ROSA GOMEZ v. H&M INTERNATIONAL TRANSPORTATION, INC. et al

Filing 71

OPINION. Signed by Chief Judge Jose L. Linares on 9/7/17. (cm, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

Civil Action No.: 17-23 1 (JLL)

CARMEN ROSA GOMEZ, Individually, and
as Administrator Ad Prosequen-dum of the
Estate of Jorge L. Gornez, Deceased,

OPINION

Plaintiff,
V.

H&M INTERNATIONAL
TRANSPORTATION, INC.,
Defendant.

LINARES, Chief District Judge.

Pending before this Court are two motions to dismiss Plaintiffs Amended Complaint (ECF
On July 5, 2017, Defendant Hoist Lifiruck

No. 47) filed in the above-captioned action.

Manufacturing, Inc. (“Hoist”) moved to dismiss Counts Two (in part) and Four of the Amended
Complaint.

(ECF No. 56).

Thereafier, on July 13, 2017, Defendants Technical Services

International (“TS I”) and Mi-Jack Products, Inc. (“Mi-Jack”) (collectively, “TS I/Mi-Jack”) jointly
moved to dismiss the claims asserted against them. (ECF No. 58). On August 8, 2017, Plaintiff
opposed both motions. (ECF Nos. 63, 64), and Hoist and TSI/Mi-Jack have replied to same (ECF
Nos. 68, 69). Non-moving Defendants Norfolk South, H&M International Transportation, Inc.
(“H&M”), and FedEx Freight, Inc. (“FedEx”) have weighed in on the pending motions. (ECF
Nos. 62, 65, 66, 67)’. The Court has reviewed all papers filed in support of and in opposition to

While the Court does not explicitly reference these Non-Moving Defendants’ briefs in this
Opinion, the Court has reviewed each filing, and notes that the arguments presented therein are
echoed by the Moving Defendants, and thus are nevertheless addressed by the Court herein.
1

the pending motions, and decides this matter without oral argument pursuant to Federal Rule of
Civil Procedure 78. For the reasons stated herein, the Court grants in part and denies in part Hoist’s
motion to dismiss, and denies TSI/Mi-Jack’s motion to dismiss.
I.

Background

Plaintiff Carn-ien Rosa Gornez (“Plaintiff’) is the surviving wife of decedent Jorge L.
Gomez. (ECF No. 47, “Am. Compi.”

¶

1). This action arises out of an incident that occurred at

the Croxton Intermodal Terminal (the “Terminal”) in Jersey City, New Jersey. (Id.

¶

3, 17).

Plaintiff alleges that on August 15, 2016, Mr. Gornez was working at the Terminal “as a
lift/machine operator.” (Id.

¶ 3).

On that date, “[Mr. Gomez] was operating a Hoist Lift Truck

—

Loaded Container Handler #28-9347 (hereinafter the ‘Hoist Lift Truck’) during the course of his
employment by H&M International at Croxton Intermodal Terminal

.

.

.

.“

(Id.

¶

17). Plaintiff

alleges that “[w]hile [Mr. Gornez] was in the process of off-loading an intermodal container
bearing serial number FDXU 532907 (hereinafter the “Tnterrnodal Container”) the Hoist Lift Truck
collapsed under the weight of the Intermodal Container, and as a result, the Decedent was crushed
and died at the scene of the accident

(Id.).

A. Defendant Hoist Lift Truck

According to the Amended Complaint, Defendant Hoist Lifiruck Manufacturing, Inc. is
the manufacturer of the Hoist Lift Truck which Decedent was operating at the time of his death.
(Am. Compl.

¶

27).

Plaintiff alleges that Defendant H&M International (the Decedent’s

employer), an agent of Defendant Norfolk Southern, and Defendant Consolidated Rail
(collectiveLy, the “Rail Defendants”), was responsible for “providing the ‘operational activity’ of
the railroad at Croxton Terminal, including overseeing the offloading of intermodal containers,

2

receiving incoming trains, moving

and preparing the railroad trailers on and off these trains to a

storage area, and moving and preparing the railroad trailers from a storage area to the outbound
trains heading to off-site destinations.” (Id.

22).

¶

Plaintiff further alleges that prior to Mr.

Gomez’s death, “the Rail Defendants were aware of deficiencies pertaining to the gallows and
spreader of the Hoist Lift Truck, including but not limited to these components ‘cracking’ due to
material fatigue, but failed to remedy same.” (Id.
Rail Defendants contacted Hoist. (Id.

