GLASS v. UNITED PARCEL SERVICES (UPS)

NOT FOR PUBLICATION

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

CAMDEN VICINAGE

MICHAEL GLASS, JR., HONORABLE KAREN M. WILLIAMS

Plaintiff,

Civil Action

v. No. 19-19839-KMW-SAK

UNITED PARCEL SERVICES (UPS), et al.,

OPINION

Defendants.

APPEARANCES:

ALAN HERSCHEL SKLARSKY, ESQ.

SHAUNA LAUREN FRIEDMAN, ESQ.

DAVID M. CEDAR, ESQ.

WILLIAMS CEDAR, LLC

8 KINGS HIGHWAY WEST, SUITE B

HADDONFIELD, NJ 08033

Counsel for Plaintiff Michael Glass, Jr.

GARY N. STEWART, ESQ.

LOUIS HOCKMAN, ESQ.

MICHAEL G. SABO, ESQ.

RICHARD J. SEXTON, ESQ.

RAWLE & HENDERSON

401 ROUTE 73 NORTH, SUITE 200

MARLTON, NJ 08053

Counsel for Defendant United Parcel Services (UPS)

NICHOLAS THOMAS FRANCHETTI, ESQ.

ARCHER & GREINER, PC

ONE CENTENNIAL SQUARE, 33 EAST EUCLID AVE

HADDONFIELD, NJ 08033

WILLIAM J. O’KANE, JR., ESQ.

ARCHER & GREINER, PC

1025 LAUREL OAK ROAD

VOORHEES, NJ 08043

Counsel for Defendant Material Handling Systems, Inc.

JOHN J. DELANY, III, ESQ.

MARHSALL, DENNEHEY, WARNER, COLEMAN & GOGGIN

2000 MARKET STREET, SUITE 2300

PHILADELPHIA, PA 19103

KRISTEN LYNN KELLER, ESQ.

MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN

1000 LINCOLN DRIVE EAST, SUITE 201

MARLTON, NJ 08053

LAURA ANNE TULL, ESQ.

SEGAL MCCAMBRIDGE

1818 MARKET STREET

PHILADELPHIA, PA 19103

Counsel for Defendant SDI Industries, Inc.

PAUL D. KELLY, ESQ.

NICOLE MARIE MULHERN, ESQ.

MARKS, O’NEILL, O’BRIEN, DOHERTY, & KELLY, PC

CHERRY TREE CORPORATE CENTER

535 ROUTE 38 EAST, SUITE 501

CHERRY HILL, NJ 08002

GERI JAFFEE, ESQ.

MARKS, O’NEILL, O’BRIEN, DOHERTY & KELLY, PC

6981 N. PARK DRIVE, SUITE 300

PENNSAUKEN, NJ 08109

Counsel for Defendant Lyneer Staffing Solutions, LLC

WILLIAMS, District Judge:

I. INTRODUCTION

Plaintiff Michael Glass, Jr. (“Plaintiff”) brings this action against Defendants Lyneer

Staffing Solutions, LLC (“Defendant Lyneer”), United Parcel Services (“Defendant UPS”), SDI

Industries, Inc. (“Defendant SDI”), and Material Handling Systems, Inc. (“Defendant MHS”)

alleging that each Defendant contributed to the injuries Plaintiff sustained on March 8, 2018 while

removing packages from the motor of a piece of conveying equipment.

This matter comes before the Court on each Defendant’s Motion for Summary Judgment

along with Defendant MHS’s Motion to Exclude Plaintiff’s Expert Testimony. (ECF Nos. 111,

112, 114, 115, 120). Plaintiff opposes all motions, (ECF Nos. 127, 128, 129, 130, 131), and

Defendants replied. (ECF Nos. 138, 140, 141, 142, 143). Separately, Defendant Lyneer opposed

Defendant UPS’ Motion for Summary Judgment (ECF No. 124), and Defendant UPS replied.

(ECF No. 126). For the reasons that follow, Defendants Lyneer, UPS, and SDI’s Motions for

Summary Judgment are GRANTED1 and Defendant MHS’s Motion for Summary Judgment and

Motion to Exclude Plaintiff’s Expert Opinion Testimony are DENIED.

II. BACKGROUND

In 2013, Defendant UPS purchased a conveyor system called a “TF2-3” from another

facility and hired Defendant MHS as a contractor to engineer, manufacture, and install the

conveyor system at issue in the Swedesboro facility, which UPS owns. MHS Def.’s Br., Defendant

MHS Statement of Material Facts, (“MHS–SMF”) ¶¶1, 2, 6; UPS Def.’s Br., Defendant UPS

Statement of Material Facts, (“UPS–SMF”) ¶¶ 2, 4. The TF2-3 conveyor is a piece of equipment

that moves mail from one location in the facility to another at approximately 20 feet above the

1 Pursuant to Local Civil Rule 78.1(b), this motion will be decided on the papers without oral argument.

facility floor, meaning its motor was only reachable by ascending a fixed ladder attached to the

maintenance platform. MHS–SMF ¶¶6-7. The TF2-3 motor is considered a “motion hazard” and

the American National Standards Institute (“ANSI”) and the American Society of Mechanical

Engineers (“AMSE”) have promulgated standards requiring such hazards to be protected by either

a guard, a device, safe distance, or safe location. Id. ¶10. The contract between Defendant UPS

and Defendant MHS identified some items as “Owner Purchased Contractor Coordinated”

(“OPCC”), which included a guard with a sliding door. Id. ¶¶3, 5, 6, 8.2 Defendant MHS installed

a cam locking system, which requires a unique key for access, and warning placards on the sliding

doors. Id. ¶¶8, 11.3 Further, MHS installed two separate disconnect switches that were OSHA

compliant, which would enable authorized employees to perform a “Lock Out, Tag Out”

(“LOTO”) procedure. Id. ¶¶12-13. Once Defendant UPS performed an audit of the conveyor

system, the Swedesboro facility became operational in 2014, after which Defendant MHS no

longer performed any work at the facility. Id. ¶¶14-16.

Defendant UPS hired several independent contractors to work at the facility, most relevant

being Defendant SDI which was contracted for the maintenance of the machine conveyor system,

as well as Defendant Lyneer, who provided temporary personnel to staff positions, specifically to

the transfer and mail sorters. UPS–SMF ¶¶6,7; Lyneer Def.’s Br., Defendant Lyneer Statement of

Material Facts, (“L–SMF”) ¶¶15-17.4 Plaintiff was employed by Defendant SDI, and prior to the

date of his accident, Plaintiff received a copy of the UPS Outside Contractor Procedures regarding

2 Plaintiff disputes ¶3 insofar as to what the “OPCC” designation means in relation to MHS’ purported responsibility

to UPS and Plaintiff Glass, not that there was such a designation that delineated some items from others that were

involved in the 2013 contract. See Pl.’s Opp. to MHS Br., Plaintiff’s Responsive Statement of Material Facts

(“PRSMF”) ¶3.

3 Plaintiff disputes ¶11 insofar as to whether the locking system as installed was adequate for the hazard. See Pl.’s

Opp. to MHS Br., PRSMF ¶11.

4 The Court notes that UPS originally contracted with Infinity Staffing Solutions, the predecessor-in-interest to

Lyneer Staffing Solutions in September of 2011. L–SMF ¶15.

LOTO procedures and signed his copy. UPS–SMF ¶¶21, 22; SDI Def.’s Br., Defendant SDI

Statement of Material Facts, (“SDI–SMF”) ¶6.5 Plaintiff also received weekly safety emails, and

various informational print outs were posted for SDI employees. MHS–SMF ¶19. This was

because Plaintiff was a maintenance technician authorized to use the LOTO disconnects for the

conveyor systems at the facility to perform maintenance work within hazardous areas such as the

motor cages on the TF2-3. MHS–SMF ¶18. Lyneer employees, however, were not involved in

LOTO procedures at the UPS facility. L–SMF ¶22.

On the day of the incident, between 6:00 and 6:30pm, a manager for UPS notified Plaintiff

that packages were accumulating in the motor cage. L–SMF ¶27; SDI–SMF ¶9. Between 9:45 and

9:50pm, Plaintiff turned off the power to the motor of the TF2-3 using the stop button underneath

the maintenance platform. SDI–SMF ¶9. This action did not constitute a proper LOTO procedure,

and all parties agree that Plaintiff did not follow the LOTO procedure prior to the accident. L–

SMF ¶30. Plaintiff did not tell anyone else he was commencing work on the machine. L–SMF ¶29.

