                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-1525-18T1

LINDA A. WEJNERT,
Individually and as the
Administratrix of the ESTATE
OF ROY WEJNERT, deceased,

          Plaintiff-Appellant,

v.

MCCAIN FOODS USA, INC.,

          Defendant-Respondent,

and

D.O. PROPERTIES, INC.,

     Defendant.
__________________________

                    Argued October 21, 2019 – Decided March 18, 2020

                    Before Judges Fasciale, Rothstadt and Mitterhoff.

                    On appeal from the Superior Court of New Jersey,
                    Law Division, Bergen County, Docket No. L-2770-16.
            James Gordon Begley III argued the cause for appellant
            (Cohen, Placitella & Roth, PC, attorneys; James
            Gordon Begley III, of counsel and on the briefs).

            David A. Abrams argued the cause for respondent
            (Strongin Rothman & Abrams, LLP, attorneys; David
            A. Abrams and Yelena Graves, on the brief).

PER CURIAM

      Plaintiff Linda A. Wejnert appeals from an October 31, 2018 order

denying her motion for reconsideration of an August 17, 2018 order granting

defendant McCain Foods USA, Inc.'s motion for summary judgment, which

dismissed plaintiff's wrongful death and survivorship action.          Plaintiff's

husband, Roy Wejnert (decedent), died when a 993-pound Langen electric

control panel fell on him as he tried to salvage its parts. At that time, decedent

was employed by non-party D.O. Productions, LLC (D.O. Productions) at a

plant that produced frozen pizzas. 1 Plaintiff sued defendant, the former owner

of the plant, alleging that defendant was liable under Restatement (Second) of

Torts § 353 (Am. Law Inst. 1965). Specifically, plaintiff alleged that defendant

decommissioned the panel when it owned the plant, knew or should have known




1
  Presumably, plaintiff did not sue D.O. Productions because of the Work ers'
Compensation Act exclusive remedy provision. See N.J.S.A. 34:15-8.


                                                                          A-1525-18T1
                                        2
that it failed to safely store the panel, and failed to disclose the dangerous

condition of the panel when it sold the plant to D.O. Productions.

      The trial judge granted defendant's motion for summary judgment,

determining that no liability existed under Restatement (Second) of Torts § 353

because there was no dispute that D.O. Productions' employees discovered the

panel's condition a week before the accident, and all of defendant's actual or

constructive knowledge of the panel's condition transferred to D.O. Productions

upon the sale of the plant because defendant's employees also transferred to D.O.

Productions. Having reviewed the record, and in light of the applicable law, we

reverse and remand for further proceedings.

      We discern the following facts from the record. Defendant is a business

that produces, markets, and sells food products. Before October 31, 2014, it

owned a business that operated a plant producing frozen pizzas. Defendant

owned the real estate, the plant, and the manufacturing equipment inside the

plant. On October 31, 2014, by way of an asset purchase agreement, defendant

sold the business' real property to D.O. Properties, Inc. and the business and

equipment to D.O. Productions. 2 Defendant guaranteed that "the [property], the


2
  D.O. Productions and D.O. Properties, Inc., n/k/a 11 Gregg Corporation, are
both affiliated with the Dr. Oetker Group. D.O. Properties, Inc. leased the real
estate to D.O. Productions on the date of the sale.
                                                                         A-1525-18T1
                                       3
current uses thereof and the conduct of the US [b]usiness on the [property]

comply in all material respects with all [a]pplicable [l]aws, including, without

limitation, those [a]pplicable [l]aws dealing with zoning, parking, access,

loading facilities, landscaped areas, building construction, [and] fire and public

health and safety." In addition to the transfer of property, the sale transferred

all the plant's employees and some of the plant's management to D.O.

Productions. Defendant retained some of its officers, including its director of

engineering, Curt Steinbach, and it continued operating its business.

