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Mettinger v. W.W. Lowensten

July 16, 1996

DAVID METTINGER, PLAINTIFF-RESPONDENT-CROSS-APPELLANT,
v.
W.W. LOWENSTEN, INC., DEFENDANT-THIRD-PARTY PLAINTIFF-APPELLANT-CROSS-RESPONDENT, AND GLOBE SLICING MACHINE CO., INC., NEW GLOBE PARENT, INC., DAPHNE HORIZON CO., INC., MOZLEY MANUFACTURING CO., INC., ABC 1-5 (SAID ENTITIES BEING FICTITIOUS AND UNKNOWN) AND XYZ 1-5 (SAID ENTITIES BEING FICTITIOUS AND UNKNOWN COMPONENT PARTS MANUFACTURERS), DEFENDANTS, AND GLOBE FOOD EQUIPMENT CO., THIRD-PARTY DEFENDANT-RESPONDENT.



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

Approved for Publication July 16, 1996.

Before Judges Long, Brochin and Loftus. The opinion of the court was delivered by Brochin, J.A.D.

The opinion of the court was delivered by: Brochin

The opinion of the court was delivered by

BROCHIN, J.A.D.

This is a products liability case. On November 22, 1988, while plaintiff David Mettinger was working at a Quick-Check convenience store, the rapidly rotating blade of a Globe model 500 slicing machine used to slice cheeses and meats severely lacerated his right hand. He sued defendants Globe Slicing Machine Co., Inc., the manufacturer of the slicer, and W.W. Lowensten, Inc., its distributor, to recover damages for his injury. *fn1 No answer was filed on behalf of Globe Slicing Machine Co., Inc., which is apparently no longer in existence. Lowensten filed a third-party complaint against Globe Food Equipment Company, which it alleged had acquired the original manufacturer's assets and had continued its product line. Lowensten claimed indemnification from Globe Food Equipment Company, contending that that company was subject to the original manufacturer's primary responsibility for any design defect. Before trial, an order for summary judgment was entered in favor of Globe Food on the ground that, as a matter of law, it was not subject to successor liability. A jury returned a verdict for $350,000 against Lowensten and in favor of plaintiff.

In the first part of this opinion, we will deal with Lowensten's challenge to the verdict in favor of plaintiff. In the second part, we will explain our decision regarding Lowensten's challenge to the order for summary judgment in favor of Globe Food.

-1-

Plaintiff was employed as the assistant manager of a Quick-Check convenience store. On the day he was injured, he was working at another Quick-Check store, substituting at the request of the store manager for an absent clerk who had notified the manager that she would be late. At approximately 7:00 p.m., plaintiff started to clean up before leaving. Jerry Kappmeier, the assistant manager regularly assigned to the store, was making a tuna fish sandwich for a customer. The delicatessen slicing machine was standing on a counter, unattended. Its blade guard had been removed, and the machine was running. Whether the machine was in that condition because the blade was being cleaned by plaintiff or sharpened by Kappmeier was disputed.

While plaintiff was walking from one spot to another to empty a trash can, his foot slipped and he lost his balance. He is right-handed. Instinctively, he reached out with his right arm to grab something to steady himself. His right hand came into contact with the rapidly rotating, unguarded blade of the slicing machine. The blade sliced diagonally through the skin, muscles, tendons, blood vessels and nerves of the ring, index, and middle fingers of his right hand, cutting to the bone.

Plaintiff looked at his hand and saw "that it was in half." Blood was flowing freely from the hand. Plaintiff was finally able to stop the bleeding by pressing his hand between his legs. An ambulance took him to the emergency room of the Passaic General Hospital where his wound was stitched temporarily. The next morning, he underwent surgery to his hand. He was in the hospital four days. The large bandage that covered his entire hand was removed after approximately two and a half months. Plaintiff testified that his hand was very painful during that time, and he continued to take prescription medicines for the pain for almost five months.

