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Dixon v. Jacobsen Mfg. Co.

Decided: February 2, 1994.

KENNETH DIXON, PLAINTIFF-APPELLANT,
v.
JACOBSEN MANUFACTURING COMPANY, JACOBSEN DIVISION OF TEXTRON, INC., HOMELITE DIVISION OF TEXTRON, INC., TEXTRON, INC., JOHN DOE AND XYZ CORPORATION, SAID NAMES BEING FICTITIOUS, DEFENDANTS-RESPONDENTS, V. RICHARD P. DIXON AND NANCY J. DIXON, THIRD PARTY DEFENDANTS



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

Stern, Keefe and Bilder. The opinion of the court was delivered by Keefe, J.A.D.

Keefe

[270 NJSuper Page 574] The primary issue presented on this appeal is whether a manufacturer, who knows the identity of the current owner of a consumer product it manufactured several years earlier, has a duty upon inquiry to provide the current owner with more specific and clearer instructions adopted by it after the date of manufacture concerning safe use of the product. We conclude under the facts of this case that such a duty exists, and a jury question was presented concerning a breach of that duty. We also conclude that the trial Judge improperly excluded relevant evidence bearing on that issue. Thus, the judgment in favor of defendant on the

warning defect issue is reversed and the matter is remanded for a new trial in accord with this opinion.

On January 22, 1987, plaintiff Kenneth Dixon, then 16 years old, severed three fingers when he placed his left hand into the discharge chute of a snowthrower*fn1 manufactured in 1965 by defendant Jacobsen Manufacturing Company (Jacobsen).*fn2

In the fall of 1986, plaintiff's father, Richard Dixon (Dixon), purchased Jacobsen's "Imperial Two Stage Snow Jet" at a garage sale. The two-stage gasoline-powered snowthrower contained an intake auger with rotating blades to dig into snow (stage one), and a discharge impeller or fan with four rotating blades encased in an eight to nine inch chute to eject snow (stage two).

The snowthrower had two separate clutch controls: (1) a propulsion clutch lever on the left side of the dash panel to connect or disconnect engine power to propel the machine, and (2) an auger/impeller clutch lever on the right side to connect or disconnect power to the auger and impeller blades. The auger and impeller were geared together. Thus, a single clutch served to disengage and engage both sets of blades. The auger blades are fully exposed to view from the front of the machine. The impeller blades are housed at the base of the discharge chute and are not as readily apparent.

The snowthrower had three identical warning decals located on the left and right sides of the auger housing and on top of the discharge chute deflector. Each decal included the following sentence written in white, capital, one-quarter inch high letters on a clear background:

CAUTION

KEEP HANDS AND FEET

CLEAR OF ROTOR

This message was followed by another sentence written in three-thirty-seconds of an inch high capital letters that stated:

STOP ENGINE BEFORE MAKING ADJUSTMENTS, REMOVING OBSTRUCTIONS, OR GOING IN FRONT OF UNIT

After Dixon purchased the Jacobsen snowthrower, he telephoned the manufacturer and requested "any information" it might have regarding the Two Stage Snow Jet, model no. 52600. In an envelope postmarked September 23, 1986, Dixon received the 1965 owner's and parts manuals for the snowthrower. Dixon testified at trial that after he received the manuals, he glanced at them quickly and then placed the manuals on a shelf in his workroom, believing that he would have an opportunity to thoroughly review them at a later date.

Approximately four months later, on January 22, 1987, plaintiff returned home from school sometime after noon. The school had closed early due to snow. Plaintiff hoped to surprise his parents, who were then at work, by clearing the driveway of snow before they returned home. Although plaintiff had previously operated a one-stage Atlas snowthrower that his father had owned, which contained only an intake auger, he had never operated the twostage Jacobsen snowthrower.

Plaintiff was able to start the snowthrower after approximately eight to ten attempts. After going up and down the driveway two or three times for about five or ten minutes, the machine's discharge chute became clogged with snow. Plaintiff shifted the gear into neutral but did not turn off the snowthrower because he had such difficulty starting it.

Plaintiff attempted to loosen the clogged snow with a broom handle to no avail. He then removed his left glove because he did not want to get it wet, and placed his bare left hand into the

discharge chute. Plaintiff felt the snow loosening up and heard the sound of what he believed to be rocks crumbling. However, when he removed his hand from the chute, plaintiff realized to his horror that the sound he had heard was the impeller blades slicing through his fingers.

Plaintiff proceeded on two theories of liability against defendant: (1) he contended that the snowthrower was defectively designed in that it failed to contain a "deadman's control,"*fn3 and (2) he contended that the snowthrower was accompanied by inadequate warnings. Associated with the latter theory, plaintiff contended that defendant had a continuing duty to warn which it breached when it failed to provide his father with the more specific warnings then being utilized by defendant, and also failed to advise him that current snowthrowers were equipped with a deadman's clutch or control.

At trial, plaintiff testified that he had read the operating instructions on the snowthrower's dashboard as well as the two warning decals on the discharge chute before operating the machine. However, he believed that the decals' admonitions to "Keep Hands And Feet Clear Of Rotor" referred only to the obvious blades of the intake auger. He was unaware that there was also a discharge impeller with rotating blades in the chute.

In his answers to interrogatories, plaintiff stated that Dixon had showed him how to operate the snowthrower about one month prior to the accident, and that he was given written operating instructions for the machine. However, at trial, plaintiff could not recall if Dixon had shown him how to operate the snowthrower, and he maintained that he never saw the operator's manual prior to his accident. Dixon testified that he had never given plaintiff any instructions regarding the machine's operation.

According to Frederic Blum, one of plaintiff's experts, the most dangerous aspect of the machine with the greatest potential for injury was the hidden impeller in the discharge chute which rotated at a speed four to five times faster than the auger. He opined that the warning labels on the snowthrower were inadequate because they failed to advise the average consumer of the danger. Specifically, Blum explained that the term "rotor" in the warning was ambiguous because a consumer could assume that "rotor" referred to the auger in front of the machine. It was pointed out that defendant's manuals did not use the term "rotor" to describe either the auger or impeller. Blum maintained that the warnings were inadequate because they did not alert the consumer to the existence of the hidden high-speed impeller fan. He suggested that an adequate warning on the chute would have substituted the word "danger" for "caution," and would have included the phrase "spinning fan inside" with the additional instruction: "Do not reach into chute or attempt to clear a clog unless engine is off or blade clutch is disengaged."

Blum also opined that the snowthrower was defectively designed because it lacked a deadman's control. His proposed deadman's control design would consist of squeeze levers on the machine's handlebars that would disengage the auger and impeller blades when the operator of the machine left the operating position behind the handlebar. Such a control was an important safety device because the operator would necessarily have to come from behind the machine to clear a clogged discharge chute whereupon the deadman's control would deactivate the auger and impeller.

According to Blum, in 1965, the year the snowthrower in question was manufactured, the technology existed to incorporate a deadman's control. In his opinion, a deadman's control was inexpensive and reliable, and could have been incorporated into the machine's design without impairing its usefulness. In his written report, he noted that one of defendant's competitors, Ariens Co., had manufactured a snowthrower with a deadman's

control in 1960. During cross-examination, defendant's counsel read without objection an excerpt from this court's decision in Bottignoli v. Ariens Co., 234 N.J. Super. 353, 357, 560 A.2d 1261 (App.Div.1989), in which an Ariens representative had testified that, although the 1960 Ariens snowthrower had a deadman's control, it was removed in the 1965 model because of consumer dissatisfaction.

Howard Gage, a mechanical engineer, also testified on plaintiff's behalf. Gage likewise opined that the warning labels and the safety instructions found in the owner's manual were insufficient to warn the average consumer of the danger presented by the hidden impeller blades. Gage believed that the warning labels were misleading because the average user would assume that the term "rotor" referred to the auger. The warning labels and operating instructions on the machine were inadequate because they did not explicitly mention the impeller that rotated at 1700 rpms.

Jacobsen offered the testimony of two experts. The first of these was Neil Woelffer, a mechanical engineer who had formerly been employed by defendant for 27 years. Woelffer began working for defendant in 1958. In 1963, he developed a prototype of the two-stage snowthrower, and was responsible for its performance testing. He testified that when he was developing defendant's two-stage snowthrower, he was aware of the 1960 Ariens snowthrower with a deadman's control, and knew that Ariens had discontinued that feature in later models due to consumer dissatisfaction. For that reason, Woelffer chose not to incorporate a deadman's control in defendant's snowthrower, although he admitted that it was technologically feasible to do so.

Woelffer 0 opined that defendant's snowthrower was safe to operate, and that if plaintiff had placed the throttle in the "stop" position and turned off the engine as the warning decals advised, the blades would have stopped rotating, and the accident would have been avoided. Further, Woelffer opined that the warning decals and safety instructions in the owner's manual were sufficient

to warn of any danger associated with operating the snowthrower. Under the heading "SAFETY SUGGESTIONS" and the subheading "OPERATION," the owner's manual advised: "8. Do not attempt to clear Auger, Discharge fan or discharge chute while engine is running." That precise instruction, however, was not on the machine.

Finally, defendant offered the expert testimony of David Sassaman, a mechanical engineer, who had been employed at Poloran Products as a chief engineer responsible for the design and development of snowthrowers, snowmobiles and lawnmowers. In August 1991, at defendant's behest, Sassaman examined and videotaped the snowthrower in question.

Sassaman opined that the snowthrower's operational controls were not defectively designed, and that the warning labels on the machine and the safety instructions in 1 the owner's manual were not insufficient. According to Sassaman, the rotating blades of the auger and impeller were an "open and obvious" hazard for two reasons. First, the intense sound level (94-95 decibels) generated by the machine would indicate to the machine's operator that there was more than one source of sound. Second, if one stands in front of the machine, both the auger and impeller blades can be seen rotating. Sassaman conceded, however, that if the impeller were clogged with snow, one would not feel a rush of air from the snow-laden blades to indicate the presence of the rotating fan.

Sassaman also testified that the warning decals were adequate by 1965 standards because they were written in contrasting colors and because they were located on the machine's hazardous area. However, during recross-examination, Sassaman admitted that he would refer to the impeller housing as a discharge chute rather than the "rotor" as the warning decals had.

The jury returned its verdict in response to special interrogatories, finding that the snowthrower was not defective by reason of its design, nor by reason of inadequate warnings. In view of those findings, the jury did not address the 2 issue ...


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