Joseph Cherilus v. Federal Express

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1285-12T2
JOSEPH CHERILUS and MARIE
CHERILUS, his wife,
Plaintiffs, APPROVED FOR PUBLICATION
v. April 3, 2014
FEDERAL EXPRESS (FOR DISCOVERY APPELLATE DIVISION
PURPOSES ONLY),
Defendant,
and
LINC FACILITIES SERVICES,
Defendant/Third-Party
Plaintiff-Appellant,
v.
COLUMBUS MCKINNON CORPORATION
a/k/a AMERICAN LIFTS,
Defendant/Third-Party
Defendant-Respondent.
___________________________________
Argued November 4, 2013 – Decided April 3, 2014
Before Judges Ashrafi, St. John and Leone.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Docket No.
L-1478-08.
David L. Wysnewski argued the cause for
appellant (Barry, McTiernan & Moore,
attorneys; Mr. Wysnewski and Laurel A.
Wedinger-Gyimesi, on the brief).
John E. Tyrrell argued the cause for
respondent (Hollstein Keating Cattell
Johnson & Goldstein, P.C., attorneys;
Mr. Tyrrell, on the brief).
The opinion of the court was delivered by
ASHRAFI, J.A.D.
Plaintiff Joseph Cherilus was injured on a cargo lift at a
Federal Express facility where he worked. He and his wife sued
the company responsible for maintaining the lift, Linc
Facilities Services (LFS). LFS filed a third-party claim of
product liability against the manufacturer of the lift, Columbus
McKinnon Corporation, which also uses the name American Lifts.
The trial court granted summary judgment to American Lifts on
the ground that the claims against it were barred by the ten-
year statute of repose applicable to construction defects,
N.J.S.A. 2A:14-1.1(a). Subsequently, LFS settled with
plaintiffs on their personal injury claims. LFS now appeals the
dismissal of American Lifts from the case so that it can pursue
its claim for contribution for the settlement amount it paid to
plaintiffs. We affirm.
I.
Viewed most favorably to LFS as the party opposing summary
judgment, see R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of
Am., 142 N.J. 520, 540 (1995), the record reveals the following
facts and procedural history.
2 A-1285-12T2
Cherilus was injured while working on the loading dock of a
Federal Express warehouse at Newark Airport. He was on the
platform of a large mechanical device known as a "torklift" or
"air cargo lift" that is affixed to the warehouse loading dock
and used to raise and lower heavy cargo between ground level and
the level of truck beds. The torklift contains a mechanical
part known as a "can-stop" or "floor lock" that pops up from the
lift platform to prevent containers from rolling off the lift.
When not up, a can-stop lies flat as part of the platform.
Workers often step on a can-stop as they maneuver cargo on and
off the lift.
On February 21, 2006, as Cherilus stepped on a can-stop, it
malfunctioned and depressed below the level of the platform.
Cherilus's foot stuck in the can-stop mechanism, and an air
cargo container rolled into and seriously injured his leg.
Cherilus filed suit against LFS in February 2008. LFS was
the contractor that provided warehouse services for Federal
Express and was responsible for maintaining the cargo lifts at
the facility. In November 2009, LFS filed a third-party
complaint against American Lifts, the designer and manufacturer
of the lift. An engineering expert issued a report and a
certification stating that the malfunction was a result of a
design defect in the can-stop's 1/4 inch "tabs" that were to
3 A-1285-12T2
keep it level with the lift platform. The expert stated that
these tabs were not thick enough, and they failed prematurely.
Cherilus's weight was sufficient to depress the can-stop below
the level of the platform, ultimately resulting in his injury.
In March 2011, plaintiffs filed an amended complaint adding
American Lifts as a direct defendant on their personal injury
claims.
American Lifts had designed and manufactured the lift in
accordance with Federal Express's specifications and approval.
Nineteen such torklifts were installed in the warehouse at which
Cherilus was injured, and there was some evidence, although not
detailed or precise, that similar ones may have been in use at
one or more other Federal Express facilities. The torklift was
bolted into a cement foundation of the warehouse dock, and the
bolts were covered with grout. American Lifts provided
instructions for but did not participate in the installation.
Once the lift was installed, it was never moved. Nor was it
intended to be moved.
