NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1285-12T2

JOSEPH CHERILUS and MARIE

CHERILUS, his wife,

Plaintiffs,

v.

FEDERAL EXPRESS (FOR DISCOVERY

PURPOSES ONLY),

Defendant, 

and

LINC FACILITIES SERVICES,

Defendant/Third-Party

Plaintiff-Appellant,

v.

COLUMBUS MCKINNON CORPORATION

a/k/a AMERICAN LIFTS,

Defendant/Third-Party

Defendant-Respondent.

___________________________________

Argued November 4, 2013 – Decided

Before Judges Ashrafi, St. John and Leone.

On appeal from Superior Court of New Jersey,

Law Division, Essex County, Docket No. 

L-1478-08.

David L. Wysnewski argued the cause for

appellant (Barry, McTiernan & Moore, 

attorneys; Mr. Wysnewski and Laurel A. 

Wedinger-Gyimesi, on the brief).

April 3, 2014

APPROVED FOR PUBLICATION

April 3, 2014

APPELLATE DIVISION
2 A-1285-12T2

John E. Tyrrell argued the cause for

respondent (Hollstein Keating Cattell

Johnson & Goldstein, P.C., attorneys;

Mr. Tyrrell, on the brief).

The opinion of the court was delivered by 

ASHRAFI, J.A.D. 

Plaintiff Joseph Cherilus was injured on a cargo lift at a

Federal Express facility where he worked. He and his wife sued

the company responsible for maintaining the lift, Linc 

Facilities Services (LFS). LFS filed a third-party claim of 

product liability against the manufacturer of the lift, Columbus 

McKinnon Corporation, which also uses the name American Lifts. 

The trial court granted summary judgment to American Lifts on 

the ground that the claims against it were barred by the tenyear statute of repose applicable to construction defects, 

N.J.S.A. 2A:14-1.1(a). Subsequently, LFS settled with 

plaintiffs on their personal injury claims. LFS now appeals the 

dismissal of American Lifts from the case so that it can pursue 

its claim for contribution for the settlement amount it paid to 

plaintiffs. We affirm.

I.

Viewed most favorably to LFS as the party opposing summary 

judgment, see R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of 

Am., 142 N.J. 520, 540 (1995), the record reveals the following 

facts and procedural history.
3 A-1285-12T2

Cherilus was injured while working on the loading dock of a 

Federal Express warehouse at Newark Airport. He was on the 

platform of a large mechanical device known as a "torklift" or

"air cargo lift" that is affixed to the warehouse loading dock 

and used to raise and lower heavy cargo between ground level and 

the level of truck beds. The torklift contains a mechanical 

part known as a "can-stop" or "floor lock" that pops up from the 

lift platform to prevent containers from rolling off the lift. 

When not up, a can-stop lies flat as part of the platform. 

Workers often step on a can-stop as they maneuver cargo on and 

off the lift.

On February 21, 2006, as Cherilus stepped on a can-stop, it

malfunctioned and depressed below the level of the platform. 

Cherilus's foot stuck in the can-stop mechanism, and an air 

cargo container rolled into and seriously injured his leg. 

Cherilus filed suit against LFS in February 2008. LFS was 

the contractor that provided warehouse services for Federal 

Express and was responsible for maintaining the cargo lifts at 

the facility. In November 2009, LFS filed a third-party 

complaint against American Lifts, the designer and manufacturer 

of the lift. An engineering expert issued a report and a 

certification stating that the malfunction was a result of a 

design defect in the can-stop's 1/4 inch "tabs" that were to 
4 A-1285-12T2

keep it level with the lift platform. The expert stated that 

these tabs were not thick enough, and they failed prematurely. 

Cherilus's weight was sufficient to depress the can-stop below 

the level of the platform, ultimately resulting in his injury. 

In March 2011, plaintiffs filed an amended complaint adding

American Lifts as a direct defendant on their personal injury 

claims. 

American Lifts had designed and manufactured the lift in 

accordance with Federal Express's specifications and approval. 