¶ 27).

¶ 26).

Upon learning of these deficiencies, the

However, “rather than discontinuing the use of the

Hoist Lift Truck or replacing same, Norfolk Southern and Hoist came to an Agreement.

.

.

whereby

Hoist was to refurbish, replace and provide all repairs to the spreader and gallows on the Hoist Lift
Truck free of charge and provide Norfolk Southern with an extended warranty on the spreader and
gallows for 15 years from the date of the replacement or refurbishment.” (Id.).2 Plaintiffs further
allege that Hoist did, in fact, “ma[ke] repairs and modifications to the Hoist Lift Truck.” (Id.

¶

2$). However, Plaintiffs plead that the Rail Defendants failed to re-train the Decedent after Hoist
made said repairs and modification. (Id.).
Plaintiffs have attached a copy of the Agreement to the Amended Complaint.

(Am.

Compi., Exh. B). The Agreement, dated February 11, 2013, is written by the Danielle Brenner,
“Senior Managing Purchaser” of Norfolk Southern Corporation to the President of Hoist. (Id.).
In said Agreement, Norfolk offers Hoist “amended counter-proposals” in response to an e-mail
from Hoist. (Id.). Those counter-proposals are as follows:
I. Hoist Lift will refurbish or replace the spreader and gallows on all four
machines, with the refurbished or replaced spreader and gallows replacing
hoses with bent tubes, and with each machine staying in service until the

2

The Amended Complaint cites to Exhibit A of the pleading in support of the presence of said
Agreement. (See id.). However, as far as the Court can tell, Exhibit 3 contains the Agreement.
3

replacement gallows and spreader are on-hand (i.e., at least one replacement
gallows and spreader will be required).
2. Hoist Lift will provide complete parts and maintenance for the LCH-3-WTP-I,
with such parts and maintenance manuals updated to address the modifications
addressed in item #1 above. These manuals, accompanied by a complete set in
electronic fonii, are to be distributed to Norfolk Southern’s lift machine repair
vendors.
3. Hoist Lift will extend all warranties covering the four machines.
4. Hoist Lift will provide an extended warranty on the spreader and the gallows
on each of the four machines for 15 years from the date of installation or
refurbishment of the respective component. Hoist will be responsible for all
repairs required to be performed on these components during such 15-year
period including, but not limited to, repairs required due to cracking from
material fatigue.
Hoist has not disputed the validity of this Agreement.

B. Defendants TSI and Mi-Jack

According to Plaintiff, Moving Defendant TSI is the agent of Moving Defendant Mi-Jack.
(Id.

¶

68). During the relevant time period, Plaintiff alleges that Mi-Jack acted through TSI in

“provid[ing] service, maintenance, repair, and parts to the hoist Lift Truck.” (Id.). Specifically,
TSI/Mi-Jack allegedly “had the duty to assemble and/or was responsible for and did maintain and
service the Hoist Lift Truck, including performing daily maintenance as well as planned
maintenance to the Hoist Lift Truck.” (Id.

More specifically, Plaintiff alleges that TSI/Mi

¶ 69).

Jack “had a duty to maintain the Hoist Lift Truck in a reasonably safe and suitable condition,” that
TSI/Mi-Jack “failed to properly maintain, repair and/or modify the Hoist Lift Truck,” and that
TSI/Mi-Jack “negligently and carelessly inspected the Hoist Lift Truck and allowed the Hoist Lift
Truck to become dangerous and defective.”

(Id.

¶

70-72).

Plaintiffs alleges that the

aforementioned failures of TSI/Mi-Jack resulted in the collapse of the Hoist Lift Truck which
killed Mr. Gomez. (Id.