Once reaching the platform, Plaintiff was able to open the sliding door guard despite the locks

because it had been left in the locked position while opened. MHS–SMF ¶24. Plaintiff proceeded

to reach into the motor cage to remove packages when the machine restarted, causing Plaintiff to

sustain severe injuries to his arm. Id. ¶¶25-26. Plaintiff could not identify who, if anyone,

reenergized the conveyor on the night of the accident. Id. ¶4.

III. LEGAL STANDARDS

A. Motion for Summary Judgment

55 A point of contention between the parties is whether Defendant SDI properly trained Plaintiff in the LOTO

procedure, or whether Plaintiff was given access to the lock out keys and tags needed to perform the LOTO

procedure. Pl.’s Opp. to SDI Br., PRSMF ¶¶12, 13.

Summary judgment is appropriate “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). “A fact is ‘material’ under Rule 56 if its existence or nonexistence might impact the outcome

of the suit under the applicable substantive law.” Santini v. Fuentes, 795 F.3d 410, 416 (3d Cir.

2015) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)); see also M.S. by &

through Hall v. Susquehanna Twp. Sch. Dist., 969 F.3d 120, 125 (3d Cir. 2020) (“A fact is material

if—taken as true—it would affect the outcome of the case under governing law.”). Moreover, “[a]

dispute over a material fact is ‘genuine’ if ‘a reasonable jury could return a verdict for the

nonmoving party.’” Santini, 795 F.3d at 416 (quoting Anderson, 477 U.S. at 248).

The moving party bears the burden of identifying portions of the record that establish the

absence of a genuine issue of material fact. Id. (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323

(1986)). The burden then “shifts to the nonmoving party to go beyond the pleadings and ‘come

forward with ‘specific facts showing that there is a genuine issue for trial.’’” Id. (quoting

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). To survive a motion

for summary judgment, the nonmoving party must identify specific facts and affirmative evidence

that contradict those offered by the moving party. Anderson, 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)). When considering a motion

for summary judgment, the court views the facts and all reasonable inferences drawn from the

facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., 475 U.S. at

587.

IV. DISCUSSION

A. Lyneer Staffing Solutions, LLC

Plaintiff argues that Defendant Lyneer was negligent and asserts that one of their

employees re-energized the conveyor system that caused Plaintiff’s injuries. However, Plaintiff

fails to point to any material fact to place anyone from Lyneer in the area at the time of the accident.

The circumstantial evidence Plaintiff presents is too tenuous to hold Defendant Lyneer liable.

i. Negligence

To prevail on a negligence claim, Plaintiff must provide sufficient evidence to establish a

(1) duty of care, (2) a breach of that duty, (3) proximate causation, and (4) actual damages. Estate

of Allen v. Cumberland Cnty., No. 15-6273, 2020 WL 3468180 at *10 (D.N.J. 2020). In other

words, it must be proved that one party was negligent and that negligence caused the other’s injury.

Fedorczyk v. Caribbean Cruise Lines, 82 F.3d 69, 73 (3d Cir. 1996). Causation in fact is considered

“the first and most basic concept” within the element of proximate causation. Estate of Allen, 2020

WL 3468180 at *10. Causation in fact depends on whether an act or omission “played a material

part in bringing about an event.” Fedorczyk, 82 F.3d at 73. The “mere showing of an accident

causing injuries is not sufficient from which to infer negligence,”—negligence cannot be

presumed. Id. at 74. However, circumstantial evidence can be used to establish causation if based

on sufficient probability by the preponderance of the evidence. Id. at 74-75. Ultimately, Plaintiff

has the burden of proof to establish causation. Id. at 74.

Here, Plaintiff asserts that because Lyneer staff were working that night, one of their

employees must have reenergized or turned on the conveyer while Plaintiff was reaching inside to

free lodged packages from the motor cage. Pl.’s Opp. to Lyneer Br., at 12; PRSMF ¶¶43-45.

However, Plaintiff has failed to provide sufficient evidence to demonstrate that an employee of

Defendant Lyneer was the proximate cause of his accident.6 Despite the extensive discovery, there

is no evidence of any Lyneer employees near the disconnect switch at the time of the accident:

there are no records from the computer system that monitored the conveyor to show a disconnect

occurred, (L–SMF ¶¶34, 38); deposition testimony and Plaintiff’s own recounting of events

indicates that no radio communication occurred between any employees that evening relating to

the accident to suggest any Lyneer employee knew that the machine was under maintenance or

knew that the machine was even de-energized, (L–SMF ¶¶29, 36, 37, 40-41); and none of the

people deposed, including Plaintiff, saw any individual person in the area of the accident. L–SMF

¶¶42-44.

Despite all these potential sources of evidence, Plaintiff only comes forward with

threadbare pieces of circumstantial evidence based soley on his self-serving testimony and the

testimony of a single UPS employee who testified about the general day to day operation of the

facility. Moreover, to support that a disconnect “was reflected” (to prove Plaintiff had stopped the

machine and eliminate the possibility that the machine had turned off for other reasons such as too

much weight or a jam) (L–SMF ¶ 35), Plaintiff only points to his own testimony that he

disconnected the machine. Pl.’s Opp. to Lyneer Br., PRSMF ¶¶36, 37. To substantiate that a

Lyneer employee had affirmatively re-energized the machine, Plaintiff points to a UPS Operations

Supervisor’s testimony that Lyneer staffers generally would be working in the vicinity of the

accident and had some knowledge or responsibility relating to the starting and stopping of the

conveyors. Pl.’s Opp. to Lyneer Br., PRSMF ¶¶43-45.

On the other hand, the UPS Operation’s Supervisor’s testimony suggests that in order to

re-energize the conveyor, a Lyneer employee would have to walk over to the disconnect, which

6 The Court will not address whether Defendant Lyneer had a duty of care or whether Defendant Lyneer breached

that duty of care because without proximate cause, Defendant Lyneer cannot be held liable.

would have been underneath the cage that Plaintiff was working on, turn the disconnect switch

“on,” and then walk back to the computer system and restart the belt from the system. Pl.’s Opp.

to Lyneer Br., PRSMF ¶45, (citing Douglas Dickinson Dep. Transcript at 64:5-19). Given that a

Lyneer employee would have to turn the disconnect switch right below Plaintiff, it seems highly

implausible that neither Plaintiff nor a Lyneer employee would not have seen each other and that

the Lyneer employee would have failed to recognize that Plaintiff was in the middle of

maintenance of the motor cage area.

At this stage, Plaintiff’s “circumstantial evidence” is simply mere speculation: that

someone from Defendant Lyneer must have re-energized the conveyor system because some

employees were present in the building and “had an incentive,” (Pl.’s Opp. to Lyneer Br. at 14),

to keep the conveyor operational is too tenuous to establish proximate cause and survive summary

judgment.

B. UPS7

7 The Court notes that Plaintiff filed a “Master Statement of Material Facts” as an appendix to his Motion in

Opposition of Summary Judgment in addition to the required opposing 56.1 statement in accordance with this

Court’s local rule. Rule 56.1 states:

On motions for summary judgment, the movant shall furnish a statement which

sets forth material facts as to which there does not exist a genuine issue, in

separately numbered paragraphs citing to the affidavits and other documents

submitted in support of the motion. A motion for summary judgment

unaccompanied by a statement of material facts not in dispute shall be dismissed.

The opponent of summary judgment shall furnish, with its opposition papers, a

responsive statement of material facts, addressing each paragraph of the movant's

statement, indicating agreement or disagreement and, if not agreed, stating each

material fact in dispute and citing to the affidavits and other documents submitted

in connection with the motion; any material fact not disputed shall be deemed

undisputed for purposes of the summary judgment motion.

In addition, the opponent may also furnish a supplemental statement of disputed

material facts, in separately numbered paragraphs citing to the affidavits and other

documents submitted in connection with the motion, if necessary to substantiate

the factual basis for opposition. The movant shall respond to any such

supplemental statement of disputed material facts as above, with its reply papers.

Each statement of material facts shall be a separate document (not part of a brief)

and shall not contain legal argument or conclusions of law.

Plaintiff and Defendant Lyneer argue that Defendant UPS had a nondelegable duty as the

owner of the premises and as the delegating, contracting party to provide a safe working

environment for its independent contract workers. However, no theory of negligence can be

supported based on the material facts in this record.

i. Premises Liability

The New Jersey Supreme Court has held that “[a]bsent control over the job location or

direction of the manner in which the delegated tasks are carried out, the party contracting out the

work,8 be it a landowner or a general contractor, is not liable for injuries to employees of the

contractor resulting from either the condition to the premises or the manner in which the work is

performed.” Krough v. Calpine, No. 18-15733, 2020 U.S. Dist. LEXIS 179488 at *7-8 (D.N.J.

