SYLLABUS
(This syllabus is not part of the opinion of the Court. It has
been prepared by the Office of the Clerk for the convenience of the
reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not
have been summarized).
Argued March 12, 2002 -- Decided May 22, 2002
LaVECCHIA, J., writing for a majority of the Court.
In this appeal, the Court considers for the first time the appropriateness of using the sham-affidavit doctrine in a summary judgment setting.
Richard Shelcusky was severely burned in an explosion that occurred while he was
operating a standard E-type electrically powered forklift at his place of employment, Reckitt
& Coleman, Inc. (R&C), a production facility that manufactures household aerosol products. Crown
Equipment Corporation (Crown) manufactured the Type-E forklift.
At the time of the accident, Shelcusky had been working for R&C for
sixteen years. On a daily basis, he operated forklifts. Prior to the explosion,
Shelcusky was using a Crown type-E forklift to load pallets of boxes filled
with damaged aerosol cans into an enclosed forty-foot tractor-trailer. During his deposition, Shelcusky
testified that he did not know what was contained in the boxes he
was loading at the time of the accident. Although Shelcusky was aware that
there were explosive and flammable materials on R&C’s premises, he did not know
that he was loading rejected and leaking aerosol cans. Shelcusky asserts that he
did not know that the specific type of forklift he was using could
ignite flammable gases and vapors because there was no warning on the forklift.
Shelcusky testified in deposition that had there been a warning, he would have
followed it.
According to R&C’s Human Resources Manager, there were three types of forklifts used
at the facility. Type-E forklifts generally were used by employees to move finished
products. R&C considered boxed, rejected aerosol cans, like the ones being moved by
Shelcusky on the day of the accident, to be finished products. Crown contends
that neither R&C nor its employees knew that the rejected, damaged, and leaking
cans were flammable.
Shelcusky’s expert prepared a report stating that the Type-E forklift should not have
been used to move the damaged and leaking cans because they posed a
fire hazard. In addition, the Occupational Safety and Health Administration’s investigative report citing
R&C with several violations, concluded that employees were led to believe that the
aerosol cans, even the leaking ones, were safe to handle once they became
finished product and/or once the material was in the container. The report also
noted that all employees interviewed indicated that they did not consider the damaged
cans to be a hazard.
In his personal-injury lawsuit, Shelcusky alleges that Crown violated provisions of the New
Jersey Products Liability Act because the forklift was not reasonably fit, suitable, or
safe for its intended purposes in that Crown failed to place a warning
on the Type-E forklift that would have alerted a user that it should
not be used in the presence of flammable materials.
After the close of discovery, Crown moved for summary judgment, contending that there
was no genuine issue of material fact in dispute demonstrating that Crown’s failure
to warn was the proximate cause of Shelcusky’s injuries. The trial court agreed,
finding that Shelcusky had failed to prove that Crown’s failure to warn proximately
caused his injuries because his employer, R&C, did not consider the leaking cans
he was loading to be flammable. The court reasoned that, even if a
warning had existed, Shelcusky would have had to ask R&C officials if the
leaking cans he was loading were flammable. Because R&C would have answered no,
Shelcusky would have disregarded a warning.
Shelcusky moved for reconsideration, submitting a certification from a co-employee noting that employee’s
awareness that products manufactured at R&C were flammable. Shelcusky submitted this certification to
show that he would not have to ask his employer whether the items
he was moving were flammable. The court rejected that argument and denied the
motion. Shelcusky moved for a second reconsideration, submitting a certification stating that he
knew prior to the accident that the rejected and leaking aerosol cans he
was loading were flammable and that a warning on the forklift would have
prevented him from using it to load the rejected aerosol cans. The trial
court refused to consider the reconsideration motion.
The Appellate Division affirmed the decision of the trial court, concluding that no
genuine issue of material fact existed to demonstrate Crown’s failure to warn was
the proximate cause of Shelcusky’s injuries. In regard to Shelcusky’s second affidavit, the
panel determined that it contradicted his earlier deposition testimony and his prior affidavit
and, therefore, raised only a sham factual dispute.
The Supreme Court granted certification.
HELD: The sham-affidavit doctrine calls for the trial court to evaluate an alleged
contradictory affidavit consistent with the holding in Brill v. Guardian Life Insurance Co.
When not applied mechanistically to reject any and all affidavits that contain a
contradiction to earlier deposition testimony, the doctrine requires a court to evaluate whether
a true issue of material fact still exists, notwithstanding the affiant’s earlier deposition
testimony.
1. The sham-affidavit doctrine permits a trial court to disregard an offsetting affidavit
that is submitted in opposition to a motion for summary judgment when the
affidavit contradicts the affiant’s prior deposition testimony. The doctrine calls for rejection of
the affidavit where the contradiction is unexplained and unqualified by the affiant. In
such a case, the alleged factual issue in dispute can be viewed as
a sham and, therefore, would not impede the grant of summary judgment. Although
the majority of federal and state jurisdictions have adopted the doctrine, it has
not been applied mechanistically. For example, courts have refused to reject an allegedly
contradictory affidavit that explains aspects of the affiant’s deposition testimony on an unclear
point. (Pp. 12-21)
2. Brill v. Guardian Life Insurance Co. sets forth a standard for courts
to apply when determining whether a genuine issue of material fact exists allowing
a matter to proceed to trial. Sham facts proffered only to create disputed
issues should not subject a party to the burden of trial. The determination
that an offsetting affidavit creates only a sham factual dispute is well within
the trial court’s authority at the summary judgment stage, when the court must
evaluate, analyze, and sift through evidence to determine whether the evidence, when viewed
in the light most favorable to the opposing party, would permit a rational
factfinder to resolve the issue in favor of the opposing party. The proper
application of this doctrine does not intrude on the jury’s function. (Pp. 21-24)
3. Courts should not reject alleged sham affidavits where the contradiction is reasonably
explained, where an affidavit does not contradict patently and sharply the earlier deposition
testimony, or where confusion or lack of clarity existed at the time of
the deposition questioning and the affidavit reasonably clarifies the affiant’s earlier statement. (Pp.
