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Beadling v. William Bowman Associates11/14/2002
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 23, 2002
These consolidated appeals arise from a grant of summary judgment dismissing plaintiffs' products liability claims against defendant, Dunlap Mellor & Company. The claims arise from an accident that occurred when co-workers at an asphalt company used a fifty-five gallon drum that once contained methanol supplied by defendant as a workbench for cutting sheet metal with an acetylene torch. An explosion resulted that killed James Beading and severely injured Barry Szieber. Szieber and his wife filed suit after which Beadling's estate did the same. Both complaints alleged that the warning labels placed on the drum by defendant were deficient due to their inappropriate location and the soft, porous nature of the paper on which the principal label was printed. The two suits were consolidated. Szieber and his wife filed a stipulation of dismissal. Thereafter, Travelers Property Casualty, a member of The Citigroup, (Travelers) substituted as subrogee for Barry Szieber and filed an amended complaint incorporating the allegations found in the Szieber complaint and asserting that it was entitled to seek recovery of its workers' compensation lien arising out of benefits paid to Szieber, pursuant to N.J.S.A. 34:15-40.
On appeal, plaintiffs essentially argue that the federal regulations do not preempt New Jersey products liability law and that, in any event, the labels did not comply with the federal requirements. They further contend that summary judgment was improvidently entered because there were sufficient facts to establish liability, mainly that defendant placed the labels on top of the drum in violation of the American National Standards Institute (ANSI) standards and use of a more durable label would have prevented the label that was used from becoming obscure. Plaintiffs also maintain that the opinions of their experts were not "net opinions" and were sufficient to create a genuine issue of material fact regarding the adequacy of the labels. Finally, they assert that defendant's negligence was a proximate cause of the accident because the use of a chemical solvent drum as a workbench was a foreseeable misuse that imposed a duty of care on defendant.
Although we are convinced that the contents of the warning itself were adequate and complied with the federal regulations, we are equally convinced that the federal regulations do not speak specifically to the location of the warning and neither expressly preempt, nor conflict with, the applicable ANSI standards respecting the appropriate placement or durability of the warning on drums used in an industrial environment. Further, we are satisfied that the opinions given by plaintiffs' experts do not qualify as net opinions and should not have been disregarded by the motion judge. We, therefore, reverse and remand the order granting summary judgment to defendant.
We need not recount the facts at length. On the morning of the accident, Beadling and Szieber were in the maintenance shop at the Crowfoot Asphalt plant making braces for conveyor belt rollers. They placed a sheet of steel on top of a fifty- five gallon drum that once contained methanol, a flammable organic liquid used in fuel, windshield washer fluid and antifreeze. Beadling held the steel sheet in place while Szieber cut it with an acetylene torch. Sparks from the torch caused fumes in the drum to ignite, resulting in an explosion and fire.
The force of the explosion threw Beadling twenty-three feet across the shop and set him on fire. He died within a matter of minutes from smoke inhalation and thermal burns. Szieber sustained multiple frac
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