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McCalla v. Harnischfeger Corp.

Decided: February 9, 1987.


On appeal from Superior Court of New Jersey, Law Division, Middlesex County.

Furman, Dreier and Stern. The opinion of the court was delivered by Dreier, J.A.D.


[215 NJSuper Page 162] Defendant has appealed from a Law Division judgment of $867,230, entered after the addition of interest to a $650,000 jury verdict in this product liability case.

In 1958 defendant, Harnischfeger Corp., designed and constructed an overhead crane in accordance with specifications provided by Irvington Steel & Iron Works (Irvington), the predecessor in interest to New Jersey Precast Company (Jersey Precast), plaintiff's employer. The crane was shipped to Irvington's iron foundry in three railroad cars and was installed on elevated rails which were permanently affixed to Irvington's premises.*fn1 Defendant serviced the crane on May 21, 1970 and March 31, 1981. Jersey Precast purchased Irvington's real property and improvements including the crane from Irvington's trustee in bankruptcy on October 2, 1972. At that time the business at the site changed from the original foundry to the manufacture of concrete highway dividers. The new owners continued to use the crane, principally to pour concrete from buckets into forms, and then to move the newly constructed highway barriers.

Plaintiff, a welder, was injured on September 11, 1981 when welding a fixed steel beam to another suspended by a wire high above the factory floor. He had been transported to the site in the cab of the crane. The crane struck the suspended beam causing it to hit plaintiff who fell from his work area. Luckily, he was able to grasp a piece of steel to keep from falling to the ground, although he suffered serious and permanent injuries. Suit was instituted September 15, 1981.

Plaintiff's expert witness stated that the crane had three types of design defects causally related to the accident, namely, a lack of windows on the side and rear of the cab and a lack of mirrors, all of which severely limited the operator's visibility;

secondly, a lack of "bells, horns and buzzers to alert workers of the dangers of the hazards of a crane moving unexpectedly;" and lastly, a lack of sweeps, a safety device which should have extended below the top of the rail and in front of the wheels.*fn2

Defendant proffered Peter Schwalje, a mechanical engineer, to support its contention that the crane had no design defects. However, when Schwalje began testifying as to his investigation of the crane, plaintiff objected on the ground that the expert's report was conclusory and had not been based upon any disclosed factual data. After an Evid.R. 8 hearing, the trial judge determined to limit the expert's testimony to a negation of the claims of plaintiff's expert, Mauer. Schwalje was prohibited from rendering his own opinion as to the safety of the design. The judge added:

What I am permitting him to do is . . . testify really on a negative fashion to negative Mauer[,] but I'm not allowing him to go beyond that. I am not allowing him to say that in his opinion this was a safe machine or that this machine met the highest standards, or, anything of that nature, I'm not going to permit [it].

About a year before trial commenced on June 19, 1985, defendant's counsel informed plaintiff's attorney by letter dated June 27, 1984 that Schwalje would testify that "the crane design conformed to all existing standards, written or otherwise," and that the crane was not defective for any reason, including the reasons set forth in Mauer's report. Schwalje's report, which had been furnished to plaintiff shortly after the letter was received, stated that the expert had visited the site and had taken various described photographs. The report concluded that the crane had been designed in accordance with applicable codes.

Inspection of the crane itself revealed the unit to be of conventional design and construction and although poorly maintained, to operate properly. The writer could detect no deficiency in the design or construction of the unit which would

have related to the occurrence of the accident as reported. In the writer's opinion the crane was designed and constructed in conformance to accepted practice and violated no known codes or standard applicable thereto.

This report apparently was intended only to be preliminary, although a final report was never filed.

Defendant has raised three points on this appeal. First, defendant contends that the architects and contractors statute of repose, N.J.S.A. 2A:14-1.1, barred any claim with respect to the design or installation of the crane. Second, defendant contends that plaintiff's conduct in voluntarily encountering a known danger may serve to bar or reduce his claim against defendant. Lastly, defendant asserts that the trial judge's preclusion of defendant's expert's testimony constituted an abuse of discretion, warranting reversal.


N.J.S.A. 2A:14-1.1 provides, ...

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