Nineteen such torklifts were installed in the warehouse at which 

Cherilus was injured, and there was some evidence, although not 

detailed or precise, that similar ones may have been in use at 

one or more other Federal Express facilities. The torklift was 

bolted into a cement foundation of the warehouse dock, and the 

bolts were covered with grout. American Lifts provided 

instructions for but did not participate in the installation. 

Once the lift was installed, it was never moved. Nor was it 

intended to be moved. 

On this evidence, the trial court concluded that the 

torklift was an improvement to the warehouse property and that 

N.J.S.A. 2A:14-1.1(a) barred any suit for personal injury 

brought against its designer more than ten years after the lift 

was installed and put to use. There was no dispute that the 
5 A-1285-12T2

lift was shipped to Federal Express on March 8, 1995, and was in 

use by the summer of 1995, that is, more than ten years before 

Cherilus was injured in February 2006. Consequently, the court 

granted summary judgment to American Lifts dismissing both 

plaintiffs' direct personal injury claims and the third-party 

contribution claim of LFS. We denied LFS's motion for leave to 

file an interlocutory appeal from the trial court's summary 

judgment decision. 

In May 2012, with the aid of a conference conducted by the 

trial judge, LFS reached a settlement with plaintiffs on their

personal injury claims. It then filed a stipulation of 

dismissal of plaintiffs' claims. Plaintiffs also executed a 

release in favor of LFS. In September 2012, LFS obtained from 

plaintiffs an assignment of their claims against American Lifts

for purposes of pursuing its appeal. 

II.

Initially, we agree with American Lifts that the assignment 

of plaintiffs' personal injury claims to LFS has no effect on

this appeal. Plaintiffs did not have a judgment against 

American Lifts. They had a claim for personal injury that was 

dismissed and not pursued further by them. A tort claim is not 

subject to assignment prior to judgment. Village of Ridgewood 

v. Shell Oil Co., 289 N.J. Super. 181, 195 (App. Div. 1996);
6 A-1285-12T2

Di Tolvo v. Di Tolvo, 131 N.J. Super. 72, 79 (App. Div. 1974); 

Goldfarb v. Reicher, 112 N.J.L. 413, 414 (Sup. Ct.), aff'd o.b.,

113 N.J.L. 399 (E. & A. 1934). In United States Casualty Co. v. 

Hyrne, 117 N.J.L. 547, 552 (E. & A. 1937), the Court stated: "It 

has always been held that the right to bring an action in the 

courts of this state is possessed by the injured person alone, 

unless the injured person assigns his right to someone else 

which cannot be done before judgment when the action sounds in 

tort . . . ." Accord Costanzo v. Costanzo, 248 N.J. Super. 116, 

121-22 (Law Div. 1991). 

Plaintiffs could have appealed from the summary judgment 

order, but their assignment of the right to appeal was 

ineffective. We address the appeal only to determine whether 

LFS could pursue its own claim for contribution from American 

Lifts under the Joint Tortfeasors Contribution Act, N.J.S.A.

2A:53A-3.

III.

The relevant provision of the Joint Tortfeasors 

Contribution Act states:

Where injury or damage is suffered by any 

person as a result of the wrongful act, 

neglect or default of joint tortfeasors, and 

the person so suffering injury or damage 

recovers a money judgment or judgments for 

such injury or damage against one or more of 

the joint tortfeasors . . . and any one of 

the joint tortfeasors pays such judgment in 
7 A-1285-12T2

whole or in part, he shall be entitled to 

recover contribution from the other . . . 

joint tortfeasors for the excess so paid 

over his pro rata share . . . . 

[N.J.S.A. 2A:53A-3 (emphasis added).]

American Lifts relies on Polidori v. Kordys, Puzio & Di

Tomasso, 217 N.J. Super. 424, 430-32 (App. Div. 1987), to argue 

that a stipulation of dismissal is not sufficient to satisfy the 

requirement of the statute that a "money judgment" be the basis 

for the contribution claim. In Young v. Steinberg, 100 N.J. 

