PITTS v. LEONE INDUSTRIES, INC. et al

Filing 81

OPINION. Signed by Judge Joseph H. Rodriguez on 3/4/2015. (TH, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
LEWIS PITTS,
Plaintiff,
LEONE INDUSTRIES, et al.,
Defendants.

:

Hon. Joseph H. Rodriguez

:

Civil Action No. 13-2350

:

OPINION

:

This matter is before the Court on cross-motions for summary judgment filed by
Defendant ARAMARK Uniform & Career Apparel, LLC (f/k/a ARAMARK Uniform
Services, Inc. and ARAMARK Uniform & Career Apparel, Inc.) [62] and Plaintiff Lewis
Pitts [66]. The Court heard oral argument on the motions on February 19, 2015 and the
record of that proceeding is incorporated here. For the reasons placed on the record
that day, and those set forth below, ARAMARK’s motion for summary judgment will be
granted and Plaintiff’s motion for partial summary judgment will be denied.
Background
This case involves claims arising from a workplace accident which occurred on
February 8, 2012 when Plaintiff Lewis Pitts was operating a bottle manufacturing
machine during the course of his employment at Leone Industries, Inc. As against
moving Defendant ARAMARK, Plaintiff has asserted claims of negligence (Count VIII)
and violation of the New Jersey Products Liability Act (“NJPLA”), N.J. Stat. Ann. §
2A:58C-2 (Count VII), relating to ARAMARK’s rental of uniform shirts to Leone
Industries for use by its employees. Plaintiff has alleged that while he was working, his
shirt came into contact with hot bottles on a conveyor, ignited, and burst into flames,
causing him serious injury. (Fourth Am. Compl., ¶61.) He contends that the uniform
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shirt was a defective product negligently sold and/or distributed for use near or over
machines and bottles which emitted extremely high temperatures. 1 (Id., ¶64, 69.)
ARAMARK has moved for summary judgment on both claims against it, arguing
that it had no duty to require Plaintiff’s employer to rent only fire resistant apparel for
its employees who worked in the area of the factory subject to high temperatures.
Plaintiff’s cross-motion argues that because ARAMARK knew that Leone employees
were using untreated 100% cotton shirts in the “hot end” of the factory, ARAMARK’s
product should be deemed defective as a matter of law due to Leone’s foreseeable
misuse.
Summary Judgment Standard
Federal Rule of Civil Procedure 56(a) generally provides that the “court shall
grant summary judgment if the movant shows that there is no genuine dispute as to any
material fact” such that the movant is “entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). Such a showing must be supported by “citing to particular parts of
materials in the record, including depositions, documents, electronically stored
information, affidavits or declarations, stipulations . . . admissions, interrogatory
answers, or other materials.” Fed. R. Civ. P. 56 (c)(1)(A).
A “genuine” dispute of “material” fact exists where a reasonable jury’s review of
the evidence could result in “a verdict for the non-moving party” or where such fact
might otherwise affect the disposition of the litigation. Anderson v. Liberty Lobby, Inc.,

Although the Fourth Amended Complaint references ARAMARK providing cleaning
services for the uniforms used by Leone’s employees, discovery revealed that Plaintiff
laundered his own shirts, (Pl. Dep. 127:17-18; 357:7-21; 358:11-24), and Plaintiff’s
counsel has indicated that ARAMARK’s claim that it did not negligently clean the shirt
which caught fire is not contested. See Pl. Counsel’s Letter dated Sept. 10, 2014.
1