¶J 73-74).
4

C. Allegations

Against this background, Plaintiff filed the instant action on January 12, 2017, asserting
claims in her own name and on behalf of Mi-. Gomez’s estate. (ECF No. 1). Plaintiff asserts claims
against a number of Defendants, each of which appear to be business entities involved in the
commercial railroad industry. On April 24, 2017, this Court entered an Opinion and Order that
granted Defendant Hoist’s motion to dismiss the complaint. (ECF Nos. 39, 40). Plaintiff filed an
Amended Complaint on May 5, 2017. (ECF No. 47). Specificalty, Plaintiff asserts claims against
nine Defendants, including the Moving Defendants. The Court will discuss herein only those
claims that are relevant to the pending motions.
In Count Two of the Amended Complaint, Plaintiff asserts a claim against Hoist for design
defect pursuant to N.J.S.A. 2A:58C-2 etseq. (Am. Compi. at 7-8). In Count Four of the Amended
Complaint, Plaintiff asserts a claim of negligence against each of the Moving Defendants—that is,
against Hoist, TSI and Mi-Jack (collectively, the “Moving Defendants”)—arnong other nonmoving Defendants. (Id. at 11-15). Plaintiff also asserts claims against the Moving Defendants
for wrongful death pursuant to N.J.S.A. 2A:31-1 (Count Five), survival action pursuant to N.J.S.A.
2A:l5-3 (Count Six), and for loss of consortium (Count Seven).
Defendant Hoist now moves to dismiss Counts Two (in part) and Four of the Amended
Complaint (ECF No. 56), while Defendants TSI/Mi-Jack move to dismiss all claims asserted
against them (ECF No. 58). Plaintiff, as well as non-moving Defendants Norfolk South, H&M,
and FedEx have opposed or otherwise weighed-in on the pending motions. (ECF Nos. 62, 65, 66,
67). The Moving Defendants have replied to those filings. (ECF Nos. 68, 69). This motion is

now ripe for the Court’s adjudication.

5

II.

Legal Standard

For a complaint to survive dismissal, it “must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 67$
(2009) (citing Bell All. Corp.

V.

Twombly, 550 U.S. 544, 570 (2007)).

In determining the

sufficiency of a complaint, the Court must accept all well-pleaded factual allegations in the
complaint as true and draw all reasonable inferences in favor of the non-moving party. See Phillips
v. Cnty. ofAllegheny, 515 F.3d 224, 234 (3d Cir. 200$). Additionally, in evaluating a plaintiffs
claims, generally “a court looks only to the facts alleged in the complaint and its attachments
without reference to other parts of the record.” Jordan v. Fox, Rothschild, 0 ‘Brien & Frankel, 20
F.3d 1250. 1261 (3dCir. 1994).
III.

Discussion
A. Hoist’s Motion to Dismiss Count Two

Plaintiff has labeled Count Two of the Amended Complaint as “Design Defect, pursuant
to N.J.S.A. 2A:58C-2 etseq.” (Am. Compi. at 7). Notwithstanding this characterization of Count
Two as asserting a claim for “Design Defect,” that Count includes allegations of “manufacturing
deficiencies” as well as design deficiencies. Specifically, Plaintiff alleges that “Hoist designed
and manufactured the Hoist Lift Truck using metal components, including the spreader, gallows,
mast, mast hinge and mast hinge bolts, which were of inadequate grade and/or yield strength,
rendering the Hoist Lift Truck unable to withstand its maximum weight capacity.” (Id.

¶

36).

Plaintiff further alleges that “[dlue to the collective design and manufacturing deficiencies of the
spreader, gallows, mast hinge, mast and mast hinge bolts, the Hoist Lift Truck was unable to safely
offload the Intermodal Container, causing the Fatal Incident.” (Id.

¶ 41).

Finally, Plaintiff pleads

that Hoists’ alleged failure to properly manufacture and design the Hoist Lift Truck “rendered it
6

incapable of lifting safely the Intermodal Container, which, at the time of the fatal Incident,
weighed less than the Hoist Lift Truck’s stated maximum capacity.” (Id.

J 42).

Hoist does not move to dismiss those allegations in Count Two that allege a design defect.
(See ECF No. 56-1 at 8). Rather, Hoist moves for dismissal of any allegations of manufacturing
defect. (Id.). Specifically, Hoist argues that “[t]here are absolutely no facts or allegations in the.
Amended Complaint identifying the manufacturing defect.” (Id.). further, Hoist maintains that

in the absence of a “factual allegations identifying a purported manufacturing defect, those
paragraphs of the

.

.

.

Amended Complaint [that refer to manufacturing failures] should be

dismissed.” (Id.). The Court disagrees.
To establish a manufactunng defect claim under the NJPLA, a plaintiff must establish that
the item “deviated from the design specifications, formulae, or perfonuance standards for the
manufacturer or from otherwise identical units manufactured to the same manufacturing
specifications or formulae.” N.J .S .A. 2A: 5 $C-2.
In this case, with respect to allegations of a manufacturing defect, Plaintiff has alleged that

Hoist failed to apply appropriate “engineering principles to protect against foreseeable dangers
associated with its users’ intended purpose,” that Hoist manufactured the Hoist Lift Truck using
materials that “were of inadequate grade and/or yield strength, rendering the Hoist Lift Truck
unable to withstand it’s stated maximum weight capacity,” and that on account of the alleged
manufacturing and design defects “of the spreader, gallows, mast hinge, mast and mast hinge bolts,
the Hoist Lift Truck was unable to safely offload the Intenuodal Container, causing the fatal
Incident.” (Am. Cornpl.

