KUHAR et al v. PETZL COMPANY et al
Filing
35
OPINION FILED. Signed by Chief Judge Jerome B. Simandle on 7/19/16. (js)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
NICHOLAS KUHAR, et. al.,
HONORABLE JEROME B. SIMANDLE
Plaintiffs,
Civil Action No.
16-395 (JBS/JS)
v.
PETZL COMPANY, et. al.,
OPINION
Defendant.
APPEARANCES:
Brett Cody Schneider, Esq.
CHANCE AND MCCANN
201 West Commerce Street
Bridgeton, NJ 08302
Attorney for Plaintiff
Robert George Devine, Esq.
WHITE & WILLIAMS LLP
457 Haddonfield Road, Suite 400
Cherry Hill, NJ 08002-2220
Attorney for Defendant
SIMANDLE, Chief Judge:
INTRODUCTION
In this action, Plaintiffs Nicholas Kuhar and Julie Kuhar
(hereinafter “Plaintiffs”) bring a products liability suit
against Petzl Company, its subsidiary Petzl America, and
Bailey’s Corporation (hereinafter, “Defendants”) for
respectively manufacturing and selling an allegedly defective
safety harness which caused serious injury to Plaintiff
Nicholas. (See generally Compl. [Docket Item 1-1.]) Plaintiff
Nicholas alleges that on or about December 24, 2013, he was
cleaning gutters in Alloway, New Jersey while secured by a
harness, which Defendant brands as a “Micrograb,” manufactured
by Defendant Petzl and sold by Defendant Bailey’s Corporation.
(See Compl. at ¶¶ 3-6; see also Defendant Exhibit C.) Plaintiffs
allege that the Migrograb snapped, causing Plaintiff Nicholas to
fall thirty-seven feet onto the concrete below, resulting in
severe and permanent bodily harm. Plaintiffs bring claims for
negligence, strict liability, breach of warranty, gross
negligence, misrepresentation, and loss of consortium.
Against this backdrop, Defendant Petzl America brings a
motion to dismiss Plaintiffs’ negligence, gross negligence,
implied warranty, and failure to warn claims, on the grounds
that these claims are subsumed by the New Jersey Products
Liability Act of 1987 (hereinafter “PLA”).
N.J.S.A. 2A:58C.
See generally
Defendant also moves to dismiss the breach of
express warranty claim as untimely. (See Def. Br. at 13-15.) For
the reasons that follow, the Court will grant in part and deny
in part Defendant’s motion.
BACKGROUND
A.
Factual and Procedural Background1
1
For purposes of the pending motion, the Court accepts as true
the version of events set forth in Plaintiff’s Complaint,
documents explicitly relied upon in the Complaint, and matters
of public record. See Schmidt v. Skolas, 770 F.3d 241, 249 (3d
Cir. 2014).
2
Plaintiffs are a married couple who reside in New Jersey.
(Compl. at ¶¶ 7 & 8.) On December 24, 2013, Plaintiff Nicholas
Kuhar was cleaning gutters at a house in Alloway when the
Micrograb safety harness2 with which he had secured himself
failed, causing him to fall thirty seven feet onto the concrete
below. (Id. at ¶¶ 18.) Plaintiff Nicholas sustained serious
injuries from the fall including, but not limited to, a
fractured hip, pelvis, thumb, and three vertebrae, and a burst
fracture of his spinal cord. (Id.) Plaintiffs allege that the
harness in question was produced by Defendant Petzl America3 and
distributed and sold by Defendant Bailey’s Corporation. (Id. at
¶¶ 3 & 4.) Petzl America is headquartered and incorporated in
Utah, and is a producer and supplier of the Micrograb device.
(Id. at ¶ 10.) Bailey’s Corporation is headquartered and
incorporated in California. (Id. at ¶ 11.)
Plaintiffs filed suit in the Superior Court of New Jersey,
Salem County, and claimed damages against the named Defendants
for injuries received from Plaintiff Nicholas’s fall under six
2
Plaintiffs informally refer to the device as a “safety harness”
in their Complaint. Defendant specifies that the product in
question was marketed as a “Micrograb” (See Def’s Br. at 3.) For
purposes of this Opinion, the Court will refer to the device as
a Micrograb. The Court’s disposition of the instant motion does
not hinge on the labeling of the device.