2

477 U.S. 242, 248 (1986). Disputes over irrelevant or unnecessary facts, however, will
fail to preclude the entry of summary judgment. Id.
In evaluating a motion for summary judgment, the court must view the evidence
in the light most favorable to the non-moving party, and must provide that party the
benefit of all reasonable inferences. Scott v. Harris, 550 U.S. 372, 378 (2007); Halsey v.
Pfeiffer, 750 F.3d 273, 287 (3d Cir. 2014). Any such inferences “must flow directly from
admissible evidence[,]” because “‘an inference based upon [ ] speculation or conjecture
does not create a material factual dispute sufficient to defeat summary judgment.’”
Halsey, 750 F.3d at 287 (quoting Robertson v. Allied Signal, Inc., 914 F.2d 360, 382 n.12
(3d Cir. 1990) (citing Anderson, 477 U.S. at 255)).
Accordingly, the moving party initially has the burden of demonstrating the
absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). Once the moving party has met this burden, the non-moving party must
identify, by affidavits or otherwise, specific facts showing that there is a genuine issue
for trial. Id.; Maidenbaum v. Bally’s Park Place, Inc., 870 F. Supp. 1254, 1258 (D.N.J.
1994). Again, to withstand a properly supported motion for summary judgment, the
non-moving party must identify specific facts and affirmative evidence that contradict
those offered by the moving party. Andersen, 477 U.S. at 256-57. “A nonmoving party
may not ‘rest upon mere allegations, general denials or . . . vague statements . . . .’” Trap
Rock Indus., Inc. v. Local 825, Int’l Union of Operating Eng’rs, 982 F.2d 884, 890 (3d
Cir. 1992) (quoting Quiroga v. Hasbro, Inc., 934 F.2d 497, 500 (3d Cir. 1991)). Indeed,
the plain language of Rule 56(c) mandates the entry of summary
judgment, after adequate time for discovery and upon motion, against a
party who fails to make a showing sufficient to establish the existence of an
element essential to that party’s case, and on which that party will bear the
burden of proof at trial.
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Celotex, 477 U.S. at 322. The movant can support the assertion that a fact cannot be
genuinely disputed by showing that “an adverse party cannot produce admissible
evidence to support the [alleged dispute of] fact.” Fed. R. Civ. P. 56(c)(1)(B); accord
Fed. R. Civ. P. 56(c)(2).
In deciding the merits of a party’s motion for summary judgment, the court’s role
is not to evaluate the evidence and decide the truth of the matter, but to determine
whether there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
249 (1986). Credibility determinations are the province of the factfinder. Big Apple
BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992). Finally, “[t]he
standard by which the court decides a summary judgment motion does not change when
the parties file cross-motions.” United States v. Kramer, 644 F. Supp. 2d 479, 488
(D.N.J. 2008). Consequently, the court’s evaluation of the pending motions remains
unaltered: “the court must consider the motions independently and view the evidence
on each motion in the light most favorable to the party opposing the motion.” Id.
(citation omitted).
The New Jersey Products Liability Act
A manufacturer or seller of a product shall be liable in a product liability
action only if the claimant proves by a preponderance of the evidence that
the product causing the harm was not reasonably fit, suitable or safe for its
intended purpose because it: a. deviated from the design specifications,
formulae, or performance standards of the manufacturer or from
otherwise identical units manufactured to the same manufacturing
specifications or formulae, or b. failed to contain adequate warnings or
instructions, or c. was designed in a defective manner.
N.J.S.A. § 2A:58C–2. Three causes of action are established under the Act:
claims for design defect, manufacturing defect, or warnings defect. Roberts v.
Rich Foods, Inc., 654 A.2d 1365, 1380 (N.J. 1995).
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A successful design defect claim under the NJPLA requires that the
product was defective, that the defect existed when the product left the
defendant’s control, and that the defect caused injury to a reasonably foreseeable
user. Jurado v. Western Gear Works, 619 A.2d 1312, 1317 (N.J. 1993). “Whether
a product is defective depends on whether it ‘is not reasonably fit, suitable and
safe for its intended or reasonably foreseeable purposes.’” McGarvey v. G.I. Joe
Septic Serv., Inc., 679 A.2d 733, 740 (N.J. Super. Ct. App. Div. 1996) (quoting
Jurado, 619 A.2d at 1317). To establish a design defect at the summary judgment
stage, a plaintiff must provide sufficient evidence such that a reasonable jury
could find “either that the product’s risks outweighed its utility or that the
product could have been designed in an alternative manner so as to minimize or
eliminate the risk of harm.” Lewis v. American Cyanamid Co., 715 A.2d 967, 980
(N.J. 1998). The plaintiff thus bears a burden to demonstrate “under a riskutility analysis the existence of an alternative design that is both practical and
feasible.” Id. 2

