*1 JAKUBOWSKI, PLAINTIFF-RESPONDENT, EDWIN F. MANUFACTURING, MINNESOTA MINING AND A COR DELAWARE, PORATION OF DEFENDANT-APPELLANT. Argued February 18, April 20, 196 4 Decided 1964. *3 R.
Mr. William Morrison for argued the cause defendant- Morrison, & Lloyd appellant (Messrs. Griggs, attorneys). Mr. for argued Goult the cause Joseph plaintiff-respondent Gammelieri, (Mr. Peter attorney). of the court delivered opinion was J. This is products liability case. The plain-
Pkootok, tiff, an of Eord Motor employee Company plant Mahwah, New action Jersey, brought negligence and breach of the defendant warranty manufacturer against of an defective abrasive which broke and allegedly struck the of employ while he it in the course his using the trial court At of the plaintiff's proofs ment. the close on both involuntary dismissal defendant’s motion for granted held that unanimously plain Division Appellate counts. or to case prima negligence tiff had failed establish facie held However, plain majority express warranty. claim for breach of to the on his tiff was entitled go a par and fitness for merchantability warranties of implied such warranties agreed ticular The dissent purpose. failed, he found that had either to the but extended Jaku a breach thereof. circumstantially, prove directly N. J. Mining Manufacturing, bowski Minnesota R. R. Defendant as of right. 184 (1963). appeals Super. 1:2-l(b). a manufacturer of abrasive discs and prior
Defendant is Motor Company here had sold to Pord accident involved 9-ineh, 300,000 C, fibre-backed, 200,000 Type 24-grit, when he sanding type plaintiff using flexible discs 100,000 50,000 were An additional injured. purchased Pord the three years following plaintiff’s and used by during catalog were described in defendant’s as The discs accident. follows: stronger, sharper, TYPE BACK. Are “3M DISCS ‘O’ —GREEN anywhere. longer-lived construc- than before This ever available — sanding, edge sanding, all-purpose flat is the disc —for tion best ‘shape sanding filling operations. to resist or oil It’s controlled’ solder temperature. humidity and effects Heavy Mineral, Backing, Coat, All-Fibre Closed Oxide Aluminum 150-50, 36, 24,
Resinbonded, 16.” *4 a had worked for 17 as mechanic and years body Plaintiff line at Pord and was on the production experienced finisher day in use discs. On the of the accident he the of abrasive a for crew of 15 and a relief solderers operator grinders duties from as of his the part brought and had that morning 3M discs for the use of the grinders a on supply stockroom asked to be relieved and handed grinders the line. One his machine with pneumatic rotary-type grinding the plaintiff to its shaft. The disc attached grinder a flexible sanding machine with the had the using relieved been whom plaintiff disc did not the attached, replace and plaintiff same disc The extent of the use prior his operation. commencing before machine weighs does not appear. grinding which propels air and is operated by pressure about pounds with plate a rubber or fiber backing on the shaft over the disc The ma of the disc. a a few inches less than that diameter and minute 3,600 revolutions per chine is to rotate at preset intended for rough disc attached is C 24-grit Type braze, a which a fibig gob” sanding snagging operations corners, is and brass, abrupt which have may edges sharp the spinning the action of cut down to smooth surface by type This disc under by operator. applied pressure a very punish the abrasive disc operation snagging exposes in operation machine of treatment. Plaintiff set the ing type valve and closing full its two handles speed by grasping the spinning He applied one of them to start the motor. at the body an automobile disc under to a braze on pressure are when joined and door post where the windshield point A Eord him in the abdomen. in half and struck snapped to cover the mercurochrome and bandage nurse applied him back to bruise, 3 inches sent long, which was about injury aggra Plaintiff claims that the line. production alternatively condition or vated a duodenal ulcer previous disc was not pro caused the condition. broken that it checked to trial, examined it or duced at the nor had anyone whose safety engineers, had caused it to break. Eord see what various operations it was to see that responsibility safe, had ap were reasonably used machinery plant Eurther, discs. tests competitive of these purchase proved discs had been conducted and other manufacturers’ of these determine line engineers on the Eord production effectiveness, Eord comparison. and for cost durability used for five opera of disc could be type determined that tions before fresh one required.
