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Fiorino v. Roebuck

March 19, 1998

THOMAS J. FIORINO AND EILEEN M. FIORINO, PLAINTIFFS-RESPONDENTS,
v.
SEARS ROEBUCK AND COMPANY, INC., AND EMERSON ELECTRIC COMPANY, INC., DEFENDANTS-APPELLANTS.



Argued: February 10, 1998

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

Before Judges Dreier, Keefe and Wecker.

The opinion of the court was delivered by: Dreier, P.j.a.d.

Defendants, Sears Roebuck & Company, the seller, and Emerson Electric Company, Inc., the manufacturer, appeal from a product liability judgment in favor of plaintiff, Thomas J. Fiorino, in the amount of $100,000, and his wife, Eileen M. Fiorino, for her per quod claim in the amount of $25,000. Plaintiff was injured when a Craftsman shredder-bagger, used to shred, bag or blow leaves, pivoted vertically towards plaintiff as he was attempting to start it, severely injuring his nose.

Plaintiff purchased the Craftsman combination leaf blower and shredder-bagger from Sears in 1988 and used it for approximately four years. He testified that it had been maintained properly and went through a pre-season servicing each year with the oil changed, the spark plug checked, a new supply of gasoline and a test start. There had been no significant problems starting the engine in the four years of use, and plaintiff, who was seventy years old at the time of the accident, claimed that he cleared his yard with the machine approximately three times per week. He was careful when he started the engine to roll the machine out of his garage and put it in an open, clear grass area to be certain that there was no debris or anything that would cause the machine to malfunction. He appeared familiar with the operator's manual.

The machine could be used in one of two modes. The shredder-bagger mode required an attachment so that the machine would operate similar to a vacuum cleaner and would direct the leaves into a bag that would be attached by a metal rod to the handle. At times, however, the machine was used as a leaf blower, in which case a chute was attached that bent downward and no bag was needed. It was in this latter mode that plaintiff operated the machine on the date in question.

In starting the machine, plaintiff followed the directions in the operator's manual. He stood in front of the machine, facing towards its rear, with his right foot on top of the scroll housing, and with his right hand grasping the starter handle attached to the exposed end of the starter rope or cord. An illustration in the instruction manual depicts an operator in such a stance with the starter handle being pulled at approximately a forty-five degree angle towards the operator.

When plaintiff pulled the handle with the usual force necessary to start the engine, the cord extended only about six to eight inches and then locked. The wheels slid back (away from plaintiff), and, plaintiff testified that as he pulled, "[a portion of the] machine ... came up, the wheels went back, and the handle struck ." The Judge then described what the witness had been demonstrating, stating "et the record show the witness was facing the front of the machine with his right foot on the housing, with the pull cord on the right side at the top of the engine, and with the handle, the farthest extremity from him, indicating that the machine rotated with the front going under and the handle coming over the top of the rotation."The handle struck plaintiff on the nose, badly fracturing it and causing significant injuries, described in detail in the record. Plaintiff further testified that on two other occasions the starter cord stuck when pulled out about fourteen inches and stopped, but the machine started briefly before the engine stopped. On each of such occasions, however, the machine started properly on the second pull.

Both plaintiff's and defendants' experts agreed that the power needed to start the machine was twenty-five to thirty pounds of force if the machine was properly tuned. The machine itself weighed eighty-four pounds. Plaintiff's expert tested the force needed to pull the machine over by locking the cord in the approximate position described by plaintiff and then measuring the force necessary to tip the shredder- bagger without the machine's front wheels rolling backwards. Defendants' expert acknowledged that, in pulling on the starter cord, plaintiff could have pulled it with a seventy-five pound force. Of course, if twenty-five to thirty pounds of this force were used as intended to turn over the engine, the force on the machine would have been less than the sixty pounds needed to tip it. If, however, the cord unexpectedly stuck as it was being pulled, the full force of the pull would be exerted to provide torque, tilting the machine and forcing the handle towards the operator. Thus, plaintiff amply demonstrated how the accident occurred.

I.

Defendants in their brief and at oral argument before us challenged the test performed by plaintiff's expert for a variety of reasons. They contend that the test conditions did not duplicate the accident as testified to by plaintiff. First, they contend the wheels did not roll, and, second, that the jamming of the starter cord in the position testified to by plaintiff was not the same as pulling the cord to that position. The jury, however, was free to determine whether there had been an adequate duplication of the accident to provide the data relied upon by plaintiff's expert. We note that defendants' expert did not challenge the test on this basis. Furthermore, elemental logic suggests that the test without the wheels moving would require a greater force on the cord than if both the pull on the cord and forward pressure from plaintiff's foot, contributed to the pivoting motion of the bagger- shredder around the machine's center of gravity. If the wheels did not move, then the only contribution that plaintiff's foot pressure would have made would be the downward force holding the wheels steady on the ground. Instead of pivoting around the machine's center of gravity, the pivot points would be the front wheels. The motion of the wheels indicated only that the forward pressure of plaintiff's foot had decreased the amount of force necessary to be placed on the cord to cause the machine to pivot towards plaintiff.

II.

Plaintiff's expert suggested an alternative design which he contended was economically and physically feasible, namely rotating the starter mechanism ninety degrees counterclockwise. *fn1 Under plaintiff's expert's design, the mechanism would be placed so that an operator would start the machine by pulling the cord towards the side rather than the front. Defendants contended that this alternative was less stable and that it had not been tested.Again, however, we may apply logic to this alternative design. As redesigned by plaintiff, the pull of the cord is perpendicular to the direction of the wheels, so there can be no rolling. The push of the operator's foot against the housing, which caused the closest wheels to pivot away and added to the force tending to tilt the machine to tilt towards the operator, cannot contribute to the torque with the redesigned handle. This, in itself, is an improvement. Of course, with this design, if the machine were tilted, the handle would pass to the right of the operator and not strike the operator's face. But, say defendants, the machine has multiple functions, and when the leaf bag is attached to the handle by a metal pole, the bag and handle will move towards the operator's face in the same manner as the handle did when the machine was started from the front.

Unfortunately, the record does not reveal that the plaintiff's expert demonstrated to the jury how the machine would start from the side. *fn2 But the alternative design suggested by plaintiff's ...


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