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Jurado v. Western Gear Works

Decided: March 3, 1993.


On certification to Superior Court, Appellate Division, whose opinion is reported at 253 N.J. Super. 263 (1992).

Pollock, Wilentz, Handler, O'Hern, Garibaldi, Stein, Clifford.


The opinion of the court was delivered by


Our focus is on the meaning of "misuse" as that term is used in a strict-liability design-defect products-liability case. See Ellsworth v. Sherne Lingerie, Inc., 303 Md. 581, 495 A.2d 348, 354-55 (Md. 1985) (suggesting various definitions of "misuse"). In the present case, the problem arises from confusion inherent in Model Civil Charge 5.34I pertaining to product misuse. The trial court relied on that charge, which confuses the purpose for which a product is used with the manner of using it, in submitting special interrogatories to the jury. Those interrogatories apparently misled the jury about the meaning of "misuse."

Before submitting the case to the jury, the court reserved decision on a motion for a directed verdict by plaintiff Alfonso Jurado. After the jury returned a verdict for defendants Western Gear Corporation and Bucyrus-Erie Company, the court granted Jurado's motion for a judgment notwithstanding the verdict. The Appellate Division affirmed the judgment on liability in Jurado's favor and remanded to the Law Division for a trial on damages only. 253 N.J. Super. 263 (1992).

We granted certification, 130 N.J. 7 (1992). We now reverse that part of the Appellate Division's judgment that affirmed the judgment on liability and remand the matter to the Law Division for a trial on both liability and damages.


Jurado, an employee of N & W Printing, injured his right hand when it became caught in an "in-running nip point" located between a rotating cylinder and a support bar underneath a collating machine. The machine, which was designed to collate and assemble business forms, was manufactured and distributed by defendants.

During the collating process, excess paper salvage would enter a vacuum tube beneath the machine. Frequently, the paper would build up at the mouth of the tube, forcing the operator to clear it by hand. The tube was located near the rotating cylinder underneath the collator.

On the date of the accident, Jurado reduced the speed of the machine and tried to clear salvage that was blocking the vacuum tube. As he crouched and reached under the collator with his left hand, he lost his balance and tried with his right hand to prevent himself from falling. Jurado's right hand was injured when it was drawn into the in-running nip point. He claimed that he had not turned off the collator before attempting to unclog the vacuum tube because his employer had warned that the interruption would confuse the collating sequence. N & W Printing disputes this claim. Before trial, plaintiff Marlene Jurado abandoned her claim for loss of consortium. The trial proceeded on Jurado's personal-injury claim.

Jurado's expert witness, Gerald Weiner, a mechanical engineer, testified that the collator did not conform to proper design standards because of the absence of a guard on the in-running nip point. Weiner stated that at the time the collator was manufactured, defendants easily and inexpensively could have installed a sheet-metal fixed-barrier guard around the nip point. According to Weiner, the guard would not have affected the function of the machine and could have been installed for as little as $40 to $50 per unit.

He testified that since 1948 design engineers have recognized the potential danger posed by nip points. Defendants should have known, according to Weiner, that salvage would obstruct the mouth of the vacuum, and that an operator of the machine ultimately would have to clear the vacuum manually. In addition, he claimed that production engineers know that employees will typically take "shortcuts" to increase their productivity. Thus, according to Weiner, a machine designer should have taken precautionary steps to prevent accidents that may result from such foreseeable shortcuts by employees.

He also noted that the area of the machine containing the in-running nip point was not "guarded by its location." He defined a guarded location as one either located more than eight feet off the floor or that could not be reached without removing a part of the machine. Weiner intimated that defendants had indirectly acknowledged that the location of the nip point did not constitute a guard because defendants had placed fixed-barrier guards over other nip points in the same area of the collator. He concluded that the in-running nip point was a foreseeable hazard and that defendants had avoided the use of well-known inexpensive methods of installing a guard.

Defendants' expert, Edward Schwalje, a mechanical engineer, asserted that the existence of the nip point did not require the installation of a sheet-metal guard. In his opinion, the nip point was already guarded by its location. Schwalje said that the location served as a guard because Jurado would not have placed his hands in the nip point during the normal course of operating the machine. He pointed out that Jurado had to squat and reach under the machine to touch the nip point, which was twenty-eight inches off the ground.

Schwalje acknowledged that the gears near the location of the injury were properly covered with fixed guards. He stated, however, that the collator had numerous moving parts that created nip points that were potentially dangerous if the operator "tampered" with the collator while it was in operation. According to Schwalje, the collator was not designed to be adjusted or repaired while in operation. Further, in the case of "salvage jams," the machine was designed to be stopped and cleaned while in "static condition." He concluded that the machine was "safe for use as intended" and met the design standards for safety when it was manufactured and distributed by defendants in the early-to-mid-1960s.

Finally, Schwalje testified that he did not know whether defendants had reasonably anticipated when they had manufactured and distributed the machine that salvage would build up at the mouth of the vacuum tube. He stated, however, that similarly-designed collators occasionally jam because of excess salvage.

At the close of the entire case, Jurado moved for a directed verdict. He asserted that Schwalje's testimony constituted a "net opinion" and that "reasonable minds could not differ" on the outcome in favor of Jurado. After reserving decision, the court charged the jury, instructing it to reach a verdict on damages even if it found for defendants on liability. Relying on Model Civil Jury Charge 5.34I, the court ...

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