When all of the bandages were finally removed, the palm and three middle fingers of plaintiff's hand were scarred and numb. The loss of sensation has continued with only slight improvement. Dr. James B. Massengill, an orthopedist who specializes in hand surgery, described plaintiff's loss of sensation as "extreme." As the result of the operation which partially repaired the severed tendons, plaintiff regained the capacity to bend his injured fingers somewhat, but he cannot bend them sufficiently to open or close his hand. According to Dr. Massengill, plaintiff has lost more than three-quarters of the normal range of motion of his middle finger at its middle joint; slightly more than one-half of the range of motion of his ring and index fingers at their middle joints; and, although his little finger was not cut by the slicer blade, it has lost half of the normal range of motion at its upper joint because of its interaction with the injured tendons. Plaintiff testified that he can grasp objects securely only with his thumb and little finger.

According to Dr. Massengill, the severed nerves were not successfully repaired. The two main arteries which bring blood to the tips of the fingers remain severed. Blood reaches the injured fingers through smaller blood vessels, but the blood supply is inadequate, leaving the fingers sensitive to cold and painful as a result, even at room temperatures as high as 65 or 70 degrees. Dr. Massengill testified that plaintiff's loss of sensation and his sensitivity to cold would be permanent. He expressed the opinion that a further surgical operation would, if successful, give plaintiff's fingers some additional range of motion, but their function would still not be normal and the operation would have some risks.

Plaintiff was thirty years old when he injured his right hand. He had served in the Marine Corps for eighteen months and had received his high school diploma while he was in the Marines. After his discharge, he worked as a sheet rock installer in the construction industry for more than seven years and attained a high level of skill in that occupation. When jobs became scarce in the construction industry, he went to work for Quick-Check. He had been working for Quick-Check first as a clerk and then as an assistant manager for approximately a year and four months when he was injured.

About five and one-half months after the accident, plaintiff returned to work at a Quick-Check store. During his first hour on the job, his right hand became wedged in between a wall and the faucet of a sink. Because of the loss of sensation in his hand, he was unaware of his predicament. He turned to walk away and again injured his hand. He had to return to the doctor who was treating his hand and to stay out of work for an additional period.

Plaintiff again returned to work at a Quick-Check store approximately seven months after the accident. However, he continued to have difficulties performing his job. For example, he had to lift boxes off trucks and from the coolers and freezers. The boxes would often slip out of his hands. If his hand was exposed to a cold temperature for just a short time, it would be painful. He also had trouble writing. Eventually, he was fired.

Plaintiff worked at seven different jobs after Quick-Check. He tried working as a drywall applicator, but he lasted only half of a day. His hand became swollen and hurt too much to continue swinging a hammer and the hammer would fall out of his hand. He tried working as a banquet waiter, but he was too slow and after a time he was told that he would not be needed. He worked at a car wash, but it was winter and he would take warm towels from the dryer and wrap them around his hand. His boss saw him do that too many times and dismissed him. For five months prior to the trial, he worked as a forklift operator, moving thousand-pound pallets to a warehouse. Operation of the forklift required plaintiff to manipulate three levers with his right hand. At the end of every day, his hand would swell and hurt, and he would have to soak it in hot water and take aspirins for the pain.

Before plaintiff's injury, he played an acoustical guitar, piano and keyboard organ. At one time, he played these instruments professionally. After the accident, he could play the guitar only by holding the pick between his thumb and small finger, and it would fly out of his hand while he was playing. He could not play the piano or organ at all. He also had to give up most sports.

Edmond Provder, a rehabilitation counselor who appeared as an expert witness for plaintiff, testified that he had interviewed plaintiff at length, reviewed his records, and extensively tested his vocational capabilities. On the basis of the data which he gathered, Mr. Provder concluded that plaintiff no longer had the capacity to work either as a drywall installer or as an assistant manager of a convenience store because he had lost the ability to grasp and manipulate tools or lift weights of more than twenty pounds with his right hand. He would not be able to safely and efficiently operate, disassemble and clean a slicing machine like the one he used at Quick-Check because of his loss of finger dexterity, coordination, and sense of touch in his right hand. According to Mr. Provder, all of the jobs which plaintiff had tried since his accident exceeded his capabilities, which limit him to performing sedentary work with light physical demands. As examples of jobs which plaintiff is capable of performing, Dr. Provder mentioned "water filler," "security guard" and "messenger." On the basis of average earnings reported by the New Jersey Department of Labor, Mr. Provder expressed the opinion that a drywall installer would have an earning capacity of $25,272 a year, approximately $10,000 a year more than plaintiff could earn in any of the jobs to which he is now limited. There was no testimony which expressly forecast ...


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