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Fabian v. Minster Machine Co.

Decided: July 1, 1992.

VICTOR FABIAN, PLAINTIFF-APPELLANT,
v.
THE MINSTER MACHINE COMPANY, INC., DEFENDANT-RESPONDENT



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

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

Dreier

The opinion of the court was delivered by

DREIER, J.A.D.

Plaintiff, Victor Fabian, appeals from a dismissal of his complaint after a jury verdict for defendant, and the denial of his motion for a new trial. Plaintiff was employed as a power press operator on March 11, 1988 when his hand was crushed by a press manufactured by defendant, the Minster Machine Company, Inc. In this products liability action, governed by N.J.S.A. 2A:58C-1 et seq., plaintiff claimed that the machine, manufactured in 1968, was defective because as designed, (a) it lacked guards and other safety devices, and (b) it lacked adequate warnings.

Plaintiff had worked for several months as a power press (or punch press) operator at C & C Metals. The power press stamps out metal products using interchangeable dies. On the morning of the accident, plaintiff started up the press as usual by turning on the motor, and activated the ram by simultaneously pressing two black palm buttons placed 24 inches apart on the front. A metal strip had been fed into the machine, and the press was set on continuous run. After activation, the machine successfully stamped out the product for two hours. At mid-morning break, plaintiff stopped the run by pressing one of the middle palm buttons (red or yellow) on the front.

After the break, plaintiff restarted the ram with the two black buttons. Within a few minutes there was a misfeed, so plaintiff stopped the run by pressing one of the middle buttons. He turned off the air blower, which blows finished pieces to the back, cut the metal feeding strip, and freed the metal scrap from the die with his hands. In order to refeed, he went to the side of the machine and switched the controls from continuous to "inch" mode. This was necessary because the metal strip

feeds from the right, and until it reaches the roller on the left, it must be advanced by hand. In inch mode, the ram comes down slowly an inch at a time, and goes back up an inch at a time, but supposedly only so long as both black buttons are continuously being pressed. After a couple of good pieces, the ram stopped at the top with the next piece stuck in the upper die. According to plaintiff, with his left hand at his side, he was reaching with his right hand to pull out the stuck piece, when the ram came down and crushed his upturned hand.

Immediately after the accident plant manager Richard Peterson determined that the ram was in the inch mode on the way down. He and others switched the machine from the inch mode and put a bar in the fly wheel in order to keep the ram from advancing any further on plaintiff's hand. After about half an hour, they succeeded in releasing plaintiff from the press. Peterson was unable to find anything wrong with the machine afterwards, and did not repair it before putting it back into production.

The press, which defendant acknowledged was a Minster No. 5 general purpose punch press built in 1968, was purchased by a predecessor of plaintiff's employer in 1971. Peterson himself ordered it, along with a bolster plate. The operator's manual came with it, but the pressroom foreman who orally instructed plaintiff on the machine's use, never saw that manual. The press bore no warning or safety signs.

According to plaintiff's expert, mechanical engineer Louis Howarth, the machine was defective when sold because it lacked guarding at the point of operation and because it lacked warning or accident prevention signs. He believed that one or both of those defects must have been the cause of the accident. According to Howarth, the machine should have been equipped with guards that made it impossible to hold one's hand under the ram when it descended. The applicable voluntary safety code required a safety device or guard for punch presses in 1968. The industry standard for punch presses, numbered B-11.1,

was published by the American National Standards Institute (ANSI), known in 1968 as the American Standards Institute (ASA). The point of operation device or guard recommended by ASA was intended to prevent the very accident that occurred, that is, the closing of the ram on a hand.*fn1

Plaintiff's expert Howarth admitted in cross-examination that the two-hand palm button activator was itself a point of operation device (not guard) in satisfaction of the ASA code. The two-hand activator requires that two buttons, spaced 24 inches apart, be pushed simultaneously and continuously in order to operate the press in the inch mode. In fact, in a prior case, Howarth had testified that the two-hand trip was the best universal point of operation device available. He also admitted that the guards he had cited in this case had to be disengaged when manual access to the point of operation was deliberately sought, as was the case here. He additionally conceded that a safety block is effective only for gravity falls of the ram, not for the power descent that occurred here.