On this evidence, the trial court concluded that the
torklift was an improvement to the warehouse property and that
N.J.S.A. 2A:14-1.1(a) barred any suit for personal injury
brought against its designer more than ten years after the lift
was installed and put to use. There was no dispute that the
4 A-1285-12T2
lift was shipped to Federal Express on March 8, 1995, and was in
use by the summer of 1995, that is, more than ten years before
Cherilus was injured in February 2006. Consequently, the court
granted summary judgment to American Lifts dismissing both
plaintiffs' direct personal injury claims and the third-party
contribution claim of LFS. We denied LFS's motion for leave to
file an interlocutory appeal from the trial court's summary
judgment decision.
In May 2012, with the aid of a conference conducted by the
trial judge, LFS reached a settlement with plaintiffs on their
personal injury claims. It then filed a stipulation of
dismissal of plaintiffs' claims. Plaintiffs also executed a
release in favor of LFS. In September 2012, LFS obtained from
plaintiffs an assignment of their claims against American Lifts
for purposes of pursuing its appeal.
II.
Initially, we agree with American Lifts that the assignment
of plaintiffs' personal injury claims to LFS has no effect on
this appeal. Plaintiffs did not have a judgment against
American Lifts. They had a claim for personal injury that was
dismissed and not pursued further by them. A tort claim is not
subject to assignment prior to judgment. Village of Ridgewood
v. Shell Oil Co., 289 N.J. Super. 181, 195 (App. Div. 1996);
5 A-1285-12T2
Di Tolvo v. Di Tolvo, 131 N.J. Super. 72, 79 (App. Div. 1974);
Goldfarb v. Reicher, 112 N.J.L. 413, 414 (Sup. Ct.), aff'd o.b.,
113 N.J.L. 399 (E. & A. 1934). In United States Casualty Co. v.
Hyrne, 117 N.J.L. 547, 552 (E. & A. 1937), the Court stated: "It
has always been held that the right to bring an action in the
courts of this state is possessed by the injured person alone,
unless the injured person assigns his right to someone else
which cannot be done before judgment when the action sounds in
tort . . . ." Accord Costanzo v. Costanzo, 248 N.J. Super. 116,
121-22 (Law Div. 1991).
Plaintiffs could have appealed from the summary judgment
order, but their assignment of the right to appeal was
ineffective. We address the appeal only to determine whether
LFS could pursue its own claim for contribution from American
Lifts under the Joint Tortfeasors Contribution Act, N.J.S.A.
2A:53A-3.
III.
The relevant provision of the Joint Tortfeasors
Contribution Act states:
Where injury or damage is suffered by any
person as a result of the wrongful act,
neglect or default of joint tortfeasors, and
the person so suffering injury or damage
recovers a money judgment or judgments for
such injury or damage against one or more of
the joint tortfeasors . . . and any one of
the joint tortfeasors pays such judgment in
6 A-1285-12T2
whole or in part, he shall be entitled to
recover contribution from the other . . .
joint tortfeasors for the excess so paid
over his pro rata share . . . .
[N.J.S.A. 2A:53A-3 (emphasis added).]
American Lifts relies on Polidori v. Kordys, Puzio & Di
Tomasso, 217 N.J. Super. 424, 430-32 (App. Div. 1987), to argue
that a stipulation of dismissal is not sufficient to satisfy the
requirement of the statute that a "money judgment" be the basis
for the contribution claim. In Young v. Steinberg, 100 N.J.
Super. 507, 509-10 (App. Div. 1968), rev'd on dissenting
opinion, 53 N.J. 252 (1969), the defendant settled with the
plaintiff and then claimed a right to contribution from a joint
tortfeasor. The Supreme Court held that a claim of contribution
could be maintained if: (1) the "suit for contribution based on
a settlement [had] been elevated to the status of a judgment by
formal court proceeding," and (2) the settlement "discharges the
injured party's claim against a non-settling joint tortfeasor."
53 N.J. at 255. The Court implicitly interpreted the "money
judgment" language of the statute to include a confession of
judgment by the settling defendant. Ibid.
Although plaintiffs in this case never obtained a "money
judgment," LFS contends it is not precluded from pursuing its
claim for contribution because its settlement with plaintiffs
substantially satisfied the two requirements articulated in
7 A-1285-12T2
Young, supra, 53 N.J. at 255. The settlement resulted from a
conference before a Superior Court judge, thus invoking the
court's participation and the approval of the settlement in
judicial proceedings, and it disposed of plaintiffs' claims in
their entirety against all potential tortfeasors. See Gangemi
v. Nat'l Health Labs., Inc., 305 N.J. Super. 97, 105 (App. Div.
1997). American Lifts contends, however, that the stipulation
of dismissal and release executed by plaintiffs did not
discharge their claims against American Lifts, as later
demonstrated by their attempt to assign those claims to LFS.
