LEWIS v. NUTEC MANUFACTURING
OPINION. Signed by Judge Joseph E. Irenas on 5/15/2014. (dmr)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
HONORABLE JOSEPH E. IRENAS
CIVIL ACTION NO. 11-6700
SWARTZ CULLETON P.C.
Christopher J. Culleton, Esq.
547 E. Washington Ave.
Newtown, PA 18940
Counsel for Plaintiff
SHIMBERG AND FRIED, P.C.
Barbara E. Fiefberg, Esq.
Brian Patrick Faulk, Esq.
20 Brace Road
Cherry Hill, NJ 08034
Irenas, Senior District Judge:
This product liability matter comes before the Court on
Defendant NuTec Manufacturing’s motion for summary judgment.1
For the reasons outlined below, the motion will be granted in
part and denied in part.
The Court has subject matter jurisdiction pursuant to 28 U.S.C.
Plaintiff Charles Lewis is an inmate of South Woods State
Prison (“South Woods”).
In 2011, he was selected to work in the
prison’s meat processing plant, where he began working on a
NuTec hamburger patty maker.
Plaintiff would “dump the meat
into the hopper, assist when it came down the line and then put
it onto a rack and move it.”
(Def.’s Stmts ¶ 8)
The NuTec machine, a model 720 food forming machine, was
approximately four years old when Plaintiff began working with
It employed a Schmersal safety switch that prevented
operation if the machine’s “hood,” a “hinged barrier,” (Br., Ex.
Q at 3) was in the upright position.2
The switch consists of two parts: a main body, which is
affixed to the base of the machine, and a switch key, which is
affixed to the hood.
When the hood is closed, the switch key
inserts into the switch body, which closes an electrical circuit
that enables the machine to operate.
When the cover is open,
the key is disengaged from the switch body, thereby “open[ning]
Plaintiff’s expert explained:
The hood which covers the portion of the machine where
the patties are discharge [sic] on to a sheet of waxed
paper serves to protect users from accessing the
hazardous shear points created by moving machine parts
at this location. For safe operation the hood must be
down while the machinery is in motion.
(Clauser Report at 3)
a circuit” and preventing the machine from operating.
Br. at 2)
On September 12, 2011, Plaintiff was working on the machine
when wax paper used to separate the patties began “jamming up.”
(Def.’s Stmts ¶ 11)
A fellow inmate working with Plaintiff,
Israel Nunez, stopped the machine and lifted the hood to see
what was causing the jam.
Plaintiff put his hand into the
machine to grab the jammed paper.
Nunez, thinking that plaintiff had finished clearing the
paper jam, shouted “clear” and restarted the machine.
Plaintiff, who did not hear Nunez, still had his hand inside.3
Plaintiff severely injured two fingers.
William F. Funaro, Jr., an employee of the New Jersey
Department of Corrections and in charge of the meat processing
plant at South Woods, inspected the machine the day after the
incident and discovered a small piece of plastic wedged into the
What is unknown, contested by the parties, and
dispositive of Plaintiff’s case, is whether the plastic overrode
a properly functioning product, or whether the switch was
Plaintiff’s expert stated that Plaintiff’s “right hand was in a
shear point hazard location on the machine” when the machine was
restarted. (Clauser Report at 3)
Nunez testified that he regularly operated the machine with
the hood open, despite knowing this was not the correct manner
Plaintiff testified that he had never seen the
hood or safety switch disabled while the machine was in use.
Funaro testified that he was unaware that the inmates were
operating the machine with the hood up.
Summary judgment is proper if “the movant shows that there
is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.”
Fed. R. Civ. P.
56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322
In deciding a motion for summary judgment, the Court
must construe the facts and inferences in a light most favorable
to the non-moving party.
Pollock v. Am. Tel. & Tel. Long Lines,
794 F.2d 860, 864 (3d Cir. 1986).
“‘With respect to an issue on which the non-moving party
bears the burden of proof, the burden on the moving party may be
discharged by ‘showing’ – that is, pointing out to the district
court – that there is an absence of evidence to support the
nonmoving party’s case.’”
Conoshenti v. Public Serv. Elec. &
Gas, 364 F.3d 135, 145-46 (3d Cir. 2004) (quoting Celotex, 477
U.S. at 323).
The role of the Court is not “to weigh the
evidence and determine the truth of the matter, but to determine
whether there is a genuine issue for trial.”
Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
over facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary
Id. at 249.
In a products liability case in which the plaintiff alleges
a manufacturing defect, the plaintiff has the burden to prove
“the product causing the harm was not reasonably fit, suitable
or safe for its intended purpose.”
Jersey Supreme Court has clarified that a plaintiff, to obtain
relief, must prove (i) the product was defective, (ii) the
defect existed when the product left the manufacturer’s control,
Plaintiff’s complaint alleges Defendant negligently “ma[de] and
distribut[ed] a defectively manufactured and designed patty
making machine, which had defective warnings, instructions for
use, and consumer safety features.” (Compl. ¶ 10)
Despite moving to dismiss all of Plaintiff’s claims, (see
Def.’s Notice of Mot. and Proposed Order), Defendant’s brief
only addresses Plaintiff’s design defect claim. (See Br. at 38) Plaintiff, in response, argues that a genuine dispute as to
a material fact exists with regards to his defective
manufacturing claim. (Opp’n Br. at 6-9) Plaintiff does not
address the design and warning claims; consequently, those
claims are waived. Lane v. Sears Logistics Services, Inc., Civ.
No. 11-6157, 2014 WL 1301549, at *1, n.1 (D.N.J. Mar. 31, 2014)
(“Plaintiff fails to oppose Defendant's motion for summary
judgment with respect to her gender discrimination and
retaliation claims. Accordingly, the Court will grant summary
judgment in Defendant's favor on these claims.”)
and (iii) the defect proximately caused injuries to the
plaintiff, a reasonably foreseeable or intended user.
Myrlak v. Port Authority of New York and New Jersey, 157 N.J.
84, 97 (1999).
These elements can be proven by direct and/or
Here, a genuine dispute exists as to whether the machine
Plaintiff points to the testimony of Defendant’s
corporate representative, Mark Shimanek, who stated that the
foreign plastic object wedged into the safety lock could not
have caused the machine to operate with the hood open.
Br., Ex. B at 34-35)
Furthermore, Plaintiff’s expert, Craig D.
Clauser, agreed with Shimanek and opined that “the switch was
not defeated” because of the foreign object, but rather “the
machine including the subject safety interlock switch
malfunctioned and allowed the machine to be started with the
(Clauser Rep. at 4)
Additionally, Plaintiff has put forward sufficient evidence
to establish the patty maker was defective when it left the
manufacturer’s control and the defect proximately caused
In addition, a plaintiff may establish a defect by “negat[ing]
other causes of the failure of the product for which the
defendant would not be reasonably responsible, in order to make
it reasonable to infer that a dangerous condition existed at the
time the defendant had control [of the product].” Scanlon v.
General Motors Corp., 65 N.J. 582, 593-94 (1974).
Accordingly, summary judgment on Plaintiff’s defective
manufacturing claim will not be granted.
For the reasons stated above, Defendant’s motion for
summary judgment will be granted in part and denied in part.
appropriate order accompanies this opinion.
Date: May _15_, 2014
_/s/ Joseph E. Irenas________
Joseph E. Irenas, S.U.S.D.J.
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