WILLIAMS et al v. MURRAY, INC. et al
MEMORANDUM OPINION. Signed by Judge Michael A. Shipp on 7/31/2014. (gxh)
NOT FOR PUBLICATION
JUL 3 1 2014
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
WILLIAM T. WALSH
MICHAEL WILLIAMS & SUSAN
Civil Action No. 12-2122 (MAS) (TJB)
MURRAY, INC., et al.,
SHIPP, District Judge
Defendants Home Depot U.S.A. and Briggs & Stratton move for summary judgment
pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Home Depot Mot., ECF No. 26;
Briggs & Stratton Mot., ECF No. 25.) The motions are unopposed. The Court has reviewed the
submissions and decided the matter without oral argument pursuant to Local Civil Rule 78.1. For
the reasons set forth below, and other good cause shown, Defendants' motions are granted in part
and denied in part.
In 2002, ten-year-old Plaintiff Michael Williams ("Williams") suffered severe injuries in
an accident involving a brand new Briggs & Stratton lawnmower that his parents had purchased
from a Home Depot store in New Jersey. In January 2012, Williams and his mother, Susan
Williams ("Mrs. Williams"), commenced this products liability action in New Jersey Superior
Court, alleging that the accident resulted from a defect in the lawnmower' s design, manufacture,
or assembly. Home Depot subsequently removed the action to this Court on the basis of
Plaintiffs' Complaint (ECF No. 1-2) sets forth five causes of action, each sounding in
New Jersey state law. Count One alleges that Defendants are strictly liable pursuant to the New
Jersey Products Liability Act ('.'PLA"), N.J. Stat. Ann. § 2A:58C-1, et seq., for "designing,
manufacturing, assembling, and selling" the "defective and unreasonably dangerous"
lawnmower. Count Two is identical to Count One, except that it asserts liability based on the
common law of negligence. Count Three alleges that Defendants negligently failed "to provide
[Williams with] adequate warnings . . . of the inherent dangers" involved in using the
lawnmower. Count Four alleges that Home Depot employees violated the New Jersey Consumer
Fraud Act ("CF A"), N.J. Stat. Ann. § 56:8-1, et seq., by falsely "represent[ing] that they
possessed the necessary skill, knowledge and experience" to assemble the lawn mower. In Count
Five, Mrs. Williams seeks compensation for medical expenses and injuries incurred as a result of
.Defendants' alleged negligence.
The Court draws the following facts from the Statement of Undisputed Material Facts
each Defendant submitted pursuant to Local Civil Rule 56.1, and from the materials submitted in
support of Defendants' motions. See Muskett v. Certegy Check Svcs., Inc., No. 08-3975, 2010
WL 2710555, at *3 (D.N.J. July 6, 2010) ("a [d]efendant's statement of material facts not in
dispute, as to which [p ]laintiffs have filed no objection and counter statement, are deemed
On May 21, 2002, Mrs. Williams and her husband purchased a push-behind lawnmower
from a Home Depot store in Toms River, New Jersey. 1 The mower, manufactured -by Briggs &
Stratton, featured a 22-inch cutting deck powered by a four horsepower gasoline motor. 2 The
mower was also equipped with an "Engine Stop Lever," essentially a spring-loaded kill switch
mounted on the mower's handle. 3 The Engine Stop Lever was designed to tum off the motor
whenever the operator released his or her grip on the mower's controls. 4 When Mrs. Williams's
husband test started the new lawnmower on May 21, the Engine Stop Lever functioned
On May 23, Williams used the new mower to cut the grass outside his family's house in
Beachwood. 6 When he had finished, Williams found that disengaging the Engine Stop Lever did
not shut off the lawnmower' s motor. 7 Mimicking a technique he had seen his father use to shut
off another mower, Williams walked to the front of the machine, placed his right foot on top of
the cutting deck, and reached down to disconnect the spark plug wire. 8 Somehow - only
Williams himself witnessed the mishap and he cannot remember exactly what happened - his
(Briggs & Stratton Rule 56.1 Statement ("Briggs 56.1 "), ECF No. 25-3, ~ 1; Briggs & Stratton
Ans., ECF No. 4, 1.)
(Compl., Count One,~ 5; Home Depot Br., ECF No. 26-1, 1.)
(Home Depot Rule 56.1 Statement ("Home Depot 56.1 "), ECF No. 26-2, ~ 2; Deposition of
Michael Williams ("M. Williams Dep."), ECF 26-4, 24-25.)
(!d. at 23-24; Home Depot 56.1 ~~ 12-13.)
(Home Depot 56.1 ~ 1.)
(!d. at~ 2; Briggs 56.1 ~ 3.)