24-25)
4. The grant of summary judgment was inappropriate in this case because a
rational factfinder could determine that: 1) Shelcusky’s deposition testimony and initial certification were
not inconsistent with his subsequent certification; and 2) Shelcusky had a plausible explanation
for any perceived inconsistency in his representations to the court. Shelcusky’s representations to
the court reflect cumulatively his awareness that the materials he worked with on
a daily basis were flammable. Moreover, a jury reasonably could find that Shelcusky
would not have used the forklift on the day of the accident if
Crown had provided an adequate warning. (Pp. 25-29)
Judgment of the Appellate Division is REVERSED and the matter is REMANDED to
the trial court for further proceedings.
JUSTICE VERNIERO, concurring in part and dissenting in part, agrees with that portion
of the Court’s opinion incorporating the sham-affidavit doctrine into the State’s jurisprudence. According
to Justice Verniero, the proper inquiry is not whether Shelcusky submitted a sham
affidavit but whether the existing pleadings, depositions, and certifications create a jury question
in respect of whether the lack of warning on the forklift was the
proximate cause of Shelcusky’s injuries. Because no reasonable jury could find proximate causation
on the record presented, Justice Verniero respectfully dissents from the majority’s ultimate disposition.
CHIEF JUSTICE PORITZ and JUSTICES STEIN, COLEMAN, LONG and ZAZZALI join in JUSTICE
LaVECCHIA’S opinion. JUSTICE VERNIERO filed a separate opinion concurring in part and dissenting
in part.
SUPREME COURT OF NEW JERSEY
A- 52 September Term 2001
RICHARD SHELCUSKY and DONNA
SHELCUSKY, his wife,
Plaintiffs-Appellants,
v.
AL GARJULIO, individually
and/or doing business as
INTERSTATE TRUCKING, JOHN
MARTINEZ, STERLING WINTHROP,
INC., doing business as L&F
PRODUCTS, KODAK, JOHN DOES
#1-#16, JOHN DOES 17-21
(unknown persons and/or
entities) and JOHN DOES 22-25
(unknown persons and/or
entities),
Defendants,
and
CROWN EQUIPMENT CORPORATION,
Defendant-Respondent.
Argued March 12, 2002 – Decided May 22, 2002
On certification to the Superior Court, Appellate Division, whose opinion is reported at
343 N.J. Super. 504 (2001).
Robert J. Forrest argued the cause for appellants (Lieberman, Ryan & Forrest, attorneys;
Craig Voorhees, on the brief).
Robert M. Leonard argued the cause for respondent (Drinker Biddle & Shanley, attorneys;
Stacey P. Rappaport, on letter in lieu of brief).
The opinion of the Court was delivered by
LaVECCHIA, J.
Plaintiff was injured severely in an explosion at work while using a forklift
to load pallets of rejected, leaking aerosol cans. In this failure-to-warn action against
the manufacturer of the forklift, plaintiff alleges that if the defendant had supplied
an adequate warning to alert potential users that that model of forklift could
not be used to transport flammable materials, he would have found out what
he was loading and not used that forklift. The trial court concluded that
plaintiff had failed to establish a genuine issue of material fact concerning proximate
cause and granted summary judgment to defendant. The court held that because no
one in the workplace thought that finished aerosol cans, even if they were
"rejects," were flammable, there was no triable issue on whether the failure to
warn was the proximate cause of plaintiff's injuries. When plaintiff submitted moving papers
that included a second affidavit related to that issue, the trial court refused
to consider the motion.
The Appellate Division affirmed the trial court, including the court's refusal to consider
the second affidavit. The panel determined that the affidavit contradicted plaintiff's earlier deposition
testimony and his prior affidavit, and therefore raised only a sham factual dispute.
Thus, in our review of the Appellate Division's determination, we have the opportunity
to address the question whether to accept the “sham affidavit" doctrine that arose
as a part of the federal law governing summary judgment practice under Rule
56(c) of the Federal Rules of Civil Procedure.
Plaintiff Richard Shelcusky received severe burn injuries in an explosion that occurred in 1996 while he operated a standard E-type electrically powered forklift at his place of employment, Reckitt & Coleman, Inc. (R&C). The forklift was manufactured by Crown Equipment Corporation (Crown). R&C is a production facility that manufactures household aerosol products such as Lysol, Wizard Air Freshener, and Resolve Carpet Cleaner. The products contain an ignitable mixture of the aerosol gases isobutane and propane.
At the time of the accident plaintiff had been employed at R&C for sixteen years. Between 1984 and 1996 he worked as a material handler and later as a production worker. Both of those jobs required him to operate forklifts on a daily basis.
The explosion occurred while plaintiff was using a Crown forklift to load pallets of boxes filled with damaged aerosol cans into an enclosed forty-foot tractor-trailer. Plaintiff testified during his deposition that he did not know what was contained in the boxes he was loading at the time of the accident:
Q. And, again, do you know what kind of product you were loading on there? Was it all the same?
A. I have no idea.
Q. Was it all aerosol materials?
A. Like I said, I have no idea.
Q. You just don’t know anything about the nature of the materials?
A. Correct.
The explosion occurred during plaintiff’s seventh load. The forklift was halfway inside the tractor-trailer and plaintiff was about to put it into reverse when the forklift ignited flammable aerosol gases that had accumulated in the tractor-trailer's bay. The fire that erupted caused first- and second-degree burns over a significant portion of plaintiff's body.
After sixteen years of employment at the R&C facility, plaintiff was aware that there were explosive and flammable materials on the premises. During his deposition the following exchange took place:
Q. Did anybody at Reckitt & Coleman ever tell you that you had to be careful because there were explosive materials at the facility?
A. No.
Q. Were you aware that there were explosive materials at Reckitt & Coleman?
A. Yes.
Q. How did you become aware of that?
A. How did I become aware of that, there were explosives? Common sense will tell you that things are filled by gas and that things could ignite.
Plaintiff claims that even though he did not know at the time of
the accident that he was loading rejected, leaking aerosol cans, he knew that
such cans contained flammable gases and vapors. In support of that contention, plaintiff’s
co-worker David Lambert submitted a certification stating that he also was aware that
such products were flammable:
For 13 1/2 years I manufactured products such as Lysol and Vanasol which
contained the propellant[] Isobutane. I was aware that these materials were flammable. In
fact, there was an explosion at what is now Reckitt & Coleman where
I was working due to Isobutane igniting. This explosion was referred to in
the OSHA report that investigated the injury to Mr. Shelcusky.