New Jersey courts use a seven-factor balancing test to determine whether a product is
fit for its intended uses, considering:

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(1) the usefulness and desirability of the product; (2) the likelihood and
seriousness of injury; (3) the availability of a substitute product; (4) the
manufacturer's ability to eliminate the danger without impairing the
product’s utility; (5) the user’s ability to avoid danger by due care; (6) the
user’s anticipated awareness of the danger considering general public
knowledge or the obvious condition or the existence of suitable warnings
or instructions; and (7) the feasibility of the manufacturer's spreading the
loss by setting the price or carrying liability insurance.
McGarvey, 679 A.2d at 740 (citing Johansen v. Makita USA, Inc., 607 A.2d 637
(1992)).
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Analysis
OSHA imposes a non-delegable duty on employers regarding personal
protective equipment. 29 C.F.R. 1910.132(d)(1). Plaintiff has argued that
because an ARAMARK sales representative 3 was aware of Leone Industries’
business operations, ARAMARK had a duty to insist upon only fire resistant
uniforms.
Q: Did you have the opportunity to look at their facility?
A: Yes.
Q: Did you go inside and take a look at the machines that they were
operating and what they do?
A: Yes.
Q: Were you familiar that they made glass jars and bottles?
A: Yes.
Q: Did you have the opportunity to look at the machines that were in their
facility, the types of machines they were running?
A: Just walking by peripherally. I didn’t know what they were.
Q: Bottle making machines though, right?
A: Right.
Q: Are you aware that the materials that they make require that the glass
be heated up and the bottles be at a high temperature?
A: Yes.
Martin Cert., Ex. 2, Buccelli Dep., pp. 30-31. Plaintiff contends that this is sufficient to
establish a duty on ARAMARK not to release its product into the stream of commerce

Two other ARAMARK salespersons testified that they knew Leone was a glass making
facility, but did not observe the actual operations. Basilo Cert., Ex. J, Taylor Dep., 16,
18; Martin Cert., Ex. 8, Basilo Suppl. Cert., Ex. I, Martin Dep., pp. 14-16, 22.
3