Sept. 29, 2020), aff’d No. 20-3027, _Fed. Appx. _ (3d Cir. 2021) (quoting Muhammad v. New

Jersey Transit, 821 A.2d 1148, 1156 (2003). A contracting facility still retains a nondelegable duty

to use reasonable care to protect invitees against known or reasonably discoverable dangers, but

Id. Here, it appears that the “Master Statement of Material Facts” does not comply as a “supplemental statement”

that is permitted by the rule, because it appears to contain both disputed and undisputed facts. The Court notes that

the purpose of a Rule 56.1 statement is to “narrow the issues before the District Court . . . and save [the] court from

having to drudge through deposition transcripts [and other immaterial information] . . to determine the facts.”

Konowicz v. Carr, No. 15-06913, 2018 U.S. Dist. LEXIS 176990 at *3 (D.N.J. Oct. 12, 2018). The “Master

Statement of Material Facts” is 20 pages long with 87 “facts” that contain more than one fact per numbered

paragraph, which aside from the noncompliance with the local rule, it was not tailored to each brief and made it

effortful for the Court to ascertain the remaining disputed facts.

In addition, Defendant UPS did not respond to this “Master Statement of Material Facts.” The Court notes that the

local rules pertaining to motions is supposed to facilitate the court’s disposition of motions, and not be a

punishment. Boswell v. Eoon, 452 Fed. Appx. 107, 111 (3d Cir. 2011) (quoting Lorenzo v. Griffith, 12 F.3d 23, 28

(3d Cir. 1993). The rule is usually interpreted strictly against the non-movant, here the Plaintiff, rather than the

movant, here Defendant UPS. Id. at 112. Given the Third Circuit’s preference for resolving matters on their merits,

that the Third Circuit “has sanctioned the practice of excusing a party’s strict compliance with the local rule where a

court is willing to draw out the facts from the party’s briefing and evidentiary submissions,” (Fox v. Bayside State

Prison, No. 14-5344, 2016 WL 589673 at *3 (citing Boswell, 452 F. App’x at 111-12). and that the “Master

Statement of Material Facts” does not comply with the local rule in its submission, the Court will excuse the

noncompliance of the rule in this instance only and address the motions on their merits without deeming the facts in

the “Master Statement” as admitted to avoid imposing an unfair penalty.

8 Here, UPS is the party contracting out for the work, and to clearly illustrate this relationship this Opinion will use

the term “contracting facility,” rather than landowner or general contractor.

this duty is relative to the nature of the invited endeavor. See Lopez v. Roscio, No. 03-1770, 2006

WL 319294 at *5 (D.N.J. Feb. 8, 2006). “The duty does not entail the elimination of operational

hazards that are obvious and visible to the invitee upon ordinary observation and are part of or

incidental to the very work the contractor was hired to perform.” Id. The contracting facility may

incur liability if it retains control over the manner and means by which the work is to be performed,

where the work constitutes a nuisance per se, or where one knowingly engages an incompetent

contractor. Id.

ii. Non-Delegable Duty of Contracting Facilities

It is true that contracting facilities retain a nondelegable duty to independent contractors

that are invited on the premises to work in that they are under a duty to exercise ordinary care to

render reasonably safe the areas in which she might reasonably expect them to be working. Id. at

*4 (citing Sanna v. National Sponge Co., 506 A.2d 1258, 1261 (App. Div. 1986)). However, this

duty is relative to the invited endeavor. Id. at 5 (citing Rigatti v. Reddy, 723 A.2d 1283, 1285-6

(App. Div.1999)). This duty does not require a contracting facility to completely eliminate the

operational hazards that are obvious and visible upon “ordinary observation” and are “part of or

incidental to the very work the contractor was hired to perform.” Id.

Here, the risk Plaintiff encountered was exactly the kind of obvious risk that was part of

the very work his employer hired him to perform. Plaintiff was specifically hired to maintain the

TF2-3 conveyor system. UPS–SMF ¶¶8-9. Unlike the contested facts in Aly v. Fed. Express, Inc.,

Defendant UPS did not modify the TF2-3 system in such a way that would leave the dangerous

parts of the machine exposed and unguarded, but in fact had Defendant MHS install cam locks and

warning placards on the guard for the nip point hazard. Aly v. Fed. Express, Inc., No. 04-3886,

2008 WL 4378233 (D.N.J. Sept. 22, 2008) (where Federal Express had its conveyor installed or

later modified to be raised above the floor, between three to four feet off the ground, exposing the

hazard and leaving the area where the plaintiff was injured completely unguarded, dark, and full

of debris); MHS–SMF ¶¶119, 13. While Plaintiff contests that the safeguards Defendant UPS

contracted for Defendant MHS to install were not adequate, the facts of this case are plainly

different from the circumstances found in Aly.

Further, it is implausible for Plaintiff to contend that he was unaware of the danger that this

machine posed to him regardless of whether he was specifically trained in the LOTO procedure

by Defendant SDI. Indeed, Plaintiff had to climb a 20-foot maintenance ladder and push aside a

safety guard, which had a lock on it to prevent access from unauthorized personnel, that also had

at least one prominent placard stating “Danger, Do Not Open or Remove Guards *Except

Authorized Personnel” with a pictogram showing the exact danger that befell him. MHS–SMF

¶11; SDI–SMF ¶9. Further, Plaintiff acknowledged receiving UPS’ notice of LOTO procedures

and a “SDI Weekly Safety Tailgate Talks” document as well. SDI–SMF ¶13. While a machine

specific LOTO procedure may have increased the safety of maintenance workers around the TF2-

3 as Plaintiff asserts, a contracting facility like Defendant UPS is not required to completely

eliminate all hazards from a work environment, especially those that are part and parcel of the

work Plaintiff was hired to do. Lopez, 2006 WL 319294 at *5. A contracting facility can assume

that an independent contractor and its employees are sufficiently skilled to recognize the dangers

of the task they are hired to perform and adjust their methods to ensure their own safety (provided

that none of the three exceptions to the rule apply: that the contracting facility retained control

over the work being done, that the work being done was a nuisance per se, or the hire of an

9 Plaintiff disputes ¶11 insofar as the implication that such installments were sufficient to prevent injury, not the fact

that these locks and placards were, in fact, installed on the motor cage in question. Pl.’s Opp. to MHS Br., PRSMF

¶11.

incompetent contractor, discussed further infra at Section iii.). Wilczek v. Phillips 66 Co., No. 19-

17374, 2023 WL 3644652 at *3 (D.N.J. May 25, 2023).

Additionally, despite Plaintiff’s claim to the contrary, OSHA regulations do not apply to

contracting facilities, and therefore Defendant UPS would not be specifically required to

implement additional training for Defendant SDI’s employees regarding the machinery that they

were hired to maintain. Lopez, 2006 WL 319294 at *5 (“[T]he Court declined to extend liability

to the landowner, upon whom OSHA imposes no affirmative duties.”). The record is clear that

Defendant UPS complied with C.F.R. 1910.147 (f)(2)(i), and Defendant UPS’ compliance with

C.F.R. 1910.147 (f)(2)(ii) is inapplicable to the scenario that Plaintiff presents. In pertinent part:

1910.147(f)(2) Outside personnel (contractors, etc.).

1910.147(f)(2)(i) Whenever outside servicing personnel are

to be engaged in activities covered by the scope and

application of this standard, the on-site employer and the

outside employer shall inform each other of their respective

lockout or tagout procedures.

1910.147(f)(2)(ii) The on-site employer shall ensure that

his/her employees understand and comply with the

restrictions and prohibitions of the outside employer’s

energy control program.

Defendant UPS provided an Outside Contractor Procedures notice regarding its LOTO

procedures to Defendant SDI as required by C.F.R. 1910.147 (f)(2)(i), because Plaintiff in fact

received this notice and signed it. UPS–SMF ¶¶21-22. Even if Plaintiff found the notice to be

unclear or inapplicable to him, Pl.’s Opp. to UPS Br., PRSMF ¶22, Defendant UPS’ responsibility

was to inform Defendant SDI of their LOTO procedures, not to ensure comprehension or provide

additional training to Defendant SDI’s employees. According to the plain language of CFR

1910.147(f)(2)(ii), as the on-site employer, Defendant UPS was only responsible for ensuring that

its own employees understood and complied with the outside employer’s energy control program.

At this time, Plaintiff does not allege that a UPS employee did not understand or violated

Defendant SDI’s energy control program by re-energizing the conveyor while it was disconnected

not pursuant to the LOTO procedures by Plaintiff, rather Plaintiff asserts that a Lyneer staffer

“must have” re-energized the conveyor.10 Therefore, given this set of facts, CFR 1910.147(f)(2)(ii)

is inapplicable.11

iii. Retained Control Exception

The Parties do not dispute whether the work was a nuisance per se or that Defendant SDI

was incompetent, rather, Plaintiff and Defendant Lyneer contend that Defendant UPS retained

control over the manner and means of Plaintiff’s work, thereby rendering it liable for Plaintiff’s

injuries as the landowner.

