Goodman v. Stalfort, Inc.

Decision Date26 April 1976
Docket NumberCiv. No. 251-72.
Citation411 F. Supp. 889
PartiesRobert GOODMAN, Plaintiff, v. STALFORT, INC., et al., Defendants, and GREAT ATLANTIC & PACIFIC TEA COMPANY, INC., Defendant-Third-Party-Plaintiff, v. The CAMDEN FIRE INSURANCE ASSOCIATION, Third-Party-Defendant.
CourtU.S. District Court — District of New Jersey

Mayer & Mayer by Abraham Mayer, Newark, N.J., and Edward M. Swartz, Boston, Mass., for plaintiff.

Enright, Bright & Porter by Stanley R. Bright, Bloomfield, N.J., for defendants Stalfort and Camden Fire.

McElroy, Connell, Foley & Geiser by William T. McElroy, Newark, N.J., for defendant Inland.

Haskins, Robottom & Hack by David L. Hack, Bloomfield, N.J., for defendant-third-party-plaintiff Great Atlantic & Pacific Tea Co., Inc.

OPINION

BIUNNO, District Judge.

This suit, brought on diversity grounds, seeks damages for personal injuries sustained in the use of an inflammable fluid marketed for the specific purpose of igniting charcoal in an outdoor grill.

The defendant Inland Oil and Chemical Corp. (Inland) was the supplier who initially furnished the fluid to Stalfort, in bulk. The fluid was sold to one or the other of the Stalfort companies, which packaged the fluid in cans for defendant Great Atlantic & Pacific Tea Co., Inc. (A & P), which in turn marketed the product under its brand for retail sale. Plaintiff Goodman purchased the can of fluid from A & P.

In the late afternoon of a day in mid-June, 1970, Goodman, then 53 years old, set up a charcoal grill to cook steaks for expected guests. The grill was a rectangular one, a foot wide and two feet long, and perhaps 6 to 8 inches deep.

He set this up in his driveway on a picnic table in the sun near the rear of the house, and filled it "good and full" with charcoal briquettes he had bought at A & P that afternoon, along with the can of charcoal lighter fluid.

It was the first time he was using the grill; he had a round one before that he had used and lit charcoal fires in up to 5 times.

He then lifted the plastic cap of the can and began to sprinkle the fluid over the charcoal. The fluid did not come out fast enough to his satisfaction, so he took a garden tool — a long-handled, four-tined fork — and used it to enlarge the openings in a plastic sprinkler set below the cap. He could not say how many holes the sprinkler had, or whether he pressed the fork through the cap or enlarged one of the holes. In any event, after this operation, he had made a large hole and the fluid came out quite freely, in a stream.

He poured the fluid, going back and forth over the charcoal to soak it all, using about half the contents of the can. He was not sure whether it was a pint can or a quart can. He then put the can down some distance away, waited a while for the fluid to soak into the charcoal, and then lit it in several places with a match.

The flames came up immediately, and satisfied that the fire was started, he went into the house to help his wife prepare the steaks. He came out ten to fifteen minutes later to check the fire, and it seemed to him to be out. He saw no flames, and passing his hand back and forth over the grill, there seemed to be no warmth, there was no heat to amount to anything. He did not poke or turn the charcoal to look underneath. Some of the briquettes on top were a grayish-white at the corners. In his prior experience with charcoal, he had observed that when the charcoal was fully burning, a whitish or grayish-white coating formed on the entire surface.

He then picked up the can again, and the moment he began pouring more fluid on the charcoal a flame shot up the stream of fluid and the can blew up in his hand. When he saw the can again later, three sides of the bottom had been forced open so that it was like a lid, and the formerly flat sides of the can were bulged out and rounded. The can itself was discarded by someone and it is no longer in existence or available for inspection.

When the can blew up burning fluid was expelled over Goodman's hands, arms, chest, thighs and shins. He rolled on the grass, but this did not put out the fire; and he then sprayed himself with water from a garden hose and put it out.

Goodman had read the cautionary instructions on the can. He remembers reading something like "Caution. Combustible Mixture." He read "Keep Away From Flame And Open Fire." He read "Do Not Add To Lighted Fire."

Goodman had completed high school and two years of pre-med courses in college, as well as extension courses in electronics, business management and purchasing. At the time of the occurrence, he was a salesman selling paint sundries, such as tools and brushes and had been for some 3.5 years. Before that he was a purchasing agent dealing in metals. Before that he was a laboratory technician for stress-rupture testing of high-temperature metal alloys. Before that he had worked in and managed a scrap metal yard, and before that as a time-study clerk for a metals manufacturer.

