Christos Ortzian v. McNeilus Truck & Manufacturing Incorporated

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 09-1019
CHRISTOS ORTZIAN,
Appellant
v.
MCNEILUS TRUCK & MANUFACTURING INCORPORATED;
EASTERN CONCRETE MATERIALS INCORPORATED; ABC
CORPORATION 1-5, fictitious names for manufacturers;
JOHN DOE 1-5, fictitious names of manufacturers,
distributor and rebuilders
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
(D.C. Civil No. 07-cv-00646)
District Judge: Honorable Dickinson R. Debevoise
Submitted Under Third Circuit LAR 34.1(a)
November 18, 2009
Before: RENDELL, BARRY and CHAGARES, Circuit Judges
(Opinion Filed: November 25, 2009)
OPINION

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BARRY, Circuit Judge
This case arises out an unfortunate workplace accident that occurred in Newark,
New Jersey when Christos Ortzian, appellant herein, fell from the platform of a stationary
mixing truck. Ortzian was seriously injured, and the effects of the fall continue to
manifest themselves through migraines, seizures, anxiety, and related medical problems.
He sued the designer and manufacturer of the mixing truck’s platform, McNeilus Truck &
Manufacturing, Inc. (“McNeilus”), alleging that the platform was defectively designed
and lacked appropriate warnings. McNeilus moved for summary judgment, the District
Court granted the motion, and Ortzian now appeals. We will affirm.
I. BACKGROUND
At the time of the accident, Ortzian was employed as a concrete mixing truck
driver by Eastern Concrete. McNeilus designed and manufactured the mixer portion of
the truck on which Ortzian worked. Ortzian’s primary task was to deliver concrete,
which was mixed and poured into his truck while it was on Eastern Concrete’s premises,
to the appropriate locations in a “professional and respectable manner.” (Appellee’s App.
at 182.) Once delivery was complete, he was responsible for cleaning the “charge
hopper,” which is the mechanism used to transfer the concrete from the mixing truck to a
designated location. To carry out this task, he would climb a ladder permanently affixed
to the rear side of the truck to an elevated platform measuring approximately twenty-four
by twelve inches. While standing on this platform, he would use a hose to wash away any

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cement residue on the charge hopper.
The elevated platform that Ortzian used on the day of the accident was surrounded
on three sides by a single, steel railing. The railing was approximately thirty-three inches
above the base of the platform, and the platform had a metal toe plate that extended up a
few inches from its edge. The railing and toe plate encircled the platform except for the
portion where the ladder met the platform. That opening measured roughly eighteen and
a half inches. A truck operator stepped on and off the platform from the ladder through
that opening. There were no other safety features on the platform.
On July 27, 2005, Ortzian was standing on his truck’s platform cleaning the charge
hopper with the water hose he was holding in one hand. As there were no witnesses and
Ortzian’s memory of the incident is poor, the details of what happened next are largely
unknown. Just before falling nine to twelve feet to the ground, Ortzian recalls having
both of his feet on the platform and facing the truck. He does not remember in which
hand he held the hose, where his other hand was, or whether he was standing or
crouching. Ortzian also has no recollection of whether he fell forward, backwards, over
the railing, under it, or through the gap where the railing met the platform. It is unclear
whether he lost consciousness before he fell or upon hitting the ground, but he does recall
it being a “[h]ot, hot” day. (Id. at 156.) Medical reports of the incident note that
paramedics arrived at the scene to find Ortzian lying on the pavement beside the mixing
truck.

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Ortzian conceded that it was appropriate to grant summary judgment on the failure1
to warn claim. As such, that issue is not before us on appeal. (Appellant’s Br. at 15 n.3.)
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Ortzian filed suit against McNeilus, and the case was removed to the U.S. District
Court for the District of New Jersey. By the time McNeilus filed its motion for summary
judgment, two claims were remaining: a design defect claim and a failure to warn claim.1
Among Ortzian’s evidence was the testimony of his expert, Robert Reed, who proposed
several safety features that he claims would have corrected the alleged defect in the
platform’s design. The District Court granted summary judgment on the ground that
Ortzian failed to raise a material dispute “as to whether the alleged defects caused his
injury.” (App. at 52.) The Court found that, notwithstanding Reed’s testimony as to how
the platform was defective without some kind of guard to protect an individual from
falling through the eighteen and a half inch gap in the railing or in the space between the
platform and the railing, any proposed modifications to the product’s design were useless
without evidence of causation. Absent evidence of how Ortzian fell, said the Court, “a
jury would be left to speculate as to whether McNeilus’ alleged negligence in not
including the proposed modifications was the cause of Mr. Ortzian’s injuries.” (Id. at 54-
55.)
II. STANDARD OF REVIEW
The District Court had jurisdiction pursuant to 28 U.S.C. § 1332, and we exercise
appellate jurisdiction pursuant to 28 U.S.C. § 1291. We “exercise plenary review over
the District Court’s decision to grant summary judgment,” and apply the same standard