Super. 507, 509-10 (App. Div. 1968), rev'd on dissenting 

opinion, 53 N.J. 252 (1969), the defendant settled with the 

plaintiff and then claimed a right to contribution from a joint 

tortfeasor. The Supreme Court held that a claim of contribution 

could be maintained if: (1) the "suit for contribution based on 

a settlement [had] been elevated to the status of a judgment by 

formal court proceeding," and (2) the settlement "discharges the 

injured party's claim against a non-settling joint tortfeasor." 

53 N.J. at 255. The Court implicitly interpreted the "money 

judgment" language of the statute to include a confession of 

judgment by the settling defendant. Ibid. 

Although plaintiffs in this case never obtained a "money 

judgment," LFS contends it is not precluded from pursuing its 

claim for contribution because its settlement with plaintiffs 

substantially satisfied the two requirements articulated in 
8 A-1285-12T2

Young, supra, 53 N.J. at 255. The settlement resulted from a 

conference before a Superior Court judge, thus invoking the 

court's participation and the approval of the settlement in 

judicial proceedings, and it disposed of plaintiffs' claims in 

their entirety against all potential tortfeasors. See Gangemi 

v. Nat'l Health Labs., Inc., 305 N.J. Super. 97, 105 (App. Div. 

1997). American Lifts contends, however, that the stipulation 

of dismissal and release executed by plaintiffs did not 

discharge their claims against American Lifts, as later 

demonstrated by their attempt to assign those claims to LFS. 

LFS is correct that a full-blown adversarial proceeding is 

not necessary to invoke the right of contribution under N.J.S.A.

2A:53A-3. Polidori, supra, 217 N.J. Super. at 431 (citing 

Young, supra, 53 N.J. at 255). But the statute does not apply 

to "contribution where the payment is made in fulfillment of a 

voluntary compromise or settlement of a claim for damages 

attributed to a joint tortfeasor." Ibid. (quoting Pa. Greyhound 

Lines, Inc. v. Rosenthal, 14 N.J. 372, 383 (1954)). Although a 

consent judgment satisfies the "judgment" requirement of the 

statute, Young, supra, 53 N.J. at 255, we declined in Polidori

to expand the statute to apply as well to a stipulation of 

dismissal. Polidori, supra, 217 N.J. Super. at 432. We 

acknowledged there was "little philosophical difference between 
9 A-1285-12T2

a settlement coupled with a Stipulation of Dismissal and a 

settlement in the form of a consent judgment," but we also 

determined that the plain language used by the Legislature 

constrained us against expanding the contribution statute to 

include a stipulation of dismissal. Ibid.

LFS also contends the stipulation of dismissal can be 

converted into a consent judgment if it is in the interests of 

justice to do so. See Gangemi, supra, 305 N.J. Super. at 103. 

It asks us to take that course of action so that its right to 

appeal the summary judgment order is not extinguished. 

Otherwise, contends LFS, preventing it from pursuing its 

contribution claims would be against the interests of justice 

and would discourage settlements in future cases.

Here, unlike the alleged tortfeasor in Gangemi, American 

Lifts did not participate in the settlement conference. It had 

no further involvement in the proceedings once it obtained 

summary judgment. Also, the release executed by plaintiffs was 

only in favor of LFS and not also in favor of American Lifts. 

The statutory requirement of a judgment is not against the 

interests of justice and should not discourage settlements. A

defendant is not required to pay another tortfeasor's share of 

the damages. A defendant can proceed to trial on the 

plaintiffs' personal injury claims and receive a credit under 
10 A-1285-12T2

the Comparative Negligence Act, N.J.S.A. 2A:15-5.2, for any 

proportion of responsibility for the injuries that the jury 

attributes to another tortfeasor, even if the other tortfeasor

was earlier dismissed from the case pursuant to the statute of 

repose. Town of Kearny v. Brandt, 214 N.J. 76, 98-104 (2013). 

