Joseph Cherilus v. Federal Express

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1285-12T2
JOSEPH CHERILUS and MARIE
CHERILUS, his wife,

Plaintiffs, APPROVED FOR PUBLICATION

v. April 3, 2014

FEDERAL EXPRESS (FOR DISCOVERY APPELLATE DIVISION
PURPOSES ONLY),

Defendant,

and

LINC FACILITIES SERVICES,

Defendant/Third-Party
Plaintiff-Appellant,

v.

COLUMBUS MCKINNON CORPORATION
a/k/a AMERICAN LIFTS,

Defendant/Third-Party
Defendant-Respondent.
___________________________________

Argued November 4, 2013 – Decided April 3, 2014

Before Judges Ashrafi, St. John and Leone.

On appeal from Superior Court of New Jersey,
Law Division, Essex County, Docket No.
L-1478-08.

David L. Wysnewski argued the cause for
appellant (Barry, McTiernan & Moore,
attorneys; Mr. Wysnewski and Laurel A.
Wedinger-Gyimesi, on the brief).
 John E. Tyrrell argued the cause for
respondent (Hollstein Keating Cattell
Johnson & Goldstein, P.C., attorneys;
Mr. Tyrrell, on the brief).

The opinion of the court was delivered by

ASHRAFI, J.A.D.

Plaintiff Joseph Cherilus was injured on a cargo lift at a

Federal Express facility where he worked. He and his wife sued

the company responsible for maintaining the lift, Linc

Facilities Services (LFS). LFS filed a third-party claim of

product liability against the manufacturer of the lift, Columbus

McKinnon Corporation, which also uses the name American Lifts.

The trial court granted summary judgment to American Lifts on

the ground that the claims against it were barred by the ten-

year statute of repose applicable to construction defects,

N.J.S.A. 2A:14-1.1(a). Subsequently, LFS settled with

plaintiffs on their personal injury claims. LFS now appeals the

dismissal of American Lifts from the case so that it can pursue

its claim for contribution for the settlement amount it paid to

plaintiffs. We affirm.

I.

Viewed most favorably to LFS as the party opposing summary

judgment, see R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of

Am., 142 N.J. 520, 540 (1995), the record reveals the following

facts and procedural history.

2 A-1285-12T2
 Cherilus was injured while working on the loading dock of a

Federal Express warehouse at Newark Airport. He was on the

platform of a large mechanical device known as a "torklift" or

"air cargo lift" that is affixed to the warehouse loading dock

and used to raise and lower heavy cargo between ground level and

the level of truck beds. The torklift contains a mechanical

part known as a "can-stop" or "floor lock" that pops up from the

lift platform to prevent containers from rolling off the lift.

When not up, a can-stop lies flat as part of the platform.

Workers often step on a can-stop as they maneuver cargo on and

off the lift.

On February 21, 2006, as Cherilus stepped on a can-stop, it

malfunctioned and depressed below the level of the platform.

Cherilus's foot stuck in the can-stop mechanism, and an air

cargo container rolled into and seriously injured his leg.

Cherilus filed suit against LFS in February 2008. LFS was

the contractor that provided warehouse services for Federal

Express and was responsible for maintaining the cargo lifts at

the facility. In November 2009, LFS filed a third-party

complaint against American Lifts, the designer and manufacturer

of the lift. An engineering expert issued a report and a

certification stating that the malfunction was a result of a

design defect in the can-stop's 1/4 inch "tabs" that were to

3 A-1285-12T2
keep it level with the lift platform. The expert stated that

these tabs were not thick enough, and they failed prematurely.

Cherilus's weight was sufficient to depress the can-stop below

the level of the platform, ultimately resulting in his injury.

In March 2011, plaintiffs filed an amended complaint adding

American Lifts as a direct defendant on their personal injury

claims.

American Lifts had designed and manufactured the lift in

accordance with Federal Express's specifications and approval.

