On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-652-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes, Gilroy and Ashrafi.
Plaintiff Amador Torres-Pena was severely injured at his job in a supermarket when his hand was mangled in a meat grinder from which the employer had removed protective devices. He appeals from an order for summary judgment dated March 20, 2009, in favor of defendant Siegmeister Sales & Service, Inc. ("Siegmeister"), the distributor of the meat grinder and the party responsible for certain maintenance duties on the machine.*fn1
Viewed most favorably to plaintiff, see R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), the evidence established by the summary judgment record established the following relevant facts and procedural history.
At the time of the accident on June 1, 2004, plaintiff was a twenty-two year old employee of the Tropical Sun Supermarket in East Orange. Plaintiff was operating a meat grinder machine while standing on a milk crate. The crate slid, causing plaintiff's hand to enter the opening of the grinder. Because of the injuries, the hand had to be surgically amputated.
Plaintiff filed a products liability complaint against Siegmeister and Biro Manufacturing Co. ("Biro"), the manufacturer of the machine. After some discovery was conducted, plaintiff dismissed his claim against Biro and filed an amended complaint against Siegmeister and his employer, Tropical Sun, Inc. trading as Tropical Sun Supermarket ("Tropical Sun"). The amended complaint maintained strict liability and negligence claims against Siegmeister, and it also alleged that Tropical Sun "willfully and knowingly disengaged and/or removed a safety device, the purpose of which was to protect plaintiff from death or serious bodily injury." See Laidlow v. Hariton Machine Co., Inc., 170 N.J. 602 (2002) (tort claim against employer is not barred by workers' compensation statute, N.J.S.A. 34:15-8, for intentional removal of safety device knowing of substantial certainty of injury).
The manufacturer, Biro, had taken several steps to address the longstanding problem of purchasers removing protective devices from its grinders to increase productivity. The owner of Biro testified in deposition that "bowl guards" are affixed with steel fasteners and then welded permanently to the tray in which meat is placed for grinding. He explained how a magnetically activated interlock system prevents use of the machine when the tray and attached guards are removed for cleaning or otherwise. He testified that the only way to separate the guards from the tray is to saw them off.
Since 1967, Biro has instructed its distributors about the dangers of operating a machine without guards. Biro has provided financial incentives to distributors since 1995 to report removal of guards and to assist owners in correcting the deficiency. It has also instructed distributors not to service machines from which guards have been removed. If the owner of a machine does not cooperate in rectifying the safety risk, Biro files a report with the federal Occupational Safety and Health Administration (OSHA).
Biro provided in its distributor agreements, including the one entered into with Siegmeister, that distributors must assure that all warning labels are in place and that purchase orders must instruct purchasers "not [to] remove, bypass or alter any safety guards, interlocks, devices or warnings." The distributor agreement between Siegmeister and Biro also contained a provision under the heading "SAFETY" stating: (v) If Distributor is requested to service or maintain any BIRO product, Distributor will insure that: (a) all safety, guards, interlocks, devices and warnings, are on the BIRO Products and functional; (b) that all BIRO instructional materials are available with the BIRO Products; and (c) that the purchaser has been properly instructed with regard to the safe use of the BIRO Product. The owner of Tropical Sun, Chong Sin, testified in deposition that the meat grinder was purchased new from Siegmeister in 2001. A technician for Siegmeister, Karl Irvin, confirmed that the machine at Tropical Sun had guards in place when he installed it in 2001. He also testified that he has seen "numerous" machines on service calls with the guards having been removed, and that he would not service machines in those circumstances.
A vice-president of Siegmeister, Ira Tasch, testified that Siegmeister is the exclusive dealer of Biro food processing machinery in New York and New Jersey. Employees of Siegmeister were instructed that if a guard was missing from a machine, they were to note that fact on the work order and report it to the office at Siegmeister, at which time Siegmeister would undertake to explain to the owner the danger of operating the machine without protective devices.
After Tropical Sun's purchase of the meat grinder, Siegmeister continued to service the machine by replacing the "knives and plates" approximately every four months, charging a fee to Tropical Sun for its services. Paul Smith, a technician for Siegmeister testified he personally replaced the knives and plates on January 27, 2004, about five months before plaintiff's accident. His service protocol included assuring that guards and safety devices were in place. If he had observed that a guard had been removed, he would have unplugged the grinder ...