LINDA A. WEJNERT, ETC. VS. MCCAIN FOODS USA, INC. (L-2770-16, BERGEN COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-1525-18T1
LINDA A. WEJNERT,
Individually and as the
Administratrix of the ESTATE
OF ROY WEJNERT, deceased,
Plaintiff-Appellant,
v.
MCCAIN FOODS USA, INC.,
Defendant-Respondent,
and
D.O. PROPERTIES, INC.,
Defendant.
__________________________
Argued October 21, 2019 – Decided March 18, 2020
Before Judges Fasciale, Rothstadt and Mitterhoff.
On appeal from the Superior Court of New Jersey,
Law Division, Bergen County, Docket No. L-2770-16.
James Gordon Begley III argued the cause for appellant
(Cohen, Placitella & Roth, PC, attorneys; James
Gordon Begley III, of counsel and on the briefs).
David A. Abrams argued the cause for respondent
(Strongin Rothman & Abrams, LLP, attorneys; David
A. Abrams and Yelena Graves, on the brief).
PER CURIAM
Plaintiff Linda A. Wejnert appeals from an October 31, 2018 order
denying her motion for reconsideration of an August 17, 2018 order granting
defendant McCain Foods USA, Inc.'s motion for summary judgment, which
dismissed plaintiff's wrongful death and survivorship action. Plaintiff's
husband, Roy Wejnert (decedent), died when a 993-pound Langen electric
control panel fell on him as he tried to salvage its parts. At that time, decedent
was employed by non-party D.O. Productions, LLC (D.O. Productions) at a
plant that produced frozen pizzas. 1 Plaintiff sued defendant, the former owner
of the plant, alleging that defendant was liable under Restatement (Second) of
Torts § 353 (Am. Law Inst. 1965). Specifically, plaintiff alleged that defendant
decommissioned the panel when it owned the plant, knew or should have known
1
Presumably, plaintiff did not sue D.O. Productions because of the Work ers'
Compensation Act exclusive remedy provision. See N.J.S.A. 34:15-8.
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that it failed to safely store the panel, and failed to disclose the dangerous
condition of the panel when it sold the plant to D.O. Productions.
The trial judge granted defendant's motion for summary judgment,
determining that no liability existed under Restatement (Second) of Torts § 353
because there was no dispute that D.O. Productions' employees discovered the
panel's condition a week before the accident, and all of defendant's actual or
constructive knowledge of the panel's condition transferred to D.O. Productions
upon the sale of the plant because defendant's employees also transferred to D.O.
Productions. Having reviewed the record, and in light of the applicable law, we
reverse and remand for further proceedings.
We discern the following facts from the record. Defendant is a business
that produces, markets, and sells food products. Before October 31, 2014, it
owned a business that operated a plant producing frozen pizzas. Defendant
owned the real estate, the plant, and the manufacturing equipment inside the
plant. On October 31, 2014, by way of an asset purchase agreement, defendant
sold the business' real property to D.O. Properties, Inc. and the business and
equipment to D.O. Productions. 2 Defendant guaranteed that "the [property], the
2
D.O. Productions and D.O. Properties, Inc., n/k/a 11 Gregg Corporation, are
both affiliated with the Dr. Oetker Group. D.O. Properties, Inc. leased the real
estate to D.O. Productions on the date of the sale.
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3
current uses thereof and the conduct of the US [b]usiness on the [property]
comply in all material respects with all [a]pplicable [l]aws, including, without
limitation, those [a]pplicable [l]aws dealing with zoning, parking, access,
loading facilities, landscaped areas, building construction, [and] fire and public
health and safety." In addition to the transfer of property, the sale transferred
all the plant's employees and some of the plant's management to D.O.
Productions. Defendant retained some of its officers, including its director of
engineering, Curt Steinbach, and it continued operating its business.
Decedent had worked as an electrical mechanical technician at the plant
for several years before the sale, and he was transferred to D.O. Productions
upon the sale. During January 2015, decedent and Nicholas Empirio, the plant's
lead mechanic, discussed salvaging parts from a decommissioned 993-pound
Langen electric control panel (the panel), which had previously been used to
operate a piece of packaging production equipment. Decedent and Empirio
opened the panel's doors, and decedent showed Empirio the computer cards he
wanted to recover. About a week later, on January 21, 2015, decedent was killed
when the panel fell on him as he was attempting to salvage the parts. No one
witnessed the accident.
