KIMBERLY RADZEWICK v. MHM WINDSOR, LLC (L-1254-17, MERCER COUNTY AND STATEWIDE) ( 2022 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2842-20
KIMBERLY RADZEWICK,
Plaintiff-Respondent,
v.
MHM WINDSOR, LLC, and
JAMIE BENITEZ, d/b/a JIMMY'S
PAINTING,
Defendants-Respondents,
and
WIZARDS CAR DETAILING,
LLC, FIVE STAR DETAILING,
LLC, ERIC RIVERO, individually
and d/b/a WIZARDS CAR
DETAILING, LLC, and/or FIVE
STAR DETAILING, LLC,
Defendants.
______________________________
JAMIE BENITEZ, d/b/a JIMMY'S
PAINTING, improperly named as
JIMMY' PAINTING,
Defendant/Third-Party
Plaintiff,
v.
SHERWIN-WILLIAMS COMPANY,
SHERWIN-WILLIAMS STORES,
SHERWIN-WILLIAMS PAINTS,
PAINTS STORES GROUP, and
SHERWIN WILLIAMS PAINT
STORE,
Third-Party Defendants-
Appellants.
______________________________
Argued December 2, 2021 – Decided August 1, 2022
Before Judges Haas, Mitterhoff, and Alvarez.
On appeal from an interlocutory order of the Superior
Court of New Jersey, Law Division, Mercer County,
Docket No. L-1254-17.
Ryan T. Winkler (Tucker Ellis, LLP) of the Ohio bar,
admitted pro hac vice argued the cause for the
appellants (Campbell Conroy & O'Neil, PC, attorneys;
Ryan T. Winkler and Meaghann C. Porth, on the brief).
Andrew S. Blumer argued the cause for respondent
Kimberly Radzewick.
PER CURIAM
In this slip and fall case, defendant Sherwin-Williams appeals the Law
Division's April 15, 2021 order denying its motion to dismiss plaintiff's third
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amended complaint. We affirm, although for slightly different reasons than the
motion judge.
We discern the following facts from the record. Plaintiff worked at the
MHM Windsor Nissan car dealership in East Windsor, New Jersey. On June 2,
2015, she slipped and fell while walking through an area of the service
department. At the time she fell, an independent contractor, defendant Jaime
Benitez, doing business as Jimmy's Painting, was painting the floor using a
product made by defendant Sherwin-Williams. The product allegedly created
wet and slippery conditions that caused plaintiff to fall and sustain severe and
permanent injuries.
On June 1, 2017, plaintiff filed suit against Windsor Nissan, Wizards Car
Detailing (a vehicle detailing company that operated in or around the service
department), and Jimmy's Painting, claiming that defendants violated the duty
of care owed to her "to conduct reasonable inspections of the premises and
reasonable inspection of usage of products at the premises, and to make sure no
hazardous conditions existed on the premises." She also filed claims against
fictitious parties involved in the manufacturing of the product used on the floor
because she did not know the identity of the manufacturer.
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Pre-suit, plaintiff attempted to identify other potentially liable parties.
She requested information from the named defendants, who ignored plaintiff's
requests. After filing suit, plaintiff again attempted to learn the identity of other
responsible parties. Benitez, who purchased the product he used to paint the
floor, in October 2018, answered Form C Interrogatory 7, which required
disclosure of any contention that plaintiff's "damages were caused or contributed
to by the negligence of any other person." His sworn answer was "None."
Benitez never amended his response.
Plaintiff first learned of Sherwin-Williams' identity on July 12, 2019,
when Benitez appeared at his deposition with previously undisclosed documents
identifying Sherwin-Williams as the manufacturer of the paint used on the floor.
Benitez explained that, after accepting the job at Windsor Nissan, he consulted
with the manufacturer to determine which paint to use. The specific product,
Sherwin-Williams ArmorSeal 1000 HS Epoxy Part A and ArmorSeal HS Epoxy
Part B, was recommended for the job by a Sherwin-Williams employee who
visited Windsor Nissan to inspect the area.
On May 28, 2020, plaintiff's liability expert Scott Moore issued a report
explaining that the Sherwin-Williams ArmorSeal made the floor unduly slippery
because it was designed for use with an anti-slip additive that Benitez failed to
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use. Benitez claimed he was unaware of the anti-slip additive, or that anything
else needed to be added to the paint. The floor failed all wet and dry slip tests
conducted by Moore during his September 17, 2019 site inspection. Defense
counsel received Moore's report on June 9, 2020.
On June 15, 2020, Benitez moved for leave to assert a third-party
complaint against Sherwin-Williams for claims of contribution and
indemnification. Sherwin-Williams opposed the motion, alleging that Benitez
engaged in "unexplainable and inexcusable delay" in joining Sherwin-Williams.
The statute of limitations does not bar claims for contribution and
indemnification, and on July 10, 2020, the judge granted the motion.
