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Lopez v. Entwistle Co.

Decided: October 9, 1986.

GABRIEL LOPEZ AND CECILIA LOPEZ, HIS WIFE, PLAINTIFFS,
v.
THE ENTWISTLE COMPANY, ABC CORP. (A FICTITIOUS NAME), AND XYZ CORP. (A FICTITIOUS NAME), DEFENDANTS



Wertheimer, J.s.c.

Wertheimer

This matter of first impression came before the Court on a pre-trial motion in limine to prevent defendant from offering evidence in this products liability action about post-manufacturing offers to supply barrier guards to plaintiff's employer. Plaintiff seeks compensatory and punitive damages.

It is uncontroverted that when the machine in question, a spiral can winding machine, was manufactured it was sold to plaintiff's employer without the barrier guards. This Court also assumed for the purposes of the motion that defendant knew or should have known that such guards were available. This Court concluded, therefore, for the purposes of this motion that the machine was "defective" when sold to plaintiff's employer.

In support of his motion plaintiff relied primarily on the holdings in Johnson v. Salem Corp., 97 N.J. 78 (1984), and Butler v. PPG Industries, Inc., 201 N.J. Super. 558 (App.Div.1985). The Supreme Court noted in Johnson, supra, 97 N.J. at p. 94. "The manufacturer cannot escape its duty to install guards by alleging that the employer should have installed them or provided other safety devices. See, e.g., Michalko v. Cooke Color & Chem. Corp., 91 N.J. 386, 397 (1982); Finnegan v. Havir Mfg. Co., 60 N.J. 413, 423 (1972); Bexiga v. Havir Mfg. Co., 60 N.J. 402, 410 (1972)."

The Appellate Division confirmed this holding in Butler, supra, 201 N.J. Super. at 564 when it decreed that a "jury will not be permitted to infer that the purchaser's negligence was the exclusive proximate cause of the accident when defendant alleges the buyer failed to take steps against a defect created by the manufacturer." However, the Butler Court also stated:

In order to exculpate, itself the manufacturer must prove an intervening superseding cause (was the) . . . sole proximate cause of the injury.

Ibid.

The seminal cases in the area in question were Bexiga v. Havir Manufacturing Corp. and Finnegan v. Havir Manufacturing Corp., supra. The thrust of the Supreme Court's opinions in both cases was succinctly put: "(t)o the extent that the rule (Restatement, Torts 2d, ยง 402A (1965)) absolves the manufacturer of liability where he may expect the purchaser to provide safety devices . . . it should not be applied." Bexiga, supra, 60 N.J. at p. 410. Our Supreme Court correctly opined that there was a public interest to assure the installation of safety devices and the only certain way to insure this was done was to impose the duty on the manufacturer whenever feasible.

This Court does not believe, however, that the Supreme Court intended that a manufacturer of a defective machine would remain liable for eternity even when it attempts to correct the defect post-sale. It is equally in the public interest for defective and potentially dangerous machines to be rectified. Once a manufacturer has made a mistake, it should not be dissuaded

from correcting that mistake, and it should not be forever placed in jeopardy of defending countless lawsuits for injuries which could have been averted and the potential consequential loss of its business.

Common sense, fundamental fairness and justice demand that a manufacturer be able to protect itself by curing a defective product after sale. Defendant seeks the opportunity to establish before this Court that it contacted plaintiff's employer years after the sale to advise that it had guards available to protect operators from the very "zone of danger" which caused the injury in this case. The employer allegedly responded that the machine had been "mothballed" and was no longer in use. In fact, the employer supposedly said it had abandoned the type of manufacturing operation for ...


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