On appeal from Superior Court of New Jersey, Law Division, Union County, Docket No. L-5701-97.
Before Judges Skillman, Carchman and Wells.
The opinion of the court was delivered by: Skillman, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This is a products liability personal injury action against the designer of a safety guard on a punch press. Plaintiff worked as a punch press operator for the Durex Company (Durex) in Union. Durex purchased thirty-five to forty punch presses manufactured by defendant Niagara including the one operated by plaintiff. Defendant New Jersey Manufacturer Insurance Company (NJM) was the workers' compensation insurer for Durex from 1946 through the date of plaintiff's accident on November 20, 1995.
Sometime in the 1950s, Durex asked NJM to design a new safety guard for its punch presses. Defendant's engineer, A.J. Ehrhardt, designed a"flap guard" for the presses and provided parts for their installation. Although Durex actually fabricated the guards, Ehrhardt showed Durex how to install and maintain them. In subsequent years, NJM made various suggestions to Durex for improvements in the safety guards, which are discussed in some detail later in this opinion.
Plaintiff's job at Durex was to position a small piece of metal under the press by hand and, when the piece was properly positioned, to depress a foot pedal, causing the"ram" to come down and force the piece against a die, thereby stamping words, letters, or numbers onto the metal. Although the press normally would be operated from a sitting position, plaintiff sometimes would stand when he got tired of sitting. The process also required plaintiff to keep the die oiled and to wipe excess oil from the sides of the die, which plaintiff usually did with a glove he wore on his left hand.
While operating the press on November 20, 1995, plaintiff inserted a metal piece with his right hand and then reached in with his gloved left hand to wipe oil from the piece before stamping it. The safety guard designed by NJM did not block the entry of plaintiff's hand into the mechanism of the punch press because the guard was activated by the operator depressing the foot pedal and wiping oil did not require use of the foot pedal. However, while he was wiping the oil, plaintiff accidentally stepped on the foot pedal, causing the ram to descend onto his left pinky finger. The finger was so severely crushed that it could not be saved, and the doctor who treated plaintiff could do nothing more than fold some skin over the crush site to close the wound.
Plaintiff subsequently brought this personal injury action against Niagra and NJM. Before trial, Niagra filed for bankruptcy. As a result, plaintiff's claim against Niagra was dismissed by stipulation and the case went to trial solely against NJM.
Plaintiff's theory of liability against NJM, presented primarily through the testimony of his safety-engineering expert, Theodore Moss, was that the flap guard designed by NJM was defective because it was not a"sweep guard," that is, it did not move through the"point of operation" to push a hand away from harm; rather, it merely erected a barrier in front of the danger area, preventing a hand from entering but doing nothing to remove a hand already in the zone of danger. Moreover, because the guard did not completely block access, it was only a partial barrier. Moss explained that"the basic concept of guarding" was to make it"impossible" for the operator to contact the point of operation while the press was activated, and that the flap guard designed by NJM did not achieve that goal. Exacerbating the problem was that, although the press was intended to operate with the worker in a sitting position, the worker often would stand, causing him to have to reach into the machine at an inappropriate angle.
Moss also testified that there were feasible alternative designs that could have avoided plaintiff's accident. The best was the Type-A gate guard, in which the machine cannot operate when the gate is open, and when the gate is closed, the operator's hand cannot reach inside.
The jury found that the safety guard on the punch press operated by plaintiff had been defectively designed by NJM and that that defective design was a proximate cause of plaintiff's injuries. The jury awarded plaintiff $675,000 for his injuries.
NJM moved for a judgment notwithstanding the verdict or, in the alternative, a new trial on all issues or on damages only, with the option of a remittitur. The trial court denied both the motion for a judgment notwithstanding the verdict and for a new trial on all issues, but granted NJM's motion for a new trial on damages unless plaintiff was willing to accept a remittitur to $400,000. Plaintiff accepted the remittitur and judgment was entered against NJM for $400,000 plus medical expenses of $4586.78, lost wages of $4650 and pre-judgment interest of $81,911.38.