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for such known misuse. Pl. Br., p. 1 (citing McGarvey v. G.I. Joe Septic Serv., Inc., 679
A.2d 733 (N.J. Super. Ct. App. Div. 1996)). In fact, Plaintiff has cross-moved for
summary judgment on the issue of design defect, arguing that ARAMARK violated the
NJPLA as a matter of law because it released a product to the end user for an actually
known misuse, even though the product was not defective when it left the hands of the
manufacturers. Id. Plaintiff also argues that summary judgment on the negligence
claim should be denied because its conduct in renting uniform shirts that were not
designed to be used in the “hot end” at Leone Industries was not reasonable under the
circumstances.
ARAMARK offered Leone Industries various fire resistant apparel options,
including an offer of free fire resistant clothing as an inducement to re-sign a continuing
uniform rental agreement, but Leone rejected the offer and opted to continue its longstanding practice of renting untreated 100% cotton uniforms for its workers. Frank J.
Labletta, Director of Purchasing for Leone Industries, testified that from the outset of
Leone’s relationship with ARAMARK, fire resistant uniforms were offered as an option:
Q: During the discussions with Mr. Martin or anyone from Aramark prior
to your execution of the document marked as A-2 on September 25, 2003,
did anyone from Aramark discuss with you flame-resistant materials for
shirts or pants for the employees?
A: Yes. . . . [T]hey had brought actual samples. . . I recall that they asked
me to take a look at this. And we put them out to the supervision in the
hot end department.
Q: And then what happened?
A: The supervision said that they didn’t like the uniforms, they were too
heavy and too hot in the hot end environment. . . . [A]ctual samples were
given to me. I brought in the hot end guy and said these are samples left
by Aramark, they want you to take a look at them, they’re flame resistant.
And he took them and a week later said they don’t – the employees don’t
like them.
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Basilo Cert., Ex. E, Labletta Dep., pp. 23-24. Again in 2009,
A: There was flame resistant given in ’09 to the hot end. Same – same
setup that – in ’03. . . . Discussions were these are flame resistant, these
are 100 percent cotton. It was agreed that they would take them and look
at them for a week and we would get back to Aramark.
Q: Mr. Oriente . . . just unilaterally just decided he’s going to try to offer
you flame-retardant coveralls to see if you –if the company would like
them as part of a sweetener to take the deal; is that right?
A: That sounds right.
Q: Would it be fair to say that you elected not to take the coveralls because
they were, in your opinion, unnecessary?
A: I didn’t think they’d be worn.
Q: But he was going to give them to you for free?
A: I realize that but I still don’t think they’d be worn over the uniform.
Q: So you elected not to even bother with it?
A: Didn’t even run that up to Paul.
Basilo Cert., Ex. E, Labletta Dep., pp. 105-106.
In fact, the President of Leone Industries in 2009, Peter Leone, instructed
Labletta, “he had said to me when you – before you sign the contract look into flame
retardant. . . . He was the one who said to me if you’re going to have to sign an
agreement for five more years with Aramark look into flame but make sure you get buyin from the union and the workforce out there.” Martin Cert., Ex. 7, Labletta Dep., pp.
60-61. Despite Peter Leone’s request, the company rejected any offer of fire resistant
clothing:
Q: The next bullet point, bulk inventories of FR coveralls no charge. Just
in case needed. . . . Okay, so do I understand correctly that Mr. Oriente
was going to provide you with flame-resistant overalls at no charge as part
of the program?
A: In case we needed it, yes.
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Q: All right, did he do so?
A: No.
Q: Why not?
A: There was no interest in coveralls.
Q: He offered that to you?
A: Correct.
Q: Offered to provide you with no charge for flame-resistant coveralls
because he knew at the time that the employees had elected 100 percent
cotton non-flame resistant material, right?
A: Right. . . . I didn’t want them. . . . [T]here was a lot of resistance over
the uniforms and having a coverall on top of a uniform I – I felt was not
going to be accepted.
Q: You thought the employees wouldn’t wear the flame-resistant coveralls
even if they were provided at no charge?
A: Yes.
Q: So as a result, Leone did not get free flame-resistant coveralls at or
about the time the contract was entered into August 31, 2009, correct?
A: Correct.
Martin Cert., Ex. 7, Basilo Suppl. Cert., Ex. E, Labletta Dep., pp. 66-69.
ARAMARK’s sales representative corroborated the offer:
A: At the time in 2009 during the discussion of the renewals we offered
the potential to rent them FR garments.
Basilo Cert., Ex. H, Buccelli Dep., p. 31.
Q: There were some documents produced – specifically an email in I think
it was August 16, 2009 – where Mr. Oriente wrote to Frank LaBletta and
he mentioned throwing in FR coveralls at no charge; were you aware of
that?
A: Yes. . . . Well, when they – when we presented the contract and they
rejected FR as – for whole uniforms at that point for any customer we
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tried to do anything we can to get them to renew and sign. So if it’s a free
week of service, if it’s, you know, we’ll give you a pair of boots for ten
employees, we do that. So in lieu of them not wanting to spend the money
we said why don’t we just give you some FR coveralls for free, you can have
them if you need them for protection, wear them, if you don’t, that’s, you
know – it’s up to you guys. It’s your choice whether you take them and use
them or not.
Basilo Cert., Ex. H, Buccelli Dep., pp. 123-24.
Further, both Service Agreements, dated August 30, 2004 and August 31, 2009
signed by Leone’s Director of Purchasing Frank Labletta and Ludovico Oriente for
ARAMARK, contained the following provision:
UNLESS SPECIFIED IN WRITING IN THIS AGREEMENT, THE
UNIFORMS AND APPAREL SUPPLIED UNDER THIS AGREEMENT
ARE NOT FLAME RESISTANT OR RESISTANT TO HAZARDOUS
SUBSTANCES. THEY CONTAIN NO SPECIAL FLAME RESISTANT OR
HAZARDOUS SUBSTANCE RESISTANT FEATURES AND THEY ARE
NOT DESIGNED FOR USE IN AREAS WHERE THEY MAY CATCH FIRE
OR WHERE CONTACT WITH HAZARDOUS SUBSTANCES IS
POSSIBLE. CUSTOMER AGREES TO INDEMNIFY AND HOLD AUS
HARMLESS FROM AND AGAINST ANY LOSS, CLAIM EXPENSE,
INCLUDING ATTORNEY’S FEES, OR LIABILITY INCURRED BY AUS AS
A RESULT OF THE USE OF SUCH UNIFORMS AND APPAREL IN
AREAS WHERE CONTACT WITH FLAME OR HAZARDOUS
SUBSTANCES IS POSSIBLE. CUSTOMER WILL IMMEDIATELY
NOTIFY AUS OF ANY TOXIC OR HAZARDOUS SUBSTANCE