Plaintiff asserts that he did not know that the specific type of forklift
he was using could ignite flammable gases and vapors because it did not
provide an adequate warning. It is undisputed that there were no warnings on
the forklift used by plaintiff. During his deposition plaintiff testified that had there
been a warning he would have followed its instructions:
Q. What I’m really asking about is not if there’s some problem with the
operation, but, rather, if you see a label on the truck, was it
your practice to follow the instruction contained in the labels?
A. Yes.
Q. And are you telling us you followed each and every instruction on the
labels that you saw?
A. Yes.
According to Robert King (King), R&C’s Human Resources Manager, three models of forklifts
were used at the facility at the time plaintiff was injured. Type-E forklifts
were used to move finished products and Type-EE or EX forklifts were used
to move flammable raw materials. R&C considered boxed rejected aerosol cans, such as
the cans plaintiff was moving at the time of the accident, to be
"finished" products. Crown contends that neither R&C nor its employees knew that the
rejected damaged and leaking cans were flammable. In his testimony, King stated the
matter in a different way: “[W]e had no understanding that handling finished product[s]
whether it was acceptable or rejected, we had no knowledge that handling it
with other than an E rated truck was a problem.” Therefore, according to
King, a worker usually would use a Type-E forklift to do the type
of work assigned to plaintiff on the day of the accident.
Plaintiff’s expert, Dr. Burton Z. Davidson, prepared a preliminary fire safety engineering report
analyzing the most probable cause of the accident and ways in which the
accident could have been avoided. His report was based on, among other things,
a review of the local police department’s investigation report, an Occupational Safety and
Health Administration (OSHA) report on the accident, and a telephone interview with plaintiff.
Dr. Davidson found that “the ignition source for the fiery incident was one
or more electrically energized components of the E-Type forklift truck that [plaintiff] was
operating while working inside the trailer[,]” and that “[t]he fuel energy for the
fiery episode was fugitive aerosol gases (i.e., isobutane and propane) that formed ignitable
concentration in-and-around the forklift truck.” Dr. Davidson's report stated that only a Type-EX
forklift should have been used to load safely the rejected aerosol cans. He
concluded:
Clearly, the manufacturer of the subject forklift (Crown) was safety responsible for the
fiery incident because they failed to warn [plaintiff] on the forklift itself (e.g.
dashboard) not to use or operate the forklift in locations where fugitive flammable
gases can or do accumulate in the work place (e.g. due to leakage)
. . . . Crown could and should have foreseen this fire danger
and they could and should have taken (but did not take) effective steps
to warn end-users (like [plaintiff]) on the dashboard (or equivalent ultimate point-of-risk location)
of the fire ignition energy danger of an E-type forklift. Their product was
dangerous to users lacking an appropriate on-product, ultimate point-of-risk fire danger warning label
(or equivalent). The fire danger clearly arises out of a predictable use of
an E-type forklift in an industrial setting.
Following the explosion, OSHA conducted an investigation and prepared an accident report that cited R&C for several violations and imposed penalties. The report stated:
Aerosol cans of household products such as “Wizard Air Freshener,” “Resolve Carpet Cleaner,” etc. contain a flammable hydrocarbon propellant blend of isobutane and propane. Containers were stored without being adequately checked to assure they were not leaking. Further, they were not checked to assure they would not leak once prepared for removal from the storage area. . . . The forklift used to transport [the cans] presented a source of ignition which posed a fire and/or explosion hazard.
The report also concluded that “[e]mpl[oyees] were led to believe that the containers were safe to handle once they became a finished product, and/or once the material was in the container.” The report noted that all of the employees that were interviewed as part of the investigation indicated that they did not consider these particular cans to be a hazard. The employees interviewed stated that they believed the boxed rejects were "finished" products that were safe even if the individual cans were damaged and leaking.
In his amended complaint plaintiff alleges that Crown violated provisions of the New Jersey Products Liability Act, N.J.S.A. 2A:58C-1 to -11, because the forklift was not reasonably fit, suitable or safe for its intended purposes. The allegations are based on Crown’s failure to place warnings on Type-E forklifts that would have alerted operators that the product should not be used in the presence of flammable materials.
After the close of discovery defendant moved for summary judgment, and plaintiff submitted a certification in opposition to the motion that stated, in part:
At the time I was injured I did not know what I was loading, and I had no reason to inquire as to the contents of what I was loading. If it was important to determine what I was loading I would have discovered that the items I was loading were rejected damaged cans that were leaking flammable gases . . . .
Because I was aware that there were flammable materials on the premises, a
warning not to use the type E forklift where flammable gases or vapors
were present would have alerted me to discover that the items I was
loading were rejected damaged cans and thus would have prevented me from using
the E type forklift and getting injured.
The court granted the motion for summary judgment, finding that plaintiff had failed
to prove that Crown’s failure to warn proximately caused his injuries because plaintiff's
employer did not consider the leaking cans he was loading to be flammable.
The court reasoned that even if a warning existed, plaintiff would have had
to ask R&C officials if the leaking cans he was loading were flammable.
Because his employer would have told him that they were not, he would
have disregarded a warning. Thus, the court found that, “no reasonable finder of
fact could determine that Crown’s failure to warn was the proximate cause of
the Plaintiff’s injuries,” as is required under a failure-to-warn product defect claim.
Plaintiff moved for reconsideration. In support of his motion, he submitted a certification
by his co-employee, David Lambert. Lambert’s certification stated that he was aware that
the products manufactured at R&C were flammable. Plaintiff contended that the certification was
submitted to show that he would not have had to ask his employer
whether the items he was loading were flammable. The court rejected that argument
and denied the motion, finding that plaintiff had failed to prove that either
he or his co-workers considered aerosol cans to be a potential fire hazard.
Plaintiff then filed a second motion for reconsideration with another supporting certification. The
new certification stated:
I knew prior to my accident that the rejected and leaking aerosol cans
I was loading were flammable and that they contained flammable gases and vapors.
A warning not to use the Type E forklift where flammable gases and
vapors were present would have prevented me from using the E Type forklift.
Such a warning would have caused me to inspect what I was loading
and I would have seen that I was loading rejected damaged cans which
I knew were flammable.
Prior to oral argument on the motion, plaintiff was informed that the court
would not consider the motion and that it had been removed from the
motion calendar.
The Appellate Division affirmed, concluding that no genuine issue of material fact existed
to demonstrate that defendant’s failure to warn was the proximate cause of plaintiff’s
injuries. Shelcusky v. Garjulio,
343 N.J. Super. 504, 511 (2001). Recognizing that plaintiff
should receive the benefit of all positive inferences drawn from the facts, and
that it should refrain from passing on plaintiff’s credibility, the panel nonetheless determined
that the court below was not required to accept “a purely self-serving certification
by plaintiff that directly contradicts his prior representations . . . .” Id.
at 510.