182
The plaintiff testified that often, the discs “break and we them as change Further, break.” in they to the response court’s as to whether inquiry before, these discs had broken the plaintiff responded, “Yes; hit many break. We they got time, but never A of lot of fellows thought get it. nothing hurt.” Division, Appellate proof
The while it found no negligence, nevertheless held that entitled plaintiff’s proofs him to Since to the on the issue. go implied warranty we view the evidence as an unreason insufficient to establish ably condition attributable to the dangerous product defendant, it is whether action be for immaterial plaintiff’s Plaintiff must estab negligence or breach of sales warranty. lish some than proof heavier mere surmise or weighs conjecture that his from an unreasonably resulted injury condition of the disc dangerous for which defendant is responsible. Long Landy, See v. N. J. 44, 35 54 (1961); Co., Heath v. Channel Lumber 25 N. 6, J. 13 Super. (App. Averill, Div. Miller v. Davis and 1953); N. J. Inc., 137 L. cf. 671, & 675 A. 1948). James, (E. Harper & According whether the products liability action be in tort for negligence, or in the plaintiff must show that warranty, goods which he were for their complains unreasonably dangerous intended use and that the condition unreasonably dangerous Torts, existed when the 2 left defendant’s hands. goods 28.22, see also v. 1584 Simon Graham p. (1956); Bakery, § 84, 525, Prosser, Torts, N. J. 531 17 509 (1955); § must when product defective (1955) (plaintiff prove left control); Prosser, the defendant’s “The Assault upon the Citadel Liability 69 Yale L. (Strict Consumer),” J. Friedman, 1099, 1114 1 Frumer and Products (1960); Liability, 16.01 359 for such [1], p. necessity § implicit opinion this court sen proof Henning Motors, Inc., 358, J. 410-411 (1960). N. Bloomfield Division, above, as Appellate unanimously noted trial had prove court failed agreed cause of action Plaintiff’s claim negligence. *6 defendant was on the face negligent failing designate of the disc the maximum of since speed rejected was operation there was no proof that the suggesting breaking was related thereto. held the doctrine of Moreover, it res failed ipsa did not since the loquitur plaintiff apply show that his was caused injury lay which by something within the defendant’s he failed responsibility. Since exclude other possible causes for his e. conduct g., the injury, whom he suffi- grinder relieved, he had not produced cient evidence from a infer that which could reasonably his was caused a injury by product arising condition of the from the of 80 N.J. the defendant manufacturer. negligence evidence, at view of the 193. We with this Super., agree e., that reason, but in our is for this i. opinion it precisely attributable to the of the disc was not shown to be breaking has failed to manufacturer, the plaintiff that we find a breach of prove warranty.