Nineteen such torklifts were installed in the warehouse at which

Cherilus was injured, and there was some evidence, although not

detailed or precise, that similar ones may have been in use at

one or more other Federal Express facilities. The torklift was

bolted into a cement foundation of the warehouse dock, and the

bolts were covered with grout. American Lifts provided

instructions for but did not participate in the installation.

Once the lift was installed, it was never moved. Nor was it

intended to be moved.

On this evidence, the trial court concluded that the

torklift was an improvement to the warehouse property and that

N.J.S.A. 2A:14-1.1(a) barred any suit for personal injury

brought against its designer more than ten years after the lift

was installed and put to use. There was no dispute that the

4 A-1285-12T2
lift was shipped to Federal Express on March 8, 1995, and was in

use by the summer of 1995, that is, more than ten years before

Cherilus was injured in February 2006. Consequently, the court

granted summary judgment to American Lifts dismissing both

plaintiffs' direct personal injury claims and the third-party

contribution claim of LFS. We denied LFS's motion for leave to

file an interlocutory appeal from the trial court's summary

judgment decision.

In May 2012, with the aid of a conference conducted by the

trial judge, LFS reached a settlement with plaintiffs on their

personal injury claims. It then filed a stipulation of

dismissal of plaintiffs' claims. Plaintiffs also executed a

release in favor of LFS. In September 2012, LFS obtained from

plaintiffs an assignment of their claims against American Lifts

for purposes of pursuing its appeal.

II.

Initially, we agree with American Lifts that the assignment

of plaintiffs' personal injury claims to LFS has no effect on

this appeal. Plaintiffs did not have a judgment against

American Lifts. They had a claim for personal injury that was

dismissed and not pursued further by them. A tort claim is not

subject to assignment prior to judgment. Village of Ridgewood

v. Shell Oil Co., 289 N.J. Super. 181, 195 (App. Div. 1996);

5 A-1285-12T2
Di Tolvo v. Di Tolvo, 131 N.J. Super. 72, 79 (App. Div. 1974);

Goldfarb v. Reicher, 112 N.J.L. 413, 414 (Sup. Ct.), aff'd o.b.,

113 N.J.L. 399 (E. & A. 1934). In United States Casualty Co. v.

Hyrne, 117 N.J.L. 547, 552 (E. & A. 1937), the Court stated: "It

has always been held that the right to bring an action in the

courts of this state is possessed by the injured person alone,

unless the injured person assigns his right to someone else

which cannot be done before judgment when the action sounds in

tort . . . ." Accord Costanzo v. Costanzo, 248 N.J. Super. 116,

121-22 (Law Div. 1991).

Plaintiffs could have appealed from the summary judgment

order, but their assignment of the right to appeal was

ineffective. We address the appeal only to determine whether

LFS could pursue its own claim for contribution from American

Lifts under the Joint Tortfeasors Contribution Act, N.J.S.A.

2A:53A-3.

III.

The relevant provision of the Joint Tortfeasors

Contribution Act states:

Where injury or damage is suffered by any
person as a result of the wrongful act,
neglect or default of joint tortfeasors, and
the person so suffering injury or damage
recovers a money judgment or judgments for
such injury or damage against one or more of
the joint tortfeasors . . . and any one of
the joint tortfeasors pays such judgment in

6 A-1285-12T2
 whole or in part, he shall be entitled to
recover contribution from the other . . .
joint tortfeasors for the excess so paid
over his pro rata share . . . .

[N.J.S.A. 2A:53A-3 (emphasis added).]

American Lifts relies on Polidori v. Kordys, Puzio & Di

Tomasso, 217 N.J. Super. 424, 430-32 (App. Div. 1987), to argue

that a stipulation of dismissal is not sufficient to satisfy the

requirement of the statute that a "money judgment" be the basis

for the contribution claim. In Young v. Steinberg, 100 N.J.