LFS is correct that a full-blown adversarial proceeding is
not necessary to invoke the right of contribution under N.J.S.A.
2A:53A-3. Polidori, supra, 217 N.J. Super. at 431 (citing
Young, supra, 53 N.J. at 255). But the statute does not apply
to "contribution where the payment is made in fulfillment of a
voluntary compromise or settlement of a claim for damages
attributed to a joint tortfeasor." Ibid. (quoting Pa. Greyhound
Lines, Inc. v. Rosenthal, 14 N.J. 372, 383 (1954)). Although a
consent judgment satisfies the "judgment" requirement of the
statute, Young, supra, 53 N.J. at 255, we declined in Polidori
to expand the statute to apply as well to a stipulation of
dismissal. Polidori, supra, 217 N.J. Super. at 432. We
acknowledged there was "little philosophical difference between
8 A-1285-12T2
a settlement coupled with a Stipulation of Dismissal and a
settlement in the form of a consent judgment," but we also
determined that the plain language used by the Legislature
constrained us against expanding the contribution statute to
include a stipulation of dismissal. Ibid.
LFS also contends the stipulation of dismissal can be
converted into a consent judgment if it is in the interests of
justice to do so. See Gangemi, supra, 305 N.J. Super. at 103.
It asks us to take that course of action so that its right to
appeal the summary judgment order is not extinguished.
Otherwise, contends LFS, preventing it from pursuing its
contribution claims would be against the interests of justice
and would discourage settlements in future cases.
Here, unlike the alleged tortfeasor in Gangemi, American
Lifts did not participate in the settlement conference. It had
no further involvement in the proceedings once it obtained
summary judgment. Also, the release executed by plaintiffs was
only in favor of LFS and not also in favor of American Lifts.
The statutory requirement of a judgment is not against the
interests of justice and should not discourage settlements. A
defendant is not required to pay another tortfeasor's share of
the damages. A defendant can proceed to trial on the
plaintiffs' personal injury claims and receive a credit under
9 A-1285-12T2
the Comparative Negligence Act, N.J.S.A. 2A:15-5.2, for any
proportion of responsibility for the injuries that the jury
attributes to another tortfeasor, even if the other tortfeasor
was earlier dismissed from the case pursuant to the statute of
repose. Town of Kearny v. Brandt, 214 N.J. 76, 98-104 (2013).
Thus, the amount a defendant pays voluntarily to settle
plaintiffs' claims need not cover the liability of a co-
defendant who has been dismissed from the case. If a defendant
nevertheless settles and pays more than its fair share for the
injuries, it can preserve its claim for contribution from a
potentially liable joint tortfeasor through appropriate judicial
proceedings and a judgment order.
We are not convinced by the arguments of LFS that we should
depart from our prior precedent and hold that contribution may
be sought where the court has not entered a money judgment in
favor of plaintiffs that fully resolves their claims against the
alleged joint tortfeasor. See Young, supra, 53 N.J. at 255.
We also reject the argument of LFS that the trial court's
summary judgment order in favor of American Lifts satisfies the
"judgment" requirement of the contribution statute. The statute
refers to "a money judgment" recovered by the person who
suffered injury. Here, plaintiffs did not obtain a money
judgment.
10 A-1285-12T2
We conclude that LFS has no viable claim of contribution
under N.J.S.A. 2A:53A-3 for its voluntary payment of settlement
money to plaintiffs to obtain the stipulation of dismissal.
IV.
Because the judgment order from which LFS appeals was based
on the statute of repose and because the parties have briefed
the issue, we will also address that statute as an alternative
ground for affirmance of summary judgment dismissing all claims
against American Lifts.
In relevant part, the statute of repose states:
No action, whether in contract, in tort, or
otherwise, to recover damages for any
deficiency in the design, planning,
surveying, supervision or construction of an
improvement to real property, . . . nor any
action for contribution or indemnity for
damages sustained on account of such injury,
shall be brought against any person
performing or furnishing the design,
planning, surveying, supervision of
construction or construction of such
improvement to real property, more than 10
years after the performance or furnishing of
such services and construction.
[N.J.S.A. 2A:14-1.1(a) (emphasis added).]
Here, American Lifts designed the torklift in the mid-
1990s, and the device was installed in the Federal Express
facility at Newark Airport in 1995. Plaintiffs' complaint
against LFS was filed in February 2008, more than twelve years
later, and LFS's third-party complaint and plaintiffs' amended
11 A-1285-12T2
complaint against American Lifts were filed yet later, in 2009
and 2011 respectively.
