WILBUR F. HENNING v. CASA DiBERTACCI, INC., ET AL.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4129-05T24129-05T2

WILBUR F. HENNING,

Plaintiff-Appellant,

v.

CASA DiBERTACCI, INC., REGAL

CORRUGATED BOX COMPANY, INC.,

WILLAMETTE INDUSTRIES, INC.,

SAM'S CLUB, INC., Jointly,

Severally and in the alternative,

Defendants-Respondents,

and

MJD TRUCKING, INC. AND RLS

LOGISTICS,

Defendants.

________________________________________________________________

 

Argued May 1, 2007 - Decided May 21, 2007

Before Judges Lisa and Grall.

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, L-598-02.

Frank L. Rone, II, argued the cause for appellant (Rone, Hughes & Kowalski, attorneys; Mr. Rone, on the brief).

Joseph Collins argued the cause for respondents Casa DiBertacci, Inc. and Sam's Club, Inc. (Daniel & Dochney, attorneys; Mr. Collins, on the brief).

Robert G. Devine argued the cause for respondent Regal Corrugated Box Company, Inc. (White and Williams, attorneys; Mr. Devine, of counsel; Chad A. Rutkowski, on the brief).

Respondent Willamette Industries, Inc. did not file a brief.

PER CURIAM

Plaintiff, Wilbur F. Henning, appeals from summary judgment dismissing his personal injury products liability action, which arose out of a work-related accident. He was employed as a foreman in a cold storage warehouse, Ottinger's Cold Storage. Defendant, Casa DiBertacci, Inc. (Casa), was a producer of meatballs, which it sold in bulk quantities to retailers. One of its customers was Sam's Club. As part of its operation, Casa would store large quantities of its product at Ottinger's, awaiting periodic deliveries to Sam's Club.

During the relevant timeframe, Casa purchased boxes from defendants, Regal Corrugated Box Company, Inc. (Regal) and Willamette Industries, Inc. (Willamette). Casa packaged the meatballs in five pound bags, and placed eight bags in each box for a total weight of forty pounds. The boxes were made of corrugated cardboard, and the only warning on them was "Keep Frozen." Casa stacked the boxes six high on pallets, to a height of about sixty-five inches of boxes and, including the height of the pallet, about sixty-nine inches overall. Casa freeze-wrapped the palletized boxes and had them transported by an independent contractor to Ottinger's, which doubled stacked the pallets in its cold storage facility.

Several days before plaintiff's May 17, 2000 accident, Ottinger's experienced a freezer malfunction. As a result of the thawing of the frozen meatballs, moisture permeated the boxes, causing them to lose their structural integrity. A number of the boxes fell and split open on the warehouse floor, leaving a large quantity of meatballs strewn about. Plaintiff's supervisor instructed him to wait a few days until the stored product refroze and became more stable, and then to go in and clean up the meatballs and boxes that had fallen. After waiting at least two days, plaintiff went into the freezer to clean up the meatballs and boxes that had fallen. Plaintiff was working directly alongside palletized boxes of Casa's meatballs which, of course, had also thawed during the freezer malfunction when a number of the boxes fell on plaintiff and injured him.

Plaintiff does not know specifically what caused the boxes to fall. None of the boxes were preserved, and therefore the identity of the box manufacturer could not be ascertained. Plaintiff was not sure if the boxes that fell on him were wet, although he said they did not look wet. Ottinger's determined the method of storing Casa's product, including the use of double stacked pallets.

Plaintiff brought this action under the New Jersey Product Liability Act (NJPLA), N.J.S.A. 2A:58C-1 to -11, against Casa and fictitious parties. Upon learning the identity of other parties, plaintiff amended his complaint and named as additional defendants Regal, Willamette, and Sam's Club. Plaintiff alleged defective design and manufacture of the boxes and failure to provide adequate warnings or instructions. After discovery was conducted, defendants moved for summary judgment. Plaintiff relied upon the report of his engineering expert, who set forth various bases in support of his opinion that the boxes were defectively designed and that there was a failure to provide adequate warnings or instructions.

