Green v. Sterling Extruder Corp.

• Citation: 95 N.J. 263,471 A.2d 15
• Parties: John W. GREEN and Dolores Maria Green, Plaintiffs-Appellants, v. STERLING EXTRUDER CORPORATION, Transogram Midwest, Inc. and John Doe, Defendants, and Transogram Co., Inc., Defendant-Respondent.
• Decision Date: 08 February 1984
• Court: United States State Supreme Court (New Jersey)

Page 263

95 N.J. 263

471 A.2d 15

John W. GREEN and Dolores Maria Green, Plaintiffs-Appellants, v. STERLING EXTRUDER CORPORATION, Transogram Midwest, Inc. and John Doe, Defendants and Transogram Co., Inc., Defendant-Respondent.

Supreme Court of New Jersey.

Argued Jan. 9, 1984.

Decided Feb. 8, 1984.

Karl Asch, Elizabeth, for plaintiffs-appellants (Karl Asch, attorney and on brief; Ronald S. Suss, Elizabeth, on the briefs).

Herbert C. Klein, Clifton, for defendant-respondent (Klein, Chapman, Di Ianni, Henkoff & Siegel, attorneys; Herbert C. Klein and Andrew S. Kessler, Clifton, on the briefs).

The opinion of the Court was delivered by

CLIFFORD, J.

Under the current state of our law in the strict liability context, contributory negligence in any of its varied forms (excluding, of course, any intentional or willful act) will not foreclose a factory worker who is injured while using a defective machine for a reasonably foreseeable purpose from recovering against the machine's manufacturer. Suter v. San Angelo Foundry & Mach. Co., 81 N.J. 150, 177, 406 A.2d 140 (1979). Nor may such negligence of the worker serve to reduce any award in his favor under principles of comparative negligence, N.J.S.A. 2A:15-5.1. See Suter, supra, 81 N.J. at 177, 406 A.2d 140. The question posed by this appeal is whether a factory worker's contributory fault ¹ may be similarly disregarded in an action grounded solely in negligence.

The Appellate Division, in an unreported opinion, held that in the stated circumstances the worker's contributory fault was available to the machine manufacturer as a defense. We disagree. Because it found error, however, on a point we do not reach, the court below remanded the cause for a new trial on liability. We reverse and order judgment for plaintiff on the liability phase of this bifurcated case.

I

Plaintiff John Green ² brought suit on account of personal injuries sustained in January, 1977, while he was employed by Merlin Manufacturing Corporation (Merlin). He had been working for Merlin intermittently for about a year as a foreman, supervisor, and set-up man. On the date in question Green was working on a plastic blowmolding machine that, as the jury found, had originally been designed and assembled by defendant Transogram Co., Inc., for its own use but was subsequently acquired by Merlin after a bankruptcy sale of defendant's machines. The other named defendants are no longer involved in the case.

The blowmolding machine was used for the manufacture of plastic toys. It consisted of three separate components connected electrically and hydraulically: a tube called an extruder, used to heat plastic pellets and melt them down into a tube-like shape; a blow press, used to mold the plastic tube into the configuration of the toy mold; and a hydraulic system and timing mechanism, used to supply power to and coordinate the operations of the other two parts. A button on the left side of the press mechanism shut off the power. The machine was not equipped with an interlocking guard, available at the time of manufacture, that would have prevented workers from placing their hands in the press area while the machine was in operation, nor did it bear any warnings about the danger of reaching between the presses while the power was on.

In the operation of a blowmolding machine the "set-up man" inserts a hollow mold of a particular shape and size between the two presses, one half on the inside wall of each press. Plastic pellets are then poured into the top of the extruder. The extruder heats the plastic, melts it down, and ejects it through the bottom in the form of a hot plastic tube or "parison." As the parison descends from the extruder into the area between the two die presses, the presses automatically clamp together on it at a force of 2,000 pounds per square inch, or a total closing force of 20 tons. This forces the parison into the mold between the presses. Hot air is then injected into the parison through a needle alongside one of the presses, and the plastic is blown up to the configuration of the mold. Finally, the plates separate, allowing the "machine operator" to remove the completed toy from the mold. As we understand the plaintiff's testimony this entire heating, melting, and molding process takes about sixteen to twenty seconds.