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On March 31, 2016, plaintiff filed a complaint against defendant under
the Wrongful Death Act, N.J.S.A. 2A:31-1 to -6, and the Survival Act, N.J.S.A.
2A:15-3, seeking damages for negligence and loss of consortium. 3 Defendant
answered the complaint and denied all liability. The parties then proceeded to
discovery. They deposed several individuals, and each party obtained an expert.
Marco Schmidt, D.O. Productions' corporate designee for the asset
purchase agreement, testified that before the sale, defendant only allowed D.O.
Productions to perform a walkthrough inspection of the plant, and the inspection
was "fairly swift," lasting about ninety minutes. D.O. Productions relied heavily
on defendant's warranties and would not have agreed to the sale without them.
Further, Schmidt testified that he was not aware of "any discussions between
[defendant] and D.O. Productions about Langen electrical control panels."
John Myers, the plant's maintenance manager, testified that there was an
idle asset area in the plant where decommissioned equipment was stored.
Among other things, the idle asset area stored the panel. Myers testified that
defendant had decommissioned the panel in 2006 and stored it in the idle asset
area in an upright position, neither bolted to the ground nor tethered to a column.
3
The complaint also asserted claims against D.O. Properties, Inc., but those
claims were dismissed on March 16, 2018.
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After the panel was decommissioned, it was not moved, and it remained in the
same location through the date of the accident. At the time of the sale, the panel
was surrounded by other decommissioned equipment, and it was inaccessible
without moving other equipment. Only after the sale did D.O. Productions start
to move equipment out of the idle asset area. Access to the panel was cleared
about two weeks before the accident.
Steinbach, defendant's director of engineering, testified that when Langen
control panels are taken out of service, they are "[e]ither place[d] . . .
horizontally onto [a] pallet or skid or secure[d] . . . to something if they're left
in a vertical position." When asked how a panel should be secured in a vertical
position, Steinbach testified that he was unsure whether he was the "one to
answer that specifically." However, plaintiff's facility expert, Edward A. Gray,
opined that "[h]ad . . . [defendant] secured the incident control cabinet with
anchor bolts in its leg support brackets, tethered it vertically, or laid it down
horizontally on a pallet this hazard could and should have been eliminated."
Defendant's safety consultant, Leo J. DeBobes, also testified that he would not
have stored the panel in the way that defendant did, explaining that he "probably
would have strapped it or tethered it to something." Both Gray and DeBobes
also referred to the U.S. Department of Labor Occupational Safety and Health
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Administration's post-accident inspection, which "revealed that a violation of
the OSHA standards was a direct causal factor of this accident, 1910.176(b)." 4
Gray also opined that "[defendant] knew, or should have known, that the
incident unsecured electrical control cabinet was dangerous to anyone who
could come in proximity of it, including [decedent]." Moreover, he opined that
[s]imply packing and piling other equipment around the
incident electrical control panel did not leave it in safe
condition. . . . The action of moving around equipment
in the idle asset storage area, a likely event at some
future point, would have exposed any person to the
incident electric panel tipping over.
Gray concluded that "several factors in combination caused the unanchored
cabinet to topple over," including decedent's interaction with the cabinet,
"[u]nreliable contact with the floor," and "[c]ompromised cabinet feet" resulting
from rust.
Empirio testified that on the day that he and decedent discussed plans to
salvage the panel's parts, he looked inside the panel with decedent, and the panel
was in a "stand-up position" and was neither tethered to a column nor anchored
to the floor. However, the panel did not rock or wobble when they opened the
4
"Secure Storage. Storage of material shall not create a hazard. Bags,
containers, bundles, etc., stored in tiers shall be stacked, blocked, interlocked
and limited in height so that they are stable and secure against sliding or
collapse." OSHA Handling materials–general, 29 C.F.R. § 1910.176(b) (2020).
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doors. The panel did not appear unstable, and Empirio did not observe that the
foot stands had deteriorated. Empirio also explained that he was not trained in
the proper storage of these types of panels.
After the close of discovery, on July 20, 2018, defendant moved for
summary judgment. On August 17, 2018, after hearing oral argument, the judge
granted defendant's motion in an oral opinion and issued an order dismissing
plaintiff's complaint.
The judge determined that defendant "is not responsible for the accident
as a matter of law because it did not own the plant or [the] involved electrical
panel on the day of the accident." The judge reasoned that a vendor of real
property generally is not liable for harm caused by a dangerous condition on the
property that existed at the time the vendee took possession of the property.
