Suter v. San Angelo Foundry & MacHine Company

SUTER, FRANK PLAINTIFF-RESPONDENT, v. SAN ANGELO FOUNDRY COMPANY, & MACHINE

DEFENDANT-APPELLANT. 30, 1978 July 1979. Argued Decided October appellant the cause argued Mr. Norman S. Costanza attorneys). Griggs, (Messrs. Morrison & respondent for cause argued Amabiie Anthony R. Mr. Takvorian, attorneys). Witham, Amabiie & {Messrs. by was delivered the court opinion of

SCHREIBER, J. consideration for our projects case products This 2A:15-5.1 Act, N.J.S.A. Negligence Comparative impact of the liability actions. 5.3, in strict Plaintiff Frank sought monetary damages injuries Suter sustained when his caught cylinders hand was in the of an time, industrial sheet metal rolling machine. At the Suter was of, employed by, part Metal, as well as owner Accurate Sheet Inc., a small products, industrial fabricator of sheet metal con- sisting primarily heating of ducts for and air conditioning. charged Suter defendant Angelo Foundry San & Machine Com- pany, machine, the manufacturer of the with with breach express of an implied warranty and an that the machine was safe and fit for its purposes intended and was of merchantable quality. court, however,

The trial charged jury only theory on the of strict liability. The court posed the issue in terms of whether designed as by defendant was reasonably fit for the ordinary use for intended, which it was whether the defect arose out of design its and while it was under defendant manufactur- control, er’s whether the defect proximately injury, caused the plaintiff whether was a reasonably foreseeable user of the product. The trial court charged, also over plaintiff’s objection, plaintiff guilty would be of contributory negligence if he had not exercised that degree of care which a reasonably pru- person dent would have exercised under the circumstances. Six questions were submitted to the jury. questions Those and the jury’s responses were as follows: question defectively 1. Was machine de- signed defendant, Angelo Foundry San YES NO & Machine Co.? X If the answer Question #1 you “no”, go' need no further. proximate 2. the defect cause YES- NO JWas accident? X Suter, plaintiff, guilty negli- 3. Was YES Frank NO gence? X negligence, any, proximate cause YES NO 4. Was if accident? X Taking the fault the defendant and 5. combined that caused as a total of the accident

155 percentage 100%, of was at- fault what to: tributable 50 FRANK SUTEK % & ANGELO FOUNDRY SAN MACHINE CO. . % 100 % reasonably adequately fairly, money would sum 6. What injuries compensate his for FRANK SUTER losses; $25,000 the defense motion to dismiss plaintiff’s denied The trial court negligence as comparative applied contributory negligence, effec- which had become 2A:15-5.1 to 5.3 provided N.J.S.A. on November having occurred (the accident August tive in in the amount plaintiff for 14, 1974) judgment and entered $12,500. Division, upon relying appeal, Appellate

On (1972), held in Manufacturing Corp., 60 N.J. v. Havir Bexiga negli- contributory the defense of opinion that unreported an awarding by judgment It modified was unavailable. gence by fixed $25,000, damages as the full amount of certification, 76 N.J. petition defendant's granted We jury. Metal, Accurate Sheet undisputed. virtually are The facts Jersey, was en- Bloomingdale, New (Accurate), Inc. located approximately had Accurate in metal fabrication. gaged it had which including a Lown types, machines of various machine, built which had been 1966. This new in purchased used Company, Machine Foundry & Angelo defendant San shapes. cylindrical them into and curve to flatten metal sheets innumerable on piece equipment this operated Plaintiff had in 1974. accident and the date between 1966 occasions horsepower and one-half by a one powered 450 is The Lown long rollers 50" has three The machine electric motor. wringer. Metal clothes of an old-fashioned resemble those rollers. front the two fed between in width are up sheets to 48" shaped The metal is into cylindrical upward form when drawn by and around the rear roller. right The side of the machine is known as equipped its “low end”. The “low end” is with a drop-arm latched which is open used to that side of the machine. Completed cylinders may cylinder may then be removed. A reinserted for rerolling by opening up drop-arm sliding the and it back in the along bending rollers. the gear

