Bexiga v. Havir Mfg. Corp.

Decision Date26 April 1971
Citation276 A.2d 590,114 N.J.Super. 397
PartiesJohn 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.
CourtNew Jersey Superior Court — Appellate Division

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

James F. Norton, Rumson, for respondent (Lane & Evans, Rumson, attorneys).



Plaintiffs appeal from an adverse judgment following the granting of defendant's motion for involuntary dismissal at the close of their case.

Plaintiff John Bexiga, Jr. sued for loss of fingers and deformity to his right hand caused by its being struck by the ram of a punch press which he was operating for his employer Regina Corporation (Regina). The action was grounded in negligence, strict liability in tort and breach of warranty of fitness of purpose. His father sued for loss of services and expenses.

The power press in question was manufactured by defendant Havir Manufacturing Corp. (Havir) in 1961 and was sold that same year to J. L. Lucas & Son, Inc. and shipped to Regina, the employer of John Bexiga, Jr. There was no contention that the press malfunctioned because of defective materials, workmanship or inspection. Rather, plaintiffs' theory was that the press, though properly manufactured so far as it went, was so inherently hazardous that the manufacturer was under a duty to protect the ultimate user from the danger posed by it. Reduced to its simplest terms, plaintiffs' basic contention was that the machine should have been equipped at the factory with some form of safety device to guard against or minimize the danger.

Plaintiffs' proofs were to the effect that on June 12, 1966 plaintiff John Bexiga, Jr., an 18-year-old high school junior who had been working evenings for Regina for approximately two months, was directed, for the first time, to work on the machine in question. His supervisor showed him how to operate the machine and then left. He had been operating it for about half an hour when, as he described the accident:

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.

The machine was adaptable to a number of operations but was being used at the time solely as a punch press to punch holes in small metal discs. Its essential components were the ram, the die and a foot pedal which actuated a clutch causing the ram to descend with tremendous force (it was rated at ten tons 1) when the pedal was depressed. In actual operation, when a disc similar to the ones Bexiga was handling would be placed on the die and the pedal depressed, the ram would plunge downward onto the disc four inches below, it would then return to its original position, the finished disc would be automatically blown into an adjoining container, the trimmings would be ejected and the press would be ready for another cycle. The only protective device with which the press was equipped at the factory was a metal guard for the large flywheel.

A mechanical engineer called by plaintiffs testified as an expert that at the time of the accident the press amounted to a 'booby trap' because of the absence of a protective device to prevent the ram from descending while the operator's hands were in the work area (point of operation) beneath it. He testified that effective protective devices to guard against the hazard were available and known to the trade, both at the time the press was purchased and at the time of the accident. He described one such device as a pair of push-button controls so spaced as to require the use of both of the operator's hands before the ram could be activated. Another was a guardrail or swing gate (of which there were many variations) to shield the operator's hands from the ram. His testimony would have supported an inference that had the press been equipped with either form of safety device the accident would probably not have happened.

The expert conceded, however, that at the time the press was purchased and up to the time of trial, in accordance with the practice in the trade, presses like the one here involved were not equipped with guardrails at the factory, but it was customary for the ultimate purchaser of the machine to install them. This was because the appropriate type of guardrail or other device to be employed in a given case would depend on the particular use to which the machine was to be put. He opined, nevertheless, that the machine was unsafe as designed and the hazard inherent in its operation required that it be equipped with some form of protective device. He stated that proper design for safety would have been satisfied by the installation of a push-button control (requiring the simultaneous use of both hands of the operator) such as was furnished by the manufacturer on the large presses. 2 He conceded that a large variety of protective devices were available to the purchaser of a press, but averred that in the case of quite a number of machines they were 'not gotten eventually because the machine comes without one.'

The issue presented is a narrow one We are not concerned with the general question of whether power presses such as the present one should be equipped with safety devices, but whether the manufacturer could be held liable to plaintiffs, based upon the testimony of plaintiffs' expert and under the theory of negligence or strict liability in tort, for its omission to embody some form of safety device in the power press delivered to Regina.

We are in accord with plaintiffs' contention that conformance with industry standards of construction, manufacture or design, while evidential on the issue of negligence, is of itself not conclusive as to the absence of negligence. Texas & P.R. Co. v. Behymer, 189 U.S. 468, 23 S.Ct. 622, 47 L.Ed. 905 (1903); Wellenheider v. Rader, 49 N.J. 1, 7, 227 A.2d 329 (1967); Shafer v. H. B. Thomas Co., 53 N.J.Super. 19, 22--25, 146 A.2d 483 (App.Div. 1958). Upon a showing of negligence on its part, defendant could be held liable notwithstanding that its negligence concurred with the negligence of Regina or its employees to permit the machine to be in the dangerous condition which proximately caused the accident. Post v. Manitowoc Eng. Corp., 88 N.J.Super. 199, 204--206, 211 A.2d 386 (App.Div.1965). Plaintiffs' right to recovery did not depend upon the presence of privity between them and defendant. Rosenau v. New Brunswick, 51 N.J. 130, 140--142, 238 A.2d 169 (1968); Santor v. A & M Karagheusian, Inc., 44 N.J. 52, 63, 207 A.2d 305 (1965); Jakubowski v. Minnesota Mining and Manufacturing Co., 80 N.J.Super. 184, 192--193, 193 A.2d 275 (App.Div.1963). However, taking as true all evidence supporting plaintiffs' views and giving them the benefit of all legitimate inferences to be drawn therefrom, we are satisfied that they failed to make out a Prima facie case under either of the theories cited above.

On the issue of strict liability the pertinent portion of the rule is set forth in the Restatement as

(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)).

See also Rosenau v. New Brunswick, Supra, 51 N.J. at 140--142, 238 A.2d 169; Schipper v. Levitt & Sons, Inc., 44 N.J. 70, 90--92, 207 A.2d 314 (1965); Santor v. A & M Karagheusian, Supra, 44 N.J. at 64--67, 207 A.2d 305. From the foregoing it is clear that strict liability presupposes that the assertedly defective product placed in the channels of trade by the manufacturer be expected to and does reach the user or consumer without substantial change in the condition in which it leaves the manufacturer's hands.

Such was not the case here. At the most, plaintiffs' proofs established that Havir sold a specified power press to Lucas, presumably a dealer in machinery, and shipped it to Regina pursuant to the dealer's instructions. There is nothing in the record to support an inference that either Lucas or Regina ordered safety devices installed or even that Havir was in the business of furnishing such devices (the testimony...

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2 cases
  • Bexiga v. Havir Mfg. Corp.
    • United States
    • New Jersey Supreme Court
    • April 24, 1972 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 The machine which caused the injuries wa......
  • Bexiga v. Havir Mfg. Corp.
    • United States
    • New Jersey Supreme Court
    • July 7, 1971
    ...etc., et al. v. HAVIR MANUFACTURING CORP. Supreme Court of New Jersey. July 7, 1971. Petition for certification granted. (See 114 N.J.Super. 397, 276 A.2d 590). ...

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