On appeal from Superior Court of New Jersey, Law Division Essex County.
King and Deighan. The opinion of the court was delivered by Deighan, J.A.D.
[201 NJSuper Page 209] On this appeal we are required to determine whether an occasional sale of a product such as a punch press by a user, not engaged in the activity as a manufacturer, distributor, supplier or retailer of the product as part of its business, may be strictly liable under § 402A(1) of the Restatement, Torts, 2d. for injuries resulting from a subsequent use of the product. In Green v. Sterling Extruder Corp., 95 N.J. 263, 269 (1984), the Supreme Court reviewed an unreported opinion of this court which affirmed the trial court's determination that a bankruptcy sale of defendant's plastic blow-molding machine was not a sale in the ordinary course of business as required under the
principles of strict liability. On appeal, the plaintiff did not seek a review of that holding and the Supreme Court cautioned that no conclusion was to be drawn as to how it would resolve the issue had it been presented. Id. at 269. Here, a judicial sale is not involved.
Plaintiff Orlando Santiago instituted this action for personal injuries based on negligence, strict liability and products liability against E.W. Bliss Division-Gulf and Western Manufacturing Company (Bliss), Alexander Brown-Capitol Machine, Western Electric Company, Inc., (Western Electric) and other defendants not involved in the present proceedings. Plaintiff and Bliss appeal from a summary judgment dismissing the complaint and cross-claims against Western Electric. On application, we granted leave to appeal. R. 2:2-4. The facts are not disputed.
On January 12, 1982 plaintiff Orlando Santiago was employed as a punch press operator by Springfield Electrical Specialties, Inc. During the course of his employment he reached into the point of operation of an unguarded punch press to remove a finished part. As he did so, the ram of the punch press thrust downward and plaintiff sustained an amputation of his left index finger and an avulsion wound of his left thumb. The press component of the punch press used by plaintiff was built by Bliss in 1929 and purchased by Western Electric from Bliss in March 1930.
Bliss, who has been designing and selling punch presses since 1857, does not supply point of operation guarding on general purpose presses. This is because the type and dimensions of guarding will vary according to the purpose and use of the press. Only after the design layout of the punch press with all its components is determined by the user, can the proper guarding be designed for the particular use and operation of the press. The ultimate user then assembles the press with other components of the metal forming system such as feeding, stock and tooling. For this reason, Western Electric was required to design the guarding component for the specialized
use for which the press was purchased in 1930. Although specifications were prepared by Western Electric as an incident to its business, it routinely designed modifications to general purpose machinery to fit its specialized needs. In addition to the guarding components for the press, drawings were submitted to Bliss with respect to the connection, crankshaft, motor drive starting and lighting equipment, automatic air valve and bolster plate. Also, all electric equipment and wiring was in accordance with Western Electric's specifications. Various other component parts were also supplied by Western Electric to Bliss for integration into the press.
In September 1953, after 23 years of use and almost 30 years before the incident involved in these proceedings, Western Electric sold the used punch press to an unidentified purchaser. In the following years, several other businesses owned the punch press. Bliss' records indicate that in 1972 a business known as "Howmedica" apparently owned or possessed the punch press because it asked Bliss for a manual. Sometime thereafter, Condor Industries came into possession of the punch press and used it for manufacturing operations. It was then transferred to defendant equipment brokers, Alexander Brown-Capitol Machine in July 1977, who in turn sold it to plaintiff's employer in April 1981.
Substantial changes from the original design by Western Electric were made to the punch press at the time plaintiff was injured. The most obvious change was the removal of the safety guard and its connecting linkage. The absence of any such safety guard is the principal basis of plaintiff's cause of action. The complaint contains counts in negligence, strict liability, and breach of warranty arising out of the design, manufacture, sale and distribution of the punch press which plaintiff was operating at the time he was injured.
In the course of preparation of the case for trial, plaintiff engaged the services of an expert, Louis Howarth, P.E. In a report dated June 24, 1982, Mr. Howarth asserted that
[t]he press was foot-pedal operated by Springfield Specialties. The point of operation region was unguarded, and in the die set was a die similar to the one which was used at the time of your client's accident.
The actuating medium for this particular press was a foot treadle which causes the clutch to engage and the ram descends upon pressing of the foot pedal. As one continues to hold down the foot pedal, the ram will continue to cycle up and down until the foot treadle is released.
Bliss did not use prudent engineering in the design and fabrication of this power press. They did not comply with known codes and standards which existed at the time that this machine was manufactured.
There were means, as indicated by cited patents, by which interlocking systems could have been utilized so that the operator was required to utilize both hands prior to actuation of the press with the use of foot pedal. Guards could have been fixed about the point of operation.
Signs should have been posted prominently so that they would alert the operator to the hazards of placing his hands underneath the point of operation region.
On December 20, 1983, Western Electric served interrogatories upon plaintiff in response to which plaintiff admitted: "We have no information in our possession indicating any liability on your part."
After completion of discovery the case was listed for trial on April 2, 1984. Trial was adjourned at the request of Bliss to June 18, 1984. On June 1, 1984, Western Electric moved for summary judgment relying on an affidavit of Edward Parker, the senior engineer who has been with Western Electric since 1957. Parker stated that he was familiar with the business operations of Western Electric, especially the purchase, use and disposition of manufacturing equipment such as punch presses, press brakes and shears. He related that Western Electric has never been engaged in the business of manufacturing, selling, distributing or designing punch presses or safety guards or devices for such equipment. Western Electric uses punch presses as part of its manufacturing operations to produce
telephone equipment and related parts, components and cables for the Bell System.
He declared that the records of Western Electric indicate that the press was purchased in about March of 1930 and that the only alterations, modifications or additions made by Western Electric were the addition of an electric switch and heel rest in April 1930, and a covering over the flywheel and foot treadle in December 1933. Further, there are no indications that Western Electric altered or removed any other part from the punch press.
Parker then stated that he was familiar with Western Electric's business practice of disposing of unwanted machinery such as the punch press involved in this matter. He noted that at the time of the disposition of the press by Western Electric it was nearly 24-years-old, and that Western Electric always sells its unneeded equipment "as is" without warranties to brokers who specialize in used equipment of that type. He advised that the punch press was sold in September 1953 to an unspecified purchaser. No opposing affidavits or certifications were submitted.
In a report dated April 11, 1984, the engineer of Bliss, James Lewis, outlined substantial changes in the punch press from its original condition to the condition at the time of the examination on April 3, 1984. Mr. Lewis observed that:
the treadle was originally installed 7 inches above the floor and had a [h]eavy return spring as shown in photo 8005, so it would have required approximately 40 pounds force to depress the treadle, a distance of 2 inches, which is the minimum distance that would have been required to trip the clutch. Also, the treadle was fixed in its location and could have moved in only a vertical direction, so that operator always knew the location of the treadle and could not depress it by any type of sideways motion such as shuffling his feet against the treadle. Photograph 2 shows the spring bracket SB, mounted on the press frame, but the spring is not visible. When we inspected the press there was a short compression spring attached to this spring bracket. It was not the large heavy spring that was originally provided by Bliss.
These photographs, as well as my examination of the press, confirm that the single stroke device originally provided by Bliss ...