Regal and Willamette argued that plaintiff failed to identify which defendant's boxes were involved in the accident, and that plaintiff could not proceed against both of them under the alternative liability theory. See Anderson v. Somberg, 67 N.J. 291, 298, cert. denied, 423 U.S. 929, 96 S. Ct. 279, 46 L. Ed. 2d 258 (1975). Judge Fisher agreed and on that basis granted the summary judgment motions of Regal and Willamette. Plaintiff does not challenge that determination on appeal.

All defendants argued that plaintiff's expert's report constituted nothing more than a net opinion. The judge agreed and ruled the expert's proposed testimony inadmissible. Without the expert's opinion, plaintiff's remaining claims were unsupported, and the judge granted summary judgment to all defendants.

On appeal, plaintiff does not dispute that his expert's report was a net opinion, and does not challenge the judge's ruling to that effect. Plaintiff concedes that he cannot prove a design defect without expert testimony. The sole argument advanced by plaintiff on appeal is that summary judgment should not have been granted in favor of Casa because the record contains sufficient evidence to withstand summary judgment on plaintiff's failure to warn theory, without the need for expert opinion, with respect to Casa.

We first note that plaintiff never made this argument in the trial court. We are mindful that the complaint alleged failure to warn and plaintiff's expert rendered opinions about the absence and inadequacy of warnings. However, the expert's opinions have been ruled inadmissible, and it was based upon those opinions that plaintiff sought to withstand summary judgment. We have reviewed the transcript of the oral argument on the summary judgment motions, and it is plain that plaintiff never argued, as he does now, that his complaint should not be dismissed with respect to Casa because he did not need an expert. Nor did plaintiff move for reconsideration before the trial court on that issue. Therefore, the issue plaintiff now presents on appeal is not properly before us. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Unless such an issue relates to the jurisdiction of the trial court or concerns matters of substantial public interest, an appellate court will generally not consider it on appeal. Ibid. Neither exception applies, and on that basis alone, we affirm the judgment of the trial court.

We nevertheless comment briefly on the merits. Plaintiff contends that Casa was a "manufacturer" within the meaning of the NJPLA because it received the boxes flat, assembled them, filled them with its product, and taped them. See N.J.S.A. 2A:58C-8. For purposes of our analysis, we accept this proposition. Plaintiff further contends that an objectively foreseeable misuse occurred when the refrigeration failed and the boxes thawed, causing them to lose structural integrity and fall. Plaintiff also alleges that the boxes were stacked in excess of the height for which they were designed. Casa's representative acknowledged that double stacking the pallets was a common practice in the industry, and there was testimony in the record to the effect that the boxes were designed to be stacked no more than forty-five inches high.

Plaintiff postulates that the cause of the boxes falling on him was that their structural integrity was compromised by the thawing and absorption of moisture from the frozen product they contained, and that, even if refrozen, the boxes did not regain their structural integrity. Therefore, he argues that Casa had a duty to place warnings on the boxes or provide instructions to Ottinger's not to stack the boxes too high, and that there was a danger of collapse if the boxes became wet. Plaintiff relies upon cases holding that expert opinion is not necessarily required in failure to warn claims under the NJPLA. See, e.g., Ridenour v. Bat Em Out, 309 N.J. Super. 634, 643 (App. Div. 1998); Macri v. Ames McDonough Co., 211 N.J. Super. 636, 642 (App. Div. 1986).

However, the threshold inquiry is whether there is a duty to warn. See James v. Bessemer Processing Co., 155 N.J. 279, 297-98 (1998). Related to this issue is the question of whether the boxes contained a patent or latent defect which could result in an objectively foreseeable misuse or hazard in the product at issue. See Jurado v. W. Gear Works, 131 N.J. 375, 384-86 (1993); Ridenour, supra, 309 N.J. Super. at 643. Even if a product is properly designed and manufactured, it may still be unsafe for its intended or foreseeable uses if it is not accompanied by adequate warnings or instructions. Reiff v. Convergent Techs., 957 F. Supp. 573, 581 (D.N.J. 1997). Accordingly, manufacturers have a duty to warn "foreseeable users of all hidden or latent dangers that would arise out of a reasonably anticipated use of [their] product[s]." Ibid. (citing Campos v. Firestone Tire & Rubber Co., 98 N.J. 198, 206-07 (1984)).

