Campos v. Firestone Tire & Rubber Co.

• Decision Date: 01 December 1983
• Citation: 192 N.J.Super. 251,469 A.2d 943
• Parties: Armando CAMPOS and Puresa Campos, Plaintiffs-Respondents, v. The FIRESTONE TIRE & RUBBER COMPANY, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 251

192 N.J.Super. 251

469 A.2d 943

Armando CAMPOS and Puresa Campos, Plaintiffs-Respondents, v. The FIRESTONE TIRE & RUBBER COMPANY, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Argued Sept. 20, 1983.

Decided Dec. 1, 1983.

Erwin N. Griswold, Washington, D.C., pro hac vice, of the District of Columbia, Ohio and Massachusetts Bar, for defendant-appellant (Ribis, McCluskey, Ruane & Graham, Short Hills, attorneys; Jerome J. Graham, Jr. and George C. Jones, Short Hills, of counsel; Victor E. Schwartz, Patrick W. Lee, Kathryn Kelly, Washington, D.C., Elizabeth L. West, Chicago, Ill., on the brief).

William H. Sheil, Maplewood, for plaintiffs-respondents.

Buttermore, Mullen, Jeremiah & Phillips, Westfield, filed a brief amicus curiae for Washington Legal Foundation (Daniel J. Popeo, Washington, D.C., of counsel; William S. Jeremiah, Westfield, and Nicholas E. Calio, Washington, D.C., of the District of Columbia Bar on the brief).

Young, Rose, & Millspaugh, Roseland, filed a brief amicus curiae for National Machine Tool Builders' Association (Frederick W. Rose, Roseland, on the brief; Mark J. Nuzzaco, of the Oregon Bar of counsel).

Connell, Foley & Geiser, Newark, filed a brief amicus curiae for Armstrong Rubber Company, Cooper Tire & Rubber Company, Dunlop Tire & Rubber Corporation, General Tire & Rubber Company, The Goodyear Tire & Rubber Company and Uniroyal Tire Company (John B. Lavecchia, Newark, of counsel and on the brief).

Kronisch & Schkeeper, Livingston, filed a brief amicus curiae for Association of Trial Lawyers of America, New Jersey Affiliate (Allan Roth of Bendit, Weinstock & Sharbaugh, West Orange, on the brief).

Before Judges MICHELS, KING and DREIER.

The opinion of the court was delivered by

MICHAEL P. KING, J.A.D.

In this products-defect failure-to-warn case plaintiff Armando Campos was awarded a verdict of $255,000 for injuries to his right arm. The product allegedly causing the injury was a three-piece wheel-rim assembly manufactured by defendant Firestone and sold to plaintiff's employer. In response to two special questions the jury found no design defect but did find that defendant failed to adequately warn of the product's potential danger. Post-trial motions for judgment were denied and Firestone appeals. The key issue on this appeal is whether Firestone violated any legal duty to this plaintiff to warn of the product's danger. We conclude that it did not and that judgment should have been entered for Firestone.

Plaintiff was injured on November 1, 1978 while working as a tire mechanic for Theurer-Atlantic, Inc. in Newark. He was inflating a Dunlop truck tire on a Firestone rim assembly. Just before the accident he had assembled a tire on a standard three-piece truck rim. After placing the tire and rim assembly into a steel safety cage, he was in the process of inflating the tire within the steel safety cage.

The purpose of the steel safety cage, as conceded by plaintiff's own expert, was to prevent the metal rim components from striking anyone in the event the rim components separated under pressure during inflation. Separation under pressure could occur if the rim parts were defective or were not properly assembled by the mechanic. In addition to the steel safety cage, plaintiff used a clip-on air chuck. The purpose of this clip-on chuck was to permit the tire mechanic to stand away from the steel safety cage during inflation, another safety precaution against injury from rim separation.

Plaintiff was an experienced tire mechanic. He had changed eight truck tires an hour, eight to ten hours a day, six days a week for over seven years. He knew the procedures for safety during inflation: assembly in the steel safety cage, use of the clip-on chuck and standing away from the cage.

While inflating the tire, plaintiff saw the lock-ring component of the rim assembly separating, that is, "coming out." He reached inside the safety cage and his right hand and arm were seriously injured when struck by the lock-ring. Plaintiff admitted that he knew such conduct was dangerous and that separation under pressure could cause serious injury. Moreover, six years before, plaintiff had caused the same type of accident and had been injured at work when he had reached inside a safety cage during inflation of a tire and rim assembly. Plaintiff admitted that after the first accident he had been reinstructed in the use of the safety cage and the clip-on air chuck and had been told specifically by his superior to "stand back" while inflating a tire.