Blowmolding machines do not always work as smoothly as the foregoing description might suggest, however. Dribbles of plastic from the parison occasionally become caught on the alignment pins alongside the molds or elsewhere inside the die presses. At such times, as part of the normal operation of the machine, the machine operator must reach between the die presses to unjam the machine so that the operation can be completed.

At the time of the accident plaintiff, a 37-year-old man with a ninth-grade education who had been doing "set-up work" for various companies for about ten years, was relieving a machine operator who was on her lunch or coffee break. He had performed this task several times previously, resulting in his familiarity with the machine's operation. The machine was making plastic toy baseballs and bats. At about one or two o'clock, Green observed a piece of plastic stuck on an alignment pin alongside the mold. He reached inside to remove the obstruction and the presses "slammed shut," in his words, "[j]ust about instantly." The fingers of his right hand were crushed.

Plaintiff's supervisor claimed that standard company procedure was to use the "stop" button on the left side of the press to deactivate the machine before removing plastic from between the dies. However, there was no evidence that employees were routinely advised of such a procedure--for example, in a job manual or orientation session--and it was not established that Green's fellow employees followed this procedure themselves. It is also unclear how frequently and how quickly the presses normally closed. Green himself testified that even though he was "certainly" aware that the die presses would hurt him if they were to slam shut while his hand was inside, he had never been warned of any dangers involved in reaching inside the mechanism, and did not think that the die presses could actually close on his hand.

Although the blowmolding machine had been disassembled and reassembled several times between the manufacture and the accident, it apparently was unchanged in at least this respect: it had never been equipped with any sort of protective guard surrounding the press area or with an interlock system that would deactivate the machine whenever a worker removed the guard to clean or unclog the press. An engineer and accident inspector who examined the machine after the accident and who testified on plaintiff's behalf said at trial that the machine "could [not] be safely operated by a worker in the plant" without such a protective enclosure. He claimed that interlocking guard systems had been in use since the turn of the century, were in use specifically in the plastics industry for some time before 1960, and could feasibly have been installed by the manufacturer without interfering with the utility or speed of the blowmolding machine. He further testified that it was fully foreseeable in 1960 that blowmolding machine operators, while operating the machine, would occasionally need to remove obstructions from between the presses and that the need for an interlocking guard should thus have been apparent to the machine's designers. This evidence was uncontroverted; there was no expert testimony for the defense.

Plaintiff's suit proceeded on theories of strict liability and negligence. To aid the jury in its deliberations the trial court posed certain interrogatories. By its unanimous answers the jury found that the machine on which plaintiff was injured was designed and assembled by defendant Transogram Co., Inc. and subsequently sold by it to plaintiff's employer; that plaintiff was using the machine for its intended or reasonably foreseeable purpose; and that the improper design and assembly of the machine were a proximate cause of plaintiff's injuries. The jury also unanimously determined that defendant Transogram was negligent in selling a machine that it should have foreseen might injure a person using it for the purpose for which intended, but that 75% of the combined negligence of both parties was attributable to plaintiff and 25% to defendant. In an opinion written after receiving the jury's special verdict, R. 4:39-1, the trial court concluded that Transogram Co., Inc. could not be held liable to plaintiff in strict liability because that defendant was not engaged in the business of selling machines and the blowmolding machine in question was not sold in the ordinary course of defendant's business but was sold at a court-ordered auction. Therefore, on a comparative negligence basis, the court molded a judgment in favor of defendant, plaintiff's contributory fault having exceeded that of defendant. See N.J.S.A. 2A:15-5.2(c).

The Appellate Division agreed with the trial court's determination that under the facts of this case defendant was not accountable as a manufacturer of the machine on principles of strict liability. The court below concluded that there was insufficient evidence to demonstrate what it perceived to be an indispensable ingredient in the strict liability equation, namely, that Transogram was engaged in the business of selling a product; it held that the sale of the machine in question at a bankruptcy auction could not be viewed "as a sale by a machine manufacturer in the ordinary course of business." Because plaintiff did not seek review of that holding, we do not address the provocative issue it contains, and no conclusion as to how we would resolve it were we to confront the question should be drawn from our...