On appeal from Superior Court of New Jersey, Law Division, Morris County.
Botter, Polow and Brody. The opinion of the court was delivered by Brody, J.A.D.
In this product liability case a jury found by special verdict that plaintiff was not using defendant's machine "as intended or for a reasonable foreseeable purpose" at the time he was injured. Judgment was entered for defendant. Plaintiff now raises several points all but one of which are rendered moot by our remand for a new trial. The dispositive point is that the judge failed to charge the jury adequately of the significance of plaintiff's alleged misuse of the machine in determining whether plaintiff's conduct was reasonable to foresee.
Defendant designed and manufactured the Schramm Rotadrill, a machine used for drilling water wells. The device looks like a small oil derrick. The drill is suspended within the derrick by chains which run over several sprocket wheels hanging from the top of the derrick interior. The Rotadrill can also be used to drive casings into wells. For this purpose the derrick is positioned over the well and an air hammer hung from the chains.
The Rotadrill is mounted on a truck for portability. When being transported the Rotadrill lies horizontally on the truck
bed. To prepare the Rotadrill for use, it is raised upright and set in place by lowering the rear platform of the truck on which it is mounted.
The accident occurred while plaintiff was using the Rotadrill to drive a casing into a well. He was making little progress because the hammer blows were not striking true. The supporting chains had to be readjusted to different sprocket wheels. To reach the wheels plaintiff grabbed a chain, one hand over his head, and rode it to the top of the derrick. His father, for whom he worked, was at the controls. As plaintiff reached the top and looked for a place to set his foot, the thumb of his overhead hand was caught between the chain and its sprocket wheel. Part of the thumb had to be amputated. Plaintiff's expert testified that a guard should have been installed at the nipping point where the chain met the sprocket wheel.
Defendant raised the defense of plaintiff's negligence. According to defendant, safe and proper ways to reach the sprocket wheels would have been either to return the derrick to the horizontal position or to climb up its metal struts. Defense counsel sounded this theme in his opening statement, "Mr. Beatty, Jr. has no one to blame but himself for choosing a very unsafe way of trying to make an adjustment." It was not until after defendant began to put in its case that the judge ruled that plaintiff's negligence was not an available defense.
Plaintiff's counsel requested the judge to charge the jury that plaintiff "was not guilty of any negligence . . ." in view of defendant's emphasis during trial on plaintiff's allegedly careless conduct. The judge declined, explaining that since he would not be giving the jury the issue of plaintiff's negligence, there would be no point in advising them that he was free of negligence. That was a proper ruling because ordinarily there is no need to tell the jury of an issue they are not being asked to decide. Preston v. Up-Rite, Inc., 243 Cal.App. 2d 636, 641, 52 Cal.Rptr. 679, 684 (Dist.Ct.App.1966). But for reasons which follow, in this case the judge was required to clarify the significance
of what the jury may well have viewed as plaintiff's careless conduct.
Policy reasons generally deprive those responsible for a defective machine of the defense of plaintiff's negligence when he is injured while using the machine in the course of his employment and the accident would not have occurred in the absence of the defect. See Suter v. San Angelo Foundry & Machine Co., 81 N.J. 150, 167-168, 177 (1979). Nonetheless, as in all product liability cases, a plaintiff must still prove that it was reasonable to foresee that he would use the product in the manner that caused his injury. Id. at 177. A plaintiff satisfies that burden by establishing that he was using the product properly, i.e., in a manner that was intended. If he was misusing it, then he must satisfy the trier of fact that his misuse was reasonable to foresee. Once proper use or reasonable foreseeability of misuse is established, recovery will depend on whether the product was reasonably ...