      Decedent had worked as an electrical mechanical technician at the plant

for several years before the sale, and he was transferred to D.O. Productions

upon the sale. During January 2015, decedent and Nicholas Empirio, the plant's

lead mechanic, discussed salvaging parts from a decommissioned 993-pound

Langen electric control panel (the panel), which had previously been used to

operate a piece of packaging production equipment. Decedent and Empirio

opened the panel's doors, and decedent showed Empirio the computer cards he

wanted to recover. About a week later, on January 21, 2015, decedent was killed

when the panel fell on him as he was attempting to salvage the parts. No one

witnessed the accident.




                                                                          A-1525-18T1
                                        4
      On March 31, 2016, plaintiff filed a complaint against defendant under

the Wrongful Death Act, N.J.S.A. 2A:31-1 to -6, and the Survival Act, N.J.S.A.

2A:15-3, seeking damages for negligence and loss of consortium. 3 Defendant

answered the complaint and denied all liability. The parties then proceeded to

discovery. They deposed several individuals, and each party obtained an expert.

      Marco Schmidt, D.O. Productions' corporate designee for the asset

purchase agreement, testified that before the sale, defendant only allowed D.O.

Productions to perform a walkthrough inspection of the plant, and the inspection

was "fairly swift," lasting about ninety minutes. D.O. Productions relied heavily

on defendant's warranties and would not have agreed to the sale without them.

Further, Schmidt testified that he was not aware of "any discussions between

[defendant] and D.O. Productions about Langen electrical control panels."

      John Myers, the plant's maintenance manager, testified that there was an

idle asset area in the plant where decommissioned equipment was stored.

Among other things, the idle asset area stored the panel. Myers testified that

defendant had decommissioned the panel in 2006 and stored it in the idle asset

area in an upright position, neither bolted to the ground nor tethered to a column.



3
   The complaint also asserted claims against D.O. Properties, Inc., but those
claims were dismissed on March 16, 2018.
                                                                           A-1525-18T1
                                        5
After the panel was decommissioned, it was not moved, and it remained in the

same location through the date of the accident. At the time of the sale, the panel

was surrounded by other decommissioned equipment, and it was inaccessible

without moving other equipment. Only after the sale did D.O. Productions start

to move equipment out of the idle asset area. Access to the panel was cleared

about two weeks before the accident.

      Steinbach, defendant's director of engineering, testified that when Langen

control panels are taken out of service, they are "[e]ither place[d] . . .

horizontally onto [a] pallet or skid or secure[d] . . . to something if they're left

in a vertical position." When asked how a panel should be secured in a vertical

position, Steinbach testified that he was unsure whether he was the "one to

answer that specifically." However, plaintiff's facility expert, Edward A. Gray,

opined that "[h]ad . . . [defendant] secured the incident control cabinet with

anchor bolts in its leg support brackets, tethered it vertically, or laid it down

horizontally on a pallet this hazard could and should have been eliminated."

Defendant's safety consultant, Leo J. DeBobes, also testified that he would not

have stored the panel in the way that defendant did, explaining that he "probably

would have strapped it or tethered it to something." Both Gray and DeBobes

also referred to the U.S. Department of Labor Occupational Safety and Health


                                                                            A-1525-18T1
                                         6
Administration's post-accident inspection, which "revealed that a violation of

the OSHA standards was a direct causal factor of this accident, 1910.176(b)." 4

      Gray also opined that "[defendant] knew, or should have known, that the

incident unsecured electrical control cabinet was dangerous to anyone who

could come in proximity of it, including [decedent]." Moreover, he opined that

             [s]imply packing and piling other equipment around the
             incident electrical control panel did not leave it in safe
             condition. . . . The action of moving around equipment
             in the idle asset storage area, a likely event at some
             future point, would have exposed any person to the
             incident electric panel tipping over.

Gray concluded that "several factors in combination caused the unanchored

cabinet to topple over," including decedent's interaction with the cabinet,

"[u]nreliable contact with the floor," and "[c]ompromised cabinet feet" resulting

from rust.