NJM appeals from the judgment in plaintiff's favor, and plaintiff cross-appeals from the order for a new trial on damages, subject to a remittitur. NJM argues that plaintiff's claim should have been dismissed because the safety advice it gave to plaintiff's employer, Durex, did not subject it to liability under the Products Liability Act (PLA), N.J.S.A. 2A:58C-1 to -11. In the alternative, NJM argues that it is entitled to a new trial because the trial court committed reversible error in failing to instruct the jury regarding superseding causation and in failing to inform the jury that it had to find there was a safer, practical and feasible alternative design for a punch press safety guard in order to find NJM liable. NJM also contends that the trial court committed various other errors with respect to the admission of evidence at trial. On his cross-appeal, plaintiff argues that the trial court erred in concluding that the damages verdict was excessive.
We conclude that the trial court correctly determined that NJM, as the designer of the safety guard installed on the punch press operated by plaintiff, is subject to liability under the PLA for the alleged defect in that design. However, NJM is entitled to a new trial because the trial court committed reversible error in failing to instruct the jury regarding superseding causation and in failing to inform the jury that to find NJM liable it had to find that there was an alternative design for a punch press safety guard that was practical and feasible and safer than the flap guard designed by NJM. We affirm the order of the trial court granting NJM a new trial on damages subject to a remittitur. However, in view of our reversal of the liability verdict in plaintiff's favor, plaintiff should be afforded an opportunity to reconsider his acceptance of the remittitur.
NJM argues that the trial court should have granted its motion to dismiss plaintiff's products liability claim on the grounds that it was not a"manufacturer" of the safety guard on the punch press operated by plaintiff and that the advice it gave to Durex was not a"product" within the intent of the PLA.
The PLA defines a"[p]roduct liability action" as"any claim or action brought by a claimant for harm caused by a product, irrespective of the theory underlying the claim, except actions for harm caused by breach of an express warranty." N.J.S.A. 2A:58C-1b(3); N.J.S.A. 2A:58C-8. The PLA imposes liability upon"[a] manufacturer... of a product... if the claimant proves by a preponderance of the evidence that the product causing the harm was not reasonably fit, suitable or safe for its intended purpose because it... was designed in a defective manner." N.J.S.A. 2A:58C-2(c). As a result of a 1995 amendment to the PLA, which became effective on June 29, 1995 (L. 1995, c. 141, § 3), a few months before plaintiff's accident, the PLA now defines a"manufacturer" of a product as including"any person who designs [or] formulates... any product or component of a product." N.J.S.A. 2A:58C-8.*fn1
NJM clearly designed the flap safety guard that Durex installed in its punch presses and thus was a"manufacturer" of this product under the definition now set forth in N.J.S.A. 2A:58C-8. NJM provided detailed conceptual drawings to Durex for the flap guards. NJM also provided Durex with parts to use in constructing the guards, and it gave Durex's employees instructions regarding the installation, repair and replacement of the guards.
The only case NJM cites in support of its argument that it was not a manufacturer of the flap guard is Potwora v. Grip, 319 N.J. Super. 386 (App. Div.), certif. denied, 161 N.J. 151 (1999), which involved an accident that occurred prior to the 1995 amendment and did not even mention the definition of"manufacturer" now contained in N.J.S.A. 2A:58C-8. Moreover, the essential rationale of Potwora was not that the designer of a product cannot be held liable under the PLA, but rather that a manufacturer which sold its entire business could not be held liable for alleged defects in a product manufactured and sold by the successor corporation based solely on the fact that it had originally designed that product. Id. at 396-400. Therefore, we conclude that NJM was a manufacturer of the flap safety guard installed in the punch press operated by plaintiff within the intent of N.J.S.A. 2A:58C-8.
NJM's alternative argument that the advice it gave Durex was not a"product" which could provide a basis for liability under the PLA is simply a reformulation of the argument that it was not a manufacturer of the flap guard. NJM did not simply advise Durex to install safety guards on its punch presses. Rather, NJM provided detailed conceptual drawings for the specific flap safety guards Durex installed on the presses as well as assistance in the installation, maintenance and repair of this ...