On left side of the machine is a box cover which houses the motor. Mounted on the front of the cover is a control box which extends out from the face of gear the box cover. theOn front of the control box are two buttons. One green colored and “start” is by marked surrounded a narrow collar so that it cannot accidentally. be brushed The other button, red, colored designated “stop”.

topOn is a gear control box lever located 35" from the lever, floor. The out extending 4Vi" from the gear front of the box, positions. has three When right, moved to the the rollers direction; center, turn in a forward when the lever is in the the stationary; rollers remain when moved to the left the rollers move counterclockwise. treadle, painted yellow,

A along extends the front base of the on, stepped stops machine. If it by tripping machine out the relay deactivating and the motor. The machine would thereaft- er have to be restarted.

Pushing green button However, activates the motor. rollers do not turn until the lever is shifted to either the forward or reverse position. If the stop red button pushed, were power would be cut off and the machine stop. Touching would the foot treadle would have the same using effect. When machine, operator power leaves the on until all the work is completed and principally relies on the lever to stop and start the rollers.

The accident process occurred in the rerolling a metal cylinder that had been formed from a sheet 48" 48". Four men, including plaintiff, slipped had the rolled through metal drop-arm was then latched the “low end” of the machine. The on, was in a neutral but the lever closed. The motor was Plaintiff, while moving. so the rollers were not position machine, slag piece standing left side of the saw on the slag pull cylinder. in the As he reached over lying metal lever, into the out, pushing it body against gear his brushed activating rollers. position forward and fingers right of his caught pulled hand were into the managed rollers. He yank free, his hand only but after it had injured. been severely thereupon Plaintiff was taken to a hospital, operated upon, hospitalized. He returned to work about three weeks later.

Plaintiff’s expert, engineer, an testified that the machine had been defectively designed. In opinion rotary guard his a should have been inserted around the lever or the lever mechanism placed should have been top gear on housing which is 45" above the floor. Either method protection would have served as against accidentally starting up the rollers. Both of these protective methods were in use when made and sold defendant this machine. early As Safety as the National had Council recommended installation of guards prevent bar inadvertent striking of such levers. expert

Defendant’s agreed rotary guard was an available design at the time the made as a machine was and that safety engineer he would have such a device. In recommended his opinion the accident plaintiff placed occurred because him- self in an position cylinder unsafe reaching while inside the without first cutting power off the to the machine.

I question of this will first on analysis Our case focus contributory negligence types may what of conduct constitute applicability liability a strict suit. Next we consider the shall 5.3, to Act, N.J.S.A. 2A:15-5.1 Comparative Negligence so derived to apply principles that conduct. We shall then the facts of this case. charge the a should we how trial court

Finally, shall consider This consid- jury on strict and its constituent elements. liability in Cepe- suggested instructions requires eration a review of Co., Inc., (1978). The N.J. 152 Engineering da v. Cumberland against the will be tested charge trial court’s in this case then conclusions we have reached.

II conduct We consider first the nature of We have action. recovery bar in a strict contributory previously held that under some circumstances Inc., Leasing, negligence may be a defense. Ettin v. Ava Truck (1969); Leasing 53 N.J. 463 & Rental Cintrone Hertz Truck Service, (1965). However, 45 N.J. of that con the nature Thus, plaintiff’s tributory negligence sharply circumscribed. merely in negligence is unavailable as a defense when it consists guard a failure to or to product, discover the defect in the against Restatement possibility of its existence. See (Second) 402A, n recited (1965) of Torts Comment § [hereinafter as that the “form explains n further Comment Restatement]. contributory voluntarily negligence which consists in * * * unreasonably proceeding danger to encounter a known * ** Thus, is a defense with generally where knowledge actual danger presented by defective risk, product trial knowingly voluntarily encounters that a court negligence should of to contributory submit the defense the jury.1 Leasing See v. Hertz & Rental Cintrone Truck recovery plaintiffs 1This bar to attributable to conduct is to be differentiat “assumption duty ed from those circumstances in which no ascribable Inc., applies. Attractions, risk” See Meistrich v. Casino N.J. 44 Arena (1959); Co., (1963); James, Cyanamid McGrath v. American 41 N.J. “Assumption Unhappy Reincarnation,” (1968). Risk: 78 Yale L.J. Service, supra, 45 N.J. at 458-459. As in any contributory context, it is the defendant’s burden prove plaintiff’s conduct was improper and was a substantial factor in causing his injury.

