Bexiga v. Havir Mfg. Corp.

• Citation: 60 N.J. 402,290 A.2d 281
• Parties: John BEXIGA, Jr., an infant by his Guardian ad Litem John Bexiga, Sr., and John Bexiga, Sr., individually, Plaintiffs-Appellants, v. HAVIR MANUFACTURING CORP., Defendant-Respondent.
• Decision Date: 24 April 1972
• Court: United States State Supreme Court (New Jersey)

Page 402

60 N.J. 402

290 A.2d 281

John BEXIGA, Jr., an infant by his Guardian ad Litem John Bexiga, Sr., and John Bexiga, Sr., individually Plaintiffs-Appellants, v. HAVIR MANUFACTURING CORP., Defendant-Respondent.

Supreme Court of New Jersey.

Argued Jan. 24, 25, 1972.

Decided April 24, 1972.

Robert J. Cardonsky, Elizabeth, for plaintiffs-appellants (Forman, Forman & Cardonsky, Elizabeth, attorneys).

James F. Norton, Middletown, for defendant-respondent (Lane, Evans & Selikoff, Rumson, attorneys; James F. Norton, Middletown, on the brief).

The opinion of the Court was delivered by

PROCTOR, J.

This is a products liability case. Plaintiff John Bexiga, Jr., a minor, was operating a power punch press for his employer, Regina Corporation (Regina), when his right hand was crushed by the ram of the machine, resulting in the loss of fingers and deformity of his hand. His father, John Bexiga, Sr., brought this suit against Havir Manufacturing Corporation (Havir), the manufacturer of the machine, for damages in behalf of his son and individually Per quod. The action was grounded in negligence, strict liability in tort and breach of warranty of fitness of purpose. The trial court dismissed the action at the close of the plaintiffs' case. The Appellate Division affirmed, 114 N.J.Super. 397, 276 A.2d 590, and this Court granted plaintiffs' petition for certification, 58 N.J. 601, 279 A.2d 686 (1971).

The machine which caused the injuries was a 10-ton punch press manufactured by Havir in 1961 and sold that same year to J. L. Lucas & Son, Inc., a dealer, and, at its direction, shipped to Regina. With the exception of a guard over the flywheel there were no safety devices of any kind on the machine when it was shipped. Plaintiffs do not contend that the accident resulted from defective materials, workmanship or inspection. Rather, their theory is that the punch press was so dangerous in design that the manufacturer was under a duty to equip it with some form of safety device to protect the user while the machine was being operated.

In June of 1966, plaintiff John Bexiga, Jr., 18 years of age and a junior in high school, had been employed by Regina at its Rahway plant for about two months, working nights after school. During his employment he operated punch presses and drilling machines for 40 hours per week.

On June 11, 1966, John, Jr. reported for work at 5:00 P.M. and was assigned to operate a drilling machine. He worked on this machine until the 9:30 break, after which the foreman directed him to work on the Havir punch press (which he had never before operated) and instructed him in its use. Thereafter he operated the machine unattended. He testified that the punch press was approximately six or seven feet high with a ram, die and foot pedal.

The particular operation John, Jr. was directed to do required him to place round metal discs, about three inches in diameter, one at a time by hand on top of the die. Once the disc was placed on the die it was held there by the machine itself. He would then depress the foot pedal activating the machine and causing the ram to descend about five inches and punch two holes in the disc. After this operation the ram would ascend and the equipment on the press would remove the metal disc and blow the trimmings away so that the die would be clean for the next cycle. It was estimated by John, Jr. that one cycle as described above would take approximately 10 seconds and that he had completed about 270 cycles during the 40 minutes he operated the machine. He described the accident as follows:

Well, I put the round piece of metal on the die and the metal didn't go right to the place. I was taking my hand off the machine and I noticed that a piece of metal wasn't in place so I went right back to correct it, but at the same time, my foot had gone to the pedal, so I tried to take my hand off and jerk my foot off too and it was too late. My hand had gotten cut on the punch, the ram.

Plaintiffs' expert, Andrew Gass, a mechanical engineer, testified that the punch press amounted to a 'booby trap' because there were no safety devices in its basic design and none were installed prior to the accident. He added that the accident would probably never have occurred had the machine been properly designed for safety. The only literature accompanying the sale of the machine was a service manual which made no mention of safety devices in the operation of the machinery with the exception of a reference to the guard on the flywheel which was unrelated to the accident. He said there should have been more stress put on the factor of safety but that he did not know what recommendations should be made.

Gass described two 'basic types' of protective safety devices both of which were known in the industry at the time of the manufacture and sale. One was a push-button device with the buttons so spaced as to require the operator to place both hands on them away from the die area to set the machine in motion. The other device was a guardrail or gate to prevent the operator's hands from entering the area between the ram and die when the machine was activated. These and other safety devices were available from companies specializing in safety equipment.

On cross-examination Gass conceded that, in accordance with the custom of the trade, presses like the one in question were not equipped with safety devices by the manufacturer. Rather, he said safety devices were to be installed by the ultimate purchaser. However, in his opinion the custom of the trade was improper in that the machine was defectively designed for safety and that purchasers 'almost never' provided safety devices. Further, he said that large presses were generally equipped by the manufacturer with the push-button device. He said that smaller presses like the one in question were as dangerous to the user as the larger ones. He concluded that the press here involved should have been equipped with a two-hand push-button device as are the larger presses. On cross-examination he was not asked to explain why push-button devices were installed by the manufacturer on the large presses but not on the small ones.

While pointing out that guardrails or gates might have to be 'modified' to suit the particular die or part used with the press, Gass stated that the push-button device would not have to be 'modified' no matter what die was used. In other words, the push-button device would be appropriate for any of the machine's normal uses. On Cross-examination he admitted that if the press were employed to punch holes in a 4-foot pipe a guardrail or gate would impede entry of the pipe into the die area and would have to be removed. He said that in such a case the guardrail or gate would not be needed because in holding the pipe the operator would be standing away from the machine. Further, when questioned as to the suitability of guardrails or gates, or other devices such as magnetic lifters or vacuum tubes to the varied uses of the machine, he stated that the particular operation of the press could dictate which of these devices would be appropriate.

The Appellate Division in affirming the trial court's dismissal held that plaintiffs failed to make out a Prima facie case under strict liability, breach of warranty or negligence principles. On the issue of strict liability or breach of warranty the Court applied the rule set forth in the Restatement, which reads in pertinent part (1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property if

(a) the seller is engaged in the business of selling such a product, and

(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. Restatement, Torts 2d § 402A (1965).

The Court reasoned that since it was the custom of the trade that purchasers, rather than manufacturers, provide safety devices on punch presses like the one in question, Havir 'had no reason to believe that the press would be put to use without some additions, I.e., the installation by Regina of protective devices suitable to whatever manufacturing process the press was to be devoted.' 114 N.J.Super. Supra at 403--404, 276 A.2d at 593. It also stated that N.J.S.A. 34:6--62, ^* in effect at the time of the sale, required the factory owner to equip its power presses with proper guards. Id. at 404, 276 A.2d 590. It held liability could not be imposed under the Restatement rule because the manufacturer did not expect the product to reach the user without substantial change. Id. at 403--404, 276 A.2d 590.

On the issue of negligence the Appellate Division correctly set forth the applicable principle of law:

A manufacturer of a chattel made under a plan or design which makes it dangerous for the uses for which it is manufactured is subject to liability to others whom he should expect to use the chattel or to be endangered by its probable use for physical harm caused by his failure to exercise reasonable care in the adoption of a safe plan or design. Restatement, Torts 2d § 398 (1965).

The Court stated...