VINCENT AMATO et al. v. IDA LYNN AMATO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0713-06T20713-06T2

VINCENT AMATO and

IDA LYNN AMATO,

Plaintiffs-Appellants,

v.

FEDERAL EXPRESS, INC.,

a corporation; WILLIAM

FLANAGAN, individually;

SEDGWICK CMS, a corporation,

Defendants,

and

GENERAL MOTORS CORPORATION,

a foreign corporation,

Defendant-Respondent.

________________________________________________________________

 

Submitted October 3, 2007 - Decided

Before Judges Axelrad and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-4223-03.

Schibell & Mennie, L.L.C., attorneys for appellants (John F. McLaughlin, of counsel and on the brief).

Tansey, Fanning, Haggerty, Kelly, Convery & Tracy, attorneys for respondent (Thomas M. Kelly, of counel; Mr. Kelly and James N. Tracy, on the brief).

PER CURIAM

Plaintiffs Vincent and Ida Lynn Amato appeal from the motion judge's August 22, 2006, order granting defendant General Motors Corporation (GMC) summary judgment. In reviewing a grant of summary judgment, we use the same standard employed by the trial court. Atlantic Mutual Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230 (App. Div.), certif. denied, 189 N.J. 104 (2006). We first decide whether there was a genuine issue of material fact; if not, we then decide whether the motion court's application of the law was correct. Id. at 230-31. We apply the standards articulated by the Supreme Court in Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540 (1995):

[A] determination whether there exists a "genuine issue" of material fact that precludes summary judgment requires the motion judge to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.

We must assume the non-moving party's version of the facts as true and give that party the benefit of all favorable inferences available in the record. Id. at 536.

On the morning of September 24, 2001, plaintiff, who was employed by Federal Express (FEDEX) as a truck driver, was on his way to assist another FEDEX driver complete his rounds. Plaintiff conducted the usual, required pre-trip inspection of his vehicle and, finding nothing amiss, started out on his assignment.

As plaintiff drove to his co-worker's location, traveling at approximately forty miles per hour on a dry road, the front end of the truck inexplicably collapsed and the vehicle bounced up and down along the road for approximately two hundred feet. Plaintiff held on to the steering wheel trying to stabilize himself against the vehicle's violent motion. Ultimately, the truck came to a stop without striking any other vehicles or persons, but plaintiff, nevertheless, suffered injuries as a result. Plaintiff reported the accident to his dispatcher and a tow truck was sent to his location.

Eventually the truck was repaired, reinstated to FEDEX's fleet, and continued in use until May 2003. A FEDEX mechanic showed plaintiff the cause of the accident, a broken right front control arm, which had been preserved by the repairman and placed in the rear of the truck before it was returned. Plaintiff took photographs of the part, but since no one ever requested it be preserved, the control arm was discarded. The vehicle was manufactured by GMC and FEDEX had purchased it brand new from a GMC dealer in October of 1995. During the ensuing years, the truck had been used exclusively by FEDEX for more than 103,000 miles. The truck itself was destroyed before plaintiff's lawsuit was filed.

Plaintiff denied ever striking a pothole or any other object with the truck on the day of the accident, and the usual driver of the vehicle, Fred Porrino, who was out of work on the day of the incident, similarly denied having any accident with it. Porrino claimed that he had experienced some trouble with the truck's steering the previous July, however, and had reported the problem. FEDEX's mechanics apparently inspected the truck and found nothing wrong, although Porrino claimed the steering improved thereafter.

Dave Wilson, FEDEX's senior manager of vehicle maintenance, testified in depositions that the company had no set policy for retirement of its vehicles. Although many of the documents regarding the actual maintenance conducted on the truck were destroyed pursuant to the company's document retention and destruction policy, and none existed prior to June 2000, Wilson testified that routine maintenance was regularly conducted every eighty-four days. Wilson had been with FEDEX thirty years and had never seen a control arm fail on any of its trucks. He opined that the part would not normally fail during routine operation of the vehicle, and that the failure was the result of an overload event potentially caused by the truck hitting something with a severe impact.

Reviewing the specific service records for the truck that were available, Wilson noted it had been in a prior accident in August 2000, had been repaired, and was again inspected in-house in January 2001. No significant problems were noted then, or in June 2001 when the truck underwent its last routine maintenance before plaintiff's accident. The records also revealed that the truck received routine lubrication service, which would have included areas around the control arm at the point of its failure. However, Wilson noted that the truck was serviced on nine separate occasions between 2000 and the date of the accident, and claimed in general, that FEDEX routinely performed a "whole host of [services]" on its vehicles "because of the severity of the [usage]."

Victor J. Hakim, GMC's expert and an employee of the company, furnished a report that also attributed the control arm's failure to an "overload impact." Hakim did not cite improper maintenance, or the lack of proper maintenance, as a likely cause of the accident.

Plaintiff's engineering expert, Wayne F. Nolte, furnished his first report on September 8, 2004. He noted that it was "necessary that additional information from defendants . . . be obtained regarding the maintenance of this vehicle, its inspection, its history, along with standards for the failed component, the manufacturing process for this component and the inspection of this component." Nonetheless, Nolte concluded preliminarily that "based upon the materials supplied to date, [] the cause of the accident and failure was maintenance and/or manufacturing of the control arm."