]J 35, 36, 41).

7

The Court finds that the above allegations are sufficient to survive Hoist’s motion to
dismiss Plaintiffs manufacturing claim. That is, the above allegations are sufficient to put Hoist
on notice of the nature of this claim, and the Court notes that, to the extent Plaintiff does not have
enough information to determine whether the product defect claim sounds more in design defect
or manufacturing defect, discovery may assist Plaintiff in this regard. Accordingly, Hoist’s motion
to dismiss Plaintiffs claim of manufacturing defect is denied.
B. Count Four

In Count Four of the Amended Complaint, Plaintiff purports to assert a negligence claim
against a number of Defendants, including Hoist and TSI/Mi-Jack. (Am. Compi. at 11-18). Hoist
and TSI/Mi-Jack have moved for dismissal of Plaintiffs negligence claim. The Court addresses
the negligence allegations against each of the Moving Defendants, in turn, below.
a. Hoist’s Motion

Hoist now moves to dismiss Plaintiffs negligence claim. (ECF No. 56). Hoist asserts two
bases for dismissal of this claim. First, Hoist argues that Plaintiffs negligence claim premised
upon a failure to warn is subsumed by Count Three of Plaintiffs Amended Complaint, which
asserts a claim of failure to warn under the New Jersey Products Liability Act. (ECF No. 56-1 at
4-5; Am. Compl. at 9-1 l).

Second, Hoist maintains that Plaintiffs claims of negligent

maintenance and repair are not supported by the Agreement relied upon by Plaintiff and attached
to the Amended Complaint. (Id. at 6-7). The Court addresses each argument in turn.

It does not appear to this Court that Defendant Hoist seeks to dismiss Plaintiffs negligence
claims premised upon negligent maintenance and repairs on the grounds that those claims are
subsumed by the NJPLA. (See ECF No. 56-1 at 4-5). Accordingly, this Court need not analyze
whether Plaintiffs negligence claim premised upon Hoist’s alleged failure to maintain and repair
the Hoist Lift Truck is subsumed by the NJPLA.
8

The Court first addresses Hoist’s argument that Plaintiffs negligence claim based upon a
theory of failure to warn is barred by Plaintiffs claim for failure to warn under the NJPLA.
Generally, a plaintiff asserting a claim under the NJPLA foregoes the ability to recover under any
other theory of liability as it relates to the defective product. N.J.S.A. 2A:58C—l(b)(3). The
language of the PLA makes it clear that the Act is the only vehicle a plaintiff may use to recover
for a product liability action, expressly providing that: “any claim or action for harm caused by a
product, irrespective oft/ic theory underlying the claim, except actions for harm caused by breach

of an express warranty” falls under the ambit of the Act. Id. (emphasis added); Repola v. Morbark
Indits., Inc., 934 F.2d 483, 492 (3d Cir. 1991) (“[I]t [is] clear that [the PLA]

...

effectively creates

an exclusive statutory cause of action for claims falling within its purview.”). Furthermore, New
Jersey courts have expressly held that “[t]he [PLA] no longer recognizes negligence or breach of
warranty (with the exception of express warranty) as a viable separate claim for ‘harm’

.

.

.

caused

by a defective product.” Tirrell v. Navistar Int’l, Inc., 248 N.J. Super. 390, 398 (N.J. Super. Ct.
App. Div. 1991); see Reilly. Convergent Tech., 957 F. Supp. 573, 583 (D.N.J. 1997)(”Under New
Jersey products liability law, negligence and breach of warranty are no longer viable as separate
claims for harm caused by a defective product.”); Oqttendo v. Beucher Indits., Inc., 939 F. Supp.
357, 361 (D.N.J. 1996)(same).
Notwithstanding the above, there are situations in which a plaintiff may pursue both a
negligence claim and a products liability claim against the same defendant. Specifically, New
Jersey courts have held that “actions based upon conduct related to the improper installation and
maintenance of a product are not subject to strict tort liability,” and rather are subject to a
negligence claim. See, e.g., Universal Underwriters Ins. Grp. v. FSE&G Co., 103 F. Supp. 2d
744, 748 (N.J. Super. Ct. App. Div. 2000) (collecting cases). For example, in Thomas v. ford