      Empirio testified that on the day that he and decedent discussed plans to

salvage the panel's parts, he looked inside the panel with decedent, and the panel

was in a "stand-up position" and was neither tethered to a column nor anchored

to the floor. However, the panel did not rock or wobble when they opened the


4
   "Secure Storage. Storage of material shall not create a hazard. Bags,
containers, bundles, etc., stored in tiers shall be stacked, blocked, interlocked
and limited in height so that they are stable and secure against sliding or
collapse." OSHA Handling materials–general, 29 C.F.R. § 1910.176(b) (2020).
                                                                          A-1525-18T1
                                         7
doors. The panel did not appear unstable, and Empirio did not observe that the

foot stands had deteriorated. Empirio also explained that he was not trained in

the proper storage of these types of panels.

      After the close of discovery, on July 20, 2018, defendant moved for

summary judgment. On August 17, 2018, after hearing oral argument, the judge

granted defendant's motion in an oral opinion and issued an order dismissing

plaintiff's complaint.

      The judge determined that defendant "is not responsible for the accident

as a matter of law because it did not own the plant or [the] involved electrical

panel on the day of the accident." The judge reasoned that a vendor of real

property generally is not liable for harm caused by a dangerous condition on the

property that existed at the time the vendee took possession of the property.

However, Restatement (Second) of Torts § 353 provides an exception where

            (a) the vendee does not know or have reason to know
            of the condition or the risk involved, and (b) the vendor
            knows or has reason to know of the condition, and
            realizes or should realize the risk involved, and has
            reason to believe that the vendee will not discover the
            condition or realize the risk.

The judge found that there was no dispute that D.O. Productions' employees

knew that the panel was unsecured a week before the accident, when decedent

and Empirio first discussed salvaging the panel's parts.       Further, because

                                                                        A-1525-18T1
                                        8
defendant transferred all its plant employees through the sale, "[t]he complete

knowledge of [defendant] regarding the plant, the equipment, and the storage of

the involved electrical panel was transferred to D.O. Productions."

      Under these facts, the judge determined that section 353 did not apply

"because [defendant] had no reason to believe that D.O. Productions would not

know of the alleged dangerous condition given that the latter inherited all of the

former's employees." The judge further reasoned that "even if [section 353]

applied, any potential liability of [defendant] was terminated when D.O.

Productions discovered that the panel was freestanding and not secured by

tethering or bolting after clearing the surrounding equipment in the idle asset

area." Thus, the judge concluded that "[t]his case falls within the parameters of

the general [r]ule of [v]endor's [n]on-[l]iability and presents no reason for this

[c]ourt to depart from that [r]ule."

      Plaintiff timely moved for reconsideration, and on October 31, 2018, the

judge issued an order denying the motion. The judge found that plaintiff had

failed to show that the judge had "expressed [her] decision based upon a

palpably incorrect or irrational basis, did not consider or failed to appreciate the

significance of probative, competent evidence in an obvious matter, or acted in

an arbitrary, capricious, or unreasonable manner." This appeal ensued.


                                                                            A-1525-18T1
                                         9
      On appeal, plaintiff contends that the judge abused her discretion in

denying the motion for reconsideration. First, plaintiff contends that the judge

failed to consider that defendant could be liable under Restatement (Second) of

Torts § 352 cmt. a, based on the warranty in the asset purchase agreement that

the property and its uses complied with all applicable laws concerning public

health and safety. Second, plaintiff contends that the judge did not view the

evidence in a light most favorable to plaintiff and further did not recognize

factual disputes concerning defendant's liability under Restatement (Second) of

Torts § 353.

      We review the denial of a motion for reconsideration for an abuse of

discretion. Cummings v. Bahr, 295 N.J Super. 374, 389 (App. Div. 1996). An

abuse of discretion occurs "when a decision is 'made without a rational

explanation, inexplicably departed from established policies, or rested on an

impermissible basis.'" US Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 467

(2012) (quoting Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 123 (2007)).