(M. Williams Dep. 21-22; Home Depot 56.1 ~ 3; Briggs 56.1 ~~ 4-5.)
right foot went underneath the machine. 9 He spent the ensuing seven days in the hospital, as
doctors struggled, in vain, to save the second and third toes on his right foot. 10
The Williams family never used the lawnmower after the May 23 incident. 11 During their
depositions in December 2013, Plaintiffs examined recent photographs of the lawnmower which remains in the possession of Plaintiffs' counsel - and testified that its condition appeared
to have deteriorated since May 2002. 12
If there is a trial in this matter, Plaintiffs will not call an expert to explain why the
lawnmower continued to run after Williams disengaged the Engine Stop Lever. 13
Standard of Review
Summary judgment is appropriate if the record shows "there is no genuine issue as to any
material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P.
56(a). A district court considers the facts drawn from the "materials in the record, including
depositions, documents, electronically stored information, affidavits ... or other materials" and
must "view the inferences to be drawn from the underlying facts in the light most favorable to
the party opposing the motion." Fed. R. Civ. P. 56(c)(l)(A); Curley v. Klem, 298 F.3d 271, 27677 (3d Cir. 2002) (internal quotations omitted). "When the moving party has the burden of proof
at trial, that party must show affirmatively the absence of a genuine issue of material fact: it must
show that, on all the essential elements of its case on which it bears the burden of proof at trial,
(Home Depot 56.1 ~~ 4-5; M. Williams Dep. 37-38.)
(Briggs 56.1 ~ 5; Home Depot 56.1 ~ 4; M. Williams Dep. 46.)
(M. Williams Dep. 29.)
(M. Williams Dep. 29; Deposition of Susan William ("Mrs. Williams Dep."), ECF No. 26-4,
(Briggs 56.1 ~~ 13-14; Home Depot 56.1 ~~ 34-36.)
no reasonable jury could find for the non-moving party." In re Bressman, 327 F.3d 229, 238 (3d
Cir. 2003) (quoting United States v. Four Parcels of Real Property, 941 F.2d 1428, 1438 (11th
Cir. 1991)). "[W]ith respect to an issue on which the nonmoving 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."
Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
A plaintiffs failure to respond "is not alone a sufficient basis for the entry of a summary
judgment." Anchorage Assocs. v. Virgin Islands Bd. of Tax Review, 922 F.2d 168, 175 (3d Cir.
1990). Rather, the court must determine whether the unopposed motion for summary judgment
"has been properly made and supported." Muskett, 2010 WL 2710555, at *3.
The PLA Claim
Putative Need for Expert Testimony
Both Home Depot and Briggs & Stratton contend that Plaintiffs' decision not to retain a
technical expert dooms Williams's PLA claim. Home Depot posits that the jury will need the
testimony of an expert to decide if "the subject lawnmower, its engine, or  safety handle [was]
defective," and to determine whether the defect was "attributable" to the lawnmower's design,
manufacture, assembly, or use. (Home Depot Br., ECF No. 26-1, 11.) For its part, Briggs &
Stratton acknowledges that New Jersey state law permits juries to infer the existence of a defect
from circumstantial evidence- that is, without the help of an expert's technical opinion- but
suggests Plaintiffs need expert testimony to "rule out all other possible causes of the incident."
(Briggs & Stratton Br., ECF 25-4, 4.) The Court finds these arguments unpersuasive.
To prevail on a PLA claim, a plaintiff must establish "the [subject] product was
defective, that the defect existed when the product left the manufacturer's control," and that
defect was the proximate cause of his injuries. Myrlak v. Port Auth., 723 A.2d 45, 52 (N.J. 1999).
To prove these elements, "a plaintiff may resort to direct evidence, such as the testimony of an
expert who has examined the product," or he may forego expert testimony and rely simply on
"circumstantial proof' that the defect existed. !d. (emphasis supplied). The New Jersey Supreme
Court has explicitly held that "'the injured plaintiff is not required to prove a specific
manufacturer's defect."' ld (quoting Moraca v. Ford Motor Co., 332 A.2d 599, 601 (N.J.
1975)). It is enough, rather, that evidence establishes "that 'something was wrong' with the
product."' Jd (quoting Scanlon v. General Motors Corp., 326 A.2d 673, 678 (N.J. 1974)); see
Knoster v. Ford Motor Co., 200 F. App'x 106, 114 (3d Cir. 2006) (plaintiff may prevail on PLA
claim where "[c]ommon experience" indicates that products' failure "would not ordinarily occur
in the absence of some defect") .
