Opinion
Civ. No. 02-5177 (DRD).
November 24, 2003
Adam M. Slater, Esq., NAGEL RICE MAZIE, LLP, Livingston, NJ, Attorney for Plaintiffs.
Stephen Wellinghorst, Esq., BRAFF, HARRIS, SUKONEK, Livingston, NJ, Attorney for Defendant Hand Care Inc.
OPINION
In this product liability case Plaintiff Kathleen Wall claims that she suffered injuries when gloves (the "Gloves") manufactured by Defendant Hand Care, Inc. failed to protect her hands from paint stripper ("CitriStrip"), manufactured by Defendant W.M. Barr Co., Inc. ("Barr"), which she used to remove paint from a table in her home. Plaintiff bought both the gloves and the stripper from Defendant Home Depot. Among the claims asserted is a claim against all Defendants of strict product liability under the New Jersey Product Liability Act, N.J.S.A. § 2A:58C-1 et seq. (the " PLA"). In an order dated October 14, 2003, this Court denied motions by both sides for summary judgment. Plaintiffs now move for reconsideration of that portion of the October 14 Order that denied her motion for summary judgment. For the reasons stated below, the motion will be denied to the extent that it calls for summary judgment on the entire issue of product defect; it will be granted to the extent that it calls for summary judgment on the limited issue whether the Hand Care Gloves Plaintiff wore were safe for use with Citristrip.
The other Plaintiff, Barry Wall, is Kathleen Wall's husband; subsequent references to a singular "Plaintiff" refer to Kathleen Wall.
BACKGROUND
The facts relevant to Plaintiffs' motion for summary judgment and to the present motion for reargument and reconsideration were already recounted in the October 14, 2003 Opinion that accompanied the challenged Order; and there is no need to repeat them here. In support of her argument on this motion, Plaintiffs emphasize certain testimony by Harrison Fuller, Hand Care's President. Fuller's testimony revealed that after the incident in which Plaintiff was injured, Hand Care created warning stickers to be added to the packaging for the Gloves. When it emerged that as a result of a shortage of such stickers some gloves sold after the incident had nevertheless been sold without the added warnings, Fuller was asked whether it was possible that some of those gloves might be used with the same stripper that apparently caused Plaintiff's injuries; and he replied that it was possible. Plaintiffs also note testimony by Fuller to the effect that he was aware before the incident that customers used the gloves to protect their hands generally (though the cited testimony does not refer specifically to strippers). Plaintiffs also point to Plaintiff Kathleen Wall's own testimony regarding advice she received from a Home Depot employee before purchasing both the Gloves and the CitriStrip. Plaintiff testified that she was directed to a display containing a variety of gloves including the Hand Care Gloves, and she testified that the Home Depot employee told her "these are the gloves that are chemical, varnish and stain resistant and stripper resistant."
DISCUSSION
Summary Judgment on the Issue of Product Defect
Even assuming that the arguments Plaintiffs advance are cognizable on a motion for reargument, they have not made any arguments that would compel the Court to grant summary judgment in their favor on the issue of product defect.
Fuller's testimony does not provide a basis for summary judgment in Plaintiffs' favor on the product defect issue. The fact that Fuller was aware before Plaintiff was injured that the Gloves were sometimes used for protection does not necessarily imply that he knew or should reasonably have known that they were or would be used for protection against a particular product. His acknowledgment at his deposition that, in the absence of new warnings, it was possible that another customer might use the Gloves with CirtriStrip also does not amount to an admission that Plaintiff's use of the Gloves was reasonably foreseeable before it occurred. Obviously, in light of the events giving rise to this case, it would have been foolish for Fuller to contend that no customer would ever use the gloves (as originally labeled) with CirtriStrip: at least one customer already had done so. But Fuller's failure to deny the obvious does not amount to an admission that such a use was always reasonably foreseeable.
Plaintiff's testimony regarding the advice she received at Home Depot also does not require that summary judgment be granted on the product defect issue. The testimony does not indicate that the Home Depot employee specifically recommended the Gloves for use with CitriStrip. It is not even clear that the employee characterized all the gloves in the display containing the Hand Care Gloves as suitable for use with strippers. Moreover, even if the employee's advice were construed as a recommendation of all the gloves on display, it is not apparent that such a recommendation by itself would render the resulting use reasonably foreseeable as a matter of law: for example, if the display had included visibly permeable cloth gloves, the use of such gloves with a stripper would not have been reasonably foreseeable for Hand Care no matter what advice prompted it.
Plaintiffs contend that the Court erroneously applied principles of comparative fault to the defect issue when it observed, in the October 14 Opinion,
[G]iven that the gloves are disposable and not specifically advertized as appropriate for paint stripping, Plaintiff should arguably have been dissuaded from using them by the labeling on the CitriStrip, which called for "chemical resistant stripping gloves" and warned against "disposable latex or dish-washing gloves."
The Hand Care gloves did in fact contain a small amount of latex, but the labeling on the gloves Plaintiff bought does not appear to have indicated that they did. (Packaging apparently introduced after Plaintiff was injured does refer to the presence of latex.)
Taken in isolation, this passage could perhaps reasonably be read as a reference to comparative negligence, but it was not intended as such. The point the court sought to make with this observation was that the language on the CitriStrip packaging, language which arguably warned (at least implicitly) against gloves such as those Plaintiff used, might have rendered Plaintiff's use of those gloves unreasonable and therefore less reasonably foreseeable. Summary Judgment on the Issue of the Gloves' Suitability for Use with CitriStrip
Proposing an alternative to summary judgment on the entire issue of product defect, Plaintiffs also argue for summary judgment on the more limited issue of the Gloves' suitability for use with CitriStrip. As the October 14 Opinion noted, "Hand Care cannot and does not argue that the gloves were actually suitable for use with CitriStrip." The Gloves apparently simply disintegrate more or less on contact with the stripper. Accordingly, there is no reason not to enter summary judgment in Plaintiffs' favor on this narrow issue (although, given Hand Care's clear lack of interest in contesting the matter, and the futility of doing so, it is unclear what resources will be saved by officially removing the issue from dispute).
Strictly speaking, Plaintiff argues for an order limiting the liability phase of any trial to the single issue of reasonably foreseeable use. Because issues of causation (a component of liability) clearly remain in the case, such an order would obviously be inappropriate. What Plaintiff actually appears to seek is a conclusive determination that the gloves were not safe for use with CitriStrip. That determination, combined with a jury's that finding the use of the gloves with CitriStrip was reasonably foreseeable, would compel a finding that the gloves were defective for the purposes of the PLA.
CONCLUSION
For the reasons stated above, Plaintiffs' motion for reconsideration will be denied with respect to Plaintiffs' motion for summary judgment to the effect that the Gloves were defective; the motion will be granted with respect to Plaintiffs' motion for summary judgment to the effect that the gloves were not safe for use with CitriStrip. An appropriate order will be entered.