The foregoing account is summarized and condensed from the examination of Goodman on oral deposition taken November 17, 1972.

The court now has before it a number of motions by various parties, which have been submitted and the disposition of which is as follows.

A. A & P's MOTION FOR SUMMARY JUDGMENT.

A & P claimed a right of indemnification from Stalfort and filed a third-party complaint against Stalfort's carrier, The Camden Fire Insurance Association to have the benefit of its coverage on Stalfort extended to it, which included taking over and defending A & P under the public liability policy with broad form vendor's endorsement (Policy No. 36 794 97).

As to Stalfort, the judgment sought is to take over, defend and save harmless A & P in regard to Goodman's claim, and to reimburse A & P its reasonable expenses incurred until then.

As to Camden, the judgment sought is to include A & P as an additional insured under the broad form endorsement and otherwise for the same relief sought against Stalfort.

This same motion had been made previously and denied on December 4, 1973 without prejudice to renewal at pretrial. It was then renewed, but disposition was continued to afford Stalfort and Camden an opportunity to complete discovery on this issue. That discovery has now been completed and the motion renewed.

At pretrial, Stalfort and Camden were directed to notify A & P whether or not they resisted the motion. They have evidently not done so, but the renewed motion is unopposed. The terms of the indemnification agreement are clear and applicable. The court finds that there is no genuine issue on any material fact, and that A & P is entitled to judgment as a matter of law. F.R.Civ.P. 56.

A & P shall submit a form of judgment for entry, with copies to Stalfort and Camden. If either has objections as to form, a substitute version shall be submitted and served within 10 days of mailing of A & P's form, and the court will resolve any differences.

B. STALFORT's AND INLAND's MOTIONS FOR SUMMARY JUDGMENT.

Stalfort and Inland have moved for summary judgment against Goodman. First, they assert that Goodman's own testimony, adduced on the depositions, shows that he was guilty of contributory negligence as a matter of law. Since the occurrence took place in 1970, the common law rule barring recovery where there is contributory negligence governs the case. The statute altering that rule to the rule of comparative negligence, L.1973, c. 146; N.J.S.A. 2A:15-5.1 et seq., was expressly stated to apply to causes of action arising on and after 90 days from May 24, 1973 (sec. 4 of c. 146).

Second, they assert that the testimony of Goodman's only expert witness, Jon R. Kelly (a) is inadmissible for lack of expertise in the proper field, and (b) shows that the product and can as sold to Goodman was properly designed, and that Goodman's act in making a large hole for easier pouring destroyed the effectiveness of the recognized safety device on the can.

On the first aspect, there is no doubt that Goodman's testimony discloses contributory negligence; the issue here is whether it so clearly appears therefrom as to amount to contributory negligence as a matter of law. Was Goodman's conduct such as to "invite calamity" by proximately making himself "the instrumentality of his own injury"?

Taking the evidence which Goodman would be bound with at trial in its most favorable light, the court is satisfied that it clearly and convincingly shows proximate causative contributory negligence as a matter of law. There is no escape from this conclusion.

First of all, Goodman said he read the statements on the can: "Caution. Combustible Mixture"; "Keep Away From Flame and Open Fire"; "Do Not Add To Lighted Fire." Despite this awareness, he did precisely what the warnings told him not to do: he took a combustible mixture and added it to a fire that he had lighted 10 to 15 minutes before. As was said long ago in a related context, "he did not look, or, looking did not heed what he saw." Pennsylvania R. R. Co. v. Righter, 42 N.J.L. 180, at 187 (E & A 1880).

He knew that charcoal is black, and that as it burns a whitish or greyish-white coating (ash) forms on the surface; when he came out to look at the grill, he saw that the briquettes "were mostly black"; the part that was not black was "around an occasional corner where it was greyish-whitish." What he saw told him that those parts were burning, but he did not heed what he saw and added a combustible mixture to a lighted fire, contrary to the instructions on the label which he had read. This act, by itself, is obviously contributory negligence as a matter of law.

If that were all he did, the newly-added fluid would have flared up in a "whoosh" and would also have ignited the vapors around the surface of the stream of fluid back to the can, but the can would not have "blown up" in his hand. Depending on where he was standing and how much fluid he added, he could have been burned, though probably less severely than h...

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