Thus, the amount a defendant pays voluntarily to settle

plaintiffs' claims need not cover the liability of a codefendant who has been dismissed from the case. If a defendant 

nevertheless settles and pays more than its fair share for the 

injuries, it can preserve its claim for contribution from a 

potentially liable joint tortfeasor through appropriate judicial 

proceedings and a judgment order. 

We are not convinced by the arguments of LFS that we should 

depart from our prior precedent and hold that contribution may 

be sought where the court has not entered a money judgment in 

favor of plaintiffs that fully resolves their claims against the 

alleged joint tortfeasor. See Young, supra, 53 N.J. at 255.

We also reject the argument of LFS that the trial court's 

summary judgment order in favor of American Lifts satisfies the 

"judgment" requirement of the contribution statute. The statute 

refers to "a money judgment" recovered by the person who 

suffered injury. Here, plaintiffs did not obtain a money 

judgment. 
11 A-1285-12T2

We conclude that LFS has no viable claim of contribution 

under N.J.S.A. 2A:53A-3 for its voluntary payment of settlement 

money to plaintiffs to obtain the stipulation of dismissal.

IV.

Because the judgment order from which LFS appeals was based 

on the statute of repose and because the parties have briefed

the issue, we will also address that statute as an alternative 

ground for affirmance of summary judgment dismissing all claims 

against American Lifts.

In relevant part, the statute of repose states:

No action, whether in contract, in tort, or 

otherwise, to recover damages for any 

deficiency in the design, planning, 

surveying, supervision or construction of an 

improvement to real property, . . . nor any 

action for contribution or indemnity for 

damages sustained on account of such injury, 

shall be brought against any person 

performing or furnishing the design, 

planning, surveying, supervision of 

construction or construction of such 

improvement to real property, more than 10 

years after the performance or furnishing of 

such services and construction.

[N.J.S.A. 2A:14-1.1(a) (emphasis added).]

Here, American Lifts designed the torklift in the mid1990s, and the device was installed in the Federal Express 

facility at Newark Airport in 1995. Plaintiffs' complaint 

against LFS was filed in February 2008, more than twelve years 

later, and LFS's third-party complaint and plaintiffs' amended 
12 A-1285-12T2

complaint against American Lifts were filed yet later, in 2009 

and 2011 respectively. 

LFS argues the torklift is not subject to the statute of 

repose because it is a product that was manufactured off-site

and American Lifts had no role in the construction of the 

warehouse facility. LFS argues that only the statute of 

limitations, N.J.S.A. 2A:14-2, fixes the time period within 

which American Lifts could be sued for manufacturing a 

defectively-designed product, and that the statute of 

limitations runs from the time the claim accrued rather than 

from the time of design or installation of the product.

Because we address interpretation of a statute and the 

legal consequences that flow from that interpretation, our 

standard of review is plenary. McGovern v. Rutgers, the State 

Univ. of N.J., 211 N.J. 94, 107-08 (2012); In re Pet. for Ref. 

on Trenton Ord. 09-02, 201 N.J. 349, 358 (2010).

Initially, we reject LFS's argument that American Lifts 

waived a defense based on the statute of repose by arguing 

earlier in the litigation that the claims against it were 

untimely under the two-year statute of limitations. The statute 

of repose and the statute of limitations can both apply to 

determine whether a cause of action was timely filed. O'Connor 

v. Altus, 67 N.J. 106, 122-23 (1975); Cumberland Cnty. Bd. of 
13 A-1285-12T2

Chosen Freeholders v. Vitetta Grp. P.C., 431 N.J. Super. 596, 

609 (App. Div.), certif. denied, 216 N.J. 430 (2013).

With respect to the statute of repose, the pertinent 

questions are whether the torklift was an improvement to real 

property and whether American Lifts was a designer of the

improvement or only the manufacturer of a product used by others 

in the design, planning, and construction of an improvement to 

real property. LFS argues that the torklift was analogous to 

the piping material in State v. Perini Corp., 425 N.J. Super.

62, 80-81 (App. Div.), certif. granted, 211 N.J. 606 (2012), as 

to which we held the manufacturer could not invoke the statute 

of repose. LFS also argues that the torklift was similar to the 

defective crane in McCalla v. Harnischfeger Corp., 215 N.J. 

