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Rivera v. Westinghouse Elevator Co.

Decided: June 17, 1987.

ANA RIVERA, SURVIVING SPOUSE AND HEIR OF JOSE A. RIVERA, DECEASED, AND GUARDIAN AD LITEM OF ALBERTO RIVERA, A MINOR, PLAINTIFF-APPELLANT,
v.
WESTINGHOUSE ELEVATOR COMPANY, DEFENDANT-RESPONDENT



On certification to the Superior Court, Appellate Division, whose opinion is reported at 209 N.J. Super. 543 (1986).

For modification and affirmance -- Chief Justice Wilentz and Justices Clifford, Handler, O'Hern, Garibaldi and Stein. Opposed -- None.

Per Curiam

In this case, plaintiff's husband, Jose Rivera, had been employed as a maintenance worker at City Federal Savings and Loan in Elizabeth. On January 19, 1981, Rivera was part of a work crew that was assembled to move a bulky, eight-foot-long conference table from the second floor of City Federal's Elizabeth building to a location on another floor. As they had done in the past, the crew used the top of the elevator for this task, controlling the movement of the elevator manually through a control box. On this occasion, it was not realized by the workers that the control box had been left in its automatic rather than manual operating mode. Rivera was on top of the elevator when apparently somebody on a higher floor automatically activated it. The elevator shot up and Rivera was killed instantly when his head was crushed between the elevator and an overhead beam.

Plaintiff brought this suit against defendant, Westinghouse Elevator Company, which had manufactured and installed the elevator. The complaint contained counts alleging a negligent failure to warn of the dangers of untrained use of the top of the elevator and counts alleging the defective design of the control box and lighting on top of the elevator. The defective design counts were dismissed as time-barred, and the case proceeded on the negligence theory.

At the conclusion of the testimony, the trial court submitted to the jury special interrogatories asking whether defendant had been negligent, whether Rivera had been contributorily negligent, and, if both had been negligent, their relative degrees

of fault. The trial court instructed the jury to find Rivera negligent if it concluded that he had not acted as a reasonably prudent person under the circumstances. The jury found that defendant, but not Rivera, had been negligent, and assessed damages at $150,000.

Following the denial of its motion for a new trial, defendant appealed. The Appellate Division reversed and remanded for a new trial, holding that the jury verdict was "against the weight of the evidence and constituted a manifest injustice, at least insofar as the allocation of negligence and the attribution of 100% liability to defendant is concerned." 209 N.J. Super. 543, 549 (1986).

On the contributory negligence issue, the Appellate Division assumed, as did the trial court, that the applicable legal standard was contributory negligence in the ordinary sense -- that arising from mere carelessness or inadvertence. Premised upon this standard of care, the decision of the Appellate Division ordering a new trial was correct. Accordingly, we affirm the judgment of the Appellate Division substantially for the reasons expressed in its opinion, namely, that the failure to allocate any degree of fault to the decedent is against the weight of the evidence and constitutes a miscarriage of justice under the law.

There remains, however, some confusion in this case about whether the defense of contributory negligence is applicable and, if so, what duty or standard of care constitutes such contributory negligence. This confusion is engendered, in part, by a footnote contained in the opinion of the Appellate Division. This footnote, added to guide the trial court in the retrial of this matter, stated:

In Green v. Sterling Extruder Corp., 95 N.J. 263 (1984), the Supreme Court extended to an action in negligence the principle applicable to a claim in strict liability, that when a factory worker is injured while using an unsafe machine for its intended purpose, the manufacturer must be deprived of a contributory negligence defense. Id. at 271. See Suter v. San Angelo Foundry & Mach. Co., 81 N.J. 150 (1979); Cepeda v. Cumberland Eng'g Co., Inc., 76 N.J. 152

(1978). In this case, however, Rivera was not utilizing the equipment for its intended purpose and ...


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