However, Restatement (Second) of Torts § 353 provides an exception where
(a) the vendee does not know or have reason to know
of the condition or the risk involved, and (b) the vendor
knows or has reason to know of the condition, and
realizes or should realize the risk involved, and has
reason to believe that the vendee will not discover the
condition or realize the risk.
The judge found that there was no dispute that D.O. Productions' employees
knew that the panel was unsecured a week before the accident, when decedent
and Empirio first discussed salvaging the panel's parts. Further, because
A-1525-18T1
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defendant transferred all its plant employees through the sale, "[t]he complete
knowledge of [defendant] regarding the plant, the equipment, and the storage of
the involved electrical panel was transferred to D.O. Productions."
Under these facts, the judge determined that section 353 did not apply
"because [defendant] had no reason to believe that D.O. Productions would not
know of the alleged dangerous condition given that the latter inherited all of the
former's employees." The judge further reasoned that "even if [section 353]
applied, any potential liability of [defendant] was terminated when D.O.
Productions discovered that the panel was freestanding and not secured by
tethering or bolting after clearing the surrounding equipment in the idle asset
area." Thus, the judge concluded that "[t]his case falls within the parameters of
the general [r]ule of [v]endor's [n]on-[l]iability and presents no reason for this
[c]ourt to depart from that [r]ule."
Plaintiff timely moved for reconsideration, and on October 31, 2018, the
judge issued an order denying the motion. The judge found that plaintiff had
failed to show that the judge had "expressed [her] decision based upon a
palpably incorrect or irrational basis, did not consider or failed to appreciate the
significance of probative, competent evidence in an obvious matter, or acted in
an arbitrary, capricious, or unreasonable manner." This appeal ensued.
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On appeal, plaintiff contends that the judge abused her discretion in
denying the motion for reconsideration. First, plaintiff contends that the judge
failed to consider that defendant could be liable under Restatement (Second) of
Torts § 352 cmt. a, based on the warranty in the asset purchase agreement that
the property and its uses complied with all applicable laws concerning public
health and safety. Second, plaintiff contends that the judge did not view the
evidence in a light most favorable to plaintiff and further did not recognize
factual disputes concerning defendant's liability under Restatement (Second) of
Torts § 353.
We review the denial of a motion for reconsideration for an abuse of
discretion. Cummings v. Bahr, 295 N.J Super. 374, 389 (App. Div. 1996). An
abuse of discretion occurs "when a decision is 'made without a rational
explanation, inexplicably departed from established policies, or rested on an
impermissible basis.'" US Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 467
(2012) (quoting Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 123 (2007)).
Reconsideration is appropriate where "1) the [c]ourt has expressed its decision
based upon a palpably incorrect or irrational basis, or 2) it is obvious that the
[c]ourt either did not consider, or failed to appreciate the significance of
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probative, competent evidence." Cummings, 295 N.J Super. at 384 (quoting
D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)).
We first address plaintiff's contention that the judge should have
considered Restatement (Second) of Torts § 352 cmt. a. Section 352 provides,
Except as stated in § 353, a vendor of land is not subject
to liability for physical harm caused to his vendee or
others while upon the land after the vendee has taken
possession by any dangerous condition, whether natural
or artificial, which existed at the time that the vendee
took possession.
[Restatement (Second) of Torts § 352.]
Comment "a" to section 352 discusses the historical underpinnings of this rule:
Under the ancient doctrine of caveat emptor, the
original rule was that, in the absence of express
agreement, the vendor of land was not liable to his
vendee, or a fortiori to any other person, for the
condition of the land existing at the time of transfer. As
to sales of land this rule has retained much of its
original force, and the implied warranties which have
grown up around the sale of chattels never have
developed. This is perhaps because great importance
always has been attached to the deed of conveyance,
which is taken to represent the full agreement of the
parties, and to exclude all other terms and liabilities.
The vendee is required to make his own inspection of
the premises, and the vendor is not responsible to him
for their defective condition, existing at the time of
transfer. Still less is he liable to any third person who
may come upon the land, even though such entry is in
the right of the vendee.
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[Restatement (Second) of Torts § 352 cmt. a.]
Plaintiff relies on comment "a" to argue that the general rule of vendor non-
liability applies only "in the absence of express agreement" and that defendant
is liable because it represented that the property and its uses complied with all
applicable laws concerning public health and safety. See T & E Indus., Inc. v.