In Campos, supra, which predated the NJPLA, the Court observed "whether a duty to warn exists when the danger is obvious" "'involves a weighing of the relationship of the parties, the nature of the risk, and the public interest in the proposed solution.'" 98 N.J. at 207 (citation omitted). Relevant questions include whether

the lack of the warning [is] consonant with the duty to place in the stream of commerce only products that are reasonably safe, suitable, and fit? Will the absence of a duty encourage manufacturers to eliminate warnings or to produce inadequate warnings? Is the danger so basic to the functioning or purpose of the product-for example, the fact that a match will burn-that a warning would serve no useful purpose?

 
[Id. at 207-08.]

The NJPLA does not directly address the issue of the duty to warn of obvious danger, but it does define what constitutes an "adequate product warning." It provides in relevant part:

An adequate product warning or instruction is one that a reasonably prudent person in the same or similar circumstances would have provided with respect to the danger and that communicates adequate information on the dangers and safe use of the product, taking into account the characteristics of, and the ordinary knowledge common to, the persons by whom the product is intended to be used . . . .

 
[N.J.S.A. 2A:58C-4.]

Although a plaintiff's subjective knowledge of an obvious danger will not necessarily extinguish a defendant's duty to warn, courts have been hesitant to extend this duty when the harm is overwhelmingly obvious. For example, in Height v. Kawasaki Heavy Industries, Ltd., 190 N.J. Super. 7, 10-11 (App. Div.), certif. denied, 94 N.J. 615 (1983), a case that predated the NJPLA, we found that strict products liability law does not impose an obligation on the manufacturer to provide a warning that a fuel tank might explode in a high-speed crash where the danger is so obvious that such users would know of it.

More recently, in Mathews v. University Loft Co., 387 N.J. Super. 349, 356 (App. Div.), certif. denied, 188 N.J. 577 (2006), we found that a defendant had no duty to warn against the danger of falling from the loft bed because the danger was "open and obvious." We considered the Restatement (Third) of Torts: Products Liability 2(c) (1998), which provides that a product

is defective because of inadequate instructions or warnings when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the instructions or warnings renders the product not reasonably safe.

We also made reference to comment j in the Restatement (Third) of Torts, supra, which states in part:

In general, product seller is not subject to liability for failing to warn or instruct regarding risks and risk-avoidance measures that should be obvious to, or generally known by, foreseeable product users. When a risk is obvious or generally known, the prospective addressee of a warning will or should already know of its existence. Warning of an obvious or generally known risk in most instances will not provide an effective additional measure of safety. . . . Thus, requiring warnings of obvious or generally known risks could reduce the efficacy of warnings generally. When reasonable minds may differ as to whether the risk was obvious or generally known, the issue is to be decided by the trier of fact. . . .

 
[Emphasis added.]

We concluded that it was not counter to the legislative intent of the NJPLA to dismiss "obvious danger" claims, even if previous courts had shifted the "obvious danger" argument to a fact question to be argued by the defense at trial. Mathews, supra, 387 N.J. Super. at 359-362.

Applying these principles, we are satisfied that plaintiff's NJPLA failure to warn claim is not sustainable. As a result of the thawing incident, boxes fell. Plaintiff was clearly aware of the dangerous situation caused by the thawing and the danger inherent in working alongside stacked boxes that had also thawed. It is common knowledge that corrugated cardboard boxes lose their structural integrity when they become wet, as happened here, and that the loss of structural strength would continue even if refrozen (if indeed these boxes were refrozen). No reasonable factfinder could conclude that plaintiff was not aware of the danger in this situation or that the absence of warnings (in addition to the "Keep Frozen" warning on each box) was a proximate cause of his injuries.

Affirmed.

 

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11

A-4129-05T2

May 21, 2007