Nolte rendered a subsequent report on April 29, 2005. Noting he was "at a disadvantage in rendering an engineering analysis because the parts and vehicle involved" were discarded by FEDEX, Nolte claimed the photographs of the control arm lacked "sufficient detail to examine the mechanical failure of the component" and "make an engineering evaluation of the exact failure mechanism on the components." He concluded, nonetheless, that the control arm "should not fail in the absence of neglect by someone involved in the manufacture and/or maintenance of the vehicle."

GMC deposed Nolte on September 15, 2005. He acknowledged that he was unable to determine whether the control arm's failure was the result of a manufacturing defect or a maintenance problem. He further acknowledged that he did not "know what exactly caused" the failure and that the damage to the control arm he observed in the photos was consistent with an overload event. He ruled out that possibility, however, because plaintiff denied striking anything that would have caused such a severe impact.

After the deposition was concluded, but on the same day, Nolte furnished yet a third written report. Claiming the letter was intended as a "clarification of testimony given during [his] deposition," Nolte explained why any physical damage observed on the truck after the accident could be attributed to causes other than plaintiff's striking an object with the truck. He also noted that the available maintenance records from FEDEX and "the appearance of their vehicles on the roadway" demonstrated reasonable maintenance of their vehicle fleet. He then summarized,

It is my opinion that with the facts that Mr. Amato did not drive over something to cause the failure of the control arm through a single overload event, and that Federal Express properly and adequately maintained its vehicles, the only cause for the failure of the control arm was a defect in the control arm.

GMC moved for summary judgment and essentially argued that plaintiff failed to demonstrate any product defect with respect to the truck. It argued that plaintiff's sole theory of liability was that the control arm failed as a result of a manufacturing defect. See N.J.S.A. 2A:58C-2a (the product "was not reasonably fit, suitable or safe for its intended purpose because it [] 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"). GMC argued there was 1) no direct evidence of a manufacturing defect; 2) no evidence that any defect existed at the time the truck left GMC's control; and 3) insufficient evidence under the "indeterminate product defect test" to allow a fact finder to infer that the control arm failed as a result of a manufacturing defect. Myrlak v. Port Auth., 157 N.J. 84, 105 (1999), certif. denied, 167 N.J. 89 (2001).

Plaintiff countered by arguing, as he does before us, that the record was sufficient to forestall summary judgment. First, he contended that there were factual disputes regarding whether his conduct in any way contributed to the failure of the control arm. Second, he argued that he excluded the lack of maintenance or improper maintenance as a contributing cause of the failure. Third, and as a result of his two prior points, plaintiff contended the evidence was sufficient to permit an inference of a manufacturing defect pursuant to the indeterminate product defect test as adopted by our Supreme Court in Myrlak.

The parties argued their positions before Judge Thomas W. Cavanaugh, Jr., who rendered a comprehensive oral decision on GMC's motion on August 21-22, 2006. The judge determined that plaintiff had adduced no direct evidence of a product defect, had failed to establish through circumstantial evidence an inference of a defective product, and because a substantial portion of the maintenance records for the truck were unavailable, failed to eliminate other causes for the control arm's collapse. Noting the age of the truck and its significant usage, the judge distinguished the facts of this case from others in the relevant case law. He concluded by stating,

In light of [Nolte's] vague assessment, and the age and usage of the vehicle, and all of the other factors . . . I would conclude that stretching the indeterminate product[] [defect] doctrine to this type of case would certainly be something unintended by the Supreme Court.

We have considered the points raised by plaintiff on appeal. We affirm the order under review substantially for the reasons expressed by Judge Cavanaugh in his oral opinion. We add only these comments.

The judge did not mistakenly apply summary judgment standards to the contested disputed fact of whether plaintiff's own conduct caused the failure of the control arm. The judge implicitly recognized that plaintiff was entitled to the favorable version of events, including his own testimony that he did not strike any objects while driving. That disputed fact played no role in Judge Cavanaugh's decision nor do we consider it in ours.

In order to prove a manufacturing defect, the plaintiff must "prove both the existence of a defect and that the defect existed while the product was in the control of the manufacturer . . . ." Myrlak, supra, 157 N.J. at 98. Proof may be direct, such as the testimony of an expert that examined the defective product, or circumstantial. Ibid. Circumstantial evidence may be sufficient if it is "of a type permitting the jury, after weighing all the evidence . . ., to infer that in the normal course of human experience an injury would not have occurred at this point in the product's life span had there not been a defect attributable to the manufacturer." Id. at 98-99 (quoting Scanlon v. General Motors Corp., 65 N.J. 582, 593 (1974)). A plaintiff may prove a manufacturing defect in yet a third way - "by negat[ing] other causes of the failure for which the defendant would not be responsible." Id. at 99 (quoting Scanlon, supra, 65 N.J. at 593).