Safety Light Corp., 123 N.J. 371, 387 (1991) ("[T]he principle of caveat emptor
dictates that in the absence of express agreement, a seller is not liable to the
buyer or others for the condition of the land existing at the time of transfer."
(citing Restatement (Second) of Torts § 352 cmt. a)).
Plaintiff did not raise a claim for breach of the warranties contained in the
asset purchase agreement nor could she have sustained such a claim as neither
she nor decedent is a third-party beneficiary to the asset purchase agreement.
See N.J.S.A. 2A:15-2 ("A person for whose benefit a contract is made, either
simple or sealed, may sue thereon in any court and may use such contract as a
matter of defense in an action against him although the consideration of the
contract did not move from him."); Broadway Maint. Corp. v. Rutgers, State
Univ., 90 N.J. 253, 259 (1982) ("The contractual intent to recognize a right to
performance in the third person is the key. If that intent does not exi st, then the
third person is only an incidental beneficiary, having no contractual standing.").
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Moreover, the cases plaintiff cites in her appellate brief do not support the
application of comment "a."5
We conclude that plaintiff failed to show that the judge's decision not to
impose liability under comment "a" to section 352 was palpably incorrect or
5
Neither T & E Indus., 123 N.J. 371 nor McDonald v. Mianecki, 79 N.J. 275
(1979) is relevant because neither involves a claim raised by an incidental
beneficiary. In T & E Indus., 123 N.J. at 380-81, the buyer of a radium-
contaminated property sued several former owners of the property for
conducting an abnormally dangerous activity that led to the contamination. The
Court held that caveat emptor does not preclude an owner from holding a
predecessor in title liable for conducting an abnormally dangerous activity that
resulted in a dangerous condition, such as radium contamination. Id. at 387-91.
In McDonald, 79 N.J. at 294-98, the Court held that a builder-vendor of real
estate may be held liable to a home buyer under the implied warranty of
habitability for failing to provide potable water.
Likewise, neither O'Connor v. Altus, 67 N.J. 106 (1975) nor Cavanaugh v.
Pappas, 91 N.J. Super. 597, 599-600 (Law Div. 1966) is relevant, as in each
case, the courts considered other exceptions to the general rule of vendor non -
liability. In O'Connor, 67 N.J. at 111, the plaintiffs sued the former owner of a
building and a possible builder for personal injuries suffered by an infant who
ran through a glass sidelight that appeared to be a glass door. However, the
Court did not consider comment "a" to section 352 in the opinion. In
Cavanaugh, 91 N.J. Super. at 599-600, a property owner sought indemnification
from a former property owner for personal injuries suffered by the plaintiff that
allegedly resulted from the negligent maintenance of a public sidewalk in front
of the property. In denying the former owner's motion for judgment on the
pleadings, the judge applied Restatement (Second) of Torts § 373, which permits
liability to be imposed on a vendor of land who was negligent in allowing a
nuisance to remain on the property, where such nuisance has injured a third
person outside of the property. Id. at 604-05.
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irrational. Accordingly, in this regard, it was not an abuse of discretion to deny
plaintiff's motion for reconsideration.
Next, we address plaintiff's contention that the judge did not apply the
correct standard in reviewing a summary judgment motion and that the judge
did not acknowledge factual disputes concerning defendant's liability under
section 353.
In considering a motion for summary judgment, "the court's task is to
determine whether a rational factfinder could resolve the alleged disputed issue
in favor of the non-moving party – '[a]ll inferences of doubt are drawn against
the moving party and in favor of the opponent of the motion.'" Perez v.
Professionally Green, LLC, 215 N.J. 388, 405-06, (2013) (alteration in original)
(quoting Fielder v. Stonack, 141 N.J. 101, 127 (1995)). However, "[n]ot every
issue of fact is material. In order to determine materiality, it is necessary first
to set forth the contours of the legal issue presented." Rowe v. Mazel Thirty,
LLC, 209 N.J. 35, 41 (2012). "The motion court must analyze the record in light
of the substantive standard and burden of proof that a factfinder would apply in
the event that the case were tried." Globe Motor Co. v. Igdalev, 225 N.J. 469,
480 (2016); see R. 4:46-2(c).