We granted certification,
170 N.J. 390 (2001), to consider the applicability of the
sham affidavit doctrine generally and to review the correctness of the grant of
summary judgment to defendant.
A.
The Appellate Division affirmed the trial court's refusal to reconsider its grant of summary judgment to defendant, essentially applying the sham affidavit doctrine. Shelcusky, supra, 343 N.J. Super. at 510. That term refers to the trial court practice of disregarding an offsetting affidavit that is submitted in opposition to a motion for summary judgment when the affidavit contradicts the affiant's prior deposition testimony. Collin J. Cox, Reconsidering the Sham Affidavit Doctrine, 50 Duke L.J. 261, 262 (2000). The doctrine calls for rejection of the affidavit where the contradiction is unexplained and unqualified by the affiant. In such circumstances, the alleged factual issue in dispute can be perceived as a sham, and as such it is not an impediment to a grant of summary judgment.
The sham affidavit doctrine can be traced to the Second Circuit’s decision in Perma Research & Development Co. v. Singer Co., 410 F.2d 572 (2d Cir. 1969). Recognizing that the plaintiff in Perma could not justify an inconsistency between his deposition testimony and a later affidavit submitted in opposition to a motion for summary judgment, the court stated:
If a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact.
[Id. at 578.]
In concluding that the affidavit raised a sham issue of fact, the Second
Circuit noted that the affiant failed to demonstrate that it did not have
access to material facts at the time of the earlier deposition testimony or
that the affidavit contained newly discovered evidence creating a justifiable contradiction. Ibid. Thus,
the affidavit was not permitted to upset the court's determination that no genuine
issue of material fact existed. Ibid.
Following the Second Circuit’s decision in Perma, all federal circuits that have considered
application of the doctrine in their jurisdictions have adopted it in some form.
See Colantuoni v. Alfred Calcagni & Sons, Inc., 44 F.3d 1, 4-5 (1st
Cir. 1994); Martin v. Merrell Dow Pharm., Inc.,
851 F.2d 703, 706 (3d
Cir. 1988); Barwick v. Celotex Corp.,
736 F.2d 946, 960 (4th Cir. 1984);
Albertson v. T.J. Stevenson Co.,
749 F.2d 223, 228 (5th Cir. 1984); Reid
v. Sears Roebuck and Co.,
790 F.2d 453, 460 (6th Cir. 1986); Darnell
v. Target Stores, 16
F.3d 174, 176 (7th Cir. 1994); Camfield Tires, Inc. v. Michelin Tire Corp.,
719 F.2d 1361, 1364-65 (8th Cir. 1983); Radobenko v. Automated Equip. Corp.,
520 F.2d 540, 544 (9th Cir. 1975); Franks v. Nimmo,
796 F.2d 1230, 1237
(10th Cir. 1986); Van T. Junkins & Assocs. v. U.S. Indus. Inc.,
736 F.2d 656, 657-59 (11th Cir. 1984); Sinskey v. Pharmacia Opthalmics, Inc.,
982 F.2d 494, 498 (Fed. Cir. 1992), cert. denied,
508 U.S. 912,
113 S. Ct. 2346,
124 L. Ed.2d 256 (1993).
Similarly, most states that have addressed the issue of offsetting affidavits have chosen
to adopt a rule that is consistent with the sham affidavit doctrine. See,
e.g., Robinson v. Hank Roberts, Inc.,
514 So.2d 958, 961 (Ala. 1987); Wright
v. Hills,
780 P.2d 416, 420-21 (Ariz. Ct. App. 1989), abrogated on other
grounds, James, Cooke & Hobson, Inc. v. Lake Havasu Plumbing and Fire Prot.,
868 P.2d 329 (Ariz. Ct. App. 1994); Caplener v. Bluebonnet Milling Co.,
911 S.W.2d 586, 589-90 (Ark. 1995); Nutt v. A.C. & S. Co.,
517 A.2d 690, 693 (Del. Super. Ct. 1986); Hancock v. Bureau of Nat'l Affairs, Inc.,
645 A.2d 588, 590-91 (D.C. Cir. 1994); Inman v. Club on Sailboat Key,
Inc.,
342 So.2d 1069, 1070 (Fla. Dist. Ct. App. 1977); Tri-Cities Hosp. Auth.
v. Sheats,
279 S.E.2d 210, 211 (Ga. 1981); Tomlie Farms, Inc. v. J.R.
Simplot Co.,
862 P.2d 299, 302 (Idaho 1993); Tom Olesker’s Exciting World of
Fashion, Inc. v. Dun & Bradstreet, Inc.,
390 N.E.2d 60, 64 (Ill. App.
Ct. 1979); Gaboury v. Ireland Rd. Grace Brethren, Inc.,
446 N.E.2d 1310, 1314
(Ind. 1983); Mays v. Ciba-Geigy Corp.,
661 P.2d 348, 352 (Kan. 1983); Lipsteur
v. CSX Transp., Inc.,
37 S.W.3d 732, 735-736 (Ky. 2000); Guenard v. Burke,
443 N.E.2d 892, 898 (Mass. 1982); Zip Lube, Inc. v. Costal Sav. Bank,
709 A.2d 733, 735 (Me. 1998); Gamet v. Jenks,
197 N.W.2d 160, 164
(Mich. Ct. App. 1972); Hoover v. Norwest Private Mortgage Banking,
632 N.W.2d 534,
541 n.4 (Minn. 2001); Wright v. State,
577 So.2d 387, 390 (Miss. 1991);
ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp.,
854 S.W.2d 371, 388
(Mo. 1993); Rivera v. Trujillo,
990 P.2d 219, 221-22 (N.M. Ct. App.), cert.
denied,
990 P.2d 822 (N.M. 1999); Greene v. Osterhoudt,
673 N.Y.S.2d 272, 274
(N.Y. App. Div. 1998); Wachovia Mortgage Co. v. Autry-Barker-Spurrier Real Estate, Inc.,