A contracting facility’s results-oriented supervision does not trigger liability, rather it is the

active involvement in changing or directing the method, manner, or means of doing the work that

10 It is not contested that Defendant UPS hired Defendant Lyneer for staffing services as an independent contractor,

that Defendant Lyneer was not responsible for Defendant SDI’s employees, and that Defendant Lyneer “was not

responsible to lock-out or tag-out at the UPS Facility.” L–SMF ¶¶15-16, 21, 22.

11 Plaintiff argues that Meder v. Resorts Intern. Hotel, Inc., 573 A.2d 922 (N.J. App. Div. 1989) is applicable, which

held that violations of OSHA regulations by a property owner who has assumed the responsibilities of a general

contractor can support a tort claim against the property owner regardless of whether the property owner assumed

control over the delegated tasks carried out by subcontractors. Meder is inapplicable to this case for several reasons,

the most important being that the New Jersey Supreme Court rejected Meder’s attempt to impose a duty of care on a

landowner or contractor based solely on a finding that OSHA regulations had been violated in Alloway v. Bradlees,

Inc., 723 A.2d 960 (N.J. 1999). See Slack v. Whalen, 742 A.2d 1017, 1021-22 (N.J. Super. Ct. App. Div. 2000). The

factors to find liability on a landowner or contractor from Alloway include the foreseeability of the risk of injury, the

relationship of the parties, the nature of the attendant risk, and the opportunity and ability to exercise care, and the

public interest in the proposed solution: in Alloway, the risk was “clearly foreseeable” because the contractor

“knew” of a defect and attempted to correct the defect, there was a substantial and close relationship between the

contractors which created “both the opportunity and capacity . . . to exercise authority and control over the

equipment” because the principal excavating contractor specifically took on the supervision of the paving crews

because he had direct knowledge of the work requirements. Slack, 742 A.2d at 1020. Here, there is no evidence in

the record to suggest that Defendant UPS knew of the defect and attempted to correct the defect prior to Plaintiff’s

accident, and it has not been established that Defendant UPS had the kind of close and substantial relationship that

would permit it the opportunity and capacity to exercise the kind of authority and control over the equipment like in

Alloway. UPS staffers were not involved at all in attempting to maintain the TF2-3 conveyor, as evidenced by the

fact that the UPS supervisor requested Plaintiff to address the packages issue in the motor cage on the night of

Plaintiff’s injury rather than take on the task himself. Pl.’s Opp. to UPS Br., PRSMF ¶19. Therefore, the Court finds

that CFR 1910.147(f)(2)(ii) is not applicable to Defendant UPS in relation to its independent contractors in this case.

creates liability. Krough, 2020 U.S. Dist. LEXIS 179488 at *8-9 (“this immunity is not disturbed

by the exercise of merely such general superintendence as is necessary to insure that the

[sub]contractor performs his agreement.”). For example, weekly meetings, walkthroughs, and

making occasional alterations to a work plan does not demonstrate the level of control that would

trigger liability. Jaworowski v. Ciasulli, No. 04-1267, 2009 WL 4141474 at *4 (D.N.J. Nov. 20,

2009).

Here, the Court finds that the conduct Plaintiff points to as “control” over the manner and

means of his employment is not sufficient to trigger liability. Specifically, Plaintiff asserts that a

UPS manager alerting him to the need to remove a blockage in the TF2-3 motor cage is sufficient

to show that Defendant UPS had control over Plaintiff’s work. Compare UPS–SMF ¶19 and Pl.’s

Opp. to UPS Br., PRSMF ¶19. However, the UPS supervisor did not instruct Plaintiff on how to

obtain this result (whether by using a LOTO procedure or some alternative method), (if anything,

the request or directive to address an issue with a machine is a typical results-based communication

from a supervisor in the context of Plaintiff’s work as a maintenance man).

Defendant Lyneer further argues aspects of “control” it finds in the record and asserts that

Defendant UPS was interviewed by SDI managers as well as a UPS manager prior to being hired,

that UPS was “involved in the decision-making process for the working hours and assignments of

the SDI technicians,” and “provided” Plaintiff tools necessary for the job12 and that Plaintiff would

“typically communicate with UPS supervisors” and that Plaintiff would “often” communicate

“verbally and via email” to UPS management “regarding his job responsibilities,” in addition to

12 Defendant Lyneer cites to an SDI employee’s deposition transcript, which states that both Defendant SDI and

Defendant UPS provided tools for the maintenance technicians to use: SDI provided hand tools and UPS provided

power tools for use. Lyneer Def.’s Opp. Br., Lyneer’s Counterstatement of Material Facts ¶3, citing Justin Jenson’s

Dep. Transcript at 38:11-19. The Court reviewed this section of the transcript and notes that it does not suggest that

Defendant UPS directed any SDI technician on when, where, or how to utilize such tools regarding the completion

of their job. This fact alone, nor in conjunction with the other facts Defendant Lyneer asserts, is sufficient to

demonstrate the level of control required to find Defendant UPS liable for Plaintiff’s injury.

providing maintenance due to a UPS employee’s “complaint” about packages accumulating in the

motor cage which resulted in Plaintiff’s accident. Lyneer Def.’s Opp. Br., Lyneer’s Counter

Statement of Material Facts, ¶¶ 1-6.13

Here, Lyneer fails to demonstrate any level of managerial involvement beyond general

superintendence, and such workplace level coordination does not speak to whether the supervisors

directed Plaintiff’s actual maintenance activities nor does it demonstrate the “sufficient degree of

detailed superintendence over the . . . employees [so] as to invoke a legal relationship analogous

to that of master-servant.” Krough, 2020 U.S. Dist. LEXIS 179488 at *8 (internal citation omitted).

Simply stated, neither Plaintiff nor Lyneer provided sufficient facts to suggest that

Defendant UPS had the level of control over the manner and means of his duties as a maintenance

technician to strip Defendant UPS of its immunity from liability.

iv. Mode of Operation Rule

Next, Defendant Lyneer argues that Defendant UPS should not have immunity from

liability as a contracting facility because it believes that Defendant UPS runs its facility as a “self-

service” facility and therefore the “Mode of Operation Rule” applies.

The Mode of Operation Rule is a theory that applies specifically to the “self-service” model

of a business whereby “customers independently handle merchandise without the assistance of

employees” where they “may come into direct contact with product displays, shelving, packaging,

and other aspects of the facility that may present a risk.” Senisch v. Tractor Supply Co., No. 16-

47, 2018 WL 324717 at *5 (D.N.J. Jan. 8, 2018) (quoting Prioleau v. Ky. Fried Chicken, Inc., 122

13 Defendant UPS summarily denied all Defendant Lyneer’s Counter Statement of Material Facts without citing to

the record, meaning that consistent with the local rules such facts are deemed admitted. Pursuant to L. R. Civ. P.

56.1, the opponent of summary judgment is required to “furnish with its opposition papers, a responsive statement of

material facts, addressing each paragraph of the movant’s statement, indicating agreement or disagreement and, if

not agreed, stating each material fact in dispute and citing to the affidavits and other documents submitted in

connection with the motion.” Id. (emphasis added).

A.3d 328, 337 (N.J. 2015)). The rule is grounded in the understanding that, without the supervision

of employees, there is an increased risk that a dangerous condition will go undetected and that

patrons who are permitted to handle products and equipment, will be injured. Id. Generally, this

theory of liability has mostly applied to cafeteria and supermarket type businesses but has been

extended to other types of businesses if a patron is able to select and remove the merchandise form

the premises without intervention from any employee of the storekeeper. Id.

Defendant Lyneer cannot prevail on this argument because at this facility Defendant UPS

is clearly not in the business of permitting the public “customers” to have access to the property.

The “invitees” in this matter are independent contract workers who are there to perform specific

tasks. Defendant UPS is entitled to presume that the workers, or their superiors, are “possessed of

sufficient skill to recognize the degree of danger involved and to adjust their methods of work

accordingly.” Lopez, 2006 WL 319294 at *5. The very nature of Defendant UPS’s relationship to

Defendant Lyneer and Defendant SDI (Plaintiff’s employer) as subcontractors permit it to assume

a level of competence and skill that is simply not present in relation to the increased risk that comes

when a business is allowing the general masses, with its presumed lack of awareness, to interact

with the facility in a self-service capacity. Rigatti, 723 A.2d at 1286; Senisch, 2018 WL 324717 at

*5. Additionally, none of the subcontracting employees were permitted to “select and remove

merchandise from the premises.” Senisch, 2018 WL 324717 at *5. The attempt to analogize the

business model of a UPS shipping facility to a self-service styled business falls flat.