Reconsideration is appropriate where "1) the [c]ourt has expressed its decision

based upon a palpably incorrect or irrational basis, or 2) it is obvious that the

[c]ourt either did not consider, or failed to appreciate the significance of




                                                                         A-1525-18T1
                                      10
probative, competent evidence." Cummings, 295 N.J Super. at 384 (quoting

D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)).

      We first address plaintiff's contention that the judge should have

considered Restatement (Second) of Torts § 352 cmt. a. Section 352 provides,

            Except as stated in § 353, a vendor of land is not subject
            to liability for physical harm caused to his vendee or
            others while upon the land after the vendee has taken
            possession by any dangerous condition, whether natural
            or artificial, which existed at the time that the vendee
            took possession.

            [Restatement (Second) of Torts § 352.]

Comment "a" to section 352 discusses the historical underpinnings of this rule:

            Under the ancient doctrine of caveat emptor, the
            original rule was that, in the absence of express
            agreement, the vendor of land was not liable to his
            vendee, or a fortiori to any other person, for the
            condition of the land existing at the time of transfer. As
            to sales of land this rule has retained much of its
            original force, and the implied warranties which have
            grown up around the sale of chattels never have
            developed. This is perhaps because great importance
            always has been attached to the deed of conveyance,
            which is taken to represent the full agreement of the
            parties, and to exclude all other terms and liabilities.
            The vendee is required to make his own inspection of
            the premises, and the vendor is not responsible to him
            for their defective condition, existing at the time of
            transfer. Still less is he liable to any third person who
            may come upon the land, even though such entry is in
            the right of the vendee.


                                                                         A-1525-18T1
                                       11
            [Restatement (Second) of Torts § 352 cmt. a.]

Plaintiff relies on comment "a" to argue that the general rule of vendor non-

liability applies only "in the absence of express agreement" and that defendant

is liable because it represented that the property and its uses complied with all

applicable laws concerning public health and safety. See T & E Indus., Inc. v.

Safety Light Corp., 123 N.J. 371, 387 (1991) ("[T]he principle of caveat emptor

dictates that in the absence of express agreement, a seller is not liable to the

buyer or others for the condition of the land existing at the time of transfer."

(citing Restatement (Second) of Torts § 352 cmt. a)).

      Plaintiff did not raise a claim for breach of the warranties contained in the

asset purchase agreement nor could she have sustained such a claim as neither

she nor decedent is a third-party beneficiary to the asset purchase agreement.

See N.J.S.A. 2A:15-2 ("A person for whose benefit a contract is made, either

simple or sealed, may sue thereon in any court and may use such contract as a

matter of defense in an action against him although the consideration of the

contract did not move from him."); Broadway Maint. Corp. v. Rutgers, State

Univ., 90 N.J. 253, 259 (1982) ("The contractual intent to recognize a right to

performance in the third person is the key. If that intent does not exi st, then the

third person is only an incidental beneficiary, having no contractual standing.").


                                                                            A-1525-18T1
                                        12
Moreover, the cases plaintiff cites in her appellate brief do not support the

application of comment "a."5

      We conclude that plaintiff failed to show that the judge's decision not to

impose liability under comment "a" to section 352 was palpably incorrect or




5
  Neither T & E Indus., 123 N.J. 371 nor McDonald v. Mianecki, 79 N.J. 275
(1979) is relevant because neither involves a claim raised by an incidental
beneficiary. In T & E Indus., 123 N.J. at 380-81, the buyer of a radium-
contaminated property sued several former owners of the property for
conducting an abnormally dangerous activity that led to the contamination. The
Court held that caveat emptor does not preclude an owner from holding a
predecessor in title liable for conducting an abnormally dangerous activity that
resulted in a dangerous condition, such as radium contamination. Id. at 387-91.
In McDonald, 79 N.J. at 294-98, the Court held that a builder-vendor of real
estate may be held liable to a home buyer under the implied warranty of
habitability for failing to provide potable water.