The doctrine of res where ipsa loquitur, applicable, an inference that the was caused permits plaintiff’s injury by the defendant’s invoked it cannot be negligence. Generally, until it shown that is the instrumentality causing injury was within the control of the defendant at the time of the However, if the mishap. instrumentality has left the control thereto, of the defendant prior plaintiff bemay permitted to invoke the doctrine if he introduces evidence that it was others, not handled himself or improperly by its condition otherwise after control was the de changed, relinquished Co., Bottling fendant. Bornstein 26 N. J. Metropolitan 263, 273 When the doctrine of res is invoked ipsa that the of theory is accident which occurred does type in the absence of de happen not where the negligence, fendant is in control of the it is reasonable instrumentality a to infer that he While manufacturer negligent. nevertheless irrespective
liable on its warranty negligence, for the to show that dangerous it is necessary a he contends constitutes breach warranty condition which was within the instrumentality when the had its genesis control of the manufacturer. the absence Accordingly, direct evidence that is defective because of product evidence flaw or or other manufacturing design, inadequate which an condition would inference that permit dangerous other causes existed it is prior sale, necessary negate would of the failure for which the defendant of the product reasonable to infer not be in order to make it responsible, existed the time the defendant that a condition dangerous had control. disc in a proper that he used the
Plaintiff has shown use, and he contends that manner and that it broke bur warranty. evidence is sufficient to show breach of the disc to show that den of proof upon *7 from the manu unfit for its intended when purchased purpose circum be was whether the facturer. “The test to applied an inference of justify proba stances shown were such as to from mere Simon bility possibility.” as distinguished J., 17 N. 531. While it is Bakery, pos Graham supra, flaw manufacturing sible that the disc broke because of because the for inherently inadequate rough snag design it is as that ging operations, just possible mishandling user or use life beyond span or users prior expected disc was responsible. fric subject
It is common that materials knowledge tion will wear v. General Motors out. Courtois eventually J. 525, 37 N. While under normal condi Corp., tions it can be that the perhaps expected backing it, will remain intact so as useful abrasive remains on long show has introduced no evidence tending any abrasive remained on this disc at the time he used it. The Ford testified that an inves process engineering manager made under his direction indicated that five tigation opera tions could be a disc before He performed by replacement. also testified that cost factors were considered in the selec tion of the disc. If Ford for reasons of economy production life, safe beyond to use these discs their useful attempting the manufacturer cannot be held on the responsible ground for intended that the disc was not fit its reasonably purpose, in the absence manufacturer concurred in of evidence that the Eord’s decision the extent of the use of each disc. regarding evidence, There is no such evidence here nor is there any or his co-workers at time to Eord any complained that the were they discs for the often inadequate job although Eurther, broke use. there no evidence Eord ever to the defendant of the of the discs. complained inadequacy Indeed, Eord continued to use thousands of these discs on the same after There are operation plaintiff’s industrial mishap. which involve a operations certain of hazard no mat- degree ter how and even carefully operation is engineered though the most tools available are used. And it cannot be adequate said that for responsibility industrial accidents should fall on tool, the manufacturer of the rather than the who employer has selected the tool and engineered operation, merely because the tool breaks.
The on which these were operation discs used is known as abrasive is "snagging.” exposed very punishing treatment; it must cut down excessive metal having sharp edges corners. skill of the abrupt operator using disc no doubt role the service life which can plays be It is common expected. that tools can be knowledge damaged in the of a an hands novice. Even will expert carpenter occa bend a nail sionally while it in and driving destroy thus usefulness fit for though intended when purpose *8 the it carpenter And it is common picked up. that knowledge intended for sandpaper of wood will tear or rough sanding if break to a if applied surface or it is overused. ineptly rough The implied warranty merchantability means that the intended; is product reasonably fit for the purpose does not imply absolute and there is no perfection; duty on the a of manufacturer part furnish tools which will not wear J., out. Courtois v. General Motors 37 Corp., N. supra, 543.