Super. 507, 509-10 (App. Div. 1968), rev'd on dissenting

opinion, 53 N.J. 252 (1969), the defendant settled with the

plaintiff and then claimed a right to contribution from a joint

tortfeasor. The Supreme Court held that a claim of contribution

could be maintained if: (1) the "suit for contribution based on

a settlement [had] been elevated to the status of a judgment by

formal court proceeding," and (2) the settlement "discharges the

injured party's claim against a non-settling joint tortfeasor."

53 N.J. at 255. The Court implicitly interpreted the "money

judgment" language of the statute to include a confession of

judgment by the settling defendant. Ibid.

Although plaintiffs in this case never obtained a "money

judgment," LFS contends it is not precluded from pursuing its

claim for contribution because its settlement with plaintiffs

substantially satisfied the two requirements articulated in

7 A-1285-12T2
Young, supra, 53 N.J. at 255. The settlement resulted from a

conference before a Superior Court judge, thus invoking the

court's participation and the approval of the settlement in

judicial proceedings, and it disposed of plaintiffs' claims in

their entirety against all potential tortfeasors. See Gangemi

v. Nat'l Health Labs., Inc., 305 N.J. Super. 97, 105 (App. Div.

1997). American Lifts contends, however, that the stipulation

of dismissal and release executed by plaintiffs did not

discharge their claims against American Lifts, as later

demonstrated by their attempt to assign those claims to LFS.

LFS is correct that a full-blown adversarial proceeding is

not necessary to invoke the right of contribution under N.J.S.A.

2A:53A-3. Polidori, supra, 217 N.J. Super. at 431 (citing

Young, supra, 53 N.J. at 255). But the statute does not apply

to "contribution where the payment is made in fulfillment of a

voluntary compromise or settlement of a claim for damages

attributed to a joint tortfeasor." Ibid. (quoting Pa. Greyhound

Lines, Inc. v. Rosenthal, 14 N.J. 372, 383 (1954)). Although a

consent judgment satisfies the "judgment" requirement of the

statute, Young, supra, 53 N.J. at 255, we declined in Polidori

to expand the statute to apply as well to a stipulation of

dismissal. Polidori, supra, 217 N.J. Super. at 432. We

acknowledged there was "little philosophical difference between

8 A-1285-12T2
a settlement coupled with a Stipulation of Dismissal and a

settlement in the form of a consent judgment," but we also

determined that the plain language used by the Legislature

constrained us against expanding the contribution statute to

include a stipulation of dismissal. Ibid.

LFS also contends the stipulation of dismissal can be

converted into a consent judgment if it is in the interests of

justice to do so. See Gangemi, supra, 305 N.J. Super. at 103.

It asks us to take that course of action so that its right to

appeal the summary judgment order is not extinguished.

Otherwise, contends LFS, preventing it from pursuing its

contribution claims would be against the interests of justice

and would discourage settlements in future cases.

Here, unlike the alleged tortfeasor in Gangemi, American

Lifts did not participate in the settlement conference. It had

no further involvement in the proceedings once it obtained

summary judgment. Also, the release executed by plaintiffs was

only in favor of LFS and not also in favor of American Lifts.

The statutory requirement of a judgment is not against the

interests of justice and should not discourage settlements. A

defendant is not required to pay another tortfeasor's share of

the damages. A defendant can proceed to trial on the

plaintiffs' personal injury claims and receive a credit under

9 A-1285-12T2
the Comparative Negligence Act, N.J.S.A. 2A:15-5.2, for any

proportion of responsibility for the injuries that the jury

attributes to another tortfeasor, even if the other tortfeasor

was earlier dismissed from the case pursuant to the statute of

repose. Town of Kearny v. Brandt, 214 N.J. 76, 98-104 (2013).

