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Kassick v. Milwaukee Electric Tool Corp.

Decided: July 16, 1990.

MARK KASSICK, PLAINTIFF-RESPONDENT,
v.
MILWAUKEE ELECTRIC TOOL CORPORATION, DEFENDANT-APPELLANT, AND J. WALTER COMPANY, J.H. FISHER & SON, AND INDUSTRIAL WELDING SUPPLY, DEFENDANTS



On certification to the Superior Court, Appellate Division.

For affirmance as modified and remandment -- Chief Justice Wilentz, and Justices Clifford, Handler, O'Hern, Garibaldi, Stein and Pollock. Opposed -- None. The opinion of the Court was delivered by Pollock, J. Chief Justice Wilentz and Justices Clifford, Handler, O'Hern, Garibaldi, and Stein join in this opinion.

Pollock

In this products liability case, plaintiff, Mark Kassick, sought to prove that a sander manufactured by defendant Milwaukee Electric Tool Corp. (Milwaukee Electric or defendant) had three defects. In response to a question submitted by the trial court, the jury, without identifying the specific defect, found that the sander was defective. Finding further that the defect or defects were not the proximate cause of plaintiff's injuries, the jury returned a verdict of no cause for action.

In an unreported opinion, the Appellate Division reversed in part because of error in the charge on proximate cause. From its review of the record, the court identified the defect as the absence of a side-handle interlock. The court remanded the matter to the Law Division for a retrial limited to the issues of proximate cause and damages. We granted defendant's petition for certification, 117 N.J. 117, 564 A.2d 847 (1989), and now modify and affirm the judgment of the Appellate Division.

-I-

Plaintiff, an employee of Weldotron Corp. (Weldotron), was injured while working with a nine-inch power sander manufactured and sold by defendant to Weldotron. Defendant manufactures a grinder that is a virtually identical tool except that it uses a grinding wheel and is sold with a guard designed to protect the operator from wheel fragments. No guard is needed when the tool is used as a sander because sandpaper does not pose a risk to the user. The tool also has a removable side handle that can be attached on the right or left side, depending on the user's preference.

At the time of the accident, plaintiff was using the sander as a grinder without either a guard or the side handle. He was smoothing welds on the inside of a metal cabinet called a "heat shrink tunnel." The "sander" caught on a weld, kicked back, and struck plaintiff in the face, cutting him.

Suing in strict liability in tort, plaintiff alleged three defects in defendant's sander: lack of an interlock to prevent use of the tool as a grinder without the guard; lack of an interlock to prevent operation without a side handle; and lack of adequate warnings against use of the machine as a grinder without attaching both the guard and the side handle.

At the conclusion of the trial, in answer to specific questions posed by the court, the jury found that the tool was defective, that plaintiff had misused it, that the misuse had been foreseeable by defendant, and that the defect or defects had not been the proximate cause of the accident. Accordingly, the trial court entered judgment for Milwaukee Electric and for co-defendant, J. Walter Company, which manufactured the grinding wheel. The Appellate Division affirmed the dismissal of J. Walter Company, and plaintiff did not seek certification from that judgment.

Concerning Milwaukee Electric, the Appellate Division affirmed in part and reversed in part. The court affirmed that part of the judgment "exonerating" Milwaukee Electric from liability for any defect other than the failure to provide a side-handle interlock. From its review of the record, the court found no proof supporting the allegations that the tool was defective because of the absence of a guard interlock or because of inadequate warnings. Finding prejudicial error in the instructions on proximate cause, however, the court remanded for retrial on liability attributable to the absence of a side-handle interlock. According to the Appellate Division, the issues on remand would be limited to the absence of such an interlock as a proximate cause of plaintiff's accident and damages.

Before us, the parties are in accord that proximate cause and damages remain as issues. They also now agree that neither the absence of a guard interlock nor the inadequacy of the warnings remains as an issue. Their only point of difference concerns the Appellate Division's finding that the ...


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