249 S.E.2d 727, 732-33 (N.C. Ct. App. 1978), aff’d,
256 S.E.2d 688 (N.C. 1979);
Delzer v. United Bank of Bismarck,
484 N.W.2d 502, 508 (N.D. 1992); Buckeye
Sav. and Loan Assoc. v. Cole, 1
986 WL 13274 at *2 (Ohio Ct.
App. Nov. 24, 1986); Henderson-Rubio v. May Dep't Stores Co.,
632 P.2d 1289,
1294-95 (Or. Ct. App. 1981); Price v. Becker,
812 S.W.2d 597, 598 (Tenn.
Ct. App.), appeal denied (Tenn. 1991); Faroux v. Denny’s Restaurants, Inc.,
962 S.W.2d 108, 111 (Tex. Ct. App. 1997); Webster v. Sill,
675 P.2d 1170, 1172-73
(Utah 1983); Marshall v. AC & S, Inc.,
782 P.2d 1107, 1109-10 (Wash.
Ct. App. 1989); Yahnke v. Carson,
613 N.W.2d 102, 108-09 (Wis. 2000); Morris
v. Smith,
837 P.2d 679, 684-85 (Wyo. 1992); but see Pittman v. Atlantic
Realty Co.,
754 A.2d 1030, 1041-42 (Md. 2000).
Although the majority of state and federal jurisdictions have adopted some form of
the doctrine, it has not been applied mechanistically. See 11 James W. Moore,
et al., Moore’s Federal Practice § 56.14[1][f] at 179 (3d ed. 1997) (“If a
party’s deposition and affidavit are in conflict, the affidavit is to be disregarded
unless a legitimate reason can be given for discrepancies.”). The Fifth Circuit Court
of Appeals' decision in Kennett-Murray Corp. v. Bone,
622 F.2d 887 (5th Cir.
1980), “provide[s] the leading case for the proposition that the sham affidavit question
is acceptable only given certain qualifications.” Cox, supra,
50 Duke L.J. at 284.
In Kennett-Murray, the court declined to apply Perma to reject an affidavit because
the court found that the respondent’s offsetting affidavit was sufficient to create a
material issue of fact notwithstanding its inconsistency with the respondent’s prior sworn testimony.
Kennett-Murray, supra, 622 F.
2d at 894-95. The case involved a lawsuit brought by
the plaintiff employer against a former employee and concerned recovery on a promissory
note and employment contract. Id. at 889. The employee asserted that he was
fraudulently induced to enter into the contract and sign the note. Ibid. The
district court granted summary judgment for the plaintiff after disregarding an affidavit submitted
by the defendant that supported the allegations of fraud included in his amended
answer, which the court conceded “if proven, raise[d] a material fact under Alabama
law.” Id. at 892.
The Fifth Circuit's analysis started with the proposition that a court “cannot disregard
a party’s affidavit merely because it conflicts to some degree with an earlier
deposition” and that “a genuine issue can exist by virtue of a party’s
affidavit even if it conflicts with earlier testimony in the party’s deposition.” Id.
at 893. The court stated that the doctrine established in Perma should apply
only when an affidavit is “clearly” or “blatantly” inconsistent. Ibid.
The court concluded ultimately that summary judgment was inappropriate because the inconsistency that
allegedly existed between the defendant’s deposition testimony and affidavit was discernable in the
deposition testimony itself. Nonetheless, the court continued:
Even assuming that the deposition was unequivocal, [defendant’s] affidavit served to create a
genuine issue which would preclude summary judgment. [Defendant’s] affidavit did not purport to
raise a new matter, but rather to explain certain aspects of his deposition
testimony . . . . A fair reading of the deposition reveals frequent
shifts in the questioning between the promissory note and the employment contract with
a degree of confusion on the parts of both [defendant] and the attorneys.
The affidavit is not inherently inconsistent with [defendant’s] earlier testimony . . .
. Furthermore, the statement in the affidavit is not at odds with [defendant’s]
general theory of defense presented in the deposition.
[Id. at 894-95.]
Thus, the Fifth Circuit's decision in Kennett-Murray qualified application of the sham
affidavit doctrine by not allowing rejection of an allegedly contradictory affidavit that explained
aspects of the affiant's deposition testimony on an unclear point. See also Franks,
supra, 796 F.
2d at 1237 (describing factors relevant to determination of “sham fact
issue” as whether affiant was cross-examined during deposition, whether affidavit was based on
newly discovered information, or whether earlier testimony reflected confusion that later affidavit attempted
to explain); Martin, supra, 851 F.
2d at 705 (recognizing that “[w]here the witness
was confused at the earlier deposition or for some other reason misspoke, the
subsequent correcting or clarifying affidavit may be sufficient to create a material dispute
of fact[,]” but nonetheless affirming summary judgment because no explanation offered for affidavit's
contradictions).
Recently, the Wisconsin Supreme Court addressed the use of the sham affidavit doctrine
by its trial courts when evaluating motions for summary judgment. Yahnke, supra, 613
N.W.
2d at 104. The court found that the witness' affidavits “obviously contradicted” their
depositions and that the “explanation for the contradiction [was] ‘unconvincing and, more importantly,
not supported by the record.’” Id. at 105. Acknowledging that the state and
federal civil procedure rules governing summary judgment are nearly identical, the court adopted
the reasoning established by many federal circuit courts, noting that the doctrine "is
not absolute, and is subject to certain important exceptions.” Id. at 108. The
Wisconsin Court identified several factors to be considered when determining the adequacy of
an explanation for an inconsistency, including “whether the earlier deposition testimony reflects confusion,
lack of recollection, or other legitimate lack of clarity that the affidavit justifiably
attempts to explain.” Id. at 109. Because the court concluded that in the
case before it, the witness' deposition testimony was clear and unambiguous, the affidavits
created only a sham factual dispute. The court, therefore, determined that summary judgment
was appropriate. Ibid.
Uniform standards on the application of the sham affidavit doctrine cannot be found
in the case law. The case law that has evolved generally has found
that the doctrine, when not applied inflexibly, is useful in the evaluation process
that trial courts are called on to perform when deciding a motion for
summary judgment. Cox, supra,
50 Duke L.J. at 284.
The markedly small number of jurisdictions that have rejected use of the doctrine
reason that contradictory depositions and affidavits present a credibility question that should not
be resolved by the court at the summary judgment stage. See, e.g., Pittman,
supra, 754 A.