LFS argues the torklift is not subject to the statute of
repose because it is a product that was manufactured off-site
and American Lifts had no role in the construction of the
warehouse facility. LFS argues that only the statute of
limitations, N.J.S.A. 2A:14-2, fixes the time period within
which American Lifts could be sued for manufacturing a
defectively-designed product, and that the statute of
limitations runs from the time the claim accrued rather than
from the time of design or installation of the product.
Because we address interpretation of a statute and the
legal consequences that flow from that interpretation, our
standard of review is plenary. McGovern v. Rutgers, the State
Univ. of N.J., 211 N.J. 94, 107-08 (2012); In re Pet. for Ref.
on Trenton Ord. 09-02, 201 N.J. 349, 358 (2010).
Initially, we reject LFS's argument that American Lifts
waived a defense based on the statute of repose by arguing
earlier in the litigation that the claims against it were
untimely under the two-year statute of limitations. The statute
of repose and the statute of limitations can both apply to
determine whether a cause of action was timely filed. O'Connor
v. Altus, 67 N.J. 106, 122-23 (1975); Cumberland Cnty. Bd. of
12 A-1285-12T2
Chosen Freeholders v. Vitetta Grp. P.C., 431 N.J. Super. 596,
609 (App. Div.), certif. denied, 216 N.J. 430 (2013).
With respect to the statute of repose, the pertinent
questions are whether the torklift was an improvement to real
property and whether American Lifts was a designer of the
improvement or only the manufacturer of a product used by others
in the design, planning, and construction of an improvement to
real property. LFS argues that the torklift was analogous to
the piping material in State v. Perini Corp., 425 N.J. Super.
62, 80-81 (App. Div.), certif. granted, 211 N.J. 606 (2012), as
to which we held the manufacturer could not invoke the statute
of repose. LFS also argues that the torklift was similar to the
defective crane in McCalla v. Harnischfeger Corp., 215 N.J.
Super. 160, 169 (App. Div.), certif. denied, 108 N.J. 219
(1987), that was affixed to the industrial building but was
determined to be "production machinery" outside the scope of the
statute of repose. American Lifts responds that the torklift
was a specially-designed, unique device that was permanently
affixed to the Federal Express warehouse and constituted an
improvement as to which its designer was entitled to repose more
than ten years after the design work was completed.
A number of cases have held that defective materials and
manufactured equipment installed permanently in a construction
13 A-1285-12T2
project are improvements to property and that the designer,
builder, or installation contractor of those materials and
devices could not be sued more than ten years after completion
of its work. See Ebert v. S. Jersey Gas Co., 157 N.J. 135, 140
(1999) (underground natural gas lines were an improvement to
real property); Diana v. Russo Dev. Corp., 352 N.J. Super. 146,
152-58 (App. Div. 2002) (permanently attached ladder providing
access to roof was an improvement to property, although ladder
could be purchased in the same form for other uses); Brown v.
Jersey Cent. Power & Light Co., 163 N.J. Super. 179, 192, 195-96
(App. Div. 1978) (a free-standing electrical transfer switch was
an improvement to real property), certif. denied, 79 N.J. 489
(1979); Luzzader v. Despatch Oven Co., 651 F. Supp. 239, 243-44
(W.D. Pa. 1986) (industrial oven in plant was an improvement to
the property), rev’d in part on other grounds, 834 F.2d 355 (3d
Cir. 1987), cert. denied sub nom. Honeywell, Inc. v. Luzadder,
485 U.S. 1035, 108 S. Ct. 1595, 99 L. Ed. 2d 909 (1988); Gnall
v. Ill. Water Treatment Co., 640 F. Supp. 815, 817-18 (M.D. Pa.
1986) (water treatment system installed in plant was an
improvement to real property). But cf. Rolnick v. Gilson &
Sons, Inc., 260 N.J. Super. 564, 567-68 (App. Div. 1992)
(standard attic fan installed by seller of home was not covered
by statute of repose as an improvement to real property).
14 A-1285-12T2
Specifically, elevators have been held to be improvements
to real property, both in our trial courts and in the courts of
other jurisdictions. Santos v. Hubey Corp., 236 N.J. Super.
608, 611 (Law Div. 1989); Hall v. Luby Corp., 232 N.J. Super.
337, 351-52 (Law Div. 1989); see, e.g., Fritz v. Otis Elevator
Co., 549 N.E.2d 205, 208 (Ohio Ct. App. 1988); Mitchell v.