On August 17, 2020, plaintiff filed her second amended complaint.
Plaintiff named Sherwin-Williams as a defendant and identified it as the
"manufacturer, distributor, and/or seller . . . of its products, including a product
believed to be a version of ArmorSeal." Prior to the response date for the second
amended complaint, plaintiff filed her third amended complaint. 1
1
At the hearing on Sherwin-Williams' motion to dismiss, the parties disputed
whether Sherwin-Williams received the second amended complaint. Sherwin-
Williams did not file any responsive pleading until the motion to dismiss plaintiff's
third amended complaint. The motion judge rejected plaintiff's argument that
Sherwin-Williams lacked standing by not answering the second amended complaint.
The issue of standing is not before us.
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On November 12, 2020, plaintiff served her third amended complaint in
which she asserted negligent product recommendation, failure to warn, and
defective product claims against Sherwin-Williams. Plaintiff served the third
amended complaint more than five years after her injury and three years after
her first complaint.
On December 14, 2020, Sherwin-Williams moved to dismiss plaintiff's
third amended complaint, arguing that plaintiff's negligence and product
liability claims were barred by the statute of limitations under N.J.S.A. 2A:14-
2(a). (67-68). Plaintiff contends that her defective product claim was timely
under the fictitious pleading rule,2 and her negligent product recommendation
and failure-to-warn claims were timely under the discovery rule. 3 The judge
denied Sherwin-Williams' motion to dismiss, concluding that plaintiff's claims
were tolled under the discovery and fictitious party rules and related back under
New Jersey third-party practice rules. On May 5, 2021, Sherwin-Williams
moved for leave to appeal from the court's April 15, 2021 interlocutory order.
On appeal, Sherwin-Williams presents the following arguments for our
consideration:
2
Rule 4:26-4.
3
Lopez v. Swyer, 62 N.J. 267 (1973).
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POINT I
APPELLATE REVIEW OF THE TRIAL COURT'S
APRIL 15, 2021 ORDER IS WARRANTED IN THE
INTEREST OF JUSTICE AND TO PREVENT
IRREPARABLE INJURY TO SHERWIN WILLIAMS.
1. The Trial Court Failed to Properly Apply the
Discovery Rule, Which Required Plaintiff to
Exercise Due Diligence and Imposed a "Duty to
Act."
2. The Law Division Improperly Applied the
Fictitious Pleading Rule, Which Does Not
Require the Identity of a Specific Defendant to
Trigger the Accrual Date.
3. The Law Division Ignored New Jersey
Supreme Court and Appellate Division Precedent
By Allowing Plaintiff's Direct Claims Against
Sherwin Williams to Relate Back to Its Original
Complaint After Her Claims Expired.
Sherwin-Williams filed its motion to dismiss under Rule 4:6-2(e),
asserting plaintiff's claims are barred by New Jersey's two-year statute of
limitations.4 "The question as to whether a statute of limitations applies in a
given case is ordinarily a legal matter and 'traditionally within the province of
the court.'" Baez v. Paulo, 453 N.J. Super. 422, 436 (App. Div. 2018) (quoting
Lopez, 62 N.J. at 274.). In conducting our review, we consider the motion
4
N.J.S.A. 2A:14-2(a).
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record and the legal issues de novo. Id. at 435–36 (citing Steinberg v. Sahara
Sam's Oasis, LLC, 226 N.J. 344, 349–50 (2016)).
At the outset, we agree with Sherwin-Williams that the judge misapplied
the discovery rule to toll plaintiff's claims. "The discovery rule is essentially a
rule of equity." Lopez, 62 N.J. at 273. "The Rule 'provides that in an appropriate
case a cause of action will be held not to accrue until the injured party discovers,
or by an exercise of reasonable diligence and intelligence should have
discovered that he [or she] may have a basis for an actionable claim.'"
Szczuvelek v. Harborside Healthcare Woods Edge, 182 N.J. 275, 281 (2005)
(quoting Lopez, 62 N.J. at 272). The critical inquiry is "whether the facts
presented would alert a reasonable person exercising ordinary diligence that he
or she was injured due to the fault of another. The standard is basically an
objective one — whether plaintiff 'knew or should have known' of sufficient
facts to start the statute of limitations running." Ibid. (quoting Martinez v.
Cooper Hosp.-Univ. Med. Ctr., 163 N.J. 45, 52 (2000)). Knowing "the specific
identity of a potential defendant is not a requirement for commencing an action."
Apgar v. Lederle Lab'ys, 123 N.J. 450, 456 (1991).