9

Motor Co., 70 F. Supp. 2d 521 (D.N.J. 1999), the District Court held that a claim for negligence
based upon the defendant’s installation of an airbag was not subsumed by plaintiffs products
liability claim against that same defendant. Thus, although the NJPLA creates an exclusive cause
of action for injury caused by a product, a plaintiff bringing such an action may pursue a negligence
claim where “the alleged injury is not caused by a defect in the product itself but by the service
attendant to its use.” Universal Underwriters Ins. Grp., 103 F. Supp. 2d at 748. Here, Plaintiff
argues that this line of cases applies to the case at bar. (See ECF No. 64 at 6-12). In order to
analyze this argument, the Court must first consider the theories underlying Plaintiffs NJPLA
claim for failure to warn (Count Three) and Plaintiffs negligence claim (Count Four), also
premised upon, among other theories, Hoist’s alleged failure to warn.
Here, in Count Three of the Amended Complaint, Plaintiff asserts a claim under the NJPLA
for failure to warn. (Am. Cornpl.

Specifically, Plaintiff alleges that Hoist failed to warn

¶ 46-55).

the users of the Hoist Lift Truck about “dangers associated with tilting, shifting and/or rocking of
the interrnodal containers during its normal use and operation, particularly of the sort of lateral
shifting that precipitated the Fatal Incident

.

.

.

.“

(Id.

¶ 48).

Plaintiff further alleges that Hoist

“failed to provide the users of the Hoist Lift Truck with necessary instructions when faced with
hydraulic failures during its normal use and operation.” (Id.

¶ 49).

Plaintiff pleads that, because

of Hoist’s alleged failure to warn Decedent about these risks, Decedent was deprived of the
information necessary to operate the Hoist Lift Truck safely.” (Id.

¶ 51).

In Count Four of the Amended Complaint, Plaintiff asserts a claim for negligence against
Hoist. Plaintiffs negligence claim is premised upon the above-discussed Agreement entered into
between Hoist and Non-Moving Defendant Norfolk South after the Railroad Defendants allegedly
contacted Hoist with respect to deficiencies with the Hoist Lift Truck.
20

(Am. Cornpl.

¶

75).

Specifically, Plaintiff alleges that “[b]eyond its failures to properly design, manufacture, and warn
about the Hoist Lift Truck, Hoist committed a separate tortious act subsequent to its sale of the
Hoist Lift Truck (as addressed in Counts I and II); to wit, it failed to maintain properly the Hoist
Lift Truck, pursuant to the Agreement.”

(Am. Compi.

¶

75).

Plaintiff further alleges that,

notwithstanding the Agreement, Hoist “failed to properly maintain, make necessary repairs to
and/or warn of the dangers of the Hoist Lift Truck.” (Id.

¶ 78).

Plaintiff alleges that because of

these alleged failures, the Hoist Lift Truck Mr. Gomez was operating at the time of his death “was
incapable of safely offloading the Intermodal Container,” and therefore caused the collapse of the
Hoist Lift Truck and, in turn, Mr. Gomez’s untimely death. (Id.

¶ 79).

Hoist moves for dismissal of Plaintiffs negligence claim, insofar as it asserts a theory of
failure to warn. Hoist maintains that “[b]ecause Plaintiffs’ claims against [Hoist] are rooted in
product liability, the Plaintiffs are not permitted by the PLA to maintain a separate claim against
[Hoist] of negligence failure to warn.” (ECF No. 56-1 at 5). The Court agrees that Plaintiffs
negligence claim, insofar as it is based upon a “failure to warn,” is subsumed by Plaintiffs failure
to warn claim under the NJPLA.
In response, Plaintiff maintains that her negligence claim is not subsumed by the NJPLA
because that claim is based upon Hoist’s independent duty to maintain and repair its trucks,
pursuant to the Agreement entered into between Norfolk South and Hoist. According to Plaintiff,
the “products liability claims are based on Hoist’s “defective design and failure to warn of inherent
dangers of the Hoist Lift Truck.

.

.

.