Super. 160, 169 (App. Div.), certif. denied, 108 N.J. 219 

(1987), that was affixed to the industrial building but was 

determined to be "production machinery" outside the scope of the 

statute of repose. American Lifts responds that the torklift 

was a specially-designed, unique device that was permanently 

affixed to the Federal Express warehouse and constituted an 

improvement as to which its designer was entitled to repose more 

than ten years after the design work was completed.

A number of cases have held that defective materials and 

manufactured equipment installed permanently in a construction 
14 A-1285-12T2

project are improvements to property and that the designer, 

builder, or installation contractor of those materials and 

devices could not be sued more than ten years after completion 

of its work. See Ebert v. S. Jersey Gas Co., 157 N.J. 135, 140 

(1999) (underground natural gas lines were an improvement to 

real property); Diana v. Russo Dev. Corp., 352 N.J. Super. 146, 

152-58 (App. Div. 2002) (permanently attached ladder providing 

access to roof was an improvement to property, although ladder 

could be purchased in the same form for other uses); Brown v. 

Jersey Cent. Power & Light Co., 163 N.J. Super. 179, 192, 195-96 

(App. Div. 1978) (a free-standing electrical transfer switch was 

an improvement to real property), certif. denied, 79 N.J. 489 

(1979); Luzzader v. Despatch Oven Co., 651 F. Supp. 239, 243-44 

(W.D. Pa. 1986) (industrial oven in plant was an improvement to 

the property), rev’d in part on other grounds, 834 F.2d 355 (3d 

Cir. 1987), cert. denied sub nom. Honeywell, Inc. v. Luzadder, 

485 U.S. 1035, 108 S. Ct. 1595, 99 L. Ed. 2d 909 (1988); Gnall 

v. Ill. Water Treatment Co., 640 F. Supp. 815, 817-18 (M.D. Pa. 

1986) (water treatment system installed in plant was an 

improvement to real property). But cf. Rolnick v. Gilson & 

Sons, Inc., 260 N.J. Super. 564, 567-68 (App. Div. 1992) 

(standard attic fan installed by seller of home was not covered 

by statute of repose as an improvement to real property). 
15 A-1285-12T2

Specifically, elevators have been held to be improvements 

to real property, both in our trial courts and in the courts of 

other jurisdictions. Santos v. Hubey Corp., 236 N.J. Super.

608, 611 (Law Div. 1989); Hall v. Luby Corp., 232 N.J. Super.

337, 351-52 (Law Div. 1989); see, e.g., Fritz v. Otis Elevator 

Co., 549 N.E.2d 205, 208 (Ohio Ct. App. 1988); Mitchell v. 

United Elevator Co., 434 A.2d 1243, 1249 (Pa. Super. 1981); 

Desnoyers v. R.I. Elevator Co., 571 A.2d 568, 570-71 (R.I. 

1990).

In Dziewiecki v. Bakula, 180 N.J. 528, 532-33 (2004), 

however, the Court held that N.J.S.A. 2A:14-1.1(a) does not 

apply to a manufacturer of a standardized product used in 

construction. The statute protects "contractors, builders, 

planners, and designers." Russo Farms, Inc. v. Vineland Bd. of 

Educ., 144 N.J. 84, 116 (1996); Horosz v. Alps Estates, Inc., 

136 N.J. 124, 128 (1994); Rosenberg v. Town of N. Bergen, 61 

N.J. 190, 201 (1972). It does not protect manufacturers or 

sellers of standard materials used in construction. Diana, 

supra, 352 N.J. Super. at 151. The fact that the manufacturer 

"designed" a "standardized" product that was installed at a 

construction project does not constitute activity that is 

covered by the statute of repose. Dziewiecki, supra, 180 N.J.
16 A-1285-12T2

at 532-33; Perini Corp., supra, 425 N.J. Super. at 80; Rolnick, 

supra, 260 N.J. Super. at 567-68.