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that it should have applied when ruling on the motion. Doroshow v. Hartford Life and
Accident Ins. Co., 574 F.3d 230, 233 (3d Cir. 2009); see Bouriez v. Carnegie Mellon
Univ., __ F.3d __, 2009 WL 3416156, at *4 (3d Cir. Oct. 26, 2009). Thus, we should
only affirm if “there is no genuine issue as to any material fact” and the defendant is
entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). In deciding whether there
is a genuine issue of material fact, we “view the facts in a light most favorable to the
nonmoving party and draw all reasonable inferences in that party’s favor.” Fedorczyk v.
Caribbean Cruise Lines, Ltd., 82 F.3d 69,72-73 (3d Cir. 1996) (citations omitted); see
Busch v. Marple Newtown Sch. Dist., 567 F.3d 89, 95 n.7 (3d Cir. 2009).
III. DISCUSSION
Ortzian argues that there was sufficient circumstantial evidence to establish that
had the proposed protective measures been in place, he would not have fallen from the
platform. In response, McNeilus argues that Ortzian’s theory of causation is too
speculative given that he has failed to show that the product was defective without those
proposed protections and that the alleged defects caused his injuries.
This case is before us based on the diversity of the parties and, therefore, New
Jersey tort law applies. See Lafferty v. St. Riel, 495 F.3d 72, 75 (3d Cir. 2007). One of
the elements of a design defect claim in New Jersey requires that the plaintiff show that
the defect caused injury to a foreseeable user. Coffman v. Keene Corp., 628 A.2d 710,
716 (N.J. 1993). Indeed, “[c]ausation is a fundamental requisite for establishing any

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product-liability action,” and this requires a plaintiff to demonstrate that the “defect in the
product was a proximate cause of the injury.” Id. “[C]ircumstantial evidence, as a basis
for deductive reasoning in the determination of civil issues, is defined as ‘a mere
preponderance of probabilities.’” Kita v. Borough of Lindenwold, 701 A.2d 938, 941 (N.J.
Super. App. Div. 1997) (quoting Jackson v. Del. L. & W.R. Co., 170 A. 22, 24 (N.J.
1933)). Although such evidence may be a sufficient basis for decision, the circumstances
must be sufficiently strong that they can reasonably form the basis of a jury’s conclusion.
See Fedorczyk, 82 F.3d at 74. Ortzian acknowledges that the circumstances of this case
leave crucial questions unanswered.
As the District Court noted, our decision in Fedorczyk drives the analysis here. In
Fedorczyk, the plaintiff slipped while taking a shower in her cabin bathroom aboard a
cruise ship. Although the floor of the bathtub was equipped with four anti-skid strips, the
plaintiff was unable to recall if, at the time of the fall, her feet were on the strips or in the
slippery space between them. Her expert opined that there was not sufficient slip
protection, but he also conceded that it would be impossible to prevent slips altogether
given the presence of liquid soaps used during bathing. Nonetheless, he concluded that
the lack of sufficient anti-slip protection caused the injury. The District Court granted
summary judgment for the vessel operator, and we affirmed, holding that “the expert’s
opinion that inadequate stripping caused Fedorczyk’s injuries is not based on any direct
evidence or circumstantial evidence of where she was standing when she fell.” Id. at 75.

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We found that because “[n]o evidence presented tends to prove Fedorczyk was standing
either on or off the stripping at the time she fell,” without that evidence, the jury would be
left to speculate as to whether the vessel operator’s negligence in failing to make the tub
more slip resistant was the cause of the injury. Id.
Ortzian’s attempt to distinguish his case from Fedorczyk is unavailing. He argues
that, unlike Fedorczyk, his case “concentrates not on ‘the fall’ but on the absence of
guarding to check or stop the fall.” (Appellant’s Br. at 23.) We disagree. We found that
a key problem for the plaintiff in Fedorczyk was that she could not recall whether her feet
were on the anti-slip strips at the time she fell, because if they were, she could not show
that the vessel operator’s failure to provide sufficient protection caused her fall.
Similarly, Ortzian did not know how he fell from the platform and, thus, he cannot say
whether one of Reed’s proposed modifications would have prevented him from doing so.
Ortzian argues that his expert’s testimony buttons up this causation problem.
Reed’s recommendations for “a swiveling J- or T- bar and the slide-up mid-rail for the
gate area,” as well as a “mid-rail around the platform perimeter,” might have prevented
falls both through the eighteen inch gap in the railing where the ladder meets the platform
and through the space that exists between the railing and the floor of the platform. (Id. at
25.) The District Court, however, found that even assuming these untested protections
were in place, the possibility still would exist that Ortzian could have fallen over the
railing. In responding to this “third way” that he could have fallen, Ortzian points to the

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following testimony from his expert:
Question: Are you saying that if you encircle the top of the platform,
there is no possible way anybody could fall?
Reed: No, as I stated, someone intentionally could jump over.
Question: I’m not talking about intentionally. I’m talking about
accidentally.
Reed: I’m sure there would be some incident of negligence that
could happen but in the normal task, the normal task, no.
(Id.) This testimony, however, is not as helpful as Ortzian might wish. Reed does
nothing to explain “normal task,” which is important given that all of the facts as to how
Ortzian was positioned before the fall, such as the location of his free hand, are unknown.
Reed also concedes that “some incident of negligence” could have caused a person to fall
over the railing. (Id.) This, too, is a crucial point because it is impossible to foreclose the
possibility that Ortzian failed to take appropriate measures to ensure his own safety, such
as, for example, by holding the railing with his free hand. In sum, it is not clear that any
of Reed’s proposed modifications, including encircling the top of the platform, would
have prevented a fall.
IV. CONCLUSION
Because a jury would be required to rely on sheer speculation as to how Ortzian
fell and, thus, whether any of the alleged defects was the cause of that fall, summary
judgment was properly granted. The order of the District Court will be affirmed.

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