Consequently, Defendant UPS cannot be held liable as a contracting facility under a

premises liability theory with regard to its independent contractors. Plaintiff’s disputed facts are

not sufficient to establish negligence liability.14

C. SDI Industries, Inc.

Plaintiff argues that Defendant SDI is liable for his injuries because Defendant SDI

engaged in intentional, wrongful conduct that brought about the accident. However, the facts do

not support the finding of intentional, wrongful conduct and therefore Plaintiff’s exclusive remedy

is the New Jersey Workers’ Compensation Act.

i. New Jersey Workers’ Compensation Act

Plaintiff argues that Defendant SDI should be held liable for his injuries because their

conduct was intentional and malicious. However, in New Jersey the Workers’ Compensation Act,

(“WCA”), N.J.S.A. 34:15-1 to 128 is the exclusive remedy for workers who are injured at work.

In particular, the WCA encompasses all claims against an employer when a worker is injured on

the job, regardless of the kind of injury alleged, except for those injuries that have resulted from

an employer’s intentional wrong. See Ruggiero v. Eli Lilly & Co., No. 19-16206, 2022 WL

17082498 at *8 (D.N.J. Nov. 18, 2022). To demonstrate that the injury stemmed from an

employer’s intentional wrong, a plaintiff must allege (1) sufficient facts to demonstrate that the

employer knew its actions were “substantially certain to result in injury or death to the employee,”

and (2) that the resulting injury and circumstances surrounding it constituted more than “a fact of

life of industrial employment” that is beyond what the Legislature intended the Act to immunize.

Laidlow v. Hariton Mach. Co., Inc., 790 A.2d 884, 894 (2002).

14 The Court notes that Plaintiff raises a comparative negligence argument, but because the facts do not support any

theory of negligence in the context of landowner and independent contractor liability, the Court need not address the

other issue raised.

The first prong, also known as the “conduct” prong, requires the court to carefully ascertain

between negligent or reckless conduct with intentional wrongful conduct to prevent the

circumvention of the Act, and thus must require the accident as it happened to be a “virtual

certainty.” Millison v. E.I. du Pont de Nemours & Co., 501 A.2d 505, 514 (N.J. 1985). To this end,

OSHA violations, the manipulation or removal of safety devices, deceptive or underhanded

conduct, prior accidents or “close calls” can all be considered evidence in the substantial certainty

analysis, however, the absence of such does not preclude a finding of an intentional wrong. See

Cong Su v. David’s Cookies, Nos. 8186-05, 6976-07, 2009 WL 2426336 at *3 (Aug. 10, 2009)

(noting that such facts and circumstances generally will be relevant to the second prong as well).

The conduct prong of the analysis is an issue of fact, however, if a rational factfinder could not

conclude that it was virtually certain that a worker would be injured in the way that it occurred,

the issue can be decided as a matter of law. The second prong is a question of law for the court.

Cong Su, 2009 WL 2426336 at *3 (citing Laidlow, 790 A.2d at 898).

ii. Conduct

To establish wrongful conduct, evidence related to the disabling of safety devices, prior

accidents or close calls, OSHA violations and misrepresentations are the major areas post-Laidlow

cases have focused on. See Robinson v. Rheon Automatic Mach., No. 10-1916, 2011 WL 832241

at *3 (D.N.J. Mar. 3, 2011). Concealment or intentional deceit is also considered when assessing

whether an employer was merely negligent or reckless versus willful conduct. Fermaintt v.

McWane, Inc., 694 F. Supp. 2d 339, 345 (D.N.J. 2010). The Court will review each factor in turn.

1. Prior Accidents, Close Calls

Plaintiff has not pointed to any facts that show that there were any prior accidents or close

calls that were similar in nature to his accident. Instead, Plaintiff argues that the nature of the

hazard should suffice to give Defendant SDI notice of the substantial certainty of injury from the

TF2-3 machine. However, generalized awareness that there are dangerous hazards involved in the

work and environment of employees is not sufficient to demonstrate substantial certainty. Id. at

347-48. If an employer is conscious of an appreciable risk, or even recklessly or wantonly facing

greater risk, it is not the same as willful misconduct—anything short of substantial certainty is not

sufficient to establish intent. Id. at 344.

Therefore, while the absence of prior accidents does not preclude a finding of an intentional

wrong, (see Cong Su, 2009 WL 2426336 at *3), the lack of such evidence weighs in favor of

finding that Defendant SDI did not have substantial certainty that an injury would occur.

2. Intentional Disabling of Safety Devices

Plaintiff points to the fact that the sliding door that was supposed to be locked in the closed

position was left unlocked, allowing for anyone to access the hazard, as an intentional disabling of

protective equipment. MHS–SMF ¶24. Plaintiff further alleges he was never given the “key” or

lock hasp in order to do the LOTO procedure. Pl.’s Opp. to SDI Br. at 10.

The impairment or removal of a safety device does not per se equate the employer’s

conduct is an intentional wrong within the meaning of the WCA. Madkiff v. Frazier-Simplex, Inc.,

No. A-1328-15T1, 2017 WL 712778 at *5 (Super. Ct. App. Div. Feb. 23, 2017). “Mere knowledge

by an employer that a workplace is dangerous does not equate to an intentional wrong” and “it is

not enough that ‘a known risk later blossoms into reality.’ Rather, the standard ‘demand[s] a virtual

certainty.’” Id. (quoting Van Dunk v. Reckson Associates Realty Corp., 45 A.3d 965, 978 (N.J.

2012)). The impairment or removal of a safety device is but one factor to determine whether an

“intentional wrong” occurred. Id.

When analyzing the risk of a machine that has been “modified” or disabled, the context is

significant. For example, as discussed in Fermaintt at length, in Mabee v. Borden, 720 A.2d 342

(N.J. Super. App. Div. Jun. 2, 1998) and Laidlow, safety devices were modified to the point where

employees were working without the safety device 95-100% of the time. See Fermaintt, 694 F.

Supp. 2d at 348. In Mabee, the metal shield that was installed to protect employees was modified

with a “bypass switch” that allowed the employer to keep the machine running when the metal

shield was lifted, which was only supposed to be lifted during maintenance of the machine,

exposing employees to this increased hazard 95-98% of the time. Id. In Laidlow, the employer

installed wiring to entirely disable the guard. Id.

Here, the fact that the guard was unlocked did not leave the employees completely exposed

to the hazard without the protection of any other safety device. See Fermaintt, 694 F. Supp. 2d at

348. The motor cage was over 20 feet in the air, still blocked by the sliding door that had warnings

with images of the exact accident scenario and injury that Plaintiff suffered depicted on the

placards. MHS–SMF ¶11; SDI–SMF ¶9.

Further, Plaintiff has not presented any evidence that Defendant SDI intentionally disabled

the sliding door to the motor cage. Even if employees of Defendant SDI did disable the lock, and

though doing so posed an obvious risk, New Jersey law does not impose a duty on an employer to

prevent an employee from engaging in self-damaging conduct “absent a showing that the employer

encouraged such conduct or concealed its danger.” Tomeo v. Thomas Whitesell Constr. Co., 823

A.2d 769, 777 (N.J. 2003). Plaintiff has not provided any evidence aside from his own testimony

that any SDI managerial employee failed to address LOTO procedures during his orientation. Pl.’s

Opp. to SDI Br. at 10; Michael Glass Dep. Transcript, Exhibit P6, 42:15-45. Such self-serving

testimony may be sufficient to survive a motion to dismiss but falls woefully short of the facts

necessary for the case to proceed beyond the summary judgment phase.

Even taking Plaintiff’s allegations as true, the evidence does not overcome the applicability

of the WCA, which requires more than an employer “tolerating in the workplace conditions that

will result in a certain number of injuries[,]” but rather requires intentional deceit or intentional

actions that amount to something greater than even wonton, reckless, or gross negligence. See id.

at 345; Madkiff, 2017 WL 712778 at *3. Therefore, the circumstances described here weigh

heavily in favor of Defendant SDI on this prong.

3. OSHA Citations and Misrepresentations

Plaintiff points to several “serious violations” citations from OSHA following Plaintiff’s

accident, including failure to develop a LOTO procedure and failure to adequately train their

employees in the same. Pl.’s Opp. to SDI Br. at 5. Plaintiff asserts that the “serious” classification

on those citations “translates into conditions that create a substantial probability of death or serious

physical harm.” Id. However, Plaintiff does not provide any evidence to show any prior OSHA

violations.