Plaintiffs negligence claims are based on [Hoist’s] failure to

‘refurbish,’ ‘replace,’ and ‘warranty’ the lift truck pursuant to [the] Agreement.” (ECF No. 64 at
1). Stated differently, Plaintiff argues that Hoist “negligent[ly] fail[ed] to warn of the dangers it
created because of such maintenance and repair.” (Id.).
11

While the Court agrees with Plaintiff that its negligence claim premised upon Hoist’s
independent duty to maintain and repair the trucks pursuant to the Agreement is separate and apart
from Plaintiffs design and manufacturing defect claim, the Court notes that Hoist is not arguing
that Plaintiffs negligence claim premised upon design and manufacturing defect is subsumed by
the NJPLA. Rather, Hoit’s argument is that Plaintiffs negligence claim premised upon a failure
to warn of dangers it created on account of its independent duty to maintain and repair the trucks
is subsumed by the NJPLA. The Court agrees with Hoist. That is, regardless of the existence of
the Agreement, Hoist had a duty to warn of dangerous attendant to the Hoist Lift Truck. In
contrast, if not for the Agreement, Hoist would not have had an independent obligation to maintain
and repair various parts of the Trucks. Therefore, while the Agreement may have created an
independent duty for Hoist separate and apart from Hoist’s general duties to produce a safe and
workable product, the Agreement did not create an independent duty on Hoist to warn of any
dangers it may have created by altering or repairing the Hoist Lift Truck. Accordingly, Hoist’s
motion to dismiss Plaintiffs negligence claim, only insofar as that claim is based upon a failure to
warn, is granted.
Next, the Court addresses Hoist’s argument that Plaintiffs claims of negligent maintenance
and repair are not supported by the Agreement. (ECF No. 56-1 at 6-7). According to Hoist, the
Agreement does not support Plaintiffs negligence claim. First, Hoist contends that contrary to the
allegations in Count Four, the Agreement did not require Hoist to provide a “safe and suitable
power industrial truck.” (Id. at 6; Am. Compi.

¶J

77, 78). Instead, Hoist contends that, per the

Agreement, Hoist was to refurbish, replace, repair and extend its warranty on specific parts of the
Lift Truck only—the gallows and spreader. (ECF No. 56-1 at 6-7). Additionally, Hoist argues
that even if the Agreement bestowed such duties upon Hoist, the Amended Complaint fails to

12

allege any facts to support the theory of negligent maintenance or repair. (Id. at 7). Specifically,
Hoist states that the Amended Complaint does not identify the maintenance that was to be done
that was not done, nor does it allege that Hoist received and ignored any request to make a repair.
(Id.).
In response, Plaintiff argues that she has sufficiently plead a claim of negligent failure to
repair and maintain the machine. (ECF No. 64 at 13-14).

Plaintiff directs the Court to the

Agreement itself. (Id. at 14). Pursuant to that Agreement, Plaintiff notes, Hoist was required to
“refurbish or replace the spreader and gallows on all four [Hoist] machines.

.

.“

and to make “all

repairs required to be performed on these components during such a 15-year period including, but
not limited to, repairs due to cracking from material fatigue.” (Id. at 14, quoting Agreement).
Plaintiff further directs the Court to the allegations in the Amended Complaint that Hoist “had an
additional independent duty but failed to properly maintain, repair and modify the machine.” (Id.,
quoting Am. Compl.

¶N 77,

78).

The Court agrees with Hoist that Plaintiffs allegations with respect to its negligence claim
premised upon negligent maintenance and repair are not plead with sufficient specificity. That is,
Plaintiff has alleged merely that Hoist had a duty to “perform maintenance, repairs and mak[e]
modifications to the Hoist Lifl Truck, pursuant to the Agreement,” and that Hoist failed to do so.
Unlike the allegations with respect to TSJ/Mi-Jack, discussed below, Plaintiff has

not

plead that

Hoist had an obligation to perform maintenance daily or at any periodic interval. Nor has Plaintiff
alleged that Hoist was made aware of a particular issue that required maintenance. Accordingly,
the Court will grant Hoist’s motion to dismiss Plaintiffs negligence claim. However, the Court
dismisses same without prejudice to Plaintiffs ability to re-plead this claim in a sufficiently
particular manner.
13

b. TSI/Mi-Jack’s Motion

TSI/Mi-Jack have also moved to dismiss the negligence claim asserted against them in
Count Four.

In Count Four, Plaintiff asserts the following allegations against TSI/Mi-Jack.

