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Seeley v. Cincinnati Shaper Co.

Decided: February 14, 1992; May 5, 1992, Decided.

JOHN SCOTT SEELEY, PLAINTIFF-RESPONDENT,
v.
CINCINNATI SHAPER COMPANY, LTD., CINCINNATI, INC. (FORMERLY CINCINNATI SHAPER CO. OF CINCINNATI, OHIO), DAVID SCHWARTZ COMPANY, AND FAB SALES, DEFENDANTS-APPELLANTS AND RUTHERFORD COMPANY, DEFENDANT-RESPONDENT



Argued: December 18, 1991 Decided: February 14, 1992. On appeal from the Superior Court of New Jersey, Law Division, Middlesex County.

King, Dreier and Brochin. The opinion of the court was delivered by Dreier, J.A.D.

Dreier

DREIER, J.A.D.

This appeal focuses upon a manufacturer's continuing duty to warn a remote owner or user of its product concerning safety problems inherent in the product, but either not recognized or not acted upon by the owner.

Defendant Cincinnati, Inc., the successor to Cincinnati Shaper Co., Ltd. (the Scottish manufacturer of the machine that injured plaintiff), appeals from a $500,000 judgment based upon its failure to warn of the dangers of operating a 225-ton press brake without a point of operation guard. Plaintiff had also alleged that the machine was defective when manufactured because it did not incorporate the type of universal guard proposed by plaintiff's expert, but the jury rejected this theory and held defendant liable solely for its failure to warn. Other codefendants were interim owners or sellers of the machine from the time of manufacture through the time of purchase by

plaintiff's employer.*fn1 After issuing our initial opinion of February 14, 1992, we granted the parties' cross-motion for reconsideration and invited additional briefing. We have incorporated our responses to their arguments in this revised opinion.

On April 28, 1987, plaintiff John Scott Seeley was injured while operating a press brake on the premises of his employer, East Atlantic Manufacturing Company. Mr. Dominick LeoGrande was a part owner of East Atlantic and was responsible for its day-to-day operations. He had hired plaintiff who was then 18 years old and had graduated one year earlier from a vocational high school where he had been trained as a machinist. On the day of the accident LeoGrande assigned plaintiff to work on the press brake, after he had been given only 15 minutes of training on the machine.

The machine is used to fabricate metal by compressing it between two dies, an upper die attached to a ram and lower die attached to the bed of the machine. The ram and bed are several feet long. Although East Atlantic used the press brake to fabricate hollow metal door frames, the machine has a wide variety of uses. It can form, punch, notch, sheer or bend metal in many different ways. Depending upon the size and configuration of the dies, the machine can operate on both small parts and large pieces of metal, one example given being the fabrication of helicopter blades or other products of considerable length. For this reason the machine was originally designed to accommodate a variety of point of operation guards. When originally manufactured by Cincinnati, the machine was intended to accommodate a J. Broughton Radio-Visor Photoelectric Guard. As originally designed and manufactured in 1966, the

machine not only accepted such a guard, but was inoperable without it. The press brake was shipped by its Scottish manufacturer on July 30, 1966 to its English customer; the guard was installed; and the press brake was operating that day.

There is no question that the machine had been substantially altered between the original sale by Cincinnati and its eventual purchase by East Atlantic. The drive, clutch and brake assemblies had been replaced, and the mechanical foot treadle used to activate the machine had been replaced by an electric pedal. The original treadle required an operator to raise his foot and exert considerable pressure before the machine could be activated. The electric pedal requires but a light touch to start the machine; when the pressure is released on the pedal, the machine stops. The electric pedal usually was supplied with a cover or shroud so that the operator would be forced to insert his foot to press the pedal. This would prevent either his accidentally triggering the machine or the machine being triggered by some falling object. There was some suggestion that the replacement of the treadle with the electric foot pedal was a material change in the machine. However, the material supplied to East Atlantic by Cincinnati contained references to such an electric pedal and, therefore, a jury could have found that this mode of activation would reasonably have been expected by Cincinnati. See Finnegan v. Havir Mfg. Corp., 60 N.J. 413, 423, 290 A.2d 286 (1972). There was evidence, however, that when an electric pedal such as this is used, it should never be placed close enough to the machine so that the operator could activate the machine by means of the pedal while his hand could be between the ram and the bed.

The accident occurred here when plaintiff inserted a metal sheet to be shaped by the machine. For some reason the metal sheet was not stopped by a rear plate or guide that normally would have caused the sheet to have been positioned correctly. Plaintiff reached into the machine to pull the sheet back towards him and most probably stepped on the electric pedal at

the same time. Perhaps because of the operator's lack of experience and training, and perhaps because of the absence of the safety shroud which should have covered the pedal and prevented such an occurrence, the machine activated and the ram caught plaintiff's hand between the dies, severing it at the palm. The hand was reconnected after micro-surgery, but movement has been only partially restored, and a portion of plaintiff's hand is now fused into a fixed semi-closed position.

Cincinnati's predecessor, the manufacturer, kept records concerning each of its products. In the early years after its initial sale, this press brake was serviced on 13 occasions, and at least one of the service records specifically noted that the photoelectric guard was working properly. After 1970, however, defendant received no further requests for maintenance and lost touch with the machine. Apparently, however, the photoelectric guard was removed at some point, and there is no evidence of how long it had remained in place, why it was removed, or by whom. At some point the machine was purchased by a British company, Phoenix Machinery Company Ltd. Phoenix in turn sold it to defendants Schwartz Machinery and FAB Sales who later brought the machine to the United States and sold it to defendant Rutherford Company, which finally sold it to East Atlantic. When East Atlantic purchased the machine in October 1986, it had no guard protecting the space between the jaws of the machine (a "point of operation guard").

After the purchase, Mr. LeoGrande contacted defendant Cincinnati and requested an owner's manual and parts manual for the press brake. The response letter from Cincinnati, Inc., located in Cincinnati, Ohio, is informative. The company did not merely send the requested parts manual and operations manual. Defendant obviously was concerned with safety. Its letter was addressed to East Atlantic's safety department and stated:

Gentlemen:

Through your recent transaction with our Parts and/or Service Departments, we have learned that you now have a CINCINNATI machine. In an effort to

help you with this equipment and your safety program, we are writing to offer our assistance.

It is possible that since this machine was manufactured, the safety standards have changed and that you now have a machine which requires updating to meet these standards. CINCINNATI INCORPORATED can help by providing a quotation for updating and by providing training materials for your operators which cover safe operating methods and procedures.

Please review the enclosed bulletin, PI-30641*fn2 and advise us on how we might be of help.

Very truly yours,

CINCINNATI INCORPORATED

Ralph W. Wellington

Manager -- Product Safety

While obviously trying to sell its services, Cincinnati clearly informed East Atlantic that the machine might need a safety check and enclosed extensive safety materials.

Plaintiff's theory of this case was first that there was a design defect in that there was no built-in universal guard to be used with all of the machine's operations. Given the variety of uses to which this machine may be put, the expert testimony that no one photoelectric or mechanical guard could have accommodated all of the anticipated uses of the machine, and the lack of an appeal from this aspect of the jury's determination, we need not dwell upon the jury's initial verdict that the failure to have installed a universal guard such as the one suggested by plaintiff's expert did not constitute a design defect. The question of defendant's liability is solely dependent upon plaintiff's second theory of liability, a failure to warn, and this in turn is dependent upon our review of the materials forwarded to East Atlantic, and a later visit by Mr. Gary Remlinger, a

Cincinnati service representative, on November 21, 1986, five months ...


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