3 Plaintiffs name two related corporate entities in their
complaint – Petzl Company and Petzl America. (Compl. at ¶¶ 9 &
10.) Defendants assert that only Petzl America actually exists
as a distinct legal entity. (Def. Br. at 3.) The Court need not
address this discrepancy for the purposes of the instant motion.
3
counts: (1) negligence, (2) strict liability pursuant to the New
Jersey Products Liability Act, (3) breach of warranty (express
and implied), (4) gross negligence, (5) misrepresentation, and
(6) loss of consortium.4 Plaintiffs also bring claims against any
unnamed individuals and corporations who may be involved in the
action (Id. at ¶¶ 45 & 46.) Defendants timely removed the matter
to federal court in the District of New Jersey, which has
diversity jurisdiction over the dispute pursuant to 28 U.S.C. §
1332.
Defendants now seek to dismiss Counts 1, 3, 4, and 5 of the
Complaint, contending that they are subsumed by the PLA.
Defendants argue that causes of action -- for negligence, breach
of implied warranty, gross negligence, and misrepresentation -no longer exist under the laws of the state of New Jersey in
products liability suits after the passage of the PLA.
Additionally, Defendants assert that Plaintiff’s breach of
express warranty claim in Count 3 should be dismissed as
untimely. Plaintiff offered no response to the legal arguments
of the Defendant.5
4
The loss of consortium action is filed on behalf of Plaintiff
Julie Kuhar, while all other counts are on behalf of Plaintiff
Nicholas.
5 In lieu of a brief opposing Defendants’ motion to dismiss,
Plaintiffs filed a letter with the Court seeking additional
discovery. [Docket Item 7.] However, as this is a motion to
dismiss under Rule 12(b)(6), Fed. R. Civ. P., Defendants’
arguments for dismissal hinge on legal, not factual, matters,
and the Court rejects Plaintiffs’ position that discovery is
4
STANDARD OF REVIEW
When determining the merits of a claim under Federal Rule
of Civil Procedure 12(b)(6), the Court must “accept all factual
allegations as true, construe the Complaint in the light most
favorable to the plaintiff, and determine whether, under any
reasonable reading of the Complaint, the plaintiff may be
entitled to relief.” Fleisher v. Standard Ins. Co., 679 F.3d
116, at 120 (3d Cir. 2012) (citations omitted).
However, in
order to survive a motion to dismiss, a complaint must “contain
sufficient factual matter, accepted as true,” to “state a
[plausible] claim to relief.’” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)).
DISCUSSION
New Jersey adopted the Products Liability Act in 1987 in an
attempt to streamline products liability suits under one theory
and cause of action. See N.J. Stat. Ann. § 2A:58C-1 (explaining
that the legislature enacted the PLA “to establish clear rules
with respect to certain matters relating to actions for damages
for harm caused by products.”). Since the passage of the PLA,
the Supreme Court of New Jersey has observed that “there came to
necessary for the disposition of this motion. Accordingly, the
Court will treat the motion to dismiss as unopposed.
Nonetheless, the Court has researched and carefully considered
the legal issues decided in this Opinion.
5
be one unified, statutorily defined theory of recovery for harm
caused by a product, and that theory is, for the most part,
identical to strict liability.” In re Lead Paint Litig., 191
N.J. 405, 436, 924 A.2d 484, 503 (2007) (quoting William A.
Dreier et al., New Jersey Products Liability & Toxic Torts Law §
1:2–1 (2007)).
The PLA states that a “‘[p]roduct liability action’ means
any claim or action brought by a claimant for harm caused by a
product, irrespective of the theory underlying the claim, except
actions for harm caused by breach of an express warranty.”
N.J.S.A. § 2A:58C-1 (emphasis added). The statute is clear that
all theories of liability for damages from harm caused by a
product meet the definition of a product liability action under
the PLA, with the exception of express warranty claims.
The Supreme Court of New Jersey6 has followed the clear
language of the statute in its interpretation of the PLA,
holding that “[t]he PLA is both expansive and inclusive,
encompassing virtually all possible causes of action relating to
6
The Third Circuit has followed the New Jersey Supreme Court’s
lead in holding that common law products liability claims are
subsumed by the PLA. See Repola v. Morbark Indus., Inc., 934
F.2d 483, 485 (3d Cir. 1991) (throwing out a jury verdict on a
negligence cause of action because “the NJPLA does subsume
common law negligence claims”); Port Auth. of New York & New
Jersey v. Arcadian Corp., 189 F.3d 305, 313 (3d Cir. 1999)
(dismissing negligence claim because it “is based solely on harm
caused by defendants' allegedly defective products. It therefore
falls within the New Jersey Product Liability Act”).