Post-accident OSHA violations are not relevant, as they provide no insight to an

employer’s notice of a dangerous condition. See Fermaintt v. McWane, Inc., 694 F. Supp. 2d 339,

349 (D.N.J. 2010) (“The case law, however, is clear that the focus of the inquiry is the employer’s

pre-accident notice of the dangerous condition by OSHA and intentional deception of OSHA in

order to be able to continue with the dangerous condition.”). The absence of prior OSHA violations

does not necessarily preclude a finding that the employer engaged in an intentional wrong,

however, prior OSHA violations and intentional deception of OSHA are useful for the Court in its

analysis because it would demonstrate that the employer had notice of the dangerous condition,

and the intentional act of deceiving OSHA further demonstrates the point.

Plaintiff suggests that Defendants SDI and UPS passed around a simplistic LOTO training

notice as a way to deceive OSHA into believing Defendants were complaint with OSHA

regulations related to LOTO and the dangerous machinery that Plaintiff encountered on the job.

Pl.’s Opp. to SDI Br. at 10. This suggestion, without more, is not sufficient to carry Plaintiff’s

burden through summary judgment.

First, the concept of misrepresentation to OSHA in the caselaw is generally focused on an

employer’s attempt to overcome known, cited OSHA violations without addressing the hazardous

condition, not to preemptively obscure a dangerous situation from OSHA. See Fermaintt, 694 F.

Supp. 2d at 349. Second, the LOTO training notice was required pursuant to 29 C.F.R.

1910.147(f)(2), which requires a contracting facility (Defendant UPS) to inform its independent

contractors (Defendant SDI) of its LOTO requirements. See 29 C.F.R. 1910.147(f)(2)(i). This

regulation does not require additional affirmative duties on Defendant UPS to give additional

training beyond what Defendant SDI would have been responsible for as an employer.15 Further,

the existence of this form cannot be used by Plaintiff to prove that Defendant SDI was attempting

to hide an unsafe pre-OSHA violation (because Defendant SDI is the responsible employer

pursuant to 29 C.F.R. 1910.147(f)(2) for LOTO training) because it is Defendant UPS’s form.

SDI–SMF ¶13, citing Ex. E.

To say that Defendant UPS’s notification of LOTO requirements was simply a fig leaf used

to hide noncompliant practices is just another way of arguing that Defendants failed to sufficiently

train Plaintiff and others in the necessary LOTO procedures. As discussed above16 Defendant UPS

15 See supra Section B. ii. Non-Delegable Duty of Contracting Facilities.

16 See n.13.

is not responsible as the contracting facility for training contractors in LOTO procedure, but rather

Defendant SDI’s.

4. Failure to Train

Here, there are questions of fact as to whether Plaintiff was provided the training or the

equipment to perform the LOTO procedure required to accomplish his maintenance work safely.

However, they are not material.

Plaintiff asserts that the failure to train Plaintiff is the kind of “instance[] where the

employer [knew] that the consequences of those acts [we]re substantially certain to result in such

harm” that would bring it under the ambit of an intentional wrong. Pl.’s Opp. to SDI Br. at 4. But,

to put it simply, failure to train is the kind of negligence that the WCA was enacted to cover:

“[a]llowing an employer to be dragged into litigation on the basis of vague allegations of a failure

to train would undermine the WCA and negate the benefit of the bargain for the employer.”

Robinson, 2011 WL 832241 at *4. The WCA is to apply “regardless of the kind of injury alleged,

including employment related injuries.” Ruggiero, 2022 WL 17082498, *8 (citing Cong Su, 2009

WL 2426336 at *3) (holding that an employee’s claims of “failure to train, failure to supervise,

[and] failure to warn” “clearly” fall within the province of the WCA). “[F]ailure to train without

more does not evidence the employer’s substantial certainty that injury or death would result, [and]

is precisely the kind of negligent conduct the legislature intended for the WCA to cover.”

Robinson, 2011 WL 832241 at *4. Ultimately, whether or not Defendant SDI failed to train or

properly instruct Plaintiff on the appropriate LOTO procedures or provide the equipment necessary

for the same, is not a sufficient basis to find intentional, wrongful conduct committed by the

Defendant SDI to enable Plaintiff to circumvent the WCA.

Therefore, the lack of evidence of relevant prior accidents and close calls, the lack of

evidence of prior OSHA violations and misrepresentations, and the lack of evidence that

Defendant SDI intentionally disabled the machine in question, demonstrates that there are no

sufficient, material facts that prove Defendant SDI engaged in intentional wrongful conduct. No

rational factfinder could find that Defendant SDI acted with knowledge that it was substantially

certain that an injury such as Plaintiff’s would have occurred.

iii. Context

In relation to the context of the accident, a court must determine whether “the resulting

injury or disease, and the circumstances in which it is inflicted on the worker fairly may be viewed

as a fact of life of industrial employment, or is it rather plainly beyond anything the legislature

could have contemplated as entitling the employee to recover only under the Compensation Act.”

Fermaintt, 694 F. Supp. 2d at 345 (quoting Millison, 501 A.2d at 514).

Here, the accident that occurred, while terrible, is the kind of accident that is part and parcel

of industrial life: so much so that warning placards reflecting the exact kind of accident that could

occur if caution was not taken were placed on the machine itself. MHS–SMF ¶11. As discussed

above, Plaintiff simply does not support the claim that he was unaware of the particular danger

that this machine posed to him.17

There is “a difference between tolerating workplace conditions that will result in a certain

number of injuries or illness, and on the other, actively misleading employees” and engaging in

intentional wrongful conduct. Millison, 501 A.2d at 516. Plaintiff has failed to show that Defendant

17 See supra Section B. ii. Non-Delegable Duty of Contracting Facilities.

SDI’s conduct reaches the level of “intentional wrong” to overcome the bar of the WCA.

Therefore, Defendant SDI’s Motion for Summary Judgment must be granted as a matter of law.18

D. Material Handling Systems, Inc.

Plaintiff argues that Defendant MHS is liable for his injuries because they are the entity

responsible for pertinent aspects of the design of the conveyor system, namely, the locks that were

placed on the sliding guard door that were not connected to the power source of the machine and

which was left unlocked on the night of the accident. The Court finds that Plaintiff has pointed to

sufficient contested material facts which must be resolved by a jury.

i. New Jersey Product Liability Act (“PLA”)

The New Jersey Product Liability Act (“PLA”), N.J.S.A. §2A:58C et seq. is the singular

path to prosecute a product liability action against a manufacturer or seller for any harm caused by

a product “irrespective of the theory underlying the claim,” except under breach of express

warranty. See Kemly v. Werner Co., 151 F. Supp. 3d 496, 504 (D.N.J. 2015). Defendant MHS

asserts that it does not fall into the PLA’s statutory provisions because it “did not place the product

at issue into the stream of commerce”. MHS Def.’s Brief at 31. Put another way, Defendant MHS

denies that it is a manufacturer or “product seller” because the PLA imposes strict liability for

manufacturers or product sellers that place a product within the stream of commerce. See Aly v.

18 The Court notes that Plaintiff submitted with his Opposition an appendix containing a “Master Statement of

Material Facts.” (ECF No. 128-2). Defendant SDI failed to file a responsive statement to these facts in its Reply.

This Court’s Local Rules permits a Plaintiff to submit a counterstatement of disputed material facts, which if

provided requires a Defendant’s reply. See L. Civ. R. 56(a) (“In addition, the opponent may also furnish a

supplemental statement of disputed material facts, in separately numbered paragraphs citing to the affidavits and

other documents submitted in connection with the motion, if necessary to substantiate the factual basis for

opposition. The movant shall respond to any such supplemental statement of disputed material facts as above, with

its reply papers.”). The Court has reviewed the “Master Statement of Material Facts” which included both

uncontested and plausibly contested facts, given the argumentative tenor of the submission. The Court need not split

hairs about the appropriateness or compliance of this document with L. Civ. R. 56(a) in this instance because

Defendant SDI’s motion will be granted as a matter of law, not fact, and therefore any additional facts presented by

this document do not alter the Court’s resolution.

Federal Exp. Inc., No. 04-3886, 2008 WL 4378233 at *5 (D.N.J. Sept. 23, 2008). The PLA defines

a manufacturer as “any person who designs, formulates, produces, creates, makes, packages, labels

or constructs any product or component of product. N.J.S.A. 2A:58C-8. The act defines a “product

seller” as

any person who, in the course of a business conducted for that

purpose: sells; distributes; leases; installs; prepares or assembles a

manufacturer’s product according to the manufacturer’s plan,

intention, design, specifications or formulations; blends; packages;

labels; markets; repairs; maintains or otherwise is involved in

placing a product in the line of commerce. The term “product seller”

does not include:

1. A seller of real property; or

2. A provider of professional services in any case in which the sale

or use of a product is incidental to the transaction and the essence of

the transaction is the furnishing of judgment, skill or services; or

3. Any person who acts in only a financial capacity with respect to

the sale of a product.

