Shelcusky v. Garjulio

VERNIERO, J.,

concurring in part, dissenting in part.

The Court holds that summary judgment should not have been granted based largely on its determination that plaintiffs second certification was not a sham affidavit. I concur in that portion of the Court’s opinion incorporating the sham-affidavit doctrine into our jurisprudence. In my view, however, the proper inquiry is not whether plaintiff submitted a sham affidavit. Rather, it is whether the existing pleadings, depositions, and certifications create a jury question in respect of whether the lack of a warning on the forklift was the proximate cause of plaintiffs injuries. Because no reasonable jury could find proximate causation on the record presented, I respectfully dissent from the majority’s ultimate disposition.

“There is no question that warnings necessary to make a product reasonably safe, suitable and fit for its intended use must be placed on the product.” Vallillo v. Muskin Corp., 212 N.J.Super. 155, 159, 514 A.2d 528 (App.Div.1986). Consistent with that statement, this Court has acknowledged that the failure to provide necessary warnings constitutes a breach of a duty for which the manufacturer may be held liable. Coffman v. Keene Corp., 133 N.J. 581, 598, 628 A.2d 710 (1993). To reinforce that duty, the Court applies a “heeding presumption” in failure to warn cases that presumes that the plaintiff would have “heeded” or followed a warning had the manufacturer provided one. Id. at 595, 628 A.2d 710.

*206However, the absence or inadequacy of a necessary warning does not end the inquiry. “[W]hen we focus not upon the acknowledged duty of the manufacturer to warn ... but rather upon the effect of the warning ... our analysis must shift to an assessment of the breach of that duty as a proximate cause of the accident.” Vallillo, supra, 212 N.J.Super. at 159, 514 A.2d 528. As a result, in failure to warn cases, the plaintiff must still prove that the insufficiency of the warning was a proximate cause of the accident. Molino v. B.F. Goodrich Co., 261 N.J.Super. 85, 99, 617 A.2d 1235 (App.Div.1992).

In the alternative, a manufacturer may overcome the heeding presumption by proving that either the plaintiff would have disregarded the warning, or that the employer would have ignored the warning by failing to take reasonable precautions to ensure employee safety and would not have permitted its employees to avoid the harm. Coffman, supra, 133 N.J. at 609, 628 A.2d 710. Regardless of how the issue is addressed, “proof of proximate causation [is required] in failure to warn cases where the plaintiff [is] unaware of the danger.” Graves v. Church & Dwight Co., 267 N.J.Super. 445, 457, 631 A.2d 1248 (App.Div.1993).

Ordinarily, the jury considers issues of proximate cause. Perez v. Wyeth Labs., Inc., 161 N.J. 1, 27, 734 A.2d 1245 (1999). That rule, however, is far from absolute. The Restatement (Second) of Torts § 435(2) instructs that courts may resolve for themselves the question of legal or proximate causation if they conclude that no reasonable jury could find such causation on the record presented. Our case law is in accord with that well-established principle. See, e.g., Vega by Muniz v. Piedilato, 154 N.J. 496, 509, 713 A.2d 442 (1998) (invoking court’s authority to dismiss plaintiffs case on causation grounds); Caputzal v. The Lindsay Co., 48 N.J. 69, 78-79, 222 A.2d 513 (1966) (discussing applicable case law).

Additionally, on a motion for summary judgment, we are required to view the evidence in a light most favorable to the non-moving party. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. *207520, 540, 666 A.2d 146 (1995); R. 4:46-2(c). However, “an adverse party may not rest upon the mere allegations or denials of the pleading ... [to show] that there is a genuine issue for trial.” R. 4:46-5(a). Further, “ ‘[b]are conclusions in the pleadings without factual support in tendered affidavits, will not defeat a meritorious application for summary judgment.’ ” Brae Asset Fund, L.P. v. Newman, 327 N.J.Super. 129, 134, 742 A.2d 986 (App.Div.1999) (alteration in original) (quoting United States Pipe & Foundry Co. v. Am. Arbitration Ass’n, 67 N.J.Super. 384, 399-400, 170 A.2d 505 (App.Div.1961)).

In applying those tenets, I agree with the trial court and Appellate Division that plaintiff cannot prove that the absence of a warning in this case was a proximate cause of his injuries. In testimony prior to his second certification, plaintiff gave no indication that he believed that the finished aerosol cans that he was loading were explosive. That testimony is consistent with the record, which shows that neither R & C’s management team nor its employees ever considered those products to be flammable.

When questioned regarding the handling of rejected aerosol cans, one of R & C’s managers explained that the company “had no knowledge that handling [the materials] with other than an E rated truck was a problem.” Further, OSHA’s 1996 investigation of the accident revealed that “[a]ll [employees] interviewed stated, they did not consider the product a hazard. They thought because it was a finished product, it was safe, even if the containers were leaking.” The OSHA report also concludes that R & C’s training programs were deficient because they failed to alert employees to the hazards associated with handling leaking aerosol cans.

The certification submitted by plaintiffs co-worker, David Lambert, in support of plaintiffs first motion for reconsideration does not contradict those findings. The co-worker states only that he was aware that some of the materials used in the workplace were flammable. His statement does not indicate that he ever believed that the finished products (even those that leaked) were combusti*208ble. As the trial court correctly observed, for purposes of causation, there is a difference between knowing that “there were explosive gasses on the premises” and knowing that “the aerosol cans [being] loaded at the time of [plaintiffs] accident were flammable.”

Given those undisputed facts, even if the forklift used by plaintiff bore the suggested warning, the accident would not have been prevented. Plaintiff states that a warning would have led him to inspect the contents of the boxes he was loading to ensure that they were not flammable. However, in opening the boxes, plaintiff would have seen only that they contained finished aerosol cans. Thus, a warning to forklift users that they should not load flammable products would have gone unheeded, because, as found by OSHA, no one interviewed by that agency believed that the finished aerosol products were flammable.

Plaintiffs second certification, in which he states that he “knew that the rejected and leaking aerosol cans [he] was loading were flammable,” reflects a bare assertion that finds no support in the record. Indeed, the balance of the record refutes it. Neither R & C’s management nor plaintiffs co-workers considered the finished cans flammable. Further, plaintiffs hazardous materials training did not address the potential dangers of leaking aerosol cans. Finally, as noted, the certification of Lambert at best reveals that he believed that some of the raw materials used in processing the cans were flammable; it does not demonstrate that he thought the finished product was dangerous, a critical distinction for purposes of causation.

This is a sad and tragic case. It will not be helped by asking a jury to resolve a question that, in my view, lends itself to only one reasonable answer. The record clearly demonstrates that misinformation in the workplace regarding the flammable nature of the cans, not Crown’s failure to affix a warning to its forklifts, was the cause of the accident. As a result, plaintiff cannot establish that a genuine issue of material fact exists in respect of proximate *209causation. For that reason, summary judgment is the appropriate disposition, and I would affirm the judgment below.

For reversing and remanding — Chief Justice PORITZ and Justices STEIN, COLEMAN, LONG, LaVECCHIA, and ZAZZALI — 6.

For affirming — Justice VERNIERO — 1.