Thus, the amount a defendant pays voluntarily to settle

plaintiffs' claims need not cover the liability of a co-

defendant who has been dismissed from the case. If a defendant

nevertheless settles and pays more than its fair share for the

injuries, it can preserve its claim for contribution from a

potentially liable joint tortfeasor through appropriate judicial

proceedings and a judgment order.

We are not convinced by the arguments of LFS that we should

depart from our prior precedent and hold that contribution may

be sought where the court has not entered a money judgment in

favor of plaintiffs that fully resolves their claims against the

alleged joint tortfeasor. See Young, supra, 53 N.J. at 255.

We also reject the argument of LFS that the trial court's

summary judgment order in favor of American Lifts satisfies the

"judgment" requirement of the contribution statute. The statute

refers to "a money judgment" recovered by the person who

suffered injury. Here, plaintiffs did not obtain a money

judgment.

10 A-1285-12T2
 We conclude that LFS has no viable claim of contribution

under N.J.S.A. 2A:53A-3 for its voluntary payment of settlement

money to plaintiffs to obtain the stipulation of dismissal.

IV.

Because the judgment order from which LFS appeals was based

on the statute of repose and because the parties have briefed

the issue, we will also address that statute as an alternative

ground for affirmance of summary judgment dismissing all claims

against American Lifts.

In relevant part, the statute of repose states:

No action, whether in contract, in tort, or
otherwise, to recover damages for any
deficiency in the design, planning,
surveying, supervision or construction of an
improvement to real property, . . . nor any
action for contribution or indemnity for
damages sustained on account of such injury,
shall be brought against any person
performing or furnishing the design,
planning, surveying, supervision of
construction or construction of such
improvement to real property, more than 10
years after the performance or furnishing of
such services and construction.

[N.J.S.A. 2A:14-1.1(a) (emphasis added).]

Here, American Lifts designed the torklift in the mid-

1990s, and the device was installed in the Federal Express

facility at Newark Airport in 1995. Plaintiffs' complaint

against LFS was filed in February 2008, more than twelve years

later, and LFS's third-party complaint and plaintiffs' amended

11 A-1285-12T2
complaint against American Lifts were filed yet later, in 2009

and 2011 respectively.

LFS argues the torklift is not subject to the statute of

repose because it is a product that was manufactured off-site

and American Lifts had no role in the construction of the

warehouse facility. LFS argues that only the statute of

limitations, N.J.S.A. 2A:14-2, fixes the time period within

which American Lifts could be sued for manufacturing a

defectively-designed product, and that the statute of

limitations runs from the time the claim accrued rather than

from the time of design or installation of the product.

Because we address interpretation of a statute and the

legal consequences that flow from that interpretation, our

standard of review is plenary. McGovern v. Rutgers, the State

Univ. of N.J., 211 N.J. 94, 107-08 (2012); In re Pet. for Ref.

on Trenton Ord. 09-02, 201 N.J. 349, 358 (2010).

Initially, we reject LFS's argument that American Lifts

waived a defense based on the statute of repose by arguing

earlier in the litigation that the claims against it were

untimely under the two-year statute of limitations. The statute

of repose and the statute of limitations can both apply to

determine whether a cause of action was timely filed. O'Connor

v. Altus, 67 N.J. 106, 122-23 (1975); Cumberland Cnty. Bd. of

12 A-1285-12T2
Chosen Freeholders v. Vitetta Grp. P.C., 431 N.J. Super. 596,

609 (App. Div.), certif. denied, 216 N.J. 430 (2013).

With respect to the statute of repose, the pertinent

questions are whether the torklift was an improvement to real

property and whether American Lifts was a designer of the

improvement or only the manufacturer of a product used by others

in the design, planning, and construction of an improvement to

real property. LFS argues that the torklift was analogous to

the piping material in State v. Perini Corp., 425 N.J. Super.

62, 80-81 (App. Div.), certif. granted, 211 N.J. 606 (2012), as

to which we held the manufacturer could not invoke the statute

of repose. LFS also argues that the torklift was similar to the

defective crane in McCalla v. Harnischfeger Corp., 215 N.J.