Likewise, neither O'Connor v. Altus, 67 N.J. 106 (1975) nor Cavanaugh v.
Pappas, 91 N.J. Super. 597, 599-600 (Law Div. 1966) is relevant, as in each
case, the courts considered other exceptions to the general rule of vendor non -
liability. In O'Connor, 67 N.J. at 111, the plaintiffs sued the former owner of a
building and a possible builder for personal injuries suffered by an infant who
ran through a glass sidelight that appeared to be a glass door. However, the
Court did not consider comment "a" to section 352 in the opinion. In
Cavanaugh, 91 N.J. Super. at 599-600, a property owner sought indemnification
from a former property owner for personal injuries suffered by the plaintiff that
allegedly resulted from the negligent maintenance of a public sidewalk in front
of the property. In denying the former owner's motion for judgment on the
pleadings, the judge applied Restatement (Second) of Torts § 373, which permits
liability to be imposed on a vendor of land who was negligent in allowing a
nuisance to remain on the property, where such nuisance has injured a third
person outside of the property. Id. at 604-05.
                                                                         A-1525-18T1
                                      13
irrational. Accordingly, in this regard, it was not an abuse of discretion to deny

plaintiff's motion for reconsideration.

      Next, we address plaintiff's contention that the judge did not apply the

correct standard in reviewing a summary judgment motion and that the judge

did not acknowledge factual disputes concerning defendant's liability under

section 353.

      In considering a motion for summary judgment, "the court's task is to

determine whether a rational factfinder could resolve the alleged disputed issue

in favor of the non-moving party – '[a]ll inferences of doubt are drawn against

the moving party and in favor of the opponent of the motion.'"            Perez v.

Professionally Green, LLC, 215 N.J. 388, 405-06, (2013) (alteration in original)

(quoting Fielder v. Stonack, 141 N.J. 101, 127 (1995)). However, "[n]ot every

issue of fact is material. In order to determine materiality, it is necessary first

to set forth the contours of the legal issue presented." Rowe v. Mazel Thirty,

LLC, 209 N.J. 35, 41 (2012). "The motion court must analyze the record in light

of the substantive standard and burden of proof that a factfinder would apply in

the event that the case were tried." Globe Motor Co. v. Igdalev, 225 N.J. 469,

480 (2016); see R. 4:46-2(c).




                                                                           A-1525-18T1
                                          14
      Our Supreme Court has endorsed section 353 to determine the liability of

a vendor of property to a vendee. See O'Connor, 67 N.J. at 114. Section 353,

entitled "Undisclosed Dangerous Conditions Known to Vendor," provides an

exception to the general rule of vendor non-liability:

            (1) A vendor of land who conceals or fails to disclose
            to his vendee any condition, whether natural or
            artificial, which involves unreasonable risk to persons
            on the land, is subject to liability to the vendee and
            others upon the land with the consent of the vendee or
            his subvendee for physical harm caused by the
            condition after the vendee has taken possession, if

                  (a) the vendee does not know or have reason to
                  know of the condition or the risk involved, and

                  (b) the vendor knows or has reason to know of
                  the condition, and realizes or should realize the
                  risk involved, and has reason to believe that the
                  vendee will not discover the condition or realize
                  the risk.

            (2) If the vendor actively conceals the condition, the
            liability stated in [s]ubsection (1) continues until the
            vendee discovers it and has reasonable opportunity to
            take effective precautions against it. Otherwise the
            liability continues only until the vendee has had
            reasonable opportunity to discover the condition and to
            take such precautions.

            [Restatement (Second) of Torts § 353.]

The vendor's liability will lie only where "the vendee does not know or have

reason to know of the condition or the risk involved." Id. § (1)(a) (emphasis

                                                                       A-1525-18T1
                                      15
added). "[T]he word 'or' carries with it natural disjunctive import." Pine Belt

Chevrolet v. Jersey Cent. Power & Light Co., 132 N.J. 564, 578 (1993) (quoting

State v. Duva, 192 N.J. Super. 418, 421 (Law Div. 1983)). Reading the clauses

in section 353(1)(a) as such, a vendor is liable either when the vendee lacks

knowledge of a dangerous condition or when the vendee lacks knowledge of the

risk posed by the condition.