6
harms caused by consumer and other products.” Lead Paint 191
N.J. at 436-37, 924 A.2d at 503. See also Sinclair v. Merck &
Co., 195 N.J. 51, 54, 948 A.2d 587, 589 (2008) (holding that
plaintiff’s claims against a drug manufacturer under theories of
negligence and Consumer Fraud Act must be dismissed because “the
PLA is the sole source of remedy for plaintiffs' defective
product claim”).
Plaintiffs’ Counts 1, 3, 4, and 5 seek redress for harm
allegedly caused by the malfunction of Defendant’s Micrograb
device on or about December 24, 2013; Plaintiffs’ negligence,
gross negligence, implied breach of warranty, and
misrepresentation claims all stem from the harm caused by that
alleged failure. Most claims for relief in this case therefore
easily meet the PLA’s broad definition on what constitutes a
“product liability action.” Accordingly, the Court concludes
that Plaintiffs’ negligence, gross negligence, implied breach of
warranty, and misrepresentation claims are indeed subsumed by
the PLA, and must be dismissed from the action.7 Defendants’
motion to dismiss will be granted to the extent that it seeks to
dismiss Counts 1, 4, and 5 in their entirety and Count 3 in part
as a matter of law. This dismissal will operate with prejudice.8
7
Count 2 of the Plaintiff’s allegations are appropriately
brought under the strict liability theory of the PLA, and are
not challenged in this motion (See Compl. at ¶¶ 25-27.)
8 A court may deny leave to amend a complaint where it is
apparent that “(1) the moving party has demonstrated undue
7
Defendants also move to dismiss Plaintiffs’ breach of
express warranty claim, included in Count 3 of the Complaint, on
the grounds that the Micrograb’s warranty had already expired
before Plaintiff Nicholas’s accident.9 Petzl’s Micrograb device
was sold accompanied by a three year warranty. (Def. Br. Ex. C
[Docket Item 6-1].) Defendants argue that Micrograb devices were
only produced by Petzl in 2005, and that Plaintiffs’ counsel
represented that Plaintiff Nicholas’s Micrograb was purchased
more than three years before the accident in 2013. (Def. Br. at
5-8.) Accordingly, according to Defendants, Plaintiffs’ claim
for breach of express warranty must be dismissed as a matter of
law because the accident occurred after the product’s three year
warranty had already expired. However, the Court must reject
Defendants’ argument. The Court may only consider allegations in
the Complaint, exhibits attached to the Complaint, and matters
of public record on a motion to dismiss. Schmidt v. Skolas, 770
F.3d 241, 249 (3d Cir. 2014). A limitations defense, such as
delay, bad faith or dilatory motives, (2) the amendment would be
futile, or (3) the amendment would prejudice the other party.”
U.S. ex rel. Schumann v. Astrazeneca Pharma. L.P., 769 F.3d 837,
849 (3d Cir. 2014). In this case, because Plaintiffs’ claims are
legally insufficient, and not merely factually insufficient, any
amendment would be futile.
9 Claims for breach of express warranty are an enumerated
exception to “products liability actions” under the PLA, and
therefore are not subsumed under the statute. N.J.S.A. § 2A:58C1 (“’Product liability action’ means any claim or action ...
except actions for harm caused by breach of an express
warranty.”).
8
this, may only be granted on a motion to dismiss “if the time
alleged in the statement of a claim shows that the cause of
action has not been brought within the statute of limitations.”
Robinson v. Johnson, 313 F.3d 128, 134-35 (3d Cir. 2002). Here,
nothing in the Complaint or any other public document brought to
the Court’s attention establishes when Plaintiffs bought the
allegedly defective Micrograb device. Defendants’ assertion that
the device was only manufactured during a particular time
period, or that Plaintiffs’ counsel made certain
representations, are insufficient to show that the warranty on
Plaintiffs’ Micrograb had expired before Plaintiff Nicholas’s
accident. Therefore, the Court cannot, at this time, dismiss
Plaintiffs’ breach of express warranty claim. Defendants’ motion
to dismiss will be denied without prejudice to the extent that
it seeks to dismiss Count 3 for breach of express warranty.
CONCLUSION
The accompanying Order will be entered.
July 19, 2016
Date
s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge
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