plaintiff to back his truck up to a loading dock in Sabert's shipping and receiving area. A Sabert employee would drive a forklift from the platform of the loading dock onto the back of the trailer, where a pallet would be situated so that the forks on the lift fit into recesses on the side of the pallet that faced the back of the truck.

On this occasion, when plaintiff arrived at Sabert, he was told that the loading docks were occupied, and he was directed by Sabert personnel first to the maintenance area and then to the production area. The place where he was finally instructed to park his truck for off-loading was a parking area, alongside an overhead door that opened at ground level. There the pallet would have to be removed by forklift from the side of the trailer rather than from the back. Someone at Sabert told him to "get the pallet ready."

We surmise, in the absence of a clear explanation in the record, that because the forklift could not drive onto the trailer from ground level (as it could from a loading dock), the pallet had to be turned so that its recesses would face the side of the trailer, where the forklift could reach without driving onto the trailer.

Plaintiff had been instructed to locate someone in the maintenance department to assist in off-loading the pallet, but when he failed to receive or locate assistance after fifteen or twenty minutes, he became impatient with the delay. He undertook to prepare the pallet by removing the straps that held it securely on the trailer. He then attempted to manually turn the pallet so that the recesses to accommodate a forklift would face the side, rather than the back of the truck. As he did so, he took hold of a portion of the wooden pallet. As he pulled on the pallet, he lost his balance and fell off the side of the trailer, breaking his arm.

Plaintiff's expert engineer supplied a report in which he offered essentially this opinion:

[B]y failing to make available one of the many number of loading docks situated within the premises for the plaintiff to safely and easily off-load the delivery transformed a seemingly routine and commonplace material handling task into a scenario fraught with disaster. Moreover, by failing to provide access to the loading dock enabling the material handling equipment to safely travel from the receiving department floor interior onto the trailer bed for the purposes of off-loading same clearly concocted a recipe for disaster. As such, by failing to safely off-load the delivery utilizing the material handling equipment and loading dock facilities available on the premises, the plaintiff was required to off-load within the parking lot areas. This material handling task required the plaintiff to manually turn the pallet. Therefore, as the plaintiff complied with this burdensome and dangerous request, the pallet section fractured causing him to fall from the truck bed and plummet downward onto the ground surface areas below, thus causing his injury to occur. []

First, plaintiff testified only that he was told to "get the pallet ready," not that he was told to turn it. There is no evidence that anyone instructed plaintiff to turn the pallet. Thus the expert has relied on a fact not available as evidence to a jury. More significantly, the expert offered no support for the proposition that off-loading from the side of the truck violated any safety standard or created a dangerous condition under the standards of Model Jury Charge 5.24A or B, which plaintiff cites. Finally, by plaintiff's own admission, he was pulling on the pallet which his employer supplied, when he lost his balance and fell.

The motion judge concluded that plaintiff failed to present sufficient evidence that defendant breached any duty owed to him. It may be true that if plaintiff had been able to back the trailer to a loading dock, this acccident would not have happened. But such "but for" causation falls short of establishing that Sabert breached any duty it had to maintain safe conditions for plaintiff's delivery.

We have carefully reviewed the record in light of the contentions of the parties and are satisfied that plaintiff has not presented a prima facie case of negligence, that is, credible evidence from which a reasonable jury could conclude that defendant breached its duty to plaintiff, or that plaintiff's fall was proximately caused by anything defendant did or failed to do. See Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

Affirmed.

 

Inez Mary Kist's claim is solely derivative. We therefore refer to Wayne Kist as "plaintiff" in this opinion.

Although the expert wrote that "the pallet section fractured," we find no other evidence in the record that the pallet itself broke. The issue is not material to our determination.

(continued)

(continued)

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A-4729-04T5

August 22, 2006