We pointed Cepeda out in v. Engineering Cumberland Inc., (1978), N.J. 177-178 that an unforeseeable misuse of product may give rise to strict liability. As noted in that case, the use which the plaintiff product makes of a may be relevant on the plaintiff’s case in the context showing either of plaintiff’s use of that product was outside or beyond its intended or foreseeable scope (thereby not being probative of whether product fit, safe), suitable and or that use, abnormal defect, rather than the caused the 76 N.J. injury. 176-177, Twerski, see “The Many Faces of Misuse: An Inquiry Into the Emerging Causation,” Doctrine Comparative 29 Mercer L.Rev.

It out, has been pointed example, for that the manufacturer of a knife charged cannot be with strict liability when the knife is used as a toothpick and complains sharp the user because edge cuts. General Motors Corp. Hopkins, W.2d 548 S. (Tex.1977). type This is the of case referred to in Comment h to 402A: § A handling is not in a product defective condition when it is safe for normal injury handling, If the results from abnormal where a consumption. as beverage against bottled is knocked a radiator to remove the or from cap, abnormal for as where too much is added to preparation use, salt or from food, abnormal as where a child eats too much and is made consumption, ill, the candy

seller is not liable. words, In other light misuse of the sheds no on whether the product is fit reasonably and safe its intend- ed or reasonably anticipated use.

Misuse question also arise in connection with the operative example, causation. For surgical pin where a inserted align plaintiff’s leg body support fracture and not for broke plaintiff, doctor, after the contrary to an express direction of his had upon leg, walked it pin was held that the failed because

160 strength to be Though pin’s its the was shown less

of misuse. intended, pin the evidence would have than indicated weakening. v. in of that Von broken the absence Stewart 599, Inc., (1974). Sollrig 321 N.E.2d 428 Hosp., Ill.App.3d from that distinguished these situations must be Both of an affirmative conduct surfaces as in above, has noted this occurs when defense. As to the known voluntarily unreasonably proceeded encounter Thus, liability may in exist contributory negligence risk. strict only in this context.

Ill effect, pass question any, We next to the what if Comparative Negligence contributory negligence has on the Act in liability. defense strict act, The adopted provides: * * negligence shall in an not bar action Contributory recovery by any person negligence damages resulting injury to recover for to death or person negligence greater negligence if such than the not property, person against sought, damages whom is be but sustained shall diminished recovery any percentage negligence recovering. sustained of attributable to the person

