Jiminez v. Dreis & Krump Mfg. Co., Inc., 946

• Decision Date: 04 June 1984
• Docket Number: D,No. 946,946
• Citation: 736 F.2d 51
• Parties: Hector JIMINEZ and Dalmy Jiminez, Plaintiffs-Appellants, v. DREIS & KRUMP MANUFACTURING CO., INC. and Federal Machinery Corp., Defendants- Appellees, and Bellows International, Inc., Defendant. FEDERAL MACHINERY CORP., Third-Party Plaintiff, v. AURORA ELECTRIC COMPANY, INC., Third-Party Defendant. DREIS & KRUMP MANUFACTURING CO., INC., Third-Party Plaintiff, v. AURORA ELECTRIC COMPANY, INC., Third-Party Defendant. ocket 82-7961.
• Court: U.S. Court of Appeals — Second Circuit

Page 51

736 F.2d 51

Hector JIMINEZ and Dalmy Jiminez, Plaintiffs-Appellants, v. DREIS & KRUMP MANUFACTURING CO., INC. and Federal Machinery

Corp., Defendants- Appellees,

and

Bellows International, Inc., Defendant.

FEDERAL MACHINERY CORP., Third-Party Plaintiff, v. AURORA ELECTRIC COMPANY, INC., Third-Party Defendant.

DREIS & KRUMP MANUFACTURING CO., INC., Third-Party Plaintiff, v. AURORA ELECTRIC COMPANY, INC., Third-Party Defendant.

No. 946, Docket 82-7961.

United States Court of Appeals, Second Circuit.

Argued March 7, 1984.

Decided June 4, 1984.

Sanford F. Young, New York City (Mark Landesman, Chana Sklar Israel, and Young & Young, New York City, on brief), for plaintiffs-appellants.

Hebert Rubin, New York City (John A. Schultz, David B. Hamm, Barbara D. Goldberg, and Herzfeld & Rubin, P.C., New York City, on the brief), for defendant-appellee Dreis & Krump Mfg. Co., Inc.

Robert Kaiser, New York City (James P. Donovan, Meryl R. Lieberman, and Wilson, Elser, Edelman & Dicker, New York City, on the brief), for defendant-appellee Federal Machinery Corp.

Before TIMBERS and CARDAMONE, Circuit Judges, and TENNEY, ^* District Judge.

TIMBERS, Circuit Judge:

Appellant Hector Jiminez ¹ appeals from a summary judgment entered November 30, 1982 in the Southern District of New York, Henry J. Werker, District Judge, 552 F.Supp. 301, dismissing a diversity products liability action brought to recover damages sustained June 16, 1978 as the result of the amputation of three fingers of the right hand of appellant while employed by Aurora Electric Company, Inc. (Aurora) and while operating a machine containing a press brake part manufactured by appellee Dreis & Krump Manufacturing Co., Inc. (Dreis & Krump) and sold to Aurora by appellee Federal Machinery Corp. (Federal).

For the reasons stated below, we reverse and remand for trial.

I.

The following description of the machine press involved is believed necessary to an understanding of our rulings on the legal issues raised.

The press, which is used to bend metal, contains a six-foot vertically movable ram which descends onto a bed. A top die is selected and attached to the ram. Likewise, a lower die is selected and attached to the bed. To bend a piece of metal, the operator positions a piece of metal on the lower die and then activates the ram. The ram descends and the metal is bent when the upper die forces the metal against the lower die. The dies are manufactured in a variety of shapes and sizes. They can be inserted anywhere along the length of the ram. The size, shape, and positioning of the dies determine where they meet. This site is known as the "point of operation".

The press also has an activating device that connects the ram to an electric motor. As originally manufactured by Dreis & Krump, the activating device was a mechanical foot pedal. Continuous operator pressure on the pedal engaged a clutch which operated the motor. This resulted in the ram being cycled up and down as long as the pressure was maintained. In 1973, Aurora removed the foot pedal activating device and replaced it with an electric pneumatic activating device. Using the new device, the operator activated the ram by simultaneously pressing two hand switches. The switches were connected to air valves that allowed compressed air to enter the activating device, bringing the motor into contact with the ram and causing the ram to cycle.

Appellant was injured on June 16, 1978 when the press unintentionally ² recycled at a time that appellant had his hands at the point of operation to remove a finished piece of metal.

On June 5, 1981, appellant commenced the instant action seeking damages for his injuries. He alleged claims of negligence and strict products liability. Specifically, he claimed (1) that the press should have been equipped with a guard mechanism to prevent operator injury when the press was cycling and (2) that the press should have been accompanied by a warning of unintentional recycling and of the hazard of operating the machine without a guard mechanism.

Appellant moved for summary judgment, relying on pleadings, affidavits including exhibits, and depositions. In opposition to the motion, appellant relied on pleadings, depositions and affidavits, especially the affidavit of an expert regarding the cause of the accident and the guard devices available for the press. In an opinion dated November 18, 1982, the court granted appellees' motion for summary judgment, holding (1) that Dreis & Krump had no duty to attach point of operation guards; (2) that, even if Dreis & Krump had such a duty, the alteration of the activating device was so substantial a modification that appellees could not be liable; and (3) that appellees had no duty to affix warnings to the press because the dangers were obvious and known by Aurora and appellant. Jiminez v. Dreis & Krump Manufacturing Co., Inc., 552 F.Supp. 301 (S.D.N.Y.1982).

Following dismissal of the complaint, appellant retained a new expert and moved to vacate the judgment pursuant to Fed.R.Civ.P. 60(b). In an opinion dated September 19, 1983, the court denied the motion. From the judgment entered on the court's opinion of November 18, 1982 and the order denying the Rule 60(b) motion, this appeal has been taken.

II.

In moving for summary judgment, it is "incumbent upon movant to establish to the Court's satisfaction the absence of a genuine issue of fact.... In essence, then, the Court is obligated to search the record and independently determine whether or not a genuine issue of fact exists." Higgins v. Baker, 309 F.Supp. 635, 639 (S.D.N.Y.1970), cited in 10A Wright, Miller & Kane, Federal Practice and Procedure Sec. 2739, at 527 (1983). We hold that the court erred in concluding that no genuine issue of material fact was presented by the record.

Under the New York law of strict products liability, a manufacturer breaches its duty to market safe products when it produces and sells a product designed so that the product was not reasonably safe. Voss v. Black & Decker Manufacturing Co., 59 N.Y.2d 102, 107, 450 N.E.2d 204, 208, 463 N.Y.S.2d 398, 402 (1983). The focus of the "not reasonably safe" analysis of Voss (decided after the district court's November 18, 1982 decision in the instant case) is whether the utility of the product is outweighed by the risk inherent in marketing a product designed in that manner. A plaintiff is under an obligation to present evidence that it was feasible to design the product in a safer manner. Id. at 109, 450 N.E.2d at 208, 463 N.Y.S.2d at 402. Here, appellant's expert stated that there were guards that could have been installed at the time of manufacture which would have resulted in a safer press. Appellant therefore established the existence of a genuine issue of material fact regarding whether there was a type of guard which might have, and should have, been installed by Dreis & Krump at the time of manufacture.

The court sustained appellees' claim that the multifunctional capabilities of the press would make it impracticable to require the manufacturer to install an effective point of operation guard compatible with all possible uses of the machine. In support of this conclusion, the court relied on the industry custom to have the user (presumably the employer) select appropriate point of operation guards and to insure that machine operators use them. In view of this custom, the court found that it was not unreasonable for Dreis & Krump to assume that Aurora would provide appropriate guards. The court therefore held that the absence of a safety device did not render the machine defective when it left the hands of Dreis & Krump. Such analysis may well be sound. The point here, however, on an appeal from the grant of summary judgment, is that such analysis should have been left to the jury.

It is true that manufacturer-installed safety guards probably would have limited the utility of the press. But loss of utility is only one of the many factors that may be presented to the jury to consider when it performs the balancing analysis. Voss v. Black & Decker Manufacturing Co., supra, 59 N.Y.2d at 109, 450 N.E.2d at 208-09, 463 N.Y.S.2d at 402-03; Micallef v. Miehle Co., Division of Miehle-Goss Dexter, Inc., 39 N.Y.2d 376, 386, 348 N.E.2d 571, 577-78, 384 N.Y.S.2d 115, 121 (1976). Industry custom and state regulations would be other factors for the jury to consider. Under the facts of this case, evidence of user responsibility to provide the guards--according to custom or regulation--should not have been dispositive, as a matter of law, as to whether the press was "reasonably safe" when it left the hands of the manufacturer. ³

III.

The court's alternative ground for granting summary judgment was that, despite any duty to guard that the manufacturer or seller arguably had, Aurora's modification of the machine--replacement of the mechanical foot pedal activating device with the electric pneumatic activating device--was so substantial that neither Dreis & Krump nor Federal could be held liable to appellant. The court held that appellant had not come forward with any evidence to rebut the logical inference that the unintentional recycling could have been caused only by the new activating device.

In applying New York law, we have held that the relationship between a substantial alteration to a machine and the causation of the injury is a jury question. E.g., Mazzi v. Greenlee Tool Co., 320 F.2d 821 (2 Cir.1963). More recently, the New York Court of Appeals has refined the "substantial alteration" doctrine in Robinson v. Reed-Prentice Division of Package Machinery, 49 N.Y.2d 471, 403 N.E.2d 440, 426 N.Y.S.2d 717 (1980). In that case, after the manufacturer delivered the machine, the employer cut a hole in the safety guard to enable the...