N.J.S.A. 2A:58C-8. A product seller’s liability stems from whether:

(1) The product seller has exercised some significant control over the design,

manufacture, packaging or labeling of the product relative to the alleged defect in the

product which caused the injury, death or damage; or

(2) The product seller knew or should have known of the defect in the product which

caused the injury, death or damage or the plaintiff can affirmatively demonstrate that

the product seller was in possession of facts from which a reasonable person would

conclude that the product seller had or should have had knowledge of the alleged

defect in the product which caused the injury, death or damage[.]

N.J.S.A. 2A:58C-9(d).

Here, Defendant MHS argues that they were only in the role of a facilitator of the sale,

rather than an active participant in the transaction. MHS Def.’s Br. at 34. However, the pertinent

question is whether Defendant MHS had sufficient control of the product to bring them within the

realm of PLA liability, or whether Defendant MHS knew or should have known of the defect in

the product. See N.J. Mfrs. Ins. Grp. v. Amazon.com, Inc., No. 16-9014, 2022 WL 2357430 at *6

(D.N.J. Jun. 29, 2022) (holding that a product seller can be held liable under the PLA under either

provision 9(d)(1) and 9(d)(2) and that a requisite level of “control” was not necessary to establish

if the entity was found to be liable under 9(d)(2)).

Here, the Court finds that Defendant MHS fits the definition of a “product seller” under

the PLA. It is clear from the contract language that Defendant MHS was contracted to prepare,

transport, and install the TF2-3 system in the Swedesboro facility. MHS–SMF ¶2. While

Defendant MHS argues that it was not an engineer or the manufacturer of the TF2-3 system, it is

clear from the language of the PLA that liability can be applied to any business that “distributes,”

“installs,” or “repairs” a manufactured product “or otherwise is involved in placing a product in

the line of commerce.” N.J.S.A. 2A:58C-8. The product seller definition reflects and

acknowledges that to place a product in the stream of commerce now has many tributaries in an

advanced economy. Defendant MHS’s contract with Defendant UPS for the transport, installation,

and adaptation of the TF2-3 system was not a “professional services” contract where the sale or

use of the product is incidental to the transaction—the purpose of the transaction was to transport,

install, and adapt the TF2-3 system to the Swedesboro facility and have the conveyor operational.

MHS–SMF ¶¶14-15. Nor was Defendant MHS only involved in the transaction in a financial

capacity: Defendant MHS installed guard locks at issue in this case and warning placards on the

sliding door guards, as well as disconnect switches. MHS–SMF ¶¶8, 11, 13.19

19 Defendant MHS argues that it is absolved of responsibility because it installed cam locks to Defendant UPS’s

specifications. MHS Def.’s Br. at 34. The Court notes that Defendant MHS concedes that the “contract specification

defense doctrine” has not been adopted as an “absolute bar.” Id. The doctrine holds that “a contractor may be

absolved from liability to third parties when the contractor’s work product is built according to the customer’s plans

unless those plans are so dangerous that a competent contractor would not follow them.” Id. The Court declines to

adopt this reasoning for several reasons, the most important being that the PLA explicitly carves out N.J.S.A.

2A:58C-9(d)(2) to hold product sellers liable when the product seller knew or should have known of the defect in

the product would caused the injury, death or damage based on the facts. To apply the “contract specification

defense doctrine” to these facts would impermissibly heighten the required knowledge of the risk beyond the

statute’s explicit reasonable person standard and could potentially permit savvy but ethically unscrupulous

companies contract around situations that the Legislature intended to hold companies strictly liable for.

Here, Defendant MHS focuses on the fact that it did not have title or own the conveyor

system, but participated in the sale as a “facilitator,” presenting that it did not have the “control”

that would permit product seller liability to attach. MHS Def.’s Br. at 33. However, the statute

provides liability in the case where the product seller knew or should have known of the defect in

the product which caused the injury or there are facts that affirmatively demonstrate that the

product seller possessed facts from which a reasonable person would conclude that the product

seller had or should have had the knowledge of the alleged defect. N.J.S.A. 2A:58C-8. Therefore,

the “lack” of control through holding title or taking possession of the product does not necessarily

shield Defendant MHS from liability, especially when considering the Legislature did not add a

“control” qualification to the “product seller” definition. See N.J. Mfrs. Ins. Grp., 2022 WL

2357430 at *7.

Plaintiff argues that Defendant MHS knew or should have known that the cam locks it

installed were inadequate for the hazard because Defendant MHS is a sophisticated, specialized

company in the industry that should have known these specifications would not be sufficient. Pl.’s

Opp. to MHS Br. at 12-13, 26. The fact that Defendant MHS attempted to contract around

responsibility for the guard door that was attached to the motor cage is irrelevant here, (MHS–

SMF ¶¶3-5, 8, 11), because the question is whether Defendant MHS should have known better

than to install the “step cam locks” that were ostensibly requested by Defendant UPS.

Here, Defendant MHS may be attempting to minimize its role in the re-construction of the

conveyor system for Defendant UPS. In any event, given Defendant MHS’s extensive knowledge

and expertise in the industry, a jury could plausibly conclude that Defendant MHS knew or should

have known that the design of the guard was defective, and therefore granting summary judgment

on this issue would circumvent a question of fact best left to the jury.

ii. Defective Design of Inadequate Guard

Plaintiff argues that the locking mechanism that Defendant MHS installed in the sliding

door guard was defective because the conveyor could continue to run while the sliding door guard

was in the open position, and in that position, it was a substantial factor in causing his injuries.

The PLA is limited to the manufacturer or seller of a product where the product failed to

be “reasonably fit, suitable or safe for its intended purpose” because of a (1) manufacturing defect,

(2) inadequate warnings or instructions, or (3) a defective design. Kemly, 151 F. Supp. 3d at 505.

Plaintiff here alleges that the guard’s locking system suffered from a design defect, which requires

Plaintiff to demonstrate that (1) a design defect existed at the time of Defendant MHS’ manufacture

and distribution, and (2) the defect proximately caused his injuries. Id.

A “risk-utility analysis” is required to determine whether a product was defectively

designed, which endeavors to balance the “danger” posed by the product against the utility attained

by the product. Id. This analysis branches into two parts.

“First, the fact finder must determine whether the plaintiff used the product in an

objectively foreseeable manner.” Id. (quoting Indian Brand Farms, Inc. v. Novartis Crop Prot.,

Inc., 617 F.3d 207, 225 (3d Cir. 2010)). If it is determined that the use was objectively foreseeable,

the fact finder must determine whether the reasonably foreseeable risk of harm posed by that use

could have been reduced or avoided by a reasonable alternative design. Id. An injured plaintiff

need not prove a specific design defect; the burden is to demonstrate that “something [is arguably]

wrong with the product.” Id. (quoting Myrlak v. Port Auth., 723 A.2d 45, 52 (N.J. 1999).

Second, if a prima facie case for design defect is made, a fact finder must then decide

whether a plaintiff has offered sufficient evidence to permit a jury to determine that the design

defect proximately caused his or her injuries. Id. at 506. In circumstances where the defect was

due to the manufacturer’s failure to protect against a foreseeable misuse, the determination of the

defect necessarily predetermines the issue of proximate cause, but where the defect occurred for

reasons other than a particular misuse, a jury must separately determine proximate cause. Id. at

506-07. For proximate cause, a court need not decide which of the two circumstances the action

in this case falls under, rather it only needs to determine that the defect alleged acted as a

substantially contributing or concurring cause of the injury. Id.20

The issue of proximate cause is typically reserved for the jury unless the facts leading to a

plaintiff’s injury are so highly extraordinary that the Court decide as a matter of law Port Auth. V.

Arcadian Corp., 991 F. Supp. 390, 406 (D.N.J. 1997) (holding that the terrorists’ use of

defendants’ fertilizer products in the bomb that was detonated in the World Trade Center was the

kind of “extraordinary” scenario that would permit the court to find, as a matter of law, that the

explosion was not proximately caused by the defendants who manufactured and sold the fertilizer

products.).

1. Foreseeability of Misuse

Defendant MHS argues that it was not reasonably foreseeable that Plaintiff would forego

various protective measures, including OSHA regulations, and put his arm into the TF2-3

conveyor. MHS Def.’s Br. at 18.