      Additionally, because section 353(2) addresses the vendee's discovery of

the dangerous condition after the transfer, section 353(1) must address the

parties' knowledge at the time of the sale. Otherwise, section 353(2) would be

superfluous. See State v. Rangel, 213 N.J. 500, 509 (2013) ("We do not read

one part of a statute in a way that would render another part redundant or even

absurd."). As explained in Restatement (Second) of Torts § 353 cmt. d, the

vendee's actual or constructive knowledge of the dangerous condition at the time

of the sale is premised upon the ability to inspect the property:

            A vendor, innocent of conscious deception, is entitled
            to expect, and therefore has reason to believe, that his
            vendee will discover a condition which would be
            disclosed by such an inspection as the vendee should
            make before buying the land and taking possession of
            it or before throwing it open to the entry of others. A
            vendor, therefore, is not required to exercise care to
            disclose dangerous conditions or to have an ordinarily
            retentive memory as to their existence, unless the
            condition is one which such an inspection by the vendee

                                                                        A-1525-18T1
                                       16
            would not discover or, although the condition would be
            so discovered, the vendor realizes the risk involved
            therein and has reason to believe that his vendee will
            not realize it.

Accordingly, to survive a motion for summary judgment, plaintiff was required

to present competent evidence from which a rational jury could find the

following elements for liability under section 353: (1) Defendant concealed or

failed to disclose to D.O. Productions that the panel was unsecured; (2) the

unsecured panel posed an unreasonable risk of physical harm to persons at the

plant; (3) at the time of the sale, D.O. Productions did not know or have reason

to know that the panel was unsecured or that it posed a risk of causing physical

harm; (4) at the time of the sale, defendant knew or had reason to know that the

panel was unsecured; (5) at the time of the sale, defendant realized or should

have realized that the unsecured panel posed a risk of causing physical harm;

(6) at the time of the sale, defendant had reason to believe that D.O. Productions

would not discover the unsecured panel or realize the risk of physical harm; and

(7) D.O. Productions did not have a reasonable opportunity to discover the

unsecured panel and to take effective precautions against it falling over.

      Having reviewed the record, we conclude that plaintiff presented

sufficient evidence from which a rational jury could find that plaintiff proved

each element to impose liability on defendant under section 353. The parties do

                                                                             A-1525-18T1
                                       17
not appear to dispute element one, that defendant failed to disclose that the panel

was unsecured, so we address it no further.

      With respect to element two, whether the unsecured panel posed an

unreasonable risk of physical harm at the time of the sale, Myers, the plant's

maintenance manager, testified that the panel was not moved from the idle asset

area, and only after D.O. Productions took possession of the plant did employees

start to move equipment from that area. However, Gray, plaintiff's expert,

opined that defendant should have known that the failure to secure the panel

posed a risk of harm to any person that was near it, so defendant should have

secured the panel.     Further, Gray opined that if any person moved the

surrounding equipment, he or she would be at risk of harm.            In addition,

Steinbach, defendant's director of engineering, testified that the panel should

have been secured, and DeBobes, defendant's safety consultant, admitted that he

would have secured the panel.

      With respect to element three, whether at the time of sale D.O.

Productions knew or had reason to know that the panel was unsecured or posed

a risk of physical harm, the judge found that that D.O. Productions' employees

knew that the panel was unsecured a week before the accident, when decedent

and Empirio first discussed salvaging the panel's parts.       That decedent and


                                                                           A-1525-18T1
                                       18
Empirio began working with the panel a week before the accident is irrelevant

under section 353(1)(a), which pertains to the vendee's knowledge at the time of

the sale. Moreover, plaintiff presented evidence that creates a genuine dispute

of fact as to this element. At the time of the sale, because D.O. Productions had

only been able to conduct a cursory walkthrough of the premises, it could not

have known or had reason to know that the panel was freestanding and in a

vertical position, unsecured by strapping or bolting. Further, D.O. Productions'

employees did not know that the panel's foot stands had deteriorated, a condition

that Gray opined was one of "several factors [that] in combination caused the

unanchored cabinet to topple over."