[N.J.S.Á. 2A:15-5.1] * * * negligence” may an phrase “in action read refer tort literally only be to traditional P.2d Corp., action. v. Motors See Kirkland General (Okl.1974). with the reading keeping But such a spirit of the act. We must to other to illuminate the look indicia sense of the statute. We have adverted frequently sensibly, interpretative guideline that statutes are read legislation controlling, reason for the rather purpose than See, Brigantine, e. literally. g., City construed v. Schierstead (1959); Light N.J. 230-231 Alexander N. J. Power & N.J. Negligence Comparative It that the legislative was belief which could Act would ameliorate to some extent the harshness in all tort ac- application contributory negligence result Thus, legislation, he signed tions. when Cahill Governor be longer seriously [injured] person will a commented that “[n]o injuries merely for his prevented obtaining compensation from way, in minor for partially responsible, because he was injured.” accident in which he was Release from Office Governor, 24,1973. keyed May explanation The Governor’s associated with equitable mitigate to the the unfairness desire to contributory recovery common law posed by total bar 1973, explanation When the made this negligence. Governor as a defense contributory negligence firmly had been established no to believe liability in a strict action and there is reason in a negligence contributory to exclude Legislature intended would by liability strict case! The identical conduct softening of it was the recovery negligence bar in a action and aimed. at which the act was type the effect of that of conduct in the supportive legislative history may Some be found Legislature’s adoption comparative of the Wisconsin conscious negligence statute, (West Supp.1978). Wis.Stat.Ann. 895.045 § previously applied comparative The Wisconsin its courts had Sciano, 443, negligence liability, Dippel act to strict v. 37 Wis.2d Co., (1967); 51 155 N.W.2d 55 Netzel v. & Gravel State Sand 1, well (1971), Legislature may 258 our Wis.2d 186 N.W.2d comparable interpre have believed our statute would receive a Corp., F.Supp. Hagenbuch Snap-On tation. also v. Tools See 676, compar (D.N.H.1972), Hampshire wherein the New apply ative was construed to to strict negligence statute case law. For the on the basis of the Wisconsin statute and state proposition interpretation of a statute of another Legisla its aid when our interpretative courts serve as an act, see, Shipyard Corp. v. adopted g., ture has the same e. Todd Weehawken, (1965); Bollinger Waga- v. Tp. 45 N.J. Bldg. (E. A.1939);

raw Supply & Rawson N.J.L. Lohsen, Div.1976). N.J.Super. (Law being read act as subsumed “negligence” We the term in our So, too, contributory within the concept of tortious fault.2 contributory fault. regarded been has as a form Inc., supra, Ettin we com Leasing, See v. Ava Truck wherein term “though hardly necessary, mented that we it consider could, desired, readily fault’ if so ‘contributory substituted 472; the term N.J. at see also ‘contributory negligence’.” 53 Prosser, (4th 1971). has Torts at 418 Dean Prosser ed. § following elucidated this idea of fault in the manner: nothing than a departure which means more is a sense in “fault” There broader his of man the protection conduct of a by society from standard of required cannot neighbors; is and the defendant one, an innocent if the departure wrong. still distinction and a social it is less a none the it, departure, help man who and the has from the standard, man who deviated remains between the being with what line blame for out of be to has not. The defendant may § 75, less out of line. [Prosser, supra, but he is none the him, of society requires at 493] viewed, of readily So the notion fault is seen to be inherent the concept liability. supplier of strict The manufacturer of a chattel has charged with duty distributing product been of fit, which is duly suitable and safe. Failure to comply with this standard constitutes fault. “negli use of the word we do the act’s

Including as fault, Comparative we construe the gence” concept of within must negligence Negligence plaintiff’s require Act to that fault to strict “greater due negligence not be than the [or recognize 2We that Wisconsin’s strict doctrine been liability interpreted has signposts negligence legislative in terms of se, but more per persuasive rather indicate the act was intended fault in a broader sense to cover negligence in the than technical narrow concept. any sought, is but recovery whom against liability] person of sus percentage damages shall be diminished sustained recovering.” person to the attributable tained should ascertain of fact 2A:15-5.1.3 The trier N.J.S.A. proximate awas negligent conduct plaintiff’s extent to which negligent conduct it is cause of the accident. Since recovery, his or foreclosure cause diminution proxi was a that conduct extent to which ascertainment of the by the trier accident should be determined mate cause of the fact. without its contributory negligence total-bar is not