In Perini Corp., supra, 425 N.J. Super. at 80-81, we held a 

defendant that had manufactured and supervised the installation 

of the pipes in an underground hot water heating system could 

not invoke the statute of repose with respect to its manufacturing role if the pipes were determined to be defective. We 

relied on Dziewiecki, supra, 180 N.J. at 533, in which the 

Supreme Court distinguished between manufacturers and 

distributors that sell, design, or manufacture standardized 

products and those that also install their standardized products 

according to specialized plans as part of an improvement to real 

property. See also Wayne Twp. Bd. of Educ. v. Strand Century, 

Inc., 172 N.J. Super. 296, 303 (App. Div. 1980) (statute of 

repose does not apply to designer/manufacturer of "a stock or 

shelf item out of its regular inventory" or to fabricator of 

building item designed by the project engineer), overruled in 

part on other grounds by Dziewiecki, supra, 180 N.J. at 533; 

Santos, supra, 236 N.J. Super. at 611-13 (disputed issues of 

fact as to the role of each defendant in designing, 

manufacturing, or installing elevator precluded summary 

judgment). 
17 A-1285-12T2

In Dziewiecki, supra, 180 N.J. at 533, the Court stated 

that, when a defendant wears "two hats," — namely, as both the 

manufacturer of a standardized product and its installer 

according to a specific design for the real property — and the 

injury is attributable to both functions, "the responsibility 

should be allocated between the two" roles. Here, American 

Lifts did not install the torklift. It only designed and 

fabricated the torklift, and all its work was done off-site. 

Nevertheless, the torklift was not standard building 

material or a "stock or shelf" fabricated item. It was 

specially designed and fabricated by American Lifts for the 

Federal Express facility. We have not been directed to an 

authoritative case by either party that decides whether a direct 

role in installation is required to invoke the statute of repose

for the designer of a specialty product that is a unique fixture 

and improvement to real property. 

Considering the cases that have addressed the scope and 

reach of the statute of repose, we conclude that the statute 

applies to bar a claim after ten years if a defendant can show 

three things: (1) that the injury was caused by an "improvement 

to real property," N.J.S.A. 2A:14-1.1(a), (2) that the defendant

"designed, planned . . . supervised, or constructed" the 

improvement, ibid., and (3) that the improvement was not a 
18 A-1285-12T2

standardized building product, e.g. Dziewiecki, supra, 180 N.J.

at 532-33, but was specially-designed and fabricated to be an

improvement to the real property. We hold that the designer/

manufacturer need not also install such a product in order to 

invoke the statute of repose. 

Here, application of the three listed elements to the 

evidence supports the trial court's conclusion that the claims 

against American Lifts were barred by the statute of repose. 

An "improvement" is defined as a modification "to real 

property [that] permanently increases the property's value." 

Ebert, supra, 157 N.J. at 139 (citing 21 Am.Jur.2d, 

Improvements, § 1 (1968)); Black's Law Dictionary 773 (8th ed.

2004). The factors considered when determining whether an item

constitutes an improvement to real property include "whether the 

modification or addition enhances the use of the property, 

involves the expenditure of labor or money, is more than mere 

repair or replacement, adds to the value of the property, and is 

permanent in nature." Ebert, supra, 157 N.J. at 139 (quoting

Van Den Hul v. Baltic Farmers Elevator Co., 716 F.2d 504, 508 

(8th Cir. 1983)).

The torklift in this case facilitated movement of cargo 

containers and enhanced the functioning of the warehouse 

facility. It was not merely a repair or replacement of an 
19 A-1285-12T2

existing feature of the property. It was designed to be 

installed as an integral feature of the property. Anchor bolts

were used to affix the lift permanently in a concrete pit at the

warehouse dock, where it was especially designed to fit. It was 

not merely "personal property" or "production machinery," as was 

the movable crane in McCalla, supra, 215 N.J. Super. at 169. It 

was intended to be a permanent fixture of the building. It was 

more like the electric transfer switch assembly in Brown, supra, 

163 N.J. Super. at 198-99, which was "an integral part" of the 

building system and necessary for the proper functioning of the 

plant and, therefore, an improvement to real property. 

