Suter v. San Angelo Foundry & Mach. Co.

Citation406 A.2d 140,81 N.J. 150
PartiesFrank SUTER, Plaintiff-Respondent, v. SAN ANGELO FOUNDRY & MACHINE COMPANY, Defendant-Appellant.
Decision Date31 July 1979
CourtUnited States State Supreme Court (New Jersey)

Norman S. Costanza, Hackensack, for defendant-appellant (Morrison & Griggs, Hackensack, attorneys).

Anthony R. Amabile, Ho-ho-kus, for plaintiff-respondent (Witham, Amabile & Takvorian, Ho-ho-kus, attorneys).

The opinion of the court was delivered by

SCHREIBER, J.

This products liability case projects for our consideration the impact of the Comparative Negligence Act, N.J.S.A. 2A:15-5.1 to 5.3, in strict liability actions.

Plaintiff Frank Suter sought monetary damages for injuries sustained when his hand was caught in the cylinders of an industrial sheet metal rolling machine. At the time, Suter was employed by, as well as part owner of, Accurate Sheet Metal, Inc., a small industrial fabricator of sheet metal products, consisting primarily of ducts for heating and air conditioning. Suter charged defendant San Angelo Foundry & Machine Company, the manufacturer of the machine, with negligence and with breach of an express and an implied warranty that the machine was safe and fit for its intended purposes and was of merchantable quality.

The trial court, however, charged the jury only on the theory of strict liability. The court posed the issue in terms of whether the product as designed by defendant was reasonably fit for the ordinary use for which it was intended, whether the defect arose out of its design and while it was under defendant manufacturer's control, whether the defect proximately caused the injury, and whether plaintiff was a reasonably foreseeable user of the product. The trial court also charged, over plaintiff's objection, that plaintiff would be guilty of contributory negligence if he had not exercised that degree of care which a reasonably prudent person would have exercised under the circumstances. Six questions were submitted to the jury. Those questions and the jury's responses were as follows:

                  1.  Was the machine in question
                      defectively designed by the
                      defendant San Angelo                   YES      NO
                       Foundry & Machine Co.?                ----    ----
                                                              x
                                                             ----    ----
                        If the answer to Question #1
                        is "no", you need go no
                        further
                  2.  Was the defect a proximate cause       YES      NO
                      of the accident?                       ----    ----
                                                              x
                                                             ----    ----
                  3.  Was plaintiff, Frank Suter, guilty     YES      NO
                      of negligence?                         ----    ----
                                                              x
                                                             ----    ----
                  4.  Was that negligence, if any, a
                      proximate cause of the                 YES      NO
                      accident?                              ----    ----
                                                              x
                                                             ----    ----
                  5.  Taking the combined fault of the
                      defendant and plaintiff that
                      caused the accident as a total of
                      100%, what percentage of that
                      fault was attributable to
                          FRANK SUTER     50%
                                         ---
                          SAN ANGELO
                          FOUNDRY &amp
                          MACHINE CO.     50%
                                         ---
                                         100%
                  6.  What sum of money would fairly, reasonably and
                      adequately compensate FRANK SUTER for his
                      injuries and losses: $25,000
                

The trial court denied plaintiff's motion to dismiss the defense of contributory negligence, applied comparative negligence as provided in N.J.S.A. 2A:15-5.1 to 5.3 which had become effective in August 1973 (the accident having occurred on November 14, 1974) and entered judgment for plaintiff in the amount of $12,500.

On plaintiff's appeal, the Appellate Division, relying upon Bexiga v. Havir Manufacturing Corp., 60 N.J. 402, 290 A.2d 281 (1972), held in an unreported opinion that the defense of contributory negligence was unavailable. It modified the judgment by awarding plaintiff $25,000, the full amount of damages as fixed by the jury. We granted defendant's petition for certification, 76 N.J. 240, 386 A.2d 864 (1978).

The facts are virtually undisputed. Accurate Sheet Metal, Inc. (Accurate), located in Bloomingdale, New Jersey, was engaged in metal fabrication. Accurate had approximately 25 machines of various types, including a Lown 450, which it had purchased new in 1966. This machine, which had been built by defendant San Angelo Foundry & Machine Company, was used to flatten metal sheets and curve them into cylindrical shapes. Plaintiff had operated this piece of equipment on innumerable occasions between 1966 and the date of the accident in 1974.