      With respect to elements four, five, and six, concerning defendant's

knowledge of the panel's condition and risk and defendant's knowledge as to

whether D.O. Productions would discover the panel's condition or risk, the judge

concluded that defendant was not liable because "[t]he complete knowledge of

[defendant] regarding the plant, the equipment, and the storage of the involved

electrical panel was transferred to D.O. Productions" after the sale because

defendant's employees also transferred to D.O. Productions.          While this

reasoning is generally consistent with agency law, we find that the judge did not

appreciate that some of defendant's officers remained employed by defendant.


                                                                         A-1525-18T1
                                      19
      In general, the knowledge of an agent is imputed to his or her principal :

"The imputation doctrine is derived from common law rules of agency relating

to the legal relationship among principals, agents, and third parties. Pursuant to

those common law rules, a principal is deemed to know facts that are known to

its agent." NCP Litig. Tr. v. KPMG LLP, 187 N.J. 353, 366 (2006); see also

Restatement (Third) of Agency § 5.03 (Am. Law Inst. 2006) ("[N]otice of a fact

that an agent knows or has reason to know is imputed to the principal if

knowledge of the fact is material to the agent's duties to the principal[.]").

      Steinbach, defendant's director of engineering, did not transfer with the

sale, and he testified that when a panel like the one involved in the accident is

decommissioned and place vertically, it should be secured. Further, employees

that transferred with the sale, like Empirio, were not necessarily trained on how

to safely store the panel.    Concerning elements four and five specifically,

plaintiff emphasized that defendant had previously owned the property and was

responsible for the maintenance of its own equipment years before the sale, and

further, in guaranteeing that the property complied with all applicable laws in

the asset purchase agreement, defendant should have investigated the property

and equipment to ensure that it had complied with all applicable laws. With

respect to element six specifically, a jury could find that defendant had reason


                                                                            A-1525-18T1
                                       20
to believe that D.O. Productions would not discover that the panel was

unsecured and was at risk of falling over because defendant only allowed D.O.

Productions to conduct a cursory inspection before the sale, and the panel was

concealed by other equipment in the idle asset area.

      Finally, with respect to element seven, whether D.O. Productions had a

reasonable opportunity to discover the panel's condition and take precautions,

we find that there is no evidence in the record that establishes that D.O.

Productions discovered or should have discovered the panel's dangerous

condition before the day that decedent and Empirio noticed the unsecured panel.

Further, there is no evidence establishing that once they did notice the panel,

they knew or should have known that it was in a dangerous condition, and there

was sufficient time to remedy its condition. While DeBobes opined that D.O.

Productions failed to ensure that the equipment in the idle asset area was safe

and in compliance with relevant codes, Gray refuted these conclusions and

opined that DeBobes' "discrepancy between holding D.O. Productions liable . .

. for not implementing safe storage practices with proper hazard warning (of the

incident electrical cabinet) while simultaneously releasing [defendant] from the

same stand of care is disingenuous."




                                                                        A-1525-18T1
                                       21
      As this appeal arises from the denial of a motion for reconsideration, we

acknowledge that our review is more deferential than it would be if we were

only reviewing a motion for summary judgment. However, because we find that

plaintiff presented sufficient evidence from which a rational jury could find that

defendant is liable under Restatement (Second) of Torts § 353, we conclude that

in denying plaintiff's motion for reconsideration, the judge did not "appreciate

the significance of probative, competent evidence." Cummings, 295 N.J Super.

at 384. Accordingly, we reverse and remand for further proceedings consistent

with this opinion.

      To the extent we have not specifically addressed any remaining arguments

raised by the parties, we conclude they lack sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(1)(E).

      Reversed and remanded. We do not retain jurisdiction.




                                                                          A-1525-18T1
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