On appeal from the Superior Court of New Jersey, Law Division, Passaic County.
O'Brien, Simpson and Scalera. The opinion of the court was delivered by Scalera, J.s.c. (temporarily assigned).
A jury trial of this products liability case resulted in a verdict against the defendant manufacturer of an industrial oven which exploded causing personal injuries. We reverse and remand for a new trial primarily because the judge's charge to the jury was prejudicially deficient in both substance and form.
Plaintiff Angel Navarro (Navarro) was employed by Electronic Transformer Corporation (ETC) which manufactured and sold electric transformers. The manufacturing process involved dipping the transformers into an epoxy or varnish solution and
then baking them in an industrial oven to cure or harden the coating material. On September 22, 1982 Navarro dipped a batch of transformers into either varnish or epoxy and, after the excess had dripped off, placed them on a tray and put them into the oven manufactured by defendant George Koch & Sons, Inc. (Koch). After they were in the lighted oven for approximately one and one-half hours, an explosion occurred within the oven, causing the door of the oven to be hurled some 25 to 30 feet striking Navarro and causing severe injuries.
Angel and Carmen Navarro, his wife, initially filed a complaint against Koch and two fictitious defendants claiming that they designed, manufactured or distributed a defective oven which had exploded and caused his injuries. They asserted negligence, strict liability and breach of express and implied warranties. Meanwhile ETC filed a separate action against Koch for the property damage it had sustained in the explosion. Thereafter, the two cases were consolidated for trial. Subsequently, Koch filed third-party complaints against William Printz and Co., Inc. (Printz), Brixon Manufacturing Company (Brixon) and John C. Dolph Co. (Dolph), seeking indemnification and contribution. Plaintiffs then joined Printz, Brixon and Dolph as direct defendants. By consent, the action against Printz was dismissed before trial.
When selling these industrial ovens, Koch would usually determine the needs and particular applications of the customer and then would recommend what they considered to be the appropriate oven. Sometimes Koch would go so far as to perform sample tests in their own laboratory. However, the oven in this case was purchased by ETC through a telephoned order and identified through a Koch catalogue number. The information communicated to Koch was that ETC was replacing an oven that had been damaged in a fire.
Koch accordingly filled ETC's order for a CDE-17 oven. This oven is the size of a refrigerator with insulated walls, a front door, an electric heating element on the top of the
interior, and a fan to circulate air around that element. While Koch made and sold an oven specifically for baking materials which were volatile or flammable, it asserted that the CDE-17 was designed primarily for drying or aging such as occurs in sterilization for autoclaving. When a CDE-17 oven was to be used for the baking of volatiles or flammables, modifications would be made by Koch before shipping. This included installing a separate blower and an appropriate airflow switch and affixing a warning legend or plate specifying the method for use of the oven for such materials.
There was evidence that ETC had ordered numerous ovens from Koch beginning as early as 1940. ETC bought them because they were the right size, never considering whether they were designed specifically for the purpose for which they were being purchased. The CDE-17 oven sold to ETC in this instance was equipped with explosion latches manufactured by defendant Brixon. These latches were designed to allow the oven door to pop open when the pressure inside equaled or exceeded the pressure which kept the door closed. Additionally, the latches were intended to keep the door attached to the oven when it did spring open under such circumstances. Further, it was Koch's policy to package all instructions concerning the component parts of the oven and enclose them in the control panel of the oven on shipment. Also included on the blueprint drawings of the particular oven were installation and operating instructions. The operating instructions "warnings" cautioned that users should bring the empty oven up to temperature before putting items into it, that only perforated trays should be used, and that the oven should not be used in an explosive atmosphere.
When ETC received the oven in question, however, it unilaterally undertook to modify it for its own special purposes. Initially, it vented the oven to the side through a wall and then changed it to vent straight up through the ceiling. It also installed a timer on the oven so that it could be preset to go on and off automatically. ETC "maintained" the oven every four
to six weeks. Maintenance consisted of scraping the bottom of the oven to remove the residue of varnish and epoxy, checking the belts of the circulating fan, and greasing the fittings on the shaft and the motor.
ETC's expert, Frank Schwalje, an engineering consultant, testified that despite Koch's intent to limit its use, the CDE-17 was essentially a Class A oven, i.e., an oven for baking volatiles and flammables, rendering it subject to the National Fire Protection Association code requirements for such units. He found numerous design defects in the oven, and concluded that it was dangerous to users.
He found that the fumes were exhausted improperly by a natural draft method, i.e., the hot air of the fumes would simply rise up the vent. Forced ventilation was the method that should have been used. He also said that the safety or airflow switch to the blower was not in a proper location and was not operating properly because it was coated with residue. That switch is designed to sense airflow created by the blower. If the switch detects a lack of airflow to cool the heating element, it automatically shuts down all of the oven functions. Because of its location, however, it only sensed air circulation problems within the oven cavity and did not detect any blockage at the influx site of fresh air. Thus, if the fresh air duct became blocked, it would cause the heaters to overheat and ignite any flammable materials in the oven. This would be avoided if the switch were placed near the inflow duct. He further said that the timer installed by ETC played no role in causing the explosion. It only performed a mechanical operation which did not interfere with any of the safety features installed by Koch. However, he conceded that it was a significant modification about which ETC should have consulted Koch.
