that, without the warnings, its product might be misused in a way that would cause injury. Absent proof that the manufacturer knew or expected its warnings to be ignored, however, the warnings by themselves offers only weak proof of subjective foreseeability--and no proof of objective foreseeability.
Plaintiff next argues that the ease with which Quality removed and bypassed the point-of-operation guard suggests such removal and bypassing were objectively foreseeable. Although his expert opines that the press's safety features were "easily bypassed," because the guard was removed and rewired in less than a day, see Pappert Cert. at PP 3-7, nothing in the expert's report or elsewhere offers any idea of what "easy" means, how the rewiring was accomplished, how long the task took, or what skill level was required.
To be sure, at some point, ease of safety-feature bypass may connote objective foreseeability. For example, a manufacturer that incorporates a safety-device disabling button might reasonably foresee an average user depressing it. However, in an industrial setting, where staff electricians and mechanics provide ready technical expertise, the mere ability to alter the operation of a piece of machinery hardly suggests that such task is either easy or foreseeable.
Although ease of alteration is probably a meaningful concept in some consumer settings, in an industrial context the connection between ease of alteration and objective foreseeability becomes more tenuous. See, e.g., Brown, 98 N.J. at 163, 484 A.2d at 1238 (contrasting consumer and industrial treatment of appliances); Calderon, 285 N.J. Super. at 626, 667 A.2d at 1113 (describing safety interlock-defeating alteration requiring "blow torches, grinders, and precision instruments"). Particularly with complex manufacturing equipment, detailed expert testimony is necessary to correlate safety-defeating ease with objective foreseeability, if such correlation is indeed possible. Plaintiff has offered no such testimony.
Lastly, plaintiff points to defendant's post-manufacture knowledge that Quality removed the point-of-operation guard at least once before, in 1987, as evidence that such removal was objectively foreseeable. Such knowledge, however, tends to show only subjective foreseeability, and, as discussed above, subjective foreseeability is irrelevant to the foreseeability determination. See Brown, 98 N.J. at 168, 484 A.2d at 1241. Moreover, defendant only learned of Quality's removal post-manufacture, whereas the relevant time period for foreseeability is "the time of design and fabrication," not thereafter. McDermott, 211 N.J. Super. at 211-12, 511 A.2d at 698-99; see also Brown, 98 N.J. at 166, 484 A.2d at 1240; Michalko v. Cooke Color & Chem. Corp., 91 N.J. 386, 394, 451 A.2d 179 (1982). Plaintiff offers no proof of defendant's--or any other manufacturer's--pre-manufacture knowledge.
In short, plaintiff offers nothing to demonstrate the objective foreseeability of Quality's subsequent alterations. Cf. Brown, 98 N.J. at 163, 168, 484 A.2d at 1238, 1241 (describing expert testimony that subsequent alterations were "commonplace," "widespread," "common knowledge" in defendant's industry, and therefore "reasonably probable to assume"). His proofs either are inapposite under New Jersey law, see id. (discounting testimony regarding subjective foreseeability); McDermott, 211 N.J. Super. at 211-12, 511 A.2d at 698-99 (disregarding post-manufacture foreseeability), or lack a necessary connection by which one may infer objective foreseeability. Accordingly, plaintiff fails to create a factual issue regarding objective foreseeability.
2. Proximate Cause
Even if the court were to assume, arguendo, that the meat press was defectively designed because the subsequent alterations were objectively foreseeable at the time of manufacture, plaintiff would still be required to offer sufficient evidence to permit a jury to determine that this design defect proximately caused his injury. To demonstrate this causal relationship a plaintiff must proffer evidence "to indicate that[,] with a proper design[,] removal of . . . safety features probably could not have been accomplished or even rendered so substantially difficult as to be unlikely." Brown, 98 N.J. at 174, 484 A.2d at 1244.
In Brown the manufacturer designed a portable gas heating unit with a pilot light tube, thermocouple valve, and gas safety shut off valve. These devices automatically shut off the heater if the gas pressure became too high. They also limited the amount of heat the unit could generate, since higher gas pressures would be needed to burn more gas to produce more heat.
A purchaser of the gas heater removed the pilot light tube, thermocouple valve and gas safety shut-off valve and operated the unit at a gas pressure 100 times greater than its design capacity. Plaintiff was injured by a flareup which resulted when excess gas ignited, an event which would not have occurred if the unit had not been modified. In addition to expert testimony as to how easily the modification could be made, plaintiff offered proof that such changes were "commonplace." Although the court held that there was a jury issue as to whether the heater's design was defective, the Supreme Court nonetheless reversed the Appellate Division and reinstated the trial court's ruling entering judgment for the defendant.
Writing for the Court Justice Handler found that
even were the original design modified in accordance with the plaintiff's proposal, it would not realistically or likely have deterred or obstructed these subsequent abusers of the product or have prevented the kind of injury that resulted from the misuse.
Brown, 98 N.J. at 174, 484 A.2d at 1244. A fifteen year history of misuse convinced the court that any design shortcoming "was only remotely connected with the eventual accident" and "that the subsequent course of conduct was the independent cause" of the heater's explosion. Id.
Even if the original design were modified in accordance with plaintiff's very general proposal, the most that can be concluded from the present record is that the point-of-operation guard might be unquantifiably more difficult for Quality's electricians and mechanics to remove and bypass. "More difficult," however, falls far short of the applicable preventability or reducibility standard. See Brown, 98 N.J. at 174, 484, A.2d at 1244.
Plaintiff's expert proposes that the meat press's operating buttons be moved from their present location and placed on the point-of-operation guard. See Plaintiff's Ex. B at 3. Such a configuration, plaintiff's expert contends, would render the safety feature unalterable by "an electrically untrained operator." Id. Plaintiff's expert does not opine whether the electrically interlocked point-of-operation guard, as originally designed, was similarly unalterable by "an electrically untrained operator." Nor does he opine, more appropriately, whether such a reconfiguration would render the machine unalterable, or even substantially less alterable, by technicians on staff at Quality and at similar meat-pressing plants. As in Brown, there is nothing in the record to suggest that simply moving the operating buttons could have deterred Quality from rewiring or modifying the unit to defeat the safety devices. In the real world, it may be difficult to prove that this type of product can ever be designed to reasonably forestall substantial alteration.
One suspects that with large, complex industrial equipment many, if not most, users will have a significant capability of modifying any machinery they might purchase.
Defendant sold a meat presser that was safe if and when operated as it was designed and built. Plaintiff was injured because the purchaser, his employer, modified the machine to bypass its safety mechanisms. New Jersey law considers such a product defectively designed only if (1) it was objectively foreseeable that the subsequent substantial alteration of the product would create a risk of injury and (2) such defect was the proximate cause of the injury. The Court finds that the record contains no evidence that the alterations were objectively foreseeable. Even were the Court to conclude otherwise, Quality's subsequent conduct rather that the design of the machine was the proximate and independent cause of the accident.
Because plaintiff's proposed amendment to his complaint would be futile in light of the New Jersey workers' compensation tort bar, and for the reasons set forth above, the Court will (1) deny the motion to amend the complaint, (2) grant summary judgment as to plaintiff's common-law negligence count as it is subsumed within his products liability claim, and (3) grant summary judgment as to plaintiff's products liability claim. An appropriate order will issue on even date herewith.
October 1, 1996
Joseph E. Irenas, U.S.D.J.
ORDER DENYING PLAINTIFF LEAVE TO AMEND HIS COMPLAINT, AND GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
IRENAS, District Judge:
For the reasons set forth in an opinion issued on even date herewith,
IT IS on this 1st date of October, 1996
1. Plaintiff's request for leave to amend his complaint is hereby DENIED ;
2. Defendant's motion for summary judgment on plaintiff's common-law negligence count is hereby GRANTED ; and
3. Defendant's motion for summary judgment on plaintiff's products liability count is hereby GRANTED.
Joseph E. Irenas, U.S.D.J.