United Elevator Co., 434 A.2d 1243, 1249 (Pa. Super. 1981);
Desnoyers v. R.I. Elevator Co., 571 A.2d 568, 570-71 (R.I.
1990).
In Dziewiecki v. Bakula, 180 N.J. 528, 532-33 (2004),
however, the Court held that N.J.S.A. 2A:14-1.1(a) does not
apply to a manufacturer of a standardized product used in
construction. The statute protects "contractors, builders,
planners, and designers." Russo Farms, Inc. v. Vineland Bd. of
Educ., 144 N.J. 84, 116 (1996); Horosz v. Alps Estates, Inc.,
136 N.J. 124, 128 (1994); Rosenberg v. Town of N. Bergen, 61
N.J. 190, 201 (1972). It does not protect manufacturers or
sellers of standard materials used in construction. Diana,
supra, 352 N.J. Super. at 151. The fact that the manufacturer
"designed" a "standardized" product that was installed at a
construction project does not constitute activity that is
covered by the statute of repose. Dziewiecki, supra, 180 N.J.
15 A-1285-12T2
at 532-33; Perini Corp., supra, 425 N.J. Super. at 80; Rolnick,
supra, 260 N.J. Super. at 567-68.
In Perini Corp., supra, 425 N.J. Super. at 80-81, we held a
defendant that had manufactured and supervised the installation
of the pipes in an underground hot water heating system could
not invoke the statute of repose with respect to its manufac-
turing role if the pipes were determined to be defective. We
relied on Dziewiecki, supra, 180 N.J. at 533, in which the
Supreme Court distinguished between manufacturers and
distributors that sell, design, or manufacture standardized
products and those that also install their standardized products
according to specialized plans as part of an improvement to real
property. See also Wayne Twp. Bd. of Educ. v. Strand Century,
Inc., 172 N.J. Super. 296, 303 (App. Div. 1980) (statute of
repose does not apply to designer/manufacturer of "a stock or
shelf item out of its regular inventory" or to fabricator of
building item designed by the project engineer), overruled in
part on other grounds by Dziewiecki, supra, 180 N.J. at 533;
Santos, supra, 236 N.J. Super. at 611-13 (disputed issues of
fact as to the role of each defendant in designing,
manufacturing, or installing elevator precluded summary
judgment).
16 A-1285-12T2
In Dziewiecki, supra, 180 N.J. at 533, the Court stated
that, when a defendant wears "two hats," — namely, as both the
manufacturer of a standardized product and its installer
according to a specific design for the real property — and the
injury is attributable to both functions, "the responsibility
should be allocated between the two" roles. Here, American
Lifts did not install the torklift. It only designed and
fabricated the torklift, and all its work was done off-site.
Nevertheless, the torklift was not standard building
material or a "stock or shelf" fabricated item. It was
specially designed and fabricated by American Lifts for the
Federal Express facility. We have not been directed to an
authoritative case by either party that decides whether a direct
role in installation is required to invoke the statute of repose
for the designer of a specialty product that is a unique fixture
and improvement to real property.
Considering the cases that have addressed the scope and
reach of the statute of repose, we conclude that the statute
applies to bar a claim after ten years if a defendant can show
three things: (1) that the injury was caused by an "improvement
to real property," N.J.S.A. 2A:14-1.1(a), (2) that the defendant
"designed, planned . . . supervised, or constructed" the
improvement, ibid., and (3) that the improvement was not a
17 A-1285-12T2
standardized building product, e.g. Dziewiecki, supra, 180 N.J.
at 532-33, but was specially-designed and fabricated to be an
improvement to the real property. We hold that the designer/
manufacturer need not also install such a product in order to
invoke the statute of repose.
Here, application of the three listed elements to the
evidence supports the trial court's conclusion that the claims
against American Lifts were barred by the statute of repose.
An "improvement" is defined as a modification "to real
property [that] permanently increases the property's value."
Ebert, supra, 157 N.J. at 139 (citing 21 Am.Jur.2d,
Improvements, § 1 (1968)); Black's Law Dictionary 773 (8th ed.
2004). The factors considered when determining whether an item
constitutes an improvement to real property include "whether the
modification or addition enhances the use of the property,
involves the expenditure of labor or money, is more than mere
repair or replacement, adds to the value of the property, and is
permanent in nature." Ebert, supra, 157 N.J. at 139 (quoting
Van Den Hul v. Baltic Farmers Elevator Co., 716 F.2d 504, 508
(8th Cir. 1983)).