According to Howarth, the machine also should have borne warning signs or safe operation instructions. The only metal labels riveted to the machine pertained to lubrication instructions and component part specifications; neither was directed to the operator. The absence of warnings violated ASA standard Z-35.1, which provided a standard format for warning signs. Howarth admitted on cross-examination, however, that the ASA code did not require warning signs on punch presses, but

simply prescribed a uniform standard for the form of warning signs in general.

Howarth could not explain how the ram was suddenly activated while in the inch mode, or what caused it to descend as it did, and he had been unable to duplicate the unwanted, "repeat" stroke, or "double strike" in later testing. Significantly, he could not say that it was the design of the machine that had caused the unwanted stroke.

According to defendant's expert, engineering consultant William Eaton, in 1968 the press was reasonably fit, suitable and safe for the purpose for which it was designed (with the two-hand safety device), and this was not a foreseeable accident. Eaton stated that the press is a general purpose component machine, not a self-contained manufacturing unit, and has no point of operation to be guarded until tooling and feeding devices are added. Therefore, according to Eaton none of the point of operation safeguarding proposed by plaintiff's expert could possibly have been installed by defendant. He testified that because a safety guard, which prevents access to the point of operation at all times, was not feasible, a safety device, which prevents access on the stroke, was the best measure that defendant could have taken.

According to Eaton, the point of operation was so obviously dangerous to flesh that no verbal warning was needed to caution against allowing the ram to be operational while a hand was under it. Furthermore, plaintiff admitted in deposition that he recognized the danger as he was reaching into the machine. Eaton concluded that the accident was unforeseeable because, as designed by defendant, the machine could not have produced the unwanted stroke absent catastrophic failure, which it is conceded did not occur. The cause of the accident remains unknown.

Plaintiff contends that the jury instructions on the risk/utility analysis and the state-of-the-art defense were erroneous because they placed on him an improper burden of proof to

show that the press's dangers outweighed its usefulness. He also contends that the state-of-the-art defense is unavailable where the claim is failure to warn.

Correct jury charges are essential to a fair trial. State v. Green, 86 N.J. 281, 287, 430 A.2d 914 (1981). In a products liability case, it is especially important to tailor the instructions to the factual situation. Suter v. San Angelo Foundry & Mach. Co., 81 N.J. 150, 176, 406 A.2d 140 (1979). Here the Judge charged that defendant had a duty to market a product "reasonably safe for its intended or reasonably foreseeable purposes." See N.J.S.A. 2A:58C-2. He presented state-of-the-art as merely a factor to be considered in the overall risk/utility analysis. Plaintiff timely objected to the charge on state-of-the-art. While we find this charge erroneous, the error was clearly harmless. R. 2:10-2.

This claim is governed by the Products Liability Act, effective July 22, 1987. N.J.S.A. 2A:58C-1 et seq. The Act was "not intended to codify all issues relating to product liability, but only to deal with matters that require[d] clarification." N.J.S.A. 2A:58C-1a. It "leaves unchanged the three theories under which a manufacturer or seller may be held strictly liable for harm caused by a product -- defective manufacture, defective design, and defective warnings . . . ." Dewey v. R.J. Reynolds Tobacco Co., 121 N.J. 69, 94-95, 577 A.2d 1239 (1990); N.J.S.A. 2A:58C-2. However, it redefined some defenses. It converted into absolute affirmative defenses what had been under the common law merely factors in the overall risk/utility analysis. Dewey v. R.J. Reynolds, 121 N.J. at 96, 577 A.2d 1239. Specifically, it created as absolute defenses a state-of-the-art defense, N.J.S.A. 2A:58C-3a(1); an obvious-danger/consumer-expectations defense, N.J.S.A. 2A:58C-3a(2); and ...


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