With respect to the second element for application of the 

statute of repose, the court should "focus on the 'activities' 

of persons seeking [its] protection." Dziewiecki, supra, 180 

N.J. at 533-34 (citing Dighton v. Fed. Pac. Elec. Co., 506 

N.E.2d 509, 515 (Mass.), cert. denied sub nom. Fed. Pac. Elec. 

Co. v. Dighton, 484 U.S. 953, 108 S. Ct. 345, 98 L. Ed. 2d 371 

(1987); McConnaughey v. Bldg. Components, Inc., 637 A.2d 1331, 

1333 (Pa. 1994); Condit v. Lewis Refrigeration Co., 676 P.2d 

466, 468 (Wash. 1984)). Here, American Lifts relies on its 

function in designing the torklift to the specifications of 

Federal Express for a particular building. LFS's expert alleged 

a design, not a manufacturing, defect in the can-stop mechanism. 
20 A-1285-12T2

However, a designer/manufacturer may not invoke the statute 

of repose if the article was merely designed as a standardized 

product, which happened to be installed in a construction 

project. Dziewiecki, supra, 180 N.J. at 532-33; Perini Corp., 

supra, 425 N.J. Super. at 80. The torklift in this case was not 

a standardized product designed and manufactured for sale to the 

public or other commercial customers. Although LFS presented 

evidence that the torklift on which Cherilus was injured was not 

one-of-a-kind and that other ones were in use at this and other 

Federal Express facilities, there was no evidence that the 

particular design of this torklift was generally available to 

other industrial or commercial buyers. 

American Lifts designed the torklift especially for the 

Federal Express facility and in accordance with the 

specifications and approval of Federal Express. The lift had to 

conform to the floor-design of the Federal Express warehouse, 

which was comprised of evenly spaced ball bearings used to move 

cargo containers. The lift's platform had to contain casters 

with the same uniform spacing to create a continuous surface on 

which containers could roll. This ball bearing/caster floor and 

lift system was unique to the building, and perhaps several 

similar Federal Express facilities. The lift also had to 

conform to the design of Federal Express trucks, which similarly 
21 A-1285-12T2

had floors on which heavy containers could be moved. The floor 

system was the feature that necessitated the can-stop mechanism 

on the lift that failed. 

The number of such manufactured items may be a relevant 

factor but does not alone determine whether the product is a 

standardized, "off-the-shelf" product or designed uniquely for a 

particular construction project. Here, the specially-designed 

and affixed torklift was not available through any catalogue or 

product advertisement of American Lifts, and LFS did not have 

evidence of its sale or use in any facility except the facility 

at which Cherilus was injured and perhaps two other Federal 

Express facilities. There was vague testimony about the use of 

similar lifts at a Delta Airlines facility, but no evidence was 

produced demonstrating that the lift on which Cherilus was 

injured was a product manufactured generally for sale by 

American Lifts. The evidence supported the court's conclusion 

that it was a specially-designed improvement to the Federal 

Express facility. The role of American Lifts in that regard was 

similar to an engineer or architect who designed a unique 

component of a construction project, although the designing work 

was done off-site. Cf. Greczyn v. Colgate-Palmolive, 183 N.J.

5, 7-8 (2005) (statute of repose applicable to architectural 

designer of staircase on which the plaintiff tripped and fell).
22 A-1285-12T2

The elements for application of the statute of repose have 

been read broadly to achieve a legislative preference "for 

finality in construction-related claims." Daidone v. Buterick 

Bulkheading, 191 N.J. 557, 567 (2007) (citing Rosenberg, supra, 

61 N.J. at 199). We conclude the trial court correctly 

determined that the statute of repose applied to the torklift in 

this case and the role of American Lifts in designing it for the 

Federal Express facility.

V.

Having determined that the trial court properly dismissed

the time-barred claims against American Lifts, we need not 

address additional grounds argued by American Lifts for summary 

judgment in its favor.

Affirmed.