The torklift in this case facilitated movement of cargo
containers and enhanced the functioning of the warehouse
facility. It was not merely a repair or replacement of an
18 A-1285-12T2
existing feature of the property. It was designed to be
installed as an integral feature of the property. Anchor bolts
were used to affix the lift permanently in a concrete pit at the
warehouse dock, where it was especially designed to fit. It was
not merely "personal property" or "production machinery," as was
the movable crane in McCalla, supra, 215 N.J. Super. at 169. It
was intended to be a permanent fixture of the building. It was
more like the electric transfer switch assembly in Brown, supra,
163 N.J. Super. at 198-99, which was "an integral part" of the
building system and necessary for the proper functioning of the
plant and, therefore, an improvement to real property.
With respect to the second element for application of the
statute of repose, the court should "focus on the 'activities'
of persons seeking [its] protection." Dziewiecki, supra, 180
N.J. at 533-34 (citing Dighton v. Fed. Pac. Elec. Co., 506
N.E.2d 509, 515 (Mass.), cert. denied sub nom. Fed. Pac. Elec.
Co. v. Dighton, 484 U.S. 953, 108 S. Ct. 345, 98 L. Ed. 2d 371
(1987); McConnaughey v. Bldg. Components, Inc., 637 A.2d 1331,
1333 (Pa. 1994); Condit v. Lewis Refrigeration Co., 676 P.2d
466, 468 (Wash. 1984)). Here, American Lifts relies on its
function in designing the torklift to the specifications of
Federal Express for a particular building. LFS's expert alleged
a design, not a manufacturing, defect in the can-stop mechanism.
19 A-1285-12T2
However, a designer/manufacturer may not invoke the statute
of repose if the article was merely designed as a standardized
product, which happened to be installed in a construction
project. Dziewiecki, supra, 180 N.J. at 532-33; Perini Corp.,
supra, 425 N.J. Super. at 80. The torklift in this case was not
a standardized product designed and manufactured for sale to the
public or other commercial customers. Although LFS presented
evidence that the torklift on which Cherilus was injured was not
one-of-a-kind and that other ones were in use at this and other
Federal Express facilities, there was no evidence that the
particular design of this torklift was generally available to
other industrial or commercial buyers.
American Lifts designed the torklift especially for the
Federal Express facility and in accordance with the
specifications and approval of Federal Express. The lift had to
conform to the floor-design of the Federal Express warehouse,
which was comprised of evenly spaced ball bearings used to move
cargo containers. The lift's platform had to contain casters
with the same uniform spacing to create a continuous surface on
which containers could roll. This ball bearing/caster floor and
lift system was unique to the building, and perhaps several
similar Federal Express facilities. The lift also had to
conform to the design of Federal Express trucks, which similarly
20 A-1285-12T2
had floors on which heavy containers could be moved. The floor
system was the feature that necessitated the can-stop mechanism
on the lift that failed.
The number of such manufactured items may be a relevant
factor but does not alone determine whether the product is a
standardized, "off-the-shelf" product or designed uniquely for a
particular construction project. Here, the specially-designed
and affixed torklift was not available through any catalogue or
product advertisement of American Lifts, and LFS did not have
evidence of its sale or use in any facility except the facility
at which Cherilus was injured and perhaps two other Federal
Express facilities. There was vague testimony about the use of
similar lifts at a Delta Airlines facility, but no evidence was
produced demonstrating that the lift on which Cherilus was
injured was a product manufactured generally for sale by
American Lifts. The evidence supported the court's conclusion
that it was a specially-designed improvement to the Federal
Express facility. The role of American Lifts in that regard was
similar to an engineer or architect who designed a unique
component of a construction project, although the designing work
was done off-site. Cf. Greczyn v. Colgate-Palmolive, 183 N.J.
5, 7-8 (2005) (statute of repose applicable to architectural
designer of staircase on which the plaintiff tripped and fell).
21 A-1285-12T2
The elements for application of the statute of repose have
been read broadly to achieve a legislative preference "for
finality in construction-related claims." Daidone v. Buterick
Bulkheading, 191 N.J. 557, 567 (2007) (citing Rosenberg, supra,
61 N.J. at 199). We conclude the trial court correctly
determined that the statute of repose applied to the torklift in
this case and the role of American Lifts in designing it for the
Federal Express facility.
V.
Having determined that the trial court properly dismissed
the time-barred claims against American Lifts, we need not
address additional grounds argued by American Lifts for summary
judgment in its favor.
Affirmed.
22 A-1285-12T2