Schwalje concluded that the explosion occurred because of insufficient airflow caused either by something blocking the air intake duct or the failure of the blower to operate to cool the heating element. A properly designed and located airflow
safety switch or forced ventilation may have prevented this explosion. He found the warnings included on the blueprint to be entirely inadequate since they did not fulfill the posting requirements of the code, were not explicit, and were not properly titled. He concluded that posting a data form as required by the code could have prevented the explosion.
Koch's experts included Frank Peserik, a consulting engineer, who said emphatically that the CDE-17 simply was not a Class A oven and that, as such, ETC was not using it for the purpose for which it was designed and manufactured when the explosion occurred. Additionally, he insisted that the modifications made to the oven by ETC caused the explosion. He said that ETC had "jumpered" the fuses, bypassing all of the safety features installed by Koch. As a direct result, the heaters were allowed to exceed their normal operating temperatures and ignite the flammables baking in the oven, causing the explosion. Peserik also felt that the Brixon "explosion release" latches might not have operated properly. He came to this conclusion because the door had been "creased" across the front. He said that this could have occurred in two ways: when the explosion occurred the upper latches worked and the lower ones did not, or something was leaning against the door when the explosion took place.
Koch also called Dr. Elihu Grossman, a chemical engineer. He observed that ETC's use of solid metal trays in the baking process was contrary to Koch's specific operating instructions, and that the use of solid trays had changed the anticipated airflow pattern in the oven. This permitted flammable vapors to accumulate in the oven and eventually ignite. Further, he determined that the oven was being operated in an explosive atmosphere, placed next to the dipping tanks. He also insisted that ETC did not use the oven as instructed, because they did not bring it up to temperature before inserting the material. Finally, he indicated that Dolph's data sheets failed to warn users adequately of the low flash point of the solvents contained
in the solution they sold to ETC. Dolph produced evidence directly to the contrary.
Following the close of evidence, the judge granted Brixon's motion for an involuntary dismissal. The judge observed that Brixon's liability was based solely on Peserik's opinion that the crease in the oven door resulted either from the failure of the lower latch or from something leaning against the door. However, his dismissal was predicated specifically on the absence of any proof that any defect originated while the product was in Brixon's control. The judge submitted the case to the jury as to the remaining parties. The jury deliberated and returned verdicts based on a series of interrogatories. Initially, those verdicts absolved Koch of liability with respect to both plaintiffs.
In the Navarro case they specifically found that the oven was defective but that the defect was not a proximate cause of the explosion. They also found that Koch had failed to give adequate warnings but that this was not a proximate cause of the explosion.
In the ETC claim for property damage, the jury found that a defect in the oven existed but such defect was not a proximate cause of the explosion. It found that Koch had failed to give adequate warnings and that the failure to do so was a proximate cause of the explosion. However, they found that ETC made a substantial change to the oven and that the substantial change was a proximate cause of the explosion. The jury apportioned liability as follows: Koch -- 35%, Dolph -- 0%, ETC -- 65%. With respect to both claims, the jury found that Dolph did not fail to give adequate warnings. The jury awarded Angel Navarro $350,000 for his personal injuries and $50,000 to Carmen for her per quod damages.
The judge found these verdicts to be inconsistent as they related to Koch and directed the jury to redeliberate. However, based on the answers to the interrogatories, he limited their redeliberation to the issue of Koch's failure to give adequate
warnings and whether or not that failure proximately caused the explosion. Thereafter, the jury returned verdicts in which they found that Koch had failed to give adequate warnings to both Navarro and ETC, and found that this failure was a proximate cause of the explosion as to both. The judge entered a verdict against Koch in the amount of $350,000 for Angel Navarro and $50,000 for Carmen Navarro. Since ETC's percentage of negligence exceeded that attributable to Koch, he entered a judgment of no cause for action on the ETC claim. After the trial, the judge refused to rule on Koch's motion for a new trial, holding that it was not filed in time.
Koch has appealed from the jury verdicts rendered against it, from the order dismissing its motion for a new trial, and from the order ". . . entered during trial, dismissing its claims against codefendant Brixon Manufacturing Co., and Dolph Chemical Company." (Since no arguments have been offered by any party to the appeal affecting the jury's determination of "no cause for action" in favor of defendant Dolph, we consider that any appeal against that party has been abandoned). Koch maintains that,
POINT I: THE TRIAL COURT ERRED IN ITS INSTRUCTIONS TO THE JURY AND THEREBY PREJUDICED APPELLANT.
A. The Trial Court Failed To Properly Instruct The Jury With Respect To The Issue Of "Substantial Alteration" Of Appellant's Product.
B. The Trial Court Instructed The Jury That It Could Hold Appellant Liable For A "Defect" That It Previously Declared Was Unsupported By The Proofs.
C. The Trial Court Instructed The Jury To Return A Verdict Against Appellant If It Simply Found That Appellant's Oven Was Defective And Advised The Jury That The Conduct Of ETC Is Not An Issue In The Case.
D. The Trial Court Improperly Permitted The Jury To Draw An Adverse Inference From The Fact That Appellant Declined To Call Physicians To Testify At Trial.
E. The Trial Court Prejudiced Appellant By Inviting The Jury To Consider "Insurance" In Applying ...