Although economists, see, defenders, g., e. R. particularly among legal 1977); Posner, (2d ed. but Analysis Economic of Law 123-124 A Schwartz, Comparative Negligence: “Contributory see G. (1978) (arguing Reappraisal,” 87 Yale L.J. justifica- provide persuasive no efficiency notions of economic judicially comparative negligence could be are not unmindful that 3We Inc., Leasing, 53 N.J. liability adopted Ava Truck Ettin v. cases. See strict comparative judicial adoption (1969) (indicating in dictum that welcome); might O’Brien negligence principles cases in strict J., concurring) (1971) (Francis, Corp., 59 N.J. Bethlehem Steel created, judicially contributory negligence (suggesting bar of that since open comparative negligence to reasonable judicial authority adopt is not to comparative jurisdictions question). that have declared in other Courts prior negligence govern ordinary without negligence principles actions will 804, California, 119 legislative activity, g., 13 Cal.3d Li v. Yellow Cab e. Jones, 431 858, (1975); 280 So.2d Cal.Rptr. Hoffman v. 532 P.2d 1226 compara Legislature (Fla.1973). has enacted in which the Even in instances negligence limited to negligence to be that have been construed tive statutes liability-dividing extending actions, judicial suggested action it has been permissible the defenses products liability since be actions would rules V. subject modification. common law still available to those actions are 171, Schwartz, Negligence,” Liability Comparative 42 Tenn.L.Rev. “Strict and (1974). 1976, 29 the comparative negligence late as of states with Of the 32 Pennsyl- Sherman, Analysis of change legislatively. “An effected See 51, (1976). Statute,” Comparative Negligence 38 U.Pitt.L.Rev. vania’s rule), tion for the contributory negligence Legis- traditional lature has at partially rejected point least this of view in favor simple (in principle parties that when two “share” rough sense) mathematical the blame for an accident they should also share the liability-dividing principle costs. The comparative negligence widespread support among has received preferred negligence commentators as the rule in actions. See, g., Levine, e. “Buyer’s Affecting Conduct as the Extent of 627, Liability Manufacturer’s in Warranty,” 52 Minn.L.Rev. 658- (1968). It has also been the sound rule for recommended as See, strict liability claims. g., e. id. at 644. Also note the Commerce, recommendations in U. Dep’t Interagency S. Task Force on Product Liability, Liability: Product 2 Final Report of Legal Study (1977), comparative negligence should applied products in all liability actions relieve “some of the inequities incurred by plaintiffs both and defendants as a result of an ‘all or nothing’ approach to recovery.” We are satisfied Legislature that the plaintiffs injured did not intend to exclude in strict liability Comparative situations from the Negligence Act thereby subject them to a might risk which be extreme- ly harsh.

In many plaintiffs situations alleged negligence have both strict liability and sought theory. on To recovery either bar recovery contributory because of when the theory was strict permit and to in a reduced recovery amount when theory was negligence clearly inequi would be unjust. table and Daly v. Corp., General Motors 20 Cal.3d 387-388, Cal.Rptr. 575 P.2d We hold that Comparative Negligence applica Act is ble to strict liability actions in those areas in circumscribed which plaintiff’s conduct be found to constitute contributo ry negligence. There applica remains for our consideration the tion of this holding to the facts of this case.

IV Co., Inc., Cepeda In Engineering Cumberland 76 N.J. 152 (1978), a Court closely factory divided held that a employee, caught hand when it injured whose was became in a machine operating, which he was could be barred recovery from because the guard time he knew a device which would have prevented missing. though the accident was This was so even the manu- unit, an placed facturer should have interlock device on the inoperable which would have the machine in rendered the ab- guard. sence the The case was remanded for a new trial on a theory of contributory to consider whether unreasonably voluntarily subjected had and himself to a known danger by operating guard the machine the without on it.

The incongruous principles results reached under of Cepe- the are when dramatically exposed compared da this case with Cepeda. Cepeda plaintiff, In an from 18-year-old the Do- Republic, completed only grade minican who had the second to this he country working large come when was was in a factory under supervision foreman. He was operating a into plastic pellets. reasonably machine cut It was foresee- might guard able the machine be used in without place—that being why the reason the manufacturer should have inoperable guard it made if the were removed. There was no operating carelessly evidence that he was the machine at the time of the accident. hand,

On the other this case purchased Suter machine his it a thousand company, operated “probably had times” an eight-year period completely over conversant with he every aspect equipment. He knew that could deacti- on the treadle at stepping vate machine either his feet or pushing stop pushing moving He knew that button. charge rollers. lever would activate the Suter was Although the accident. he was operation at the time of careless lever, reaching pushing into the machine and under the doctrine, law, a Cepeda guilty as matter of he would not be contributory negligence.4 carefully, may the machine