. The evidence before the Court is sufficient to place Williams's PLA claim before the
jury. Based on the undisputed facts, a jury could rationally conclude that: (i) the lawnmower was
designed to shut off when the Engine Stop Lever was disengaged; (ii) the Engine Stop Lever, did
not function correctly; (iii) this failure - occurring, as it did, the first time the lawnmower had
ever been used to cut grass- was the result of a defect that existed when the Williams family
purchased the machine; and (iv) the defect proximately caused Williams's injury. While it
remains unclear whether the mower's defect existed when it left the factory, this ambiguity does
not "show that there is no genuine dispute as to any material fact." Fed. R. Civ. P. 56(a).
Accordingly, Plaintiffs' decision not to retain an expert does not entitle Defendants to summary
Home Depot's "Innocent Seller" Status
Home Depot contends that it is entitled to immunity from Williams's PLA claim as an
"innocent seller" under N.J. Stat. Ann. § 2A:58C-9. That section provides that a "product seller"
may, under certain circumstances, extricate itself from a products liability action by filing "an
affidavit certifying the correct identity of the manufacturer of the product which allegedly caused
the [plaintiff's] injury, death or damage." N.J. Stat. Ann. § 2A:58C-9(a). There are a number of
statutory exceptions to the rule- including one that applies when "[t]he product seller created the
defect in the product which caused the injury, death or damage." N.J. Stat. Ann. § 2A:58C9(d)(3). The party asserting innocent seller status bears the burden of proving compliance with
the requirements of§ 2A:58C-9. Fidelity & Guaranty Ins. Underwriters, Inc. v. Omega Flex,
Inc., 936 F. Supp. 2d 441, 453 (D.N.J. 2013).
At this point, Home Depot has not substantiated its claim to innocent seller status. The
company has not filed the requisite affidavit, nor does it point to evidence absolving it of
responsibility for Williams's injuries. Fidelity & Guaranty Ins. Underwriters, 936 F. Supp. 2d at
454 & n. 7 (vendor may not achieve innocent seller status through "general assertions in the
briefing that the manufacturer ... is known and actively participating in  litigation"). If Home
Depot addresses these deficiencies, it may submit a supplemental application for innocent seller
Alleged Spoliation of Evidence
Home Depot also suggests that summary judgment is appropriate as a sanction for
Plaintiffs' failure to "maintain the lawnmower in the condition in which it existed at the time of
the subject accident." (Home Depot Br. 13.) The Court disagrees. Assuming for purposes of this
motion that the Williams family foresaw this litigation at some point before the lawnmower fell
into disrepair, there is no evidence they engaged in the kind of intentional spoliation that
warrants the "drastic sanction" of summary judgment. See Mosaid Tech. Inc. v. Samsung Elec.
Co., 348 F. Supp. 2d 332, 335 (D.N.J. 2004) (defining spoliation as "the destruction or
significant alteration of evidence, or failure to preserve property for another to use as evidence in
pending or reasonably foreseeable litigation").
For the foregoing reasons, Defendants' motion for summary judgment on Count One of
the Complaint is denied.
Plaintiffs' Other Claims
Home Depot contends that the PLA "subsumes" Plaintiffs' common law claims for
negligence and failure to warn, and its statutory claim under CF A. The case law overwhelmingly
supports Home Depot's position. See Fidelity & Guaranty Ins. Underwriters, 936 F. Supp. 2d at
446-4 7 (collecting cases for the proposition that common law theories of products liability are
"subsumed within the [PLA's] statutory cause of action") (internal quotation marks omitted);
Sinclair v. Merck & Co., Inc., 195 N.J. 51, 65-66 (2008) (plaintiff could not recover under the
CFA "for harm caused by a product" because such a claim "clearly falls within [the PLA's]
scope"). The reasoning of these cases applies with equal force to Mrs. Williams's loss of
consortium claim, which seeks to recover for injuries sustained "as a result of [Defendants']
negligence." (Compl., Count Five,~ 3.)
Accordingly, Home Depot's motion for summary judgment on Counts Two, Three, and
Four is granted. The Court will sua sponte dismiss Counts Two and Four as to Briggs & Stratton,
and Count Five as to both Defendants. See Bryson v. Brand Insulations, Inc., 621 F.2d 556, 559
(3d Cir. 1980) (explaining a court's inherent authority to dismiss the action "provided that the
complaint affords a sufficient basis for the court's action").
For the reasons set forth above, Defendants' motions for summary judgment on Count
One of the Complaint are denied; Home Depot's motion for summary judgment is granted with
respect to Counts Two, Three, and Four. In addition, Counts Two and Four are dismissed as to
Briggs & Stratton. Count Five is dismissed as to both-Defendants. An appropriate order follows.
s/ Michael A. Shipp
Michael A. Shipp
United States District Judge
Dated: July 31, 2014
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