The Lown 450 is powered by a one and one-half horsepower electric motor. The machine has three 50 long rollers which resemble those of an old-fashioned clothes wringer. Metal sheets up to 48 in width are fed between the two front rollers. The metal is shaped into a cylindrical form when drawn upward and around by the rear roller. The right side of the machine is known as its "low end". The "low end" is equipped with a latched drop-arm which is used to open that side of the machine. Completed cylinders may then be removed. A cylinder may be reinserted for rerolling by opening up the drop-arm and sliding it back in along the bending rollers.

On the left side of the machine is a gear box cover which houses the motor. Mounted on the front of the cover is a control box which extends out from the face of the gear box cover. On the front of the control box are two buttons. One colored green and marked "start" is surrounded by a narrow collar so that it cannot be brushed accidentally. The other button, colored red, is designated "stop".

On top of the control box is a gear lever located 35 from the floor. The lever, extending out 4 1/4 from the front of the gear box, has three positions. When moved to the right, the rollers turn in a forward direction; when the lever is in the center, the rollers remain stationary; when moved to the left the rollers move counterclockwise.

A treadle, painted yellow, extends along the front base of the machine. If stepped on, it stops the machine by tripping out the relay and deactivating the motor. The machine would thereafter have to be restarted.

Pushing the green button activates the motor. However, the rollers do not turn until the lever is shifted to either the forward or reverse position. If the red stop button were pushed, the power would be cut off and the machine would stop. Touching the foot treadle would have the same effect. When using the machine, the operator leaves the power on until all the work is completed and relies principally on the lever to stop and start the rollers.

The accident occurred in the process of rerolling a metal cylinder that had been formed from a sheet 48 by 48 . Four men, including plaintiff, had slipped the rolled metal through the "low end" of the machine. The latched drop-arm was then closed. The motor was on, but the lever was in a neutral position so that the rollers were not moving. Plaintiff, while standing on the left side of the machine, saw a piece of slag lying in the metal cylinder. As he reached over to pull the slag out, his body brushed against the gear lever, pushing it into the forward position and activating the rollers.

The fingers of his right hand were caught and pulled into the rollers. He managed to yank his hand free, but only after it had been severely injured. Plaintiff was thereupon taken to a hospital, operated upon, and hospitalized. He returned to work about three weeks later.

Plaintiff's expert, an engineer, testified that the machine had been defectively designed. In his opinion a rotary guard should have been inserted around the lever or the lever mechanism should have been placed on top of the gear housing which is 45 above the floor. Either method would have served as protection against accidentally starting up the rollers. Both of these protective methods were in use when defendant made and sold this machine. As early as 1962 the National Safety Council had recommended installation of bar guards to prevent inadvertent striking of such levers.

Defendant's expert agreed that the rotary guard was an available design at the time the machine was made and that as a safety engineer he would have recommended such a device. In his opinion the accident occurred because plaintiff placed himself in an unsafe position while reaching inside the cylinder without first cutting off the power to the machine.

I

Our analysis of this case will focus first on the question of what types of conduct may constitute contributory negligence in a strict liability suit. Next we shall consider the applicability of the Comparative Negligence Act, N.J.S.A. 2A:15-5.1 to 5.3, to that conduct. We shall then apply the principles so derived to the facts of this case.

Finally, we shall consider how a trial court should charge the jury on strict liability and its constituent elements. This consideration requires a review of the suggested instructions in Cepeda v. Cumberland Engineering Co., Inc., 76 N.J. 152, 386 A.2d 816 (1978). The trial court's charge in this case will then be tested against the conclusions we have reached.

II

We consider first the nature of a plaintiff's conduct which may bar recovery in a strict liability action. We have previously held that under some circumstances contributory negligence may be a defense. Ettin v. Ava Truck Leasing, Inc., 53 N.J. 463, 251 A.2d 278 (1969); Cintrone v. Hertz Truck Leasing & Rental Service, 45 N.J. 434, 212 A.2d 769 (1965). However, the nature of that contributory negligence is sharply circumscribed. Thus, plaintiff's negligence is unavailable as a...

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