Plaintiff has failed to introduce any evidence from which it is reasonable infer that the useful expected life of
186 There is at the time it broke. the disc had not been exhausted use of manner and extent of no hint the record as to the failed to pro the use of it. Plaintiff disc prior plaintiffs a succeeded or to introduce duce as witness the workman he or mishandling other evidence which would exclude prior It is possible overuse of the disc as a cause of the break. quite created by inexpert that weakness the backing causing careless use during preceding operation, v. used it. Kramer to break when See plaintiff subsequently 386, R. 5 N. J. 392 Hollingshead Corp., M. break,
Thus, viz.: we have here four causes of possible misuse, flaw, or overuse. manufacturing inadequate design, introduced evidence which indicates has no In one more than the others. order of these causes is probable which it is reason recover, he must evidence from present of the able infer more than not the cause probably Dunn the defendant responsible. break was one for which Co., 556, & N. J. L. 559 A. (E. 126 Beverage Hoffman Co., 153, J. L. v. D. L. & W. R. R. 1941); N. Stumpf failed to show Ct. We think the has 1908). (Sup. as a more than not that the disc broke probable it is which existed of an condition unreasonably dangerous result defendant manufacturer to by at the time it was delivered can be damaged When plaintiff’s employer. product dan course of irse and become thereby unreasonably liable in warranty we cannot hold its manufacturer gerous, in the absence of evidence for the mere failure product used to show that the was not mishandled or product tending it left the manu life after beyond reasonably expected span facturer’s hands. a defect in the evidence of the existence of only Gearhart, Paul of Eord’s
disc was manager Engi given In answering hypothetical Process neering Department. the disc in using which assumed that plaintiff question intended, and that the disc had been previously the manner used, that the disc “is inde opinion Gearhart expressed else, must have and that had a pendent everything [it] *9 * * * defect for my basis is the I’ve opinion experience had with this type and that it is not related equipment, the tool that is the wheel driving Any relationship is [disc]. itself, rather than the machine. Within my there experience, has been that could to a contribute nothing wheel breakdown or failure could be an out- attributed to side source of the driven machine like this.” The trial type court attempted elicit some additional basis for this opinion but none was the comment that Gearhart forthcoming except had read the the disc was specifications therefore knew intended to be used on the type operation plaintiff in at the time of the court deter- engaged accident. The trial mined that Gearhart’s not of considera- testimony worthy tion. The in the his briefs here and Appellate Division error does not we find no question ruling, in it.
The best that can be said of Gearhart’s is that testimony machine grinding was not responsible for the accident and therefore the disc must have been the cause of the acci- dent, and that in his opinion the fact that the disc broke indicated that it was defective. He stated that he had never seen or heard of these discs while in use. breaking Neither he nor else anyone testified that these discs should not break if misused or overused. Gearhart frankly admitted that he had no knowledge composition of discs; he did not know whether the was cloth or backing paper fibre; and he was unaware of the processes involved in manufacturing making discs. But even assuming Gearhart’s opinion be may admissible, it establishes the fact only the disc was defective when it broke, the source of the defect was not adverted to him. Since he did not consider the manner and extent of the handling subsequent delivery Eord, of it to it would amount to mere guesswork to conclude from this opinion that the defect or dangerous condition of the disc of manu- period was attributable to facture or rather than to misuse delivery possible subsequent
or overuse. 4 N. J. See Rempfer Packing Corp., Deerfield 135, 145 (1950).
Eor the the trial court above reasons we conclude that dismissal. defendant’s motion for properly granted reversed and the judg- Division is judgment Appellate ment the trial court is affirmed. U. J. It not for to decide (dissenting). is us
Weiutraub, the ultimate factual issues. The whether question only there was evidence in case from which those ulti- plaintiff’s mate issues could be decided his I believe fairly way. there connection, was. And in this no difference an I see between action for and for of implied warranty, one breach negligence for either on the motion upon approach, the pivotal question disc was defective for was whether the abrasive judgment Prosser, “The Assault when it left defendant’s See plant. 69 Consumer),” to the Liability the Citadel upon (Strict 1099, L. J. Yale and that broke are with a rubber band