Cepeda, operating who was Suter, careless, cannot be. It recovery. though barred from duty pre- is to not matter whether the manufacturer’s should coming dangerous from into contact with employee vent an employee accidentally from parts prevent or to an machine instance, In dangerous machine in motion. the one setting a machine on will employee who knows the risk is that in the machine caught his hands and in the accidentally get machine, employee accidentally will activate the other that the consequences. with the same applying contributory negligence result of peculiar This Cepeda’s unjustifiable Cepeda and not to is attributable to Suter principle Bexiga we enunciated in limitation of the Havir Corp., Bexiga Manufacturing N.J. In and its companion Finnegan Manufacturing Corp., case of v. Havir (1972), factory employee using punch press. N.J. 413 a was a pedal on a a ram Stepping punch foot caused to descend and a imposed hole in a metal disc. on the manu- Strict having provide safety prevent facturer for failed to device to operator’s being danger hands from the zone of when the Bexiga ram was activated. The noted that the Court negligence—placing his hand under the ram while at the same colleague’s interpretation applica accepted concurring our 4We have Cepeda’s contributory negligence doctrine to the facts in this case. tion of However, justify sending reasoning arguably Cepeda’s the issue of could completely contributory negligence jury. to the Plaintiff Suter was Suter’s easily operation.of He knew he could deacti familiar with the the machine. by walking by stepping or he could avoid the lever vate it on the foot treadle slag. steps There was some evidence that few to the other side to extract power prevent prior to turn Suter had on occasions used the treadle off that, accidentally being the machine activated. It could be contended from facts, voluntarily unreasonably exposed knowing he himself to the these hazard. time depressing pedal—was the foot the “very eventuality safety designed devices were guard against.” 60 N.J. at 412. It reasoned that would be anomalous to hold that defendant “[i]t duty has a to install safety devices but a breach of that duty results in no liability for the very injury duty was meant to protect against.” Id. Under the special present circumstances in Bexiga of a factory injured worker using while an unsafe machine for its purposes, intended justice the “interests of dictate that contributory negligence be unavailable as a defense to either the liability or strict claims.” Id. Bexiga

Before was decided we had held that voluntarily encountering a danger might known constitute contributory negligence. Cepeda’s classification of Bexiga within that same general category effectively “special eliminated the situation” to Bexiga referred. In our view employee an engaged at his assigned machine, task plant on a Bexiga, as in meaning has no ful choice.5 Irrespective of the rationale that employee may have unreasonably and voluntarily risk, encountered a known we hold as a matter policy that such employee an is not guilty of contributory negligence. See 1 R. Hursh & H. Bailey, Ameri can Law Liability (2d Products 1974). ed. Accordingly, reject we Cepeda’s Bexiga limitation of to those cases where there was no “indication that unsafety of the machine was employee. known” to the 76 N.J. at 188. imposition duty

The of a on the manufacturer to make the operate or, machine safe to whether by installing guard as in Cepeda, by making inoperable it guard, without a means that the law does accept employee’s ability not to take care of adequate safeguard himself as an society interests which protect. justification seeks to policy Bexiga The is sound. We see no depart Bexiga’s reason to from elimination of contrib- passing upon employee may 5We are not herein other situations wherein an similarly meaningful be held to have had no choice. utory negligence employee injured where an due to a defect (whether design otherwise) in an industrial accident while using a machine for its purposes.6 intended or foreseeable The defendant manufacturer not permitted escape should be from duty breach of its to an employee carrying while out his assigned task under these circumstances when observance of that duty prevented would have very accident which oc curred.

Comparative negligence generally being applicable to context, plaintiff’s recovery measure the in a strict effect, what any, upon principle if does that have enunciated Bexiga Finnegan ? The Contributory answer is none. defense, negligence being fully agree unavailable as a we with Appellate comparative negligence Division that in this case play. does not come into

V judge charged jury trial that to hold defendant liable, proved: (1) four elements had to that the had for the reasonably ordinary been fit use for which it was intended; (2) that the defect arose out of design defendant’s machine; (3) proximately that the defect caused injury (4) or damage; and that reasonably was a foreseeable consumer product. Although or user of the this charge language did not conform with the of the instructions set Cepeda, forth in we are opinion of the that the charge under the substantially facts this case was correct and in accord with principles the set forth in with Cepeda respect to the strict liability design of a manufacturer for a defect. The trial court’s charge generally here conformed with approach developed the in our case law.