2d at 1041-42; Cox, supra,
50 Duke L.J. at 272-75. Those
jurisdictions view the rejection of a sham affidavit as an interference with the
role of the jury. But that objection, as has been pointed out, is
overbroad:
It seems quite clearly correct to conclude that an interested witness who has
given clear answers to unambiguous questions cannot create a conflict and resist summary
judgment with an affidavit that is clearly contradictory, without providing a satisfactory explanation
of why the testimony is changed. If such an explanation is proffered, a
credibility question is presented; without it, there are no facts suggesting why a
credibility question exists and the nonmoving party should not be allowed to manufacture
a question of fact to delay resolution of the suit. . . .
[I]f the witness’ answers in the deposition are not that clear or the
questions are not that unambiguous, a later-filed affidavit may indeed create a genuine
issue by supplying additional facts.
[10A Charles Alan Wright & Arthur R. Miller, et al., Federal Practice &
Procedure § 2726 (3d ed. 1998) (emphasis added).]
This appeal allows us to consider for the first time the appropriateness of using the sham affidavit doctrine in a summary judgment setting. Our rules of procedure state that a court shall grant summary judgment "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law.” R. 4:46-2(c).
In Brill v. Guardian Life Insurance Co., 142 N.J. 520 (1995), we set forth a standard for courts to apply when determining whether a genuine issue of material fact exists that requires a case to proceed to trial. Justice Coleman, writing for the Court, explained that a motion for summary judgment under Rule 4:46-2 requires essentially the same analysis as in the case of a directed verdict based on Rule 4:37-2(b) or Rule 4:40-1, or a judgment notwithstanding the verdict under Rule 4:40-2. Id. at 535-536. If, after analyzing the evidence in the light most favorable to the non-moving party, the motion court determines that “there exists a single unavoidable resolution of the alleged dispute of fact, that issue should be considered insufficient to constitute a ‘genuine’ issue of material fact for purposes of Rule 4:46-2.” Id. at 540 (citation omitted). Foreshadowing the question that we now address, Justice Coleman explained why a properly decided summary judgment motion does not “denigrate the role of the jury:"
Of course there is in this process a kind of weighing that involves a type of evaluation, analysis and sifting of evidential materials. This process, however, is not the same kind of weighing that a factfinder (judge or jury) engages in when assessing the preponderance or credibility of evidence. On a motion for summary judgment the court must grant all the favorable inferences to the non-movant. But the ultimate factfinder may pick and choose inferences from the evidence to the extent that “a miscarriage of justice under the law is not created.” R. 4:49-1(a).
. . . .
Measured by that standard, a dismissal . . . does not unduly intrude
on the province of the jury. In those instances there simply is no
issue to be decided by a jury based on the evidence. A jury
decides factual, not legal, disputes. If a case involves no material factual disputes,
the court disposes of it as a matter of law by rendering judgment
in favor of the moving party on the issue of liability or damages
or both.
The decision in Brill acknowledged the tension between allowing parties the opportunity to “fully expose [their] case” and protecting potential defendants from meritless claims. Id. at 541-542 (quoting Robbins v. Jersey City, 23 N.J. 229, 240 (1957)). Brill sought to aid courts in applying the summary judgment standard and to "encourage" its use in appropriate cases: “The thrust of today’s decision is to encourage trial courts not to refrain from granting summary judgment when the proper circumstances present themselves.” Brill, supra, 142 N.J. at 541. Shortly after the Brill decision, Rule 4:46-2 was supplemented with additional explanatory language: “[a]n issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact.” R. 4:46-2(c).
The very object of the summary judgment procedure then is to separate real issues from issues about which there is no serious dispute. Sham facts should not subject a defendant to the burden of a trial. The determination that an offsetting affidavit creates only a sham factual dispute is squarely within the trial court's authority at the summary judgment stage, when the court is required to evaluate, analyze, and sift evidence to determine whether the evidential materials, when viewed in the light most favorable to the opposing party, would permit a rational factfinder to resolve the issue in favor of the opposing party. See Brill, supra, 142 N.J. at 540. That rule does not intrude on the function of the jury because it does not require the trial court to determine credibility, or to determine the relative weight of conflicting evidence. We are confident that trial courts have the ability to distinguish sham affidavits from affidavits that raise a genuine issue of material fact. See Cox, supra, 50 Duke L.J. at 284; see also, James Joseph Duane, The Four Greatest Myths about Summary Judgment, 52 Wash & Lee L. Rev. 1523, 1595-1611 (1995) (arguing that trial court can determine whether offsetting affidavits justify granting summary without impinging on role of jury).
Accordingly, the sham affidavit doctrine calls for the trial court to perform an evaluative function that is consistent with our holding in Brill. When not applied mechanistically to reject any and all affidavits that contain a contradiction to earlier deposition testimony, the doctrine requires a court to evaluate whether a true issue of material fact remains in the case notwithstanding an affiant's earlier deposition testimony. The Appellate Division has applied the doctrine in the past, as do we for the first time here. See Shelcusky, supra, 343 N.J. Super. at 510; Moisor v. Ins. Co. of N. Am., 193 N.J. Super 190, 195 (App. Div. 1984). Critical to its appropriate use are its limitations. Courts should not reject alleged sham affidavits where the contradiction is reasonably explained, where an affidavit does not contradict patently and sharply the earlier deposition testimony, or where confusion or lack of clarity existed at the time of the deposition questioning and the affidavit reasonably clarifies the affiant's earlier statement.
Applying those principles we have concluded that the grant of summary judgment in this case was inappropriate for two reasons: a rational factfinder could determine that
(1) plaintiff’s deposition testimony and initial certification were not inconsistent with his subsequent certification; and (2) plaintiff had a plausible explanation for any perceived inconsistency in his representations to the court.
A comparison of plaintiff’s deposition and initial certification with his second certification reveals that this is not a case where a party has “flatly contradicted” his prior sworn testimony. See Martin, supra, 851 F. 2d at 705. All three documents indicate that plaintiff was completely unaware of what was in the boxes he was loading at the time of his accident. Plaintiff’s statement in his second certification that “I knew prior to my accident that the rejected and leaking aerosol cans I was loading were flammable” does not contradict that assertion. When read in conjunction with his subsequent statement that a warning “would have caused me to inspect what I was loading[,]” it becomes clear that the statement was meant to convey that, even though plaintiff did not know specifically what was in the boxes of cans he was loading at the time of the accident, he knew in general that damaged, leaking aerosol cans were flammable. Upon inspection, he would have realized that the rejected cans he was loading were flammable. The statements are not “inherently irreconcilable,” and do not implicate the sham affidavit doctrine. See Tippens v. Celotex Corp., 805 F.2d 949, 954 (11th Cir. 1986) (finding that affidavit stating that affiant could generally remember occurrence of certain events did not contradict prior deposition testimony where affiant was unable to recall specific occurrences of same events).
