Calderon v. Machinenfabriek Bollegraaf Appingedam BV

• Decision Date: 14 December 1995
• Citation: 667 A.2d 1111,285 N.J.Super. 623
• Parties: , Prod.Liab.Rep. (CCH) P 14,436 Pedro CALDERON, Plaintiff-Appellant, v. MACHINENFABRIEK BOLLEGRAAF APPINGEDAM BV; Van Dyk 1 Baler Corporation, distributor, Defendants-Respondents, and ABC Company (name unknown and thereby fictitious), manufacturer and/or distributor of baling machine; XYZ Company (name unknown and thereby fictitious), installer; EFG Maintenance Company (name unknown and thereby fictitious); and Alpha Paper Recycling Company, Defendants.
• Court: New Jersey Superior Court — Appellate Division

Page 623

285 N.J.Super. 623

667 A.2d 1111, Prod.Liab.Rep. (CCH) P 14,436

Pedro CALDERON, Plaintiff-Appellant, v. MACHINENFABRIEK BOLLEGRAAF APPINGEDAM BV; Van Dyk¹ Baler Corporation, distributor Defendants-Respondents and ABC Company (name unknown and thereby fictitious) manufacturer and/or distributor of baling machine; XYZ Company (name unknown and thereby fictitious), installer EFG Maintenance Company (name unknown and thereby fictitious); and Alpha Paper Recycling Company, Defendants.

Superior Court of New Jersey, Appellate Division.

Submitted Nov. 21, 1995.

Decided Dec. 14, 1995.

Robert M. Schlanger, Fairview, for appellant (Mr. Schlanger, of counsel and on the brief).

Daniel K. Newman, West Orange, for respondents (Mr. Newman, of counsel and on the brief).

Before Judges DREIER, KESTIN and CUFF.

The opinion of the court was delivered by

DREIER, P.J.A.D.

Plaintiff appeals from a judgment dismissing his complaint following a jury verdict.

As an assistant manager for Alpha Paper Recycling Company in Jersey City, plaintiff was responsible for the operation of a sizeable baling and compacting machine manufactured and distributed by defendants. Plaintiff's arm was amputated when he reached into the machine to untangle some wire. He assumed that he could withdraw his arm before four large steel rods would be activated and move through the area. Following defendants' motion for an involuntary dismissal, the trial judge dismissed both plaintiff's allegations of a design defect and plaintiff's claims based upon service visits by the distributor. The case was submitted to the jury solely on the issue of a warning defect. The jury determined by a five to one vote that the warnings were inadequate, but further decided by unanimous vote that the inadequate warnings had not been a proximate cause of plaintiff's injuries.

The baling machine had been sold to Alpha Paper Recycling Company in 1986 by the manufacturer's distributor, defendant Van Dyk Baler Corporation. The employer was supplied with an operations manual that contained a section on safety. The machine, manufactured in the Netherlands by defendant Machinenfabriek Bollegraaf Appingedam BV (Bollegraaf), was twenty-two feet high, forty feet long and eight feet wide. Paper was fed into the machine by a conveyor eighty feet long and eight feet wide. The machine and conveyor were placed over two pits, one for the conveyor and a smaller one, three feet by six feet, for the needle area. The "needles" were actually four heavy steel rods, each having a circumference of two and one-half inches. The needles were placed ten inches apart and rode up and down.

When the distributor was called in from time-to-time to service the machine, the servicing personnel worked from the top of the machine or in the pits. There were, however, two small access doors on either side of the machine that provided a line of sight into the needle area. The photographs show these doors approximately two feet above the base of the machine, and testimony indicated that each door was approximately four inches high and ten inches wide. A "Caution" sign was located approximately a foot and a half below each door. ² When one examined the machine from the top or the side, the view of the access doors was obstructed by other parts of the machine. At the time the machine was manufactured and delivered, the access doors were covered by a heavy metal grate with an interlock that shut down the needle assembly whenever the grate was lifted.

The machine received heavy use, and the wires in the needle assembly regularly became tangled. Alpha's management removed the safety grates on the access doors approximately two years before this accident. Since there was an interlock shut-off on the metal grates, Alpha did not merely remove the grates, because this would have activated the interlock and prevented operation of the machine. Using blow torches, grinders, and precision instruments, Alpha cut away all of the grate except the small portion that triggered the interlock. A small strip of metal remained in contact with the bottom of the access door, thus effectively nullifying the manufacturer's safety device. Employees could then reach into the machine and straighten the wires without having the machine automatically shut down.

Van Dyk and Alpha had no maintenance contract. A maintenance and servicing agreement had been offered to Alpha whereby Van Dyk's employees would have regularly inspected the machine, including an inspection for safety defects, but it was expressly refused by the employer. Van Dyk therefore serviced the machine on an on-call and as-needed basis. Since the purchase of the machine, Van Dyk's employees had worked on its various parts on more than twenty occasions, but there was no direct evidence that a Van Dyk employee had ever seen the condition of the access door on any of these service calls. Plaintiff's expert, however, found it incredible that someone who had worked on the top of the machine or down in the pit beneath the machine would not have seen the missing safety grate.

At the time of the January 8, 1990 accident, plaintiff was working on the machine. The plant manager and shift foreman had previously shown plaintiff how to untangle the wires in the machine. Plaintiff measured his safety margin for reaching into the machine by reference to a digital counter or "clock" which depicted the length of the paper being baled at the time. Each number on the clock represented approximately five inches of paper moving through the machine. From his experience, he could put his hand in the machine when the meter registered five and have sufficient time to untangle the wires before the meter registered thirteen (approximately equivalent to a forty-inch bale), at which time the needles would rapidly descend. On the day of the accident and about fifteen minutes before the end of his twelve-hour shift, plaintiff's past experience with the clock failed to protect him, and his hand and arm were pinned by the machine.

Plaintiff most probably was aware that the needle area was not designed to be serviced while the machine was running. On occasion plaintiff had started the machine from the control panel which bore a sign reading "DANGER. HIGH VOLTAGE. Turn switch handle to off position and padlock before performing any maintenance." But Alpha was portrayed at the trial as a poor employer, ³ and even defense experts admitted that plaintiff probably would have been fired for refusing to service the machine while it was still running. In 1993, plaintiff was laid off by Alpha and remained unemployed at the time of the April 1994 trial.

Plaintiff has not challenged the dismissal of the design defect claims against the manufacturer, but asserts that the manufacturer's warnings were inadequate. He further claims that Van Dyk, as the servicing distributor, had an independent duty to warn Alpha concerning the dangers of the missing safety grate. Plaintiff's expert had testified that Van Dyk's "failure to communicate the danger associated with the machine" as well as the inadequacies of the warnings were proximate causes of plaintiff's injury.

The trial judge determined, however, that in view of the relationship between Van Dyk and Alpha, which called for no safety inspections, and Alpha's specific rejection of a general servicing and inspection agreement, Van Dyk had no responsibility to perform more than the specific services which were ordered periodically. Peter Van Dyk had worked on the machine in the past and on at least one occasion had seen a specific safety problem, and had informed plaintiff's employer. On that occasion he sent Alpha a certified letter decrying a dangerous practice with the conveyor which he had observed during a service call. ⁴ There was no showing, however, that Alpha either considered Van Dyk's service calls to be safety inspections or even desired such inspections. In fact, Alpha's active effort to thwart the safety device on the grates belies any thought that Van Dyk's reiteration of the purpose of the safety grate would have changed Alpha's practices. Its actions are compelling evidence to the contrary. Taking these facts into consideration, the judge ruled as a matter of law that there was no duty owed by the servicer to the employees.

The court recognized that this case was governed by the 1987 Products Liability Act, N.J.S.A. 2A:58C-1 et seq., and that the substantial changes to the access grates protected the manufacturer from a design defect claim under Brown v. United States Stove Co., 98 N.J. 155, 167, 484 A.2d 1234 (1984), and McDermott v. TENDUN Constr., 211 N.J.Super. 196, 210, 511 A.2d 690 (App.Div.), certif. denied, 107 N.J. 43, 526 A.2d 134 (1986). The judge supported his dismissal of the failure to warn claims against Van Dyk as a servicing company by reference to Seeley v. Cincinnati Shaper Co., Ltd., 256 N.J.Super. 1, 606 A.2d 378 (App.Div.), certif. denied, 130 N.J. 598, 617 A.2d 1220 (1992). He explained the deficiencies in plaintiff's proofs:

There is, for example, no evidence that the service people actually saw the machine in operation; no evidence that they were trained as safety experts; no evidence that they were present at Alpha as safety inspectors; no evidence that they were viewed by Alpha as safety inspectors; no evidence, indeed evidence to the contrary based on the repetition of the conveyor belt incident after there had been warnings given by Van Dyk, both at the time of the visit and by subsequent letter, that Alpha relied upon their analysis in terms of their continuing their operation in any way; and no evidence that they assumed such responsibility for insuring the safety of the operation of the machine.

As noted earlier, the court determined that the facts made out a prima facie case solely for a warning defect and submitted that one issue to the jury.

Plaintiff first argues that Van Dyk had a duty to warn...