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Massey v. Penn Metal Fabricators, Inc.

A-3197-01T5 (N.J. Super. App. Div. 2003) (Unpublished)

LIABILITY; MARKET SHARE; WORKERS COMPENSATION—The existence of an alternate remedy, such as a workers compensation claim, does not automatically bar recovery under a market share liability theory.

A postal worker, who was injured at work when the locking device of the back door to a mail truck failed, sued the two biggest makers of mail trucks. She could not identify the manufacturer of the particular truck, so she sued the two manufacturers of mail trucks based on a “market share” or collective liability theory. Under the market share theory of liability, a injured person who cannot identify the manufacturer of the product that caused his or her injury can sue a substantial number of the manufacturers of the product. Here, the two manufacturers claimed that the postal worker failed to demonstrate that, with reasonable efforts, she could not identify the manufacturer of the actual mail truck and that she failed to join the manufacturers of a substantial share of the market. The lower court found that the postal worker demonstrated that she could not identify the manufacturer of the defective mail truck. It also found that the two companies manufactured more than eighty percent of the mail trucks in service, which constituted a substantial share of the mail truck market. However, the lower court interpreted the “market share” liability remedy as one that is available when an injured person has no other available remedy. In this case, the lower court found that since the postal worker could file a worker’s compensation claim against her employer to recover for her injuries, she could not avail herself of the “market share” theory to obtain recovery from the manufacturers.

The Appellate Division rejected the lower court’s ruling that the existence of an alternative remedy, such as a worker’s compensation claim, automatically barred recovery under a market share liability theory. The Court, however, noted that the “market share” theory was still in its infancy. It was applied in one instance where a defective pallet was destroyed, leaving the plaintiff with no ability to specifically name the manufacture. It was not applied in an asbestos case, where the Appellate Division determined that because there were varying levels of toxicity in different asbestos products, it would be unfair to apply the “market share” doctrine. As a result, this Court was unable or unwilling to extend the market share doctrine to the postal worker’s case and affirmed the dismissal.


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