Super. 160, 169 (App. Div.), certif. denied, 108 N.J. 219

(1987), that was affixed to the industrial building but was

determined to be "production machinery" outside the scope of the

statute of repose. American Lifts responds that the torklift

was a specially-designed, unique device that was permanently

affixed to the Federal Express warehouse and constituted an

improvement as to which its designer was entitled to repose more

than ten years after the design work was completed.

A number of cases have held that defective materials and

manufactured equipment installed permanently in a construction

13 A-1285-12T2
project are improvements to property and that the designer,

builder, or installation contractor of those materials and

devices could not be sued more than ten years after completion

of its work. See Ebert v. S. Jersey Gas Co., 157 N.J. 135, 140

(1999) (underground natural gas lines were an improvement to

real property); Diana v. Russo Dev. Corp., 352 N.J. Super. 146,

152-58 (App. Div. 2002) (permanently attached ladder providing

access to roof was an improvement to property, although ladder

could be purchased in the same form for other uses); Brown v.

Jersey Cent. Power & Light Co., 163 N.J. Super. 179, 192, 195-96

(App. Div. 1978) (a free-standing electrical transfer switch was

an improvement to real property), certif. denied, 79 N.J. 489

(1979); Luzzader v. Despatch Oven Co., 651 F. Supp. 239, 243-44

(W.D. Pa. 1986) (industrial oven in plant was an improvement to

the property), rev’d in part on other grounds, 834 F.2d 355 (3d

Cir. 1987), cert. denied sub nom. Honeywell, Inc. v. Luzadder,

485 U.S. 1035, 108 S. Ct. 1595, 99 L. Ed. 2d 909 (1988); Gnall

v. Ill. Water Treatment Co., 640 F. Supp. 815, 817-18 (M.D. Pa.

1986) (water treatment system installed in plant was an

improvement to real property). But cf. Rolnick v. Gilson &

Sons, Inc., 260 N.J. Super. 564, 567-68 (App. Div. 1992)

(standard attic fan installed by seller of home was not covered

by statute of repose as an improvement to real property).

14 A-1285-12T2
 Specifically, elevators have been held to be improvements

to real property, both in our trial courts and in the courts of

other jurisdictions. Santos v. Hubey Corp., 236 N.J. Super.

608, 611 (Law Div. 1989); Hall v. Luby Corp., 232 N.J. Super.

337, 351-52 (Law Div. 1989); see, e.g., Fritz v. Otis Elevator

Co., 549 N.E.2d 205, 208 (Ohio Ct. App. 1988); Mitchell v.

United Elevator Co., 434 A.2d 1243, 1249 (Pa. Super. 1981);

Desnoyers v. R.I. Elevator Co., 571 A.2d 568, 570-71 (R.I.

1990).

In Dziewiecki v. Bakula, 180 N.J. 528, 532-33 (2004),

however, the Court held that N.J.S.A. 2A:14-1.1(a) does not

apply to a manufacturer of a standardized product used in

construction. The statute protects "contractors, builders,

planners, and designers." Russo Farms, Inc. v. Vineland Bd. of

Educ., 144 N.J. 84, 116 (1996); Horosz v. Alps Estates, Inc.,

136 N.J. 124, 128 (1994); Rosenberg v. Town of N. Bergen, 61

N.J. 190, 201 (1972). It does not protect manufacturers or

sellers of standard materials used in construction. Diana,

supra, 352 N.J. Super. at 151. The fact that the manufacturer

"designed" a "standardized" product that was installed at a

construction project does not constitute activity that is

covered by the statute of repose. Dziewiecki, supra, 180 N.J.

15 A-1285-12T2
at 532-33; Perini Corp., supra, 425 N.J. Super. at 80; Rolnick,

supra, 260 N.J. Super. at 567-68.

In Perini Corp., supra, 425 N.J. Super. at 80-81, we held a

defendant that had manufactured and supervised the installation

of the pipes in an underground hot water heating system could

not invoke the statute of repose with respect to its manufac-

turing role if the pipes were determined to be defective. We

relied on Dziewiecki, supra, 180 N.J. at 533, in which the

Supreme Court distinguished between manufacturers and

distributors that sell, design, or manufacture standardized

products and those that also install their standardized products

according to specialized plans as part of an improvement to real

property. See also Wayne Twp. Bd. of Educ. v. Strand Century,

Inc., 172 N.J. Super. 296, 303 (App. Div. 1980) (statute of

repose does not apply to designer/manufacturer of "a stock or

shelf item out of its regular inventory" or to fabricator of

building item designed by the project engineer), overruled in

part on other grounds by Dziewiecki, supra, 180 N.J. at 533;

Santos, supra, 236 N.J. Super. at 611-13 (disputed issues of

fact as to the role of each defendant in designing,

manufacturing, or installing elevator precluded summary

judgment).

16 A-1285-12T2
 In Dziewiecki, supra, 180 N.J. at 533, the Court stated

that, when a defendant wears "two hats," — namely, as both the

manufacturer of a standardized product and its installer

according to a specific design for the real property — and the

injury is attributable to both functions, "the responsibility

should be allocated between the two" roles. Here, American

Lifts did not install the torklift. It only designed and

fabricated the torklift, and all its work was done off-site.

Nevertheless, the torklift was not standard building

material or a "stock or shelf" fabricated item. It was

specially designed and fabricated by American Lifts for the

Federal Express facility. We have not been directed to an

authoritative case by either party that decides whether a direct

role in installation is required to invoke the statute of repose

for the designer of a specialty product that is a unique fixture

and improvement to real property.

Considering the cases that have addressed the scope and

reach of the statute of repose, we conclude that the statute

applies to bar a claim after ten years if a defendant can show

three things: (1) that the injury was caused by an "improvement

to real property," N.J.S.A. 2A:14-1.1(a), (2) that the defendant

"designed, planned . . . supervised, or constructed" the

improvement, ibid., and (3) that the improvement was not a

17 A-1285-12T2
standardized building product, e.g. Dziewiecki, supra, 180 N.J.

at 532-33, but was specially-designed and fabricated to be an

improvement to the real property. We hold that the designer/

manufacturer need not also install such a product in order to

invoke the statute of repose.

Here, application of the three listed elements to the

evidence supports the trial court's conclusion that the claims

against American Lifts were barred by the statute of repose.

An "improvement" is defined as a modification "to real

property [that] permanently increases the property's value."

Ebert, supra, 157 N.J. at 139 (citing 21 Am.Jur.2d,

Improvements, § 1 (1968)); Black's Law Dictionary 773 (8th ed.

2004). The factors considered when determining whether an item

constitutes an improvement to real property include "whether the

modification or addition enhances the use of the property,

involves the expenditure of labor or money, is more than mere

repair or replacement, adds to the value of the property, and is

permanent in nature." Ebert, supra, 157 N.J. at 139 (quoting

Van Den Hul v. Baltic Farmers Elevator Co., 716 F.2d 504, 508

(8th Cir. 1983)).

The torklift in this case facilitated movement of cargo

containers and enhanced the functioning of the warehouse

facility. It was not merely a repair or replacement of an

18 A-1285-12T2
existing feature of the property. It was designed to be

installed as an integral feature of the property. Anchor bolts

were used to affix the lift permanently in a concrete pit at the

warehouse dock, where it was especially designed to fit. It was

not merely "personal property" or "production machinery," as was

the movable crane in McCalla, supra, 215 N.J. Super. at 169. It

was intended to be a permanent fixture of the building. It was

more like the electric transfer switch assembly in Brown, supra,

163 N.J. Super. at 198-99, which was "an integral part" of the

building system and necessary for the proper functioning of the

plant and, therefore, an improvement to real property.

With respect to the second element for application of the

statute of repose, the court should "focus on the 'activities'

of persons seeking [its] protection." Dziewiecki, supra, 180

N.J. at 533-34 (citing Dighton v. Fed. Pac. Elec. Co., 506

N.E.2d 509, 515 (Mass.), cert. denied sub nom. Fed. Pac. Elec.

Co. v. Dighton, 484 U.S. 953, 108 S. Ct. 345, 98 L. Ed. 2d 371

(1987); McConnaughey v. Bldg. Components, Inc., 637 A.2d 1331,

1333 (Pa. 1994); Condit v. Lewis Refrigeration Co., 676 P.2d

466, 468 (Wash. 1984)). Here, American Lifts relies on its

function in designing the torklift to the specifications of

Federal Express for a particular building. LFS's expert alleged

a design, not a manufacturing, defect in the can-stop mechanism.

19 A-1285-12T2
 However, a designer/manufacturer may not invoke the statute

of repose if the article was merely designed as a standardized

product, which happened to be installed in a construction

project. Dziewiecki, supra, 180 N.J. at 532-33; Perini Corp.,

supra, 425 N.J. Super. at 80. The torklift in this case was not

a standardized product designed and manufactured for sale to the

public or other commercial customers. Although LFS presented

evidence that the torklift on which Cherilus was injured was not

one-of-a-kind and that other ones were in use at this and other

Federal Express facilities, there was no evidence that the

particular design of this torklift was generally available to

other industrial or commercial buyers.

American Lifts designed the torklift especially for the

Federal Express facility and in accordance with the

specifications and approval of Federal Express. The lift had to

conform to the floor-design of the Federal Express warehouse,

which was comprised of evenly spaced ball bearings used to move

cargo containers. The lift's platform had to contain casters

with the same uniform spacing to create a continuous surface on

which containers could roll. This ball bearing/caster floor and

lift system was unique to the building, and perhaps several

similar Federal Express facilities. The lift also had to

conform to the design of Federal Express trucks, which similarly

20 A-1285-12T2
had floors on which heavy containers could be moved. The floor

system was the feature that necessitated the can-stop mechanism

on the lift that failed.

The number of such manufactured items may be a relevant

factor but does not alone determine whether the product is a

standardized, "off-the-shelf" product or designed uniquely for a

particular construction project. Here, the specially-designed

and affixed torklift was not available through any catalogue or

product advertisement of American Lifts, and LFS did not have

evidence of its sale or use in any facility except the facility

at which Cherilus was injured and perhaps two other Federal

Express facilities. There was vague testimony about the use of

similar lifts at a Delta Airlines facility, but no evidence was

produced demonstrating that the lift on which Cherilus was

injured was a product manufactured generally for sale by

American Lifts. The evidence supported the court's conclusion

that it was a specially-designed improvement to the Federal

Express facility. The role of American Lifts in that regard was

similar to an engineer or architect who designed a unique

component of a construction project, although the designing work

was done off-site. Cf. Greczyn v. Colgate-Palmolive, 183 N.J.

5, 7-8 (2005) (statute of repose applicable to architectural

designer of staircase on which the plaintiff tripped and fell).

21 A-1285-12T2
 The elements for application of the statute of repose have

been read broadly to achieve a legislative preference "for

finality in construction-related claims." Daidone v. Buterick

Bulkheading, 191 N.J. 557, 567 (2007) (citing Rosenberg, supra,

61 N.J. at 199). We conclude the trial court correctly

determined that the statute of repose applied to the torklift in

this case and the role of American Lifts in designing it for the

Federal Express facility.

V.

Having determined that the trial court properly dismissed

the time-barred claims against American Lifts, we need not

address additional grounds argued by American Lifts for summary

judgment in its favor.

Affirmed.

22 A-1285-12T2