For reversal -- Justices Proctor, Hall, Schettino and Haneman. For affirmance -- Chief Justice Weintraub, and Justices Jacobs and Francis. The opinion of the court was delivered by Proctor, J. Weintraub, C.J. (dissenting). Jacobs and Francis, JJ., joins in this dissent.
[42 NJ Page 179] This is a products liability case. The plaintiff, an employee of Ford Motor Company at its plant in Mahwah, New Jersey, brought this action in negligence and breach of warranty against the defendant manufacturer of an allegedly defective abrasive disc which broke and struck the
plaintiff while he was using it in the course of his employment. At the close of the plaintiff's proofs the trial court granted defendant's motion for involuntary dismissal on both counts. The Appellate Division unanimously held that plaintiff had failed to establish a prima facie case of negligence or of express warranty. However, the majority held that plaintiff was entitled to go to the jury on his claim for breach of implied warranties of merchantability and fitness for a particular purpose. The dissent agreed that such warranties extended to the plaintiff but found that he had failed, either directly or circumstantially, to prove a breach thereof. Jakubowski v. Minnesota Mining and Manufacturing, 80 N.J. Super. 184 (1963). Defendant appeals as of right. R.R. 1:2-1(b).
Defendant is a manufacturer of abrasive discs and prior to the accident here involved had sold to Ford Motor Company 200,000 to 300,000 Type C, 24-grit, 9-inch, fibre-backed, flexible sanding discs of the type plaintiff was using when he was injured. An additional 50,000 to 100,000 were purchased and used by Ford during the three years following plaintiff's accident. The discs were described in defendant's catalog as follows:
"3M DISCS TYPE 'C' -- GREEN BACK. Are stronger, sharper, and longer-lived than ever before available -- anywhere. This construction is the best all-purpose disc -- for edge sanding, flat sanding, and solder sanding or oil filling operations. It's 'shape controlled' to resist effects of humidity and temperature.
Aluminum Oxide Mineral, Heavy All-Fibre Backing, Closed Coat, Resinbonded, 150-50, 36, 24, 16."
Plaintiff had worked for 17 years as a mechanic and body finisher on the production line at Ford and was experienced in the use of abrasive discs. On the day of the accident he was a relief operator for a crew of 15 grinders and solderers and had that morning as part of his duties brought from the stockroom a supply of 3M discs for the use of the grinders on the line. One of the grinders asked to be relieved and handed the plaintiff his pneumatic rotary-type grinding machine with [42 NJ Page 181] a flexible sanding disc attached to its shaft. The grinder whom plaintiff relieved had been using the machine with the same disc attached, and plaintiff did not replace the disc before commencing his operation. The extent of the prior use of the disc does not appear. The grinding machine weighs about 7 pounds and is operated by air pressure which propels the disc on the shaft over a rubber or fiber backing plate with a diameter a few inches less than that of the disc. The machine is preset to rotate at 3,600 revolutions per minute and with the 24-grit Type C disc attached is intended for rough sanding or snagging operations in which a braze, a "big gob" of brass, which may have sharp edges and abrupt corners, is cut down to a smooth surface by the action of the spinning disc applied under pressure by the operator. This type of snagging operation exposes the abrasive disc to a very punishing type of treatment. Plaintiff set the machine in operation at full speed by grasping its two handles and closing the valve in one of them to start the motor. He applied the spinning disc under pressure to a braze on an automobile body at the point where the windshield and door post are joined when the disc snapped in half and struck him in the abdomen. A Ford nurse applied mercurochrome and a bandage to cover the bruise, which was about 3 inches long, and sent him back to the production line. Plaintiff claims that the injury aggravated a previous duodenal ulcer condition or alternatively that it caused the condition. The broken disc was not produced at the trial, nor had anyone examined it or checked to see what had caused it to break. Ford safety engineers, whose responsibility it was to see that the various operations and machinery used in the plant were reasonably safe, had approved the purchase of these discs. Further, competitive tests of these and other manufacturers' discs had been conducted on the Ford production line by its engineers to determine durability and effectiveness, and for cost comparison. Ford determined that this type of disc could be used for five operations before a fresh one was required.
The plaintiff testified that the discs "break often, and we change them as they break." Further, in response to the court's inquiry as to whether these discs had broken before, the plaintiff responded, "Yes; they break. We got hit many a time, but never thought nothing of it. A lot of fellows get hurt."
The Appellate Division, while it found no proof of negligence, nevertheless held that plaintiff's proofs entitled him to go to the jury on the implied warranty issue. Since we view the evidence as insufficient to establish an unreasonably dangerous condition of the product attributable to the defendant, it is immaterial whether plaintiff's action be for negligence or breach of sales warranty. Plaintiff must establish by some proof that weighs heavier than mere surmise or conjecture that his injury resulted from an unreasonably dangerous condition of the disc for which defendant is responsible. See Long v. Landy, 35 N.J. 44, 54 (1961); Heath v. Channel Lumber Co., 25 N.J. Super. 6, 13 (App. Div. 1953); cf. Miller v. Davis and Averill, Inc., 137 N.J.L. 671, 675 (E. & A. 1948). According to Harper & James, whether the products liability action be in tort for negligence, or in warranty, the plaintiff must show that the goods of which he complains were unreasonably dangerous for their intended use and that the unreasonably dangerous condition existed when the goods left the defendant's hands. 2 Torts, § 28.22, at p. 1584 (1956); see also Simon v. Graham Bakery, 17 N.J. 525, 531 (1955); Prosser, Torts, § 84, p. 509 (1955) (plaintiff must prove the product was defective when it left the defendant's control); Prosser, "The Assault upon the Citadel (Strict Liability to the Consumer)," 69 Yale L.J. 1099, 1114 (1960); 1 Frumer and Friedman, Products Liability, § 16.01, p. 359 (1963). The necessity for such proof is implicit in the opinion of this court in Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 410-411 (1960).
The Appellate Division, as noted above, unanimously agreed with the trial court that plaintiff had failed to prove a cause of action in negligence. Plaintiff's claim that the
defendant was negligent in failing to designate on the face of the disc the maximum speed of operation was rejected since there was no proof suggesting that the breaking of the disc was related thereto. Moreover, it held that the doctrine of res ipsa loquitur did not apply since the plaintiff failed to show that his injury was caused by something which lay within the defendant's responsibility. Since he failed to exclude other possible causes for his injury, e.g., the conduct of the grinder whom he relieved, he had not produced sufficient evidence from which a jury could reasonably infer that his injury was caused by a condition of the product arising from the negligence of the defendant manufacturer. 80 N.J. Super., at p. 193. We agree with this view of the evidence, but in our ...