We not dealing an abrasive disc intended We are with stung finger. dealing minute, 3,600 revolutions per on a wheel at some to be spun of the force description plaintiff’s and the could believe jury hit him: the errant disc with which Well, right. you "A. it All Will tell us what felt like? “Q. got something, blow, I hit with a bat or and made a terrific like over, right out of I held onto the bend knocked the breath me. me minutes, guess, while, I and fellow I was hose a a few seconds up place, relieving my I over in and took and went a crouched came just my snapped my position and told him disc in half foreman medics, go I him like showed where it and I would here, my belly up, bleeding all from button to it was bruised so he immediately, gave pass I to the medics and when I and went me medics, put got some the fellow there mercurochrome on and to the my my belly bandage side. from button injury you looked like? A. It was describe what Q. Will bleeding in the center here.” black and blue and bruised harm was A could find the risk of such unreasonable and use, from a when to its intended put to be expected not and hence that if disc was here so it must have been used, defective.1 is that it assumes
My difficulty majority opinion that other causes possible for the disintegration are involved and hence that reasonably prevail as I those know, possibili- to exclude them. So far required of them was ties be none may wholly Indeed, imaginary. which, must order, in the I pretrial regretfully suggested for a reveal- the case was ideal add, was poor notwithstanding conference. productive pretrial ing is whether majority such discussed possibility One one, the disc left defect, if there were after originated *11 china, with delicate defendant’s If we were plant. dealing a could be that intermediate handling I would recognize de- flexible, abrasive disc here have a factor, but we tough, incomprehensible use. I find it to take punishing signed or shipment handling. have injured it could been that I so, know, and that being I do not just More importantly, possibility that with excluding not to burden plaintiff ought a more than it is indicates the evidence something until phantom. have should that says plaintiff
Next, majority opinion the used the the wheel he the man replaced.at that (1) proved its beyond was not used the disc and that (2) disc properly In the that proof. basis for requiring life. I see no expected sug- of counsel to the argument but nothing I find first place, involved. realistically excessive use or improper that gest an abrasive would expect I way. be the other would My guess wheel; and the in handling a mere lack of skill survive disc to that a disc was record to use, say I read the excessive as to bodies in five automobile on necessary job do the to expected for that would be effective surface that the abrasive sense the expected these manufacturer that the would be An alternative use, during would which event there intended break their discs to culpably warn question failed to whether defendant the different be pursue injury. alternative against not this We need risk of this expected suggest not the defendant does the record thesis since way. in that behave discs to I do not read it to mean quantity. explode would abrasive became inade- disintegrate instant surface But, for the task hand. if we to quate at ought seriously entertain case, those possibilities juncture still a jury could infer there was no Plain- readily mishandling. tiff was skilled and and I would infer that experienced, regular whom had relieved trained for operator wheel, that work. both knew how handle why Since should we from their speculate they departed regular habit, practice should we assume that why did idle a so as to use disc after it ? thing ceased abrade I infer, believe could stands, on record as it the disc was used as was intended to be used when the acci- dent occurred. connection,
In this I refer the testimony of the engineer Gearhart that the disc must have been defective. His testi- struck, mony not it should not be discarded aon motion for judgment merely because the foundation might have been more drawn out. He explicitly was thoroughly familiar with these discs and with the operation. grinding His could testimony fairly be understood to mean that there could have nothing grinders done to account for the of an disintegration disc and adequate hence there must have been defect. This additional testimony gives strength which I would find proof to be independently sufficient *12 withstand-a motion of at the close plaintiff’s case. I
Accordingly, believe could jury infer rationally from the evidence that the disc was when defective it left defend- an plant ant’s involved unreasonable risk of harm. The evidence thus sufficed for the I warranty theory. think it was sufficient on the equally since, negligence thesis in the absence defendant, some explanation by could infer the defect was product Prosser, See negligence. supra. J., L. Yale 1114. In I respect disagree majority the Appellate Division. I would modify their judgment affirm it accordingly as thus modified. Ekancis, JJ., Jacobs and join this dissent. —
For reversal Justices Proctor, Hall, Scitettino Haneman — 4. —
For Chief Justice and Justices Weintraub, affirmance and Erancis —3. Jacobs ROE, COMMISSIONER, AL., ETC.,
ROBERT PLAIN ET A. TIFFS-RESPONDENTS, KERVICK, v. JOHN A. STATE JERSEY, TREASURER OF THE STATE OF NEW DE FENDANT-APPELLANT. Argued January 20, 21, April 20, 196 4 Decided 1964.