We have heretofore development described the of the strict liability commencing doctrine with Henningsen v. Bloomfield course, say deliberately injures employee 6 Of this is not to that an who himself will be able to recover.

169 Motors, Inc., (1960), is no need to retrace 32 N.J. 358 there Inc., 130, Uniroyal, 63 146-152 steps. Heavner v. N.J. those See premise is that (1973). Historically underlying the doctrine’s product impliedly engaged selling in the business one places it the stream of commerce goods which in represents that suitable, is, defects, they reasonably safe free that are are goods have been sold. purposes fit for the those 1, (1975). Implicit N.J. 7 v. Eastman Kodak 68 Herbstman representation the is the product’s presence the on market in the for which it was safely perform it functions that will Inc., 52, M 44 N.J. Karagheusian, A & constructed. Santor Products, Inc., 59 v. Yuba Power Cal.2d (1965); Greenman suitability Fitness and Cal.Rptr. P.2d synonymous safety. Cepeda with extended largely are terms but only reasonably include not intended also liability strict to product. foreseeable uses shifting from liability, of strict the focus principle

conduct, product, may generally, as in law be at the the seller distributes a as follows. If time summarized fit, it suitable and safe for its intend reasonably not product, purposes so that users or others reasonably ed or foreseeable with product in contact are expected who be to come thereof, responsible then shall injured as result the seller be Inc., Gimbel’s, damages.7 Newmark v. ensuing for the See previously described strict liabili (1969). We have N.J. v. Minnesota Justice Proctor in Jakubowski ty in these terms. (1964), 42 N.J. referred Mining Manufacturing, & showing “was unfit for its intended necessity of from the manufacturer.” Justice purpose purchased when Francis, theory of strict tort adopting doctrinal Inc., supra, explained: Karagheusian, v. A M in Santor & suitability limited the commercial function are not 7Fitness and pellets Thus, Cepeda product. machine could make did fact satisfy that it safe for user. the need Such doctrine stems from the between manufacturers reality relationship consuming and the to whom the are offered for sale. products public products Henningsen, great purchasing As we indicated in mass of the has public knowledge neither nor sufficient to determine if articles adequate opportunity bought or used are defective. must care Obviously skill, they rely upon of the maker. 32 N.J., 384, 161 A.2d 412. It must be reputation p. said, goods therefore, that when the manufacturer his to the for sale presents public he them with a are suitable and accompanies representation safe for they the intended use. N.J. at [44 64-65]. recently, More Justice Clifford in Scanlon v. General Motors Corp., (1974), 65 N.J. explained, product “A is defective if it is not fit ordinary purposes for the for which such articles are sold and used.” upon plaintiff proving strict

It is incumbent placed by product was defective when to demonstrate that See, g., e. Moraca v. into the commercial stream. defendant (1975); v. General Ford Motor 66 N.J. Scanlon 590; Corp., supra, Motors 65 N.J. at Jakubowski v. Minnesota Mining Manufacturing, supra, 42 N.J. at 182. It is not & necessary to that defendant created the defect. What is show product the defect did in fact exist when the important is that and was under the control of defendant. by was distributed alleged clear. many In situations the nature of the defect is material, weld, physical damage or some Imperfect defective Proof of such defects product exemplify in the the usual claim. evidence, by direct reasonable inferenc- may be demonstrated byor es which be drawn from the circumstances exclusion Co., supra, Moraca v. Ford Motor 66 N.J. at of other causes. 458; Corp., supra, 65 N.J. at 592-594. v. General Motors Scanlon perceive only question put

We that the additional to the defect, defects, jury involving design in a case vