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Mort v. Besser Co.

February 20, 1996


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

Approved for Publication February 20, 1996.

Before Judges Keefe, Wefing and A.a. Rodriguez. The opinion of the court was delivered by Keefe, J.A.D.

The opinion of the court was delivered by: Keefe

The opinion of the court was delivered by KEEFE, J.A.D.

Defendant Besser Company (Besser) appeals from the entry of judgment against it arising out of this product liability action. Besser contends on appeal that the verdict of the jury on liability is fatally inconsistent or against the weight of the evidence, and that plaintiffs failed to prove that the product was defective while in its control. Plaintiffs Richard and Ann Mort cross-appeal. They contend that there was no evidence before the jury concerning the liability of two settling defendants and that the percentage of fault assessed against those settling defendants must be vacated.

We disagree with Besser's contentions and deny its appeal. However, we agree with plaintiffs' contention that two of the settling defendants' liability should not have been submitted to the jury. Accordingly, we affirm the judgment in favor of plaintiffs and mold the verdict to reflect the correct allocation of fault as between the culpable defendants.

Plaintiff Richard Mort was employed by Anchor Concrete Products Inc. (Anchor), a concrete block manufacturing company. One of his duties included cleaning large, stationary cement mixers. He performed that function by climbing into the mixer through a hatch and then using an air chisel to clean the walls of the mixer chamber.

On October 15, 1987, Mort climbed into a cement mixer to clean it. While inside the chamber, a co-employee activated the mixer's access door. In doing so, the door closed on Mort's right hand causing considerable damage to four fingers.

The subject mixer was custom-manufactured by Besser for Stregley Building Supply Company (Stregley) in 1974. In 1982 or 1983, Stregley sold the mixer to Akron Brick & Block Co., Inc. (Akron). In 1986, the mixer was sold in an inoperable condition to Anchor. In order to make it operable, an electrical panel had to be designed, manufactured and wired to the mixer. Anchor intended to operate the Besser mixer along with two other mixers at the Anchor plant and engaged Standley Batch Systems, Inc. (Standley), to design and fabricate an integrated system so that all three mixers could be run from the same control panel. Standley in turn engaged Purchase Engineering (Purchase) to design and manufacture the control panel. Purchase designed the control panel system in accord with plans and specifications approved by Standley. It then sold the control system to Standley who in turn made it a part of the package sold to Anchor. The control panel was installed by A. Surf Electric Co., Inc. (Surf).

The door on the mixer through which Mort gained access for the purpose of cleaning the mixer was connected to the control panel. Switches on the control panel electrically activated solenoids on the mixer to operate the opening and closing of the access door with the use of air pressure. There was a manual shutoff valve at each mixer to cut off the air flow to the solenoids. However, if the manual shutoff was not used and the air was left on, the access door could be opened and closed from the control panel by electrically turning on and off the air valve.

Mort claimed that he was never instructed on how to use the manual shutoff valve. A co-employee also stated that he was never instructed to turn off the manual air valve when he cleaned the mixers. On the date of Mort's accident, the manual shutoff valve was not used when Mort opened the access door and entered the mixer. Consequently, a co-employee, not knowing Mort was inside the chamber, activated the door mechanism from the control panel causing Mort's injury.

Plaintiffs instituted suit against Besser, Akron, Standley Purchase and Surf. Akron obtained summary judgment on the ground that it was not subject to strict liability because its sale of the mixer to Anchor was a "casual sale." See Santiago v. E. W. Bliss Div., Gulf and Western Mfg. Co., 201 N.J. Super. 205, 216-217, 492 A.2d 1089 (App. Div. 1985) (holding that an occasional seller of equipment should not be subject to strict liability). Plaintiffs settled with Standley and Surf before trial.

At trial, plaintiffs' expert, Bruce Crowly, testified that a limit or interlock switch should have been installed on the door, either as a part of its original design, or when Purchase designed the control mechanism for the Anchor plant. Such a device would have sensed the position of the access door and would not have allowed it to close. He said that such a mechanism costs less than $100 and would not have impaired the normal function of the mixer. Crowly also opined that Surf was not a substantial factor in causing Mort's accident. As to Standley, he stated that it was not involved in the design of the mixer or any of its control circuitry.

Besser's liability expert, George Koren, testified that the absence of the limit switch was not a design defect. Such a device is not warranted, in his view, because it would be a secondary protective device and would allow the employee a choice between the manual shutoff - the primary safety device and a secondary device. An employee should not be given such a choice. He further opined that limit switches should not be used on mixers because the ...

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