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Our Supreme Court has endorsed section 353 to determine the liability of
a vendor of property to a vendee. See O'Connor, 67 N.J. at 114. Section 353,
entitled "Undisclosed Dangerous Conditions Known to Vendor," provides an
exception to the general rule of vendor non-liability:
(1) A vendor of land who conceals or fails to disclose
to his vendee any condition, whether natural or
artificial, which involves unreasonable risk to persons
on the land, is subject to liability to the vendee and
others upon the land with the consent of the vendee or
his subvendee for physical harm caused by the
condition after the vendee has taken possession, if
(a) the vendee does not know or have reason to
know of the condition or the risk involved, and
(b) the vendor knows or has reason to know of
the condition, and realizes or should realize the
risk involved, and has reason to believe that the
vendee will not discover the condition or realize
the risk.
(2) If the vendor actively conceals the condition, the
liability stated in [s]ubsection (1) continues until the
vendee discovers it and has reasonable opportunity to
take effective precautions against it. Otherwise the
liability continues only until the vendee has had
reasonable opportunity to discover the condition and to
take such precautions.
[Restatement (Second) of Torts § 353.]
The vendor's liability will lie only where "the vendee does not know or have
reason to know of the condition or the risk involved." Id. § (1)(a) (emphasis
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added). "[T]he word 'or' carries with it natural disjunctive import." Pine Belt
Chevrolet v. Jersey Cent. Power & Light Co., 132 N.J. 564, 578 (1993) (quoting
State v. Duva, 192 N.J. Super. 418, 421 (Law Div. 1983)). Reading the clauses
in section 353(1)(a) as such, a vendor is liable either when the vendee lacks
knowledge of a dangerous condition or when the vendee lacks knowledge of the
risk posed by the condition.
Additionally, because section 353(2) addresses the vendee's discovery of
the dangerous condition after the transfer, section 353(1) must address the
parties' knowledge at the time of the sale. Otherwise, section 353(2) would be
superfluous. See State v. Rangel, 213 N.J. 500, 509 (2013) ("We do not read
one part of a statute in a way that would render another part redundant or even
absurd."). As explained in Restatement (Second) of Torts § 353 cmt. d, the
vendee's actual or constructive knowledge of the dangerous condition at the time
of the sale is premised upon the ability to inspect the property:
A vendor, innocent of conscious deception, is entitled
to expect, and therefore has reason to believe, that his
vendee will discover a condition which would be
disclosed by such an inspection as the vendee should
make before buying the land and taking possession of
it or before throwing it open to the entry of others. A
vendor, therefore, is not required to exercise care to
disclose dangerous conditions or to have an ordinarily
retentive memory as to their existence, unless the
condition is one which such an inspection by the vendee
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would not discover or, although the condition would be
so discovered, the vendor realizes the risk involved
therein and has reason to believe that his vendee will
not realize it.
Accordingly, to survive a motion for summary judgment, plaintiff was required
to present competent evidence from which a rational jury could find the
following elements for liability under section 353: (1) Defendant concealed or
failed to disclose to D.O. Productions that the panel was unsecured; (2) the
unsecured panel posed an unreasonable risk of physical harm to persons at the
plant; (3) at the time of the sale, D.O. Productions did not know or have reason
to know that the panel was unsecured or that it posed a risk of causing physical
harm; (4) at the time of the sale, defendant knew or had reason to know that the
panel was unsecured; (5) at the time of the sale, defendant realized or should
have realized that the unsecured panel posed a risk of causing physical harm;
(6) at the time of the sale, defendant had reason to believe that D.O. Productions
would not discover the unsecured panel or realize the risk of physical harm; and
(7) D.O. Productions did not have a reasonable opportunity to discover the
unsecured panel and to take effective precautions against it falling over.
Having reviewed the record, we conclude that plaintiff presented
sufficient evidence from which a rational jury could find that plaintiff proved
each element to impose liability on defendant under section 353. The parties do
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not appear to dispute element one, that defendant failed to disclose that the panel
was unsecured, so we address it no further.
With respect to element two, whether the unsecured panel posed an
unreasonable risk of physical harm at the time of the sale, Myers, the plant's
maintenance manager, testified that the panel was not moved from the idle asset
area, and only after D.O. Productions took possession of the plant did employees
start to move equipment from that area. However, Gray, plaintiff's expert,
opined that defendant should have known that the failure to secure the panel
posed a risk of harm to any person that was near it, so defendant should have
secured the panel. Further, Gray opined that if any person moved the
surrounding equipment, he or she would be at risk of harm. In addition,
Steinbach, defendant's director of engineering, testified that the panel should
have been secured, and DeBobes, defendant's safety consultant, admitted that he
would have secured the panel.