INTRODUCED BY CUSTOMER ONTO THE UNIFORMS OR APPAREL
AND AGREES TO BE RESPONSIBLE FOR ANY LOSS, DAMAGE OR
INJURY EXPEREINCED BY AUS OR ITS EMPLOYEES AS A RESULT OF
THE EXISTENCE OF SUCH SUBSTANCES. AUS RESERVES THE
RIGHT NOT TO HANDLE OR PROCESS ANY UNIFORMS OR APPAREL
SOILED WITH TOXIC OR HAZARDOUS SUBSTANCES.
Basilo Cert., Ex. L & M. ARAMARK’s Spring 2004 Buyer’s Guide also provided:
OSHA standard 29 CFR 1910.132 requires employers in general industry
to conduct an assessment and provide employees personal protective
equipment, including protective clothing, to protect them from hazards in
the workplace.
Basilo Cert., Ex. N.
Frank J. Labletta, Director of Purchasing for Leone Industries, testified that he
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understood this language:
Q: Quote, unless specified in writing in this agreement, the uniforms and
apparel supplied under this agreement are not flame resistant or resistant
to hazardous substances. They contain no special flame resistant or
hazardous substance resistant features and they are not designed for use
in areas where they may catch fire or where contact with hazardous
substances is possible, end quote for those sentences. . . . [Y]ou knew after
reading this that these shirts that you were giving to your employees were
not to be used in an area where they may catch fire?
A: Yes.
Q: And it goes on to talk about in the next sentence, quote, The Customer
agrees to indemnify and hold harmless AUS - excuse me, and hold AUS
harmless from and against any loss, claim, expense including attorney’s
fees or liability incurred by AUS as a result of the use of such uniforms and
apparel in areas where contact with flame or hazardous substances is
possible. You understood that at the time that you entered into this,
correct?
A: Yes.
Basilo Cert., Ex. E, Labletta Dep., pp. 32-34.
Moreover, a label on the uniform shirts themselves warned “NOT FLAME
RESISTANT.” Basilo Suppl. Cert., Ex. Q. Even though extensive warnings were given
orally and in writing, Plaintiff argues that ARAMARK had a duty to refuse to release the
100% cotton uniform shirts to Leone Industries.
Plaintiff’s reliance upon McGarvey v. G.I. Joe Septic Serv., Inc., 679 A.2d 733, 744
(N.J. Super. Ct. App. Div. 1996), is inapposite. There, the cab and chassis of a truck
manufactured by Ford Motor Company and sold by dealer Rice & Holman Ford left the
dealer’s lot late at night “incomplete,” as it was without rear side lights or reflectors. It
had arrived from Ford via motor carrier, but was picked up from the dealer by one of the
buyer’s truck drivers. That night, the plaintiff struck the chassis with his vehicle. As to
the dealer, the Appellate Division found the incomplete product was defective as a
matter of law because the dealer released the chassis at night, knowing that it would be
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driven without adequate lighting, that is, knowing the product would be misused. “[The
buyer’s driver’s] misuse of the chassis by driving it at night without adding the
additional equipment required for safe operation on the roads was not just foreseeable,
it was actually known to [the dealer].” Id. The dealer “had a duty to make certain that
[the seller’s driver] did not drive the chassis at night without adding temporary side
lights. It breached this duty by releasing the chassis to [the driver] for immediate use.”
Id. The dealer “delivered a defective product.” Id.
Accordingly, in this case, Plaintiff argues that where the seller of a product has
actual knowledge of the misuse of the product, even if the product is not defective at the
time it left the manufacturer, the product is deemed defective as a matter of law to the
seller. Pl. Br., p. 16. “The seller has a duty to prevent the actual misuse of the product.”
Id., p. 18. “Defendant knew of the misuse and decided to rent the product for that
misuse anyway. Aramark made a business decision to enter into an agreement with
Leone. Along with that decision come the responsibility and liability established under
the New Jersey Product Liability Act.” Id.
As an initial matter, the record does not support a finding that ARAMARK knew
that its uniform shirts would be “misused” by Leone’s employees. In keeping with the
testimony cited above, ARAMARK’s representative Buccelli testified that although he
walked through the plant once, he did not recall seeing certain machines at Leone’s
facility, and clarified, “It was – I was in my first month, it was pretty overwhelming. I
think that was the first factory I had ever been into.” Martin Cert., Ex. 2, Buccelli Dep.,
pp. 69-70. ARAMARK representative James Martin also testified, “From a safety
standpoint we weren’t permitted to go where the actual bottles were being
manufactured.” Martin Cert., Ex. 8, Basilo Suppl. Cert., Ex. I, Martin Dep., p. 16.
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Further, the McGarvey court did not find that the dealer should not have sold the
product to the customer, as Plaintiff has argued here. It was the incomplete status of the
product and its condition at the time of delivery to an unaware customer that was the
focus of the court’s analysis. In this case, the 100% cotton shirt Plaintiff was wearing at
the time of his accident was not an “incomplete” product. It functioned as a 100%
cotton uniform shirt should have. Moreover, in contrast to the McGarvey situation,
where the seller failed to advise the buyer of the lack of necessary lighting, here
ARAMARK gave repeated warnings as to the limitations of the uniform at issue.
In addition, in a similar case, summary judgment was granted in favor of a
uniform vendor and against a diesel mechanic whose uniform caught fire when he tried
to start a diesel engine with a gas soaked rag and an open bucket of gasoline two to three
feet away. See Spears v. Cintas Sales Corp., No. 07-1701, 2009 WL 2167634, *8-9 (W.D.
La. Jul. 20, 2009) (“A manufacturer will not be responsible for ‘every conceivable
foreseeable misuse of a product.’”). In that case, the court disagreed with the same
argument that Plaintiff advances here, finding that although a sales representative for
the uniform vendor made a sales pitch in the mechanic shop – where welding machines,
blow torches, gasoline, and diesel engines were in plain sight – such circumstance did
not overcome the contract between the uniform vendor and the employer which warned
that the uniforms supplied were not flame resistant. Id. at *12-13, 14 (“[A] salesman . . .
should have no duty to personally consult with each individual to whom uniforms are
furnished to determine what flammability hazards may be encountered by each . . .
employee, particularly in light of the above contract provisions.”). The United States
Court of Appeals for the Fifth Circuit affirmed the grant of summary judgment:

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Spears has not shown that Cintas should have known that its warning was
being ignored by users of the uniform. The facts that Cintas laundered
uniforms with stains on them and that there was welding equipment on
the premises are not sufficient to establish that Cintas should have known
that Apeck employees were using the uniforms in areas of flammability
risk. Although a Cintas sales person was in Apeck’s shop and may have
observed welding equipment and blowtorches, that does not mean that
Cintas should have known that those employees who actually ordered
uniforms would be exposed to flammability risks. The uniform rental
agreement stated that Apeck warranted that none of its employees
required flame retardant uniforms. As the district court concluded, Cintas
“has a right to rely upon a customer assurance that the uniforms furnished
are not required to be flame retardant.” Accordingly, we hold that Spears’s
use of the uniform was not a reasonably anticipated use.
Spears v. Cintas Sales Corp., 414 Fed. Appx. 667, 671 (5th Cir. 2011). See also
Johnson v. Unifirst Corp., 935 N.Y.S.2d 763, 765 (N.Y. App. Div. 2011) (finding
summary judgment should have been granted in favor of uniform supplier on
design defect claim by welder because supplier defendant fulfilled its duty when it
offered flame resistant uniforms to welder’s employer, “which was in the best
position to evaluate the needs of its employees,” but the employer “made a
deliberate decision not to make defendant’s flame resistant uniforms available to
its employees”); Coleman v. Cintas Sales Corp., 40 S.W.3d 544, 549 (Tex. App.
2001) (affirming summary judgment for uniform supplier on design defect claim,
stating that plaintiff’s employer, “having been offered the option of flameretardant uniforms, was entitled to choose the material most comfortable and
economically feasible for employees who would not be exposed to a risk of fire. . .
. [Supplier] is not required to provide only flame-retardant uniforms when there
is no foreseeable risk of exposure to fire associated with the product’s clearly
intended use.”).

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Finally, Plaintiff’s claim for negligence is subsumed by his cause of action
under the NJPLA. See Herman v. Sunshine Chem. Specialties, Inc., 627 A.2d
1081 (1993) (in enacting the NJPLA, the New Jersey Legislature expressly
intended to consolidate all products liability claims into one single statutory
cause of action); Tirrell v. Navistar Int’l Inc., 591 A.2d 643, 647 (N.J. Super. Ct.
App. Div. 1991) (the NJPLA subsumes all common law causes of action for
physical injury caused by a product, including negligence claims). See also
Johnson v. Unifirst Corp., 935 N.Y.S.2d 763, 764 (N.Y. App. Div. 2011) (finding,
regarding negligence cause of action, summary judgment should have been
granted for uniform supplier because it owed no duty to welder plaintiff to
provide or recommend flame resistant uniforms); Stephens v. Paris Cleaners,
Inc., 885 A.2d 59, 68 (Pa. Super. Ct. 2005) (finding uniform supplier owed no
duty to a plaintiff burned during a manufacturing process, despite claim that it
held itself out as an expert in the field of work uniforms, where contract with
employer did not obligate it to make any specific recommendations for uniforms,
supplier did not recommend specific uniforms, employer did not rely on supplier
to choose uniforms, supplier did not inspect work site, and did not know nor
should it have known that some employees needed flame resistant uniforms;
rather, the obligations charged by plaintiff fell under OSHA and its regulations,
the terms of which apply only to employers); McConnell v. Arrow Uniform
Rental, Inc., No. 97 C 6551, 1999 WL 92908 (N.D. Ill. Feb. 17, 1999) (granting
summary judgment in favor of uniform manufacturer/rental company because
plaintiff failed to establish a duty to provide a flame resistant uniform or inform
plaintiff that the uniform he chose was not flame resistant).
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Conclusion
Under the circumstances of this case:
(a) a long-standing relationship evidenced by Service Agreements of August 30,
2004 and August 31, 2009 which contain warnings about the use of the uniform
shirts;
(b) conversations with supervision which clearly discuss the use of the uniform shirts
and the offer to supply flame resistant uniforms at no charge;
(c) the employer’s awareness of the composition of the uniform shirts and the
obvious condition of the uniform shirts and the existence of suitable warnings;
(d) the employees’ experience with the use of the uniform shirts over several years;
(e) the direct rejection of the flame resistant uniforms offered at no charge; and
(f) no reliance on representations made by the supplier which influenced the
decision to contract for the uniform shirts selected,
in essence, the record shows that there was knowledge of the warned risk and a knowing
and voluntary selection of the uniform shirts.
As a result, ARAMARK’s motion for summary judgment [62] will be granted and
Plaintiff’s motion for partial summary judgment [66] will be denied. An appropriate
Order shall enter.

Dated: March 4, 2015

/s/ Joseph H. Rodriguez
JOSEPH H. RODRIGUEZ
U.S.D.J.

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