Under the indeterminate product defect test, adopted by the Court in Myrlak,

It may be inferred that the harm sustained by the plaintiff was caused by a product defect existing at the time of sale or distribution, without proof of a specific defect, when the incident that harmed the plaintiff:

(a) was of a kind that ordinarily occurs as a result of a product defect; and

(b) was not, in the particular case, solely the result of causes other than product defect existing at the time of sale or distribution.

[Id. at 104 (quoting Restatement (Third) of Torts 3 (1997).]

Thus, by satisfying the test, plaintiff may circumstantially prove both that the product was defective and that the defect existed when it left the manufacturer's control. Ibid.

We disagree with GMC's initial argument that the indeterminate product defect test is inapplicable to the facts of this case. Defendant argues that application of the test was limited by Myrlak "to those product liability cases in which the plaintiff cannot prove a specific defect." Id. at 105. Defendant contends that because Nolte identified the actual defect, the failure of the control arm, the test does not apply.

Nolte only described the effect of the defect in the control arm - it failed. He acknowledged he could not evaluate the "exact failure mechanism," which we take to mean that he was unable to specify what the defect was beyond simply saying "something was wrong with the product." Scanlon, supra, 65 N.J. at 591. Therefore, plaintiff could not prove, as Judge Cavanaugh found, a specific defect in the control arm, but he was not required to do so in order to survive the summary judgment motion. Moraca v. Ford Motor Co., 66 N.J. 454, 458 (1975).

Nor do we find the absence of the early maintenance records dispositive of plaintiff's attempt to eliminate other causes for the control arm's failure and prove a defect in that manner. The records that were most contemporaneous to the date of the control arm collapse demonstrated that the truck was adequately serviced in areas near where the failure occurred. Presumably, if there was a noticeable defect, FEDEX's mechanics would have seen it and repaired it. Nolte's after-his-deposition conclusion that faulty maintenance did not cause the failure is highly suspect. Nonetheless, plaintiff was entitled to a reasonable inference that faulty maintenance played no part in the failure because both Davis and Hakim reached that conclusion. They both attributed the failure to plaintiff's own driving, but, as noted above, that issue was factually disputed.

However, we agree with defendant, as did Judge Cavanaugh, that even by summary judgment standards, plaintiff failed to establish any defect existed when the truck left GMC's control and was sold to FEDEX. This is a necessary part of plaintiff's prima facie case. See Suter v. San Angelo Foundry & Machine Co., 81 N.J. 150, 170 (1979)(holding plaintiff must show "the defect did in fact exist when the product was distributed by and was under the control of defendant").

The youthful age of a product at the time it fails does not establish with certainty that it was defective when it left the manufacturer's control; nor does the older age of a product at the time of failure establish it was free from manufacturing defects. Nonetheless, age is a relevant factor in establishing whether a defect existed at the time of defendant's control. Scanlon, supra, 65 N.J. at 593 (noting "the older a product is, the more difficult it is to prove that a defect existed while in the control of the manufacturer"). Here, the truck was already nearly six years old and had been exposed to a "severity of usage" for some 103,000 miles or more. These facts alone significantly increased plaintiff's burden of proof on the issue.

In addition, plaintiff could not establish that the control arm was in fact the original component part. Because the service records for more than five years after the truck was purchased simply did not exist, plaintiff was unable to establish this crucial fact through circumstantial evidence. Seen in this light, plaintiff's argument that the absence of earlier records was irrelevant because of the availability of the most recent service documents misses the point. This gap in the service records, together with the age and significant use of the truck while in FEDEX's control, all denied plaintiff the circumstantial proof that might have permitted the reasonable inference that any defect in the control arm existed at the time of its manufacture and when it left GMC's control.

We conclude that given all of the facts, viewed in a light most favorable to plaintiff, there was insufficient proof to allow a reasonable fact finder to conclude by a preponderance of the evidence that the control arm of the truck failed as a result of a manufacturing defect. Rose Enterprises v. Henny Penny Corp., 317 N.J. Super. 477 (App. Div. 1999).

Affirmed.

 

Ida Lynn Amato's per quod claim is entirely derivative of her husband's personal injury claim. We shall, therefore, refer to plaintiffs in the singular throughout the balance of this opinion.

There is some evidence in the record that the actual mileage exceeded 108,000 miles.

Since we accord plaintiff the benefit of only that testimony favorable to him, we must accept, as did the motion judge, that plaintiff did not, in fact, strike something that could have caused the control arm to collapse. However, we would be remiss in not mentioning the significant testimony in the record that contradicted this version of events. For example, plaintiff acknowledged that he had just crossed over some railroad tracks when the front end of the truck collapsed. Andrew Monjardo, the FEDEX employee plaintiff was going to assist, testified that plaintiff told him that the truck collapsed after he had an "impact" with the train tracks.

This was well beyond the deadlines for the submission of experts' reports contained in the court's prior orders. Nevertheless, the motion judge did not specifically exclude Nolte's third report and referenced it throughout the course of his opinion, though he clearly viewed it with a jaundiced eye.

(continued)

(continued)

15

A-0713-06T2

November 16, 2007