With respect to element three, whether at the time of sale D.O.
Productions knew or had reason to know that the panel was unsecured or posed
a risk of physical harm, the judge found that that D.O. Productions' employees
knew that the panel was unsecured a week before the accident, when decedent
and Empirio first discussed salvaging the panel's parts. That decedent and
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Empirio began working with the panel a week before the accident is irrelevant
under section 353(1)(a), which pertains to the vendee's knowledge at the time of
the sale. Moreover, plaintiff presented evidence that creates a genuine dispute
of fact as to this element. At the time of the sale, because D.O. Productions had
only been able to conduct a cursory walkthrough of the premises, it could not
have known or had reason to know that the panel was freestanding and in a
vertical position, unsecured by strapping or bolting. Further, D.O. Productions'
employees did not know that the panel's foot stands had deteriorated, a condition
that Gray opined was one of "several factors [that] in combination caused the
unanchored cabinet to topple over."
With respect to elements four, five, and six, concerning defendant's
knowledge of the panel's condition and risk and defendant's knowledge as to
whether D.O. Productions would discover the panel's condition or risk, the judge
concluded that defendant was not liable because "[t]he complete knowledge of
[defendant] regarding the plant, the equipment, and the storage of the involved
electrical panel was transferred to D.O. Productions" after the sale because
defendant's employees also transferred to D.O. Productions. While this
reasoning is generally consistent with agency law, we find that the judge did not
appreciate that some of defendant's officers remained employed by defendant.
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In general, the knowledge of an agent is imputed to his or her principal :
"The imputation doctrine is derived from common law rules of agency relating
to the legal relationship among principals, agents, and third parties. Pursuant to
those common law rules, a principal is deemed to know facts that are known to
its agent." NCP Litig. Tr. v. KPMG LLP, 187 N.J. 353, 366 (2006); see also
Restatement (Third) of Agency § 5.03 (Am. Law Inst. 2006) ("[N]otice of a fact
that an agent knows or has reason to know is imputed to the principal if
knowledge of the fact is material to the agent's duties to the principal[.]").
Steinbach, defendant's director of engineering, did not transfer with the
sale, and he testified that when a panel like the one involved in the accident is
decommissioned and place vertically, it should be secured. Further, employees
that transferred with the sale, like Empirio, were not necessarily trained on how
to safely store the panel. Concerning elements four and five specifically,
plaintiff emphasized that defendant had previously owned the property and was
responsible for the maintenance of its own equipment years before the sale, and
further, in guaranteeing that the property complied with all applicable laws in
the asset purchase agreement, defendant should have investigated the property
and equipment to ensure that it had complied with all applicable laws. With
respect to element six specifically, a jury could find that defendant had reason
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to believe that D.O. Productions would not discover that the panel was
unsecured and was at risk of falling over because defendant only allowed D.O.
Productions to conduct a cursory inspection before the sale, and the panel was
concealed by other equipment in the idle asset area.
Finally, with respect to element seven, whether D.O. Productions had a
reasonable opportunity to discover the panel's condition and take precautions,
we find that there is no evidence in the record that establishes that D.O.
Productions discovered or should have discovered the panel's dangerous
condition before the day that decedent and Empirio noticed the unsecured panel.
Further, there is no evidence establishing that once they did notice the panel,
they knew or should have known that it was in a dangerous condition, and there
was sufficient time to remedy its condition. While DeBobes opined that D.O.
Productions failed to ensure that the equipment in the idle asset area was safe
and in compliance with relevant codes, Gray refuted these conclusions and
opined that DeBobes' "discrepancy between holding D.O. Productions liable . .
. for not implementing safe storage practices with proper hazard warning (of the
incident electrical cabinet) while simultaneously releasing [defendant] from the
same stand of care is disingenuous."
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As this appeal arises from the denial of a motion for reconsideration, we
acknowledge that our review is more deferential than it would be if we were
only reviewing a motion for summary judgment. However, because we find that
plaintiff presented sufficient evidence from which a rational jury could find that
defendant is liable under Restatement (Second) of Torts § 353, we conclude that
in denying plaintiff's motion for reconsideration, the judge did not "appreciate
the significance of probative, competent evidence." Cummings, 295 N.J Super.
at 384. Accordingly, we reverse and remand for further proceedings consistent
with this opinion.
To the extent we have not specifically addressed any remaining arguments
raised by the parties, we conclude they lack sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(1)(E).
Reversed and remanded. We do not retain jurisdiction.
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