“Objective foreseeability means reasonable foreseeability. . . at the time of design and

fabrication.” Oquendo v. Bettcher Indus., 939 F. Supp. 357, 362-63 (D.N.J. 1996). The standard

does not impute responsibility for theoretical, remote, or “just possibly” foreseeable, rather it

applies to “those future occurrences that, in light of the general experience within the industry

20 The defect need not be the sole cause of harm for proximate cause to be found. The defect only needs to be a

substantial contributing factor to the harm suffered. Id. (quoting Perez v. Wyeth Lab., 734 A.2d 1245, 1261 (N.J.

1999)).

when the product was manufactured, objectively and reasonably could have been anticipated.” Id.

at 362 (internal citations and quotations omitted). However, misuses that a reasonable seller would

believe likely to occur in the normal course of events are “objectively foreseeable” and must be

considered. Indian Brand Farms, Inc., 617 F.3d at 227 (3d Cir. 2010). Ease of safety-feature

bypass may connote objective foreseeability, however in an industrial setting with complex

equipment, expert testimony is necessary to establish whether there is a correlation between safety-

defeating ease with objective foreseeability. Oquendo v. Bettcher Indus., 939 F. Supp. at 363.

Further, “[e]vidence tending to show common knowledge in a marketplace regarding a likely

misuse is not irrelevant to whether that misuse is objectively or reasonably foreseeable.” Indian

Brand Farms, Inc., 617 F.3d at 227 n.17.

Here, the Court cannot say that as a matter of law Plaintiff’s neglect to follow LOTO

procedures whilst clearing out packages from the motor cage was not an objectively, reasonably

foreseeable event given the nature of the work and the environment (a maintenance technician in

a 24-hour mail sorting facility). Plaintiff’s conduct, while unwise, is not extreme or extraordinary

conduct in an industrial setting. For example, in Cong Su v. David’s Cookies, 2009 WL 2426336

at *1-2, an untrained worker placed her hand into a biscotti cutting machine, under an intact guard,

while it was operating, in an attempt to clear a blockage and was injured. Id. The Court is mindful

that at some point, commonsense must enter the equation and “If [a] machine is operable without

the engagement of the safety function, common sense dictates that a foreseeable user will forego

utilizing the safety [mechanism].” Benitez v. JMC Recycling Sys., No. 13-2737, 2017 WL 2815056

at *7 (D.N.J. Jun. 28, 2017). Further, Plaintiff’s expert addresses several issues with Defendant

MHS’s assessment and response to the hazard in this case that could assist the factfinder with any

of the more intricate aspects of industrial machinery. Pl.’s Opp. to MHS Br., PRSMF ¶11 (citing

Green Expert Report, Ex. P 1).

2. Alternative Design

MHS alleges design defect is not causally linked to the injury, stating the alleged defective

design was that the sliding guard could be left open and unlocked. Plaintiff’s claim is more

nuanced: the design defect is the fact that the lock is not connected to the power, therefore

permitting the machine to re-energize while the sliding guard is in the open position, regardless of

whether it is locked or unlocked. Plaintiff asserts that the use of an interlock, instead of the cam

locks Defendant MHS installed, would have served the purpose of automatically de-energizing the

machine while the gate was in an open position and would have prevented his injury regardless of

Plaintiff’s use or lack thereof a LOTO procedure. Pl.’s Opp. to MHS Br. at 4. Under an alternative

design theory, a plaintiff “must [allege] the availability of a technologically feasible and practical

alternative design that would have reduced or prevented the plaintiff’s harm without substantially

impairing the reasonably anticipated or intended function of the product.” Stich v. Smith &

Nephew, Inc., No. 20-13811, 2021 WL 1997411 at *4 (D.N.J. May 19, 2021) (quoting Hindermyer

v. B. Braun Medical Inc., 419 F. Supp. 3d 809, 823-24 (D.N.J. 2019)).

Here, Plaintiff’s expert points to a machine within the facility called a “VariSort” conveyor

which utilizes the type of interlocking mechanism Plaintiff asserts, if present, would have

prevented the injury he sustained. Pl.’s Opp. to MHS Br. at 14-17. Plaintiff’s expert also notes that

the alternative product is “readily available and economically feasible in the marketplace” and has

“been designed and field tested by numerous companies for similar applications.” Id. at 16.

“Except in the rare case when the risk-utility analysis points to the appropriate result as a

matter of law, the jury, not the court, ultimately resolves factual issues arising from a risk-utility

analysis.” Stich, 2021 WL 1997411 at *4 (quoting Lewis v. American Cyanamid Co., 715 A.2d

967, 979 (N.J. 1998)). The case at bar is not one of the rare ones. The Court finds that there are

sufficient contested facts about whether the “VariSort” machine is comparable to the TF2-3 to

demonstrate the feasibility and reasonableness of the alternative energy disconnecting locking

system that Plaintiff asserts would have prevented his injuries. Therefore, the consideration of

Plaintiff’s proposed alternative design is within the realm of the jury.

3. Proximate Cause

If the jury finds that a product is defective, it must then decide whether the misuse

proximately caused the injury. Jurado v. W. Gear Works, 619 A.2d 1312, 1318 (N.J. 1993). “Even

if a defect is a contributing or concurring cause, but not the sole cause, of an accident, the

manufacturer will be liable.” Id. at 1319. However, there are some instances where the issue of

proximate cause is predetermined by the finding that the product is defective solely because of the

manufacturer’s failure to protect against a foreseeable misuse: “[i]f a court determines that a design

defect exists [solely] because the manufacturer has failed to include [] safety devices, there is no

proximate cause question of any moment left to consider.” Id. (internal citation omitted).

This is the exact nature of the case at bar. Though Defendant MHS argues that Plaintiff

would have had access to the hazard regardless of the locking system because he was “authorized

personnel” and would have had a key to gain access even if the guard was fully locked, (MHS

Def.’s Br. at 19), this is not the true crux of the argument. Defendant MHS’s decision to not include

a lock with the ability for the lock to de-energize the machine while unlocked, is what Plaintiff

points to as the defect. Pl.’s Opp. to MHS Br. at 13. Plaintiff points to a specific lock that has this

type of safety functionality already functioning on a type of mail sorter in the same facility. Id. at

13-14.

Therefore, the Court believes the facts and circumstances presented here are of the kind

that require resolution by the jury.

Here, giving Plaintiff the benefit of every doubt and available inference, summary

judgment is denied because reasonable jurors could disagree as to whether the reasonably

foreseeable risk of harm posed by the reasonably foreseeable misuse of the TF2-3 guard could

have been reduced or avoided by a reasonably alternative design and whether the defective design

is a proximate cause of the accident.

E. Motion to Exclude Expert Opinion Testimony of John G. Green

Finally, Defendant MHS seeks to exclude Plaintiff’s expert testimony because it is

“unreliable” and “irrelevant” under the Federal Rules of Evidence Rule 702 and is “legally

insufficient.” MHS Def.’s Exclusion Br. at 1. In his opposition Plaintiff describes Mr. Green’s 35

years of experience as an engineer and his methodology, and sufficiently tethers Mr. Green’s

opinions to the design of the conveyor as described more fully in Section D. ii. 1 and 2 above. Pl.’s

Exclusion Opp. Br. at 7-8, 12-18. Consequently, the Court denies Defendant MHS’ Motion to

Exclude Plaintiff’s expert’s testimony finding that Plaintiff’s expert testimony is sufficient to

survive a motion to exclude because: the opinion provides analysis of copious materials both from

this case and from recognized authorities, and touches upon the necessary analytical points of

relevance for this matter.

Moreover, Plaintiff’s expert addresses the facts relevant to the instant case applicable to

the issue of a product design that is not patently defective and involves complex instrumentality.

In particular, it appears to the Court that in such cases an expert’s testimony is necessary to assist

the factfinder in understanding the issues at play, and here, Plaintiff has been assisted by the expert

whose analysis establishes these important facts. See Estate of Popolizio v. Ford Motor Co., No.

09-1532, 2013 WL 2459878 at *2 (D.N.J. Jun. 5, 2013). Accordingly, Defendant MHS’ critiques

of his opinion can be addressed at trial through cross examination.

V. CONCLUSION

For the reasons set forth above, Defendants Lyneer, UPS, and SDI’s Motions for Summary

Judgment are GRANTED and Defendant MHS’s Motion for Summary Judgment and Motion to

Exclude Plaintiff's Expert Opinion Testimony are DENIED. An order consistent with this Opinion

will be entered.

June 30, 2023 Karen Wh. ULLkbeame

KAREN M. WILLIAMS, U.S.D.J.

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