Plaintiff alleges that, during the relevant time period, Mi-Jack acted through TSI in “provid[ing]
service, maintenance, repair, and parts to the hoist Lift Truck.” (Id.). Specifically, TSI/Mi-Jack
allegedly “had the duty to assemble and/or was responsible for and did maintain and service the
Hoist Lift Truck, including performing daily maintenance as well as planned maintenance to the
Hoist Lift Truck.” (Id.

¶ 69).

Further, Plaintiff alleges that TSI/Mi-Jack “had a duty to maintain

the Hoist Lift Truck in a reasonably safe and suitable condition,” that TSI/Mi-Jack “failed to
properly maintain, repair and/or modify the Hoist Lift Truck,” and that TSI/Mi-Jack “negligently
and carelessly inspected the Hoist Lift Truck and allowed the Hoist Lift Truck to become
dangerous and defective.” (Id.

¶

70-72). Plaintiff alleges that the aforementioned failures of

TSI/Mi-Jack resulted in the collapse of the Hoist Lift Truck which killed Mr. Gomez. (Id.

¶J 73-

74).
1ST/Mi-Jack contends that the above negligence claim is deficient because “[P]laintiff
never identifies which alleged maintenance was negligently performed by the movants.” (ECF
No. 58-1 at 1). Stated differently, “Plaintiffs allegations do not even reveal if Plaintiff is alleging
movants failed to properly: (1) maintain the [Hjoist [L]ifi [T]ruck; (2) repair the [H]oist [L]ifi
{Tjruck; (3) modify the [H]oist [L]ift [T]ruck; (4) maintain and repair the {Hjoist [L]ift [Tjnick;
(5) maintain and modify the [H]oist [L]ift [T]ruck; (6) repair and modify the [H]oist [L]ift [T]nick;
or ([7]) maintain, repair and moify the [H]oist [L]ift [T]ruck.” (ECF No. 69 at 4-5). TSI/Mi-Jack
characterizes Plaintiffs Amended Complaint as containing conclusory allegations that do not
sufficiently put TSI/Mi-Jack on notice of the claims against them. (Id. at 6).
14

Plaintiff refutes this argument. First, Plaintiff contends that she is

not

required to identify

the precise parts or maintenance that TSI/Mi-Jack failed to attend to. (ECF No. 63 at 5). Plaintiff
argues that the law does not hold Plaintiff to such a heightened pleading standard to support her
negligence claim, and further, that “Plaintiff clearly states that ‘Mi-Jack, through its onsite agent,
TSI’, were responsible for ‘daily maintenance’ and ‘planned maintenance”. (Id., quoting AM.
Compi.

J 69 (emphasis in Plaintiffs brief)).
To state a claim for common law negligence, a plaintiff must set forth sufficient facts in

support of the following elements: (1) duty of care, (2) breach of that duty, (3) proximate cause,
and (4) actual damages. See Poizo v. Cnty. of Essex, 196 N.J. 569, 584 (2008). In this case, the
Court finds that Plaintiff has sufficiently plead a negligence claim as against TSI/Mi-Jack. That
is, Plaintiff has plead that TSI/Mi-Jack had a duty to maintain the Trucks daily and perfonn
planned maintenance on the Trucks. Plaintiff alleges that TSI/Mi-Jack breached that duty by
“failing to properly maintain, repair and/or modify the Hoist Lift Truck” and that such breach
caused the Truck to be “incapable of safely offloading the Intermodal Container at Croxton
Terminal on the date of the Fatal Incident,” thereby causing Mr. Gomez’s untimely death. (Am.
Compi.

¶ 69,

71, 72, 73).

TSIIMi-Jack also argue that Plaintiffs claims for wrongful death and loss of consortium
and Plaintiffs survival action should be dismissed because the underlying negligence claim fails.
As explained above, the Court finds that Plaintiff has sufficiently plead a claim for negligence as
against TSI/Mi-Jack. Thus, the Court denies T$I/Mi-Jack’s motion to dismiss Counts Five, Six,
and Seven of the Amended Complaint.

‘5

IV.

Conclusion

for the reasons stated herein. Hoist’s motion to dismiss Plaintiffs Amended Complaint is
granted in part and denied in part.

TSI/Mi-Jack’s motion to dismiss Plaintiffs Amended

Complaint is denied. An appropriate Order accompanies this Opinion.
IT IS SO ORDERED.
DATED:

September 7-2O17

Judge, U.S. District Court

16