Both plaintiff's expert, Brenner, and Firestone's expert, Lee, testified that these standard safety devices--the steel cage and clip-on chuck--were adequate and would prevent injury during a separation of rim components under pressure. Firestone specifically recommended use of the cage and chuck in product catalogues distributed to its customers. Plaintiff's employer had been periodically provided with these catalogues before the accident. In addition, Firestone provided plaintiff's employer with a wall chart printed by the Department of Transportation describing these safety procedures for assembling and inflating multi-piece rims.

There was no written or pictorial warning about the danger of reaching into the cage on either the tire rims or on the safety cage. The safety cage was not designed, manufactured, nor sold by Firestone. Because plaintiff was illiterate in both English and his native Portuguese, any printed warning would have been ineffective. Plaintiff's safety expert, Brenner, theorized that some type of international graphic symbol could have been used by Firestone to portray the danger of putting one's arm in the safety cage when separation was imminent. He, however, admitted the doubtful efficacy of such a picture or symbol in the circumstance of this case.

He said:

Q. [by defense counsel] Take a stop sign, I guess it's hexagonal, eight-sided, and it says, "Stop" on it--

A. And it's red.

Q. And it's red.

A. That's correct.

Q. Is that the kind of signal we're talking about?

A. That is a form of symbol. The "Do Not Smoke" sign, which has a cigarette and a red line across it is another type of symbol.

Q. Now, how would those kinds of symbols have helped Mr. Campos in the situation he was in where he's observing a forcible separation of a truck rim in a cage airing the tire?

A. Not very much. A little perhaps. That is, if there was a reminder in graphical form against putting his hands in telling him that explosive separations can take place, and he's instructed verbally by somebody in his own native tongue as to what that symbol means. Then at least that amount of information has been provided to him.

I don't think it's going to be very effective beyond a certain point because this particular incident situationally starts before the tire even gets into the cage. It starts either on the assembly line or it starts when the man is assembling it and doesn't assemble it correctly. I certainly agree that the warning graphical which the man, let's say, understands, is not--it's better than nothing, but not very much better.

Q. Is it better than the pain caused by a prior injury in terms of suppressing his instincts for putting his hands in the cage?

A. No.

Brenner, a mechanical and safety engineer, considered plaintiff's conduct characteristic of industrial accidents that occur where a worker instinctively reacts to an imminent mishap and ignores obvious danger.

Freund v. Cellofilm Property, Inc., 87 N.J. 229, 432 A.2d 925 (1981), is the seminal case in this jurisdiction treating the failure to warn and its relationship to strict liability. The Court concluded "generally that in inadequate warning design defect cases, a strict liability charge should be given." Id. at 241, 432 A.2d 925. Such charge must make clear that "the warning must be sufficient to protect any and all foreseeable users from hidden dangers presented by the product." Id. at 243, 432 A.2d 925.

Freund was followed by Michalko v. Cooke Color & Chem. Corp., 91 N.J. 386, 451 A.2d 179 (1982). The Court there held that an independent contractor who rebuilds part of a machine given him by the plaintiff's employer may be held strictly liable for injuries sustained by a foreseeable user resulting from a failure to warn of dangerous propensities. In Michalko the Court expressly reserved the apparent question presented to us, i.e., whether adequate warnings to the purchaser of an industrial product, which will foreseeably be used by trained and experienced industrial workers, will provide a legal or factual defense to the manufacturer in a strict-liability failure-to-warn case. Id. at 403, n. 5, 451 A.2d 179. In Michalko the general duty was restated:

Hence, a manufacturer is under a duty to warn owners and foreseeable users of the dangers of using a particular machine if, without such a warning, the machine is not reasonably safe. A manufacturer which does not caution against the dangers inherent in the use of its product should be held strictly liable for injuries resulting from the absence of such warnings. [at 403, 451 A.2d 179]

Our courts have generally established a manufacturer's duty "to warn of concealed dangers" which might result in "foreseeable injury." Martin v. Bengue, Inc., 25 N.J. 359, 366-367, 136 A.2d 626 (1957) (duty to warn consumer of flammability of Ben-Gay vapors); Torsiello v. Whitehall Laboratories, 165 N.J.Super. 311, 320, 398 A.2d 132 (App.Div.), certif. den. 81 N.J. 50, 404 A.2d 1150 (1979) (duty to warn consuming public of risks of prolonged use of over-the-counter drug, aspirin). See 2 Restatement, Torts 2d, § 388(b) at 301 and § 402A, Comment (j) at 353 (1965). Our cases to date have not explicitly considered the duty to warn in the context presented in the case before us, i.e., a skilled industrial worker who proceeds in disregard of obvious safety procedures to confront a known hazard. We conclude that where...