Cases granting summary judgment based on inconsistent affidavits generally have involved clear contradictions unlike those presented in this case. See, e.g., Mosior, supra, 193 N.J. Super. at 194 (involving contradictory dates relating to insurance policy coverage); Martin, supra, 851 F. 2d at 705 (concerning contradictory dates relating to ingestion of allegedly defective product); Hackman v. Valley Fair, 932 F.2d 239, 241 (3rd Cir. 1991) (regarding contradictory dates relating to relevant statute of limitations); Webster, supra, 675 P. 2d at 1172 (concerning directly contradictory statements regarding alleged dangerous condition). The allegedly inconsistent statements made by plaintiff in this case are different in kind from those cases. Moreover, although plaintiff’s earlier representations do not refer specifically to his knowledge that leaking aerosol cans are flammable, he never spoke to the contrary. During his deposition he was asked only whether he knew there were flammable materials on the premises, not whether he knew specifically that leaking aerosol cans were flammable.
Plaintiff’s argument is bolstered by the fact that other portions of his statements and allegations are consistent with each other. All three statements indicate that he was completely unaware that he was loading leaking aerosol cans at the time of the accident. All three indicate that plaintiff did not see any warning on the forklift alerting him that it should not be used to transport flammable materials. Both of his certifications assert that a warning would have prompted him to change his course of conduct regardless of whether his employer had informed him that the leaking cans were flammable. Furthermore, in support of his first motion for reconsideration, plaintiff submitted a certification from his co-worker stating that he also knew that the types of products manufactured at R&C contained isobutane and were flammable. That certification supported plaintiff’s contention that even though R&C did not consider leaking, rejected cans to be flammable, he and other employees knew the cans contained flammable ingredients. Moreover, his co-worker’s statements are consistent with the statements plaintiff made in his second certification.
Plaintiff also has a plausible explanation for any inconsistency in his representations. See David J. Lender, Motions for Summary Judgment Under Rule 56: Strategy and Tactics, in Federal Pretrial Practice: Basic Procedure & Strategy 2001 at 312 (PLI Litig. & Admin. Practice Course Handbook Series No. H0-00CG, 2001) (noting that “summary judgment may be avoided if there is a good faith explanation” for inconsistent affidavit). The two most frequently cited acceptable explanations for contradictory affidavits are (1) apparent confusion or lack of clarity during the deposition; and (2) the affiant has obtained new evidence. See Cox, supra, 50 Duke L.J. at 287-88.
Plaintiff’s second certification sought to clarify his previous representations, which may have suggested that he knew generally only that flammable materials existed at the R&C facility, whereas in reality he knew specifically that leaking aerosol cans were flammable. See Kennett-Murray, supra, 622 F. 2d at 894 (finding plaintiff’s affidavit sought to “explain certain aspects of his deposition testimony”). Plaintiff’s clarifying affidavit was sufficient to create a genuine issue regarding proximate causation. As explained by the court in Kennett-Murray: “Certainly every discrepancy contained in an affidavit does not justify a [trial] court’s refusal to give credence to such evidence.” Ibid.; see also Deimer v. Cincinnati Sub-Zero Prods., Inc., 990 F.2d 342, 345-46 (7th Cir. 1993) (finding affidavit of nurse in negligence case to be clarifying, not contradictory; when deposed, nurse stated she did not use or look for certain device on medical apparatus and affidavit explained that she did not look for device because she had used same apparatus previously and knew it did not contain device).
Plaintiff worked at R&C for sixteen years. His representations to the court reflect cumulatively his awareness that the materials he worked with on a daily basis were flammable. Contrary to the view of our dissenting colleague, the record is not so one-sided on the question of proximate cause that summary judgment should be granted. A jury reasonably could find that he would not have used the forklift on the day of the accident if defendant had supplied an adequate warning. Plaintiff raised a genuine issue of material fact and, therefore, the grant of summary judgment to defendant was in error.
The judgment of the Appellate Division is reversed. The matter is remanded to the trial court for further proceedings.
CHIEF JUSTICE PORITZ and JUSTICES STEIN, COLEMAN, LONG, and ZAZZALI join in JUSTICE LaVECCHIA’s opinion. JUSTICE VERNIERO filed a separate opinion concurring in part and dissenting in part.
SUPREME COURT OF NEW JERSEY
A-
52 September Term 2001
RICHARD SHELCUSKY and DONNA
SHELCUSKY, his wife,
Plaintiffs-Appellants,
v.
AL GARJULIO, individually
and/or doing business as
INTERSTATE TRUCKING, JOHN
MARTINEZ, STERLING WINTHROP,
INC., doing business as L&F
PRODUCTS, KODAK, JOHN DOES
#1-#16, JOHN DOES 17-21
(unknown persons and/or
entities) and JOHN DOES 22-25
(unknown persons and/or
entities),
Defendants,
and
CROWN EQUIPMENT CORPORATION,
Defendant-Respondent.
VERNIERO, J., concurring in part, dissenting in part.
The Court holds that summary judgment should not have been granted based largely
on its determination that plaintiff’s second certification was not a sham affidavit. I
concur in that portion of the Court’s opinion incorporating the sham-affidavit doctrine into
our jurisprudence. In my view, however, the proper inquiry is not whether plaintiff
submitted a sham affidavit. Rather, it is whether the existing pleadings, depositions, and
certifications create a jury question in respect of whether the lack of a
warning on the forklift was the proximate cause of plaintiff’s injuries. Because no
reasonable jury could find proximate causation on the record presented, I respectfully dissent
from the majority’s ultimate disposition.
“There is no question that warnings necessary to make a product reasonably safe,
suitable and fit for its intended use must be placed on the product.”
Vallillo v. Muskin Corp.,
212 N.J. Super. 155, 159 (App. Div. 1986). Consistent
with that statement, this Court has acknowledged that the failure to provide necessary
warnings constitutes a breach of a duty for which the manufacturer may be
held liable. Coffman v. Keene Corp.,
133 N.J. 581, 598 (1993). To reinforce
that duty, the Court applies a “heeding presumption” in failure to warn cases
that presumes that the plaintiff would have “heeded” or followed a warning had
the manufacturer provided one. Id. at 595.
However, the absence or inadequacy of a necessary warning does not end the
inquiry. “[W]hen we focus not upon the acknowledged duty of the manufacturer to
warn . . . but rather upon the effect of the warning .
. . our analysis must shift to an assessment of the breach of
that duty as a proximate cause of the accident.” Vallillo, supra, 212 N.J.
Super. at 159. As a result, in failure to warn cases, the plaintiff
must still prove that the insufficiency of the warning was a proximate cause
of the accident. Molino v. B.F. Goodrich Co.,
261 N.J. Super. 85, 99
(App. Div. 1992).
In the alternative, a manufacturer may overcome the heeding presumption by proving that
either the plaintiff would have disregarded the warning, or that the employer would
have ignored the warning by failing to take reasonable precautions to ensure employee
safety and would not have permitted its employees to avoid the harm. Coffman,
supra, 133 N.J. at 609. Regardless of how the issue is addressed, “proof
of proximate causation [is required] in failure to warn cases where the plaintiff
[is] unaware of the danger.” Graves v. Church & Dwight Co.,
267 N.J.
Super. 445, 457 (App. Div. 1993).
Ordinarily, the jury considers issues of proximate cause. Perez v. Wyeth Labs., Inc.,
161 N.J. 1, 27 (1999). That rule, however, is far from absolute. The
Restatement (Second) of Torts § 435(2) instructs that courts may resolve for themselves the
question of legal or proximate causation if they conclude that no reasonable jury
could find such causation on the record presented. Our case law is in
accord with that well-established principle. See, e.g., Vega by Muniz v. Piedilato,
154 N.J. 496, 509 (1998) (invoking court’s authority to dismiss plaintiff’s case on causation
grounds); Caputzal v. The Lindsay Co.,
48 N.J. 69, 78-79 (1956) (discussing applicable
case law).
Additionally, on a motion for summary judgment, we are required to view the
evidence in a light most favorable to the non-moving party. Brill v. Guardian
Life Ins. Co. of Am.,
142 N.J. 520, 540 (1995); R. 4:46-2(c). However,
“an adverse party may not rest upon the mere allegations or denials of
the pleading . . . [to show] that there is a genuine issue
for trial.” R. 4:46-5(a). Further, “‘[b]are conclusions in the pleadings without factual support
in tendered affidavits, will not defeat a meritorious application for summary judgment.’” Brae
Asset Fund, L.P. v. Newman,
327 N.J. Super. 129, 134 (App. Div. 1999)
(alteration in original) (quoting United States Pipe & Foundry Co. v. Am. Arbitration
Ass’n,
67 N.J. Super. 384, 399-400 (App. Div. 1961)).
In applying those tenets, I agree with the trial court and Appellate Division
that plaintiff cannot prove that the absence of a warning in this case
was a proximate cause of his injuries. In testimony prior to his second
certification, plaintiff gave no indication that he believed that the finished aerosol cans
that he was loading were explosive. That testimony is consistent with the record,
which shows that neither R&C’s management team nor its employees ever considered those
products to be flammable.
When questioned regarding the handling of rejected aerosol cans, one of R&C’s managers
explained that the company “had no knowledge that handling [the materials] with other
than an E rated truck was a problem.” Further, OSHA’s 1996 investigation of
the accident revealed that “[a]ll [employees] interviewed stated, they did not consider the
product a hazard. They thought because it was a finished product, it was
safe, even if the containers were leaking.” The OSHA report also concludes that
R&C’s training programs were deficient because they failed to alert employees to the
hazards associated with handling leaking aerosol cans.
The certification submitted by plaintiff’s co-worker, David Lambert, in support of plaintiff’s first
motion for reconsideration does not contradict those findings. The co-worker states only that
he was aware that some of the materials used in the workplace were
flammable. His statement does not indicate that he ever believed that the finished
products (even those that leaked) were combustible. As the trial court correctly observed,
for purposes of causation, there is a difference between knowing that “there were
explosive gasses on the premises” and knowing that “the aerosol cans [being] loaded
at the time of [plaintiff’s] accident were flammable.”
Given those undisputed facts, even if the forklift used by plaintiff bore
the suggested warning, the accident would not have been prevented. Plaintiff states that
a warning would have led him to inspect the contents of the boxes
he was loading to ensure that they were not flammable. However, in opening
the boxes, plaintiff would have seen only that they contained finished aerosol cans.
Thus, a warning to forklift users that they should not load flammable products
would have gone unheeded, because, as found by OSHA, no one interviewed by
that agency believed that the finished aerosol products were flammable.
Plaintiff’s second certification, in which he states that he “knew that the rejected
and leaking aerosol cans [he] was loading were flammable,” reflects a bare assertion
that finds no support in the record. Indeed, the balance of the record
refutes it. Neither R&C’s management nor plaintiff’s co-workers considered the finished cans flammable.
Further, plaintiff’s hazardous materials training did not address the potential dangers of leaking
aerosol cans. Finally, as noted, the certification of Lambert at best reveals that
he believed that some of the raw materials used in processing the cans
were flammable; it does not demonstrate that he thought the finished product was
dangerous, a critical distinction for purposes of causation.
This is a sad and tragic case. It will not be helped by
asking a jury to resolve a question that, in my view, lends itself
to only one reasonable answer. The record clearly demonstrates that misinformation in the
workplace regarding the flammable nature of the cans, not Crown’s failure to affix
a warning to its forklifts, was the cause of the accident. As a
result, plaintiff cannot establish that a genuine issue of material fact exists in
respect of proximate causation. For that reason, summary judgment is the appropriate disposition,
and I would affirm the judgment below.
SUPREME COURT OF NEW JERSEY
NO. A-52 SEPTEMBER TERM 2001
ON CERTIFICATION TO Appellate Division, Superior Court
RICHARD SHELCUSKY and DONNA
SHELCUSKY, his wife,
Plaintiffs-Appellants,
v.
AL GARJULIO, individually
and/or doing business as
INTERSTATE TRUCKING,
etc., et al.
Defendants,
and
CROWN EQUIPMENT CORPORATION,
Defendant-Respondent.
DECIDED May 22, 2002
Chief Justice Poritz PRESIDING
OPINION BY Justice LaVecchia
CONCURRING/DISSENTING OPINION BY Justice Verniero
DISSENTING OPINION BY
CHECKLIST