Applying these governing principles, we conclude that plaintiff's claims
against Sherwin-Williams accrued no later than June 1, 2017, the date on which
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she filed her initial complaint. Plaintiff's complaint alleged that she slipped and
fell due to a slippery condition caused by something on the floor that had been
applied by either or both Jimmy's Painting and Wizard's Car Detailing. Count
Two of her complaint asserted claims against fictitious defendants who
manufactured or designed the product on the floor or provided services in
connection with its use. Thus, it is clear on the face of the complaint that the
claims against Sherwin-Williams had accrued, as she understood that her
injuries may have been caused, in part, by the product Benitez applied to the
floor. To the extent the judge applied tolling to discrete theories of liability,
such as negligent advice and failure to warn, that application was both incorrect
and unnecessary. As the Court explained in Harr v. Allstate Ins. Co.,
Where [an] amendment constitutes the same matter
more fully or differently laid, or the gist of the action
or the basic subject of the controversy remains the
same, it should be readily allowed and the doctrine of
relation back applied. It should make no difference
whether the original pleading sounded in tort, contract
or equity, or whether the proposed amendment related
to the original or a different basis of action.
[54 N.J. 287, 299–300 (1969) (internal citations
omitted).]
Because plaintiff's newly pled failure to warn and negligent advice claims
were merely alternative causes of action under the products liability umbrella
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initially pled, it was error to set separate and later accrual dates for these claims
based on later-learned facts. We reject, however, Sherwin-Williams's argument
that the judge misapplied the fictitious pleading and relation back doctrine in
finding plaintiff's claims timely.
"The fictitious pleading rule is the correct way for a litigant to preserve a
cause of action when the litigant knows the nature of the claim but does not
know the tortfeasor's identity." Dunn v. Borough of Mountainside, 301 N.J.
Super. 262, 275 (App. Div. 1997). Our Supreme Court has construed Rule 4:26-
4 to allow "a plaintiff who institutes a timely action against a fictitious defendant
to amend the complaint after the expiration of the statute of limitations to
identify the true defendant." Viviano v. CBS, Inc., 101 N.J. 538, 548 (1986).
When this procedure is properly used, "an amended complaint identifying the
defendant by its true name relates back to the time of filing of the original
complaint." Baez, 453 N.J. Super. at 437 (quoting Viviano, 101 N.J. at 548).
Although the fictitious pleading rule allows a party to amend its complaint
after the expiration of the statute of limitations, "case law has emphasized the
need for plaintiffs and their counsel to act with due diligence in attempting to
identify and sue responsible parties within the statute of limitations period." Id.
at 438. Rule 4:26–4 may only be used by a plaintiff "if a defendant's true name
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cannot be ascertained by the exercise of due diligence prior to filing the
complaint." Claypotch v. Heller, Inc., 360 N.J. Super. 472, 479–80 (App. Div.
2003). In addition, a plaintiff must act with due diligence in taking prompt
steps to substitute a defendant's true name, after becoming aware of that
defendant's identity. Ibid.We conclude the judge correctly determined that plaintiff correctly
utilized the fictitious pleading practice thereby preserving her claims against
Sherwin-Williams. Contrary to Sherwin-Williams's argument, she exercised
due diligence to ascertain John Doe manufacturer's true identity both before and
after instituting suit. Pre-suit, plaintiff had unsuccessfully made attempts to
ascertain the identities of other potentially liable parties from the named
defendants.5 After filing suit, plaintiff promptly propounded uniform
interrogatories on Benitez demanding the disclosure of any parties Benitez
would blame for the occurrence of the accident. Benitez's sworn answer was
"none." Despite his continuing obligation to update his responses, Benitez never
amended his initial denial of knowledge of any other party with potential
liability.
5
It bears noting that if Benitez disclosed the use of Sherwin-Williams paint at
that juncture, plaintiff likely would have filed the subject claim prior to the
statute's expiration.
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Plaintiff first learned Sherwin-Williams's true identity on July 12, 2019
when, during his deposition, Benitez unexpectedly produced previously
undisclosed documents identifying Sherwin-Williams as the manufacturer of the
paint used on the floor. More surprising, Benitez testified that a Sherwin-
Williams actually met with him at the jobsite and recommended which paint to
use. Prior to Benitez's deposition, as the judge found, plaintiff had no
opportunity to learn of Sherwin-Williams's identity because, despite diligent
inquiry, Benitez failed to disclose a fact that was uniquely in his possession.
We also agree with the judge that plaintiff took steps after the deposition
to join Sherwin-Williams, and that it was reasonable to consult an expert to
affirm there was a valid claim prior to joining Sherwin-Williams in the lawsuit.
Moore conducted a site inspection less than two months after the deposition and
issued his report on May 28, 2020, explaining that the Sherwin-Williams
ArmorSeal Benitez used to paint the floor caused it to be unduly slippery
because it was designed to be used with an anti-slip additive which Benitez
failed to use. Plaintiff filed her second amended complaint on August 17, 2020,
less than a month after the expert report issued. Thus, the record shows that any
delay in joining Sherwin-Williams was attributable to Benitez's failure to
disclose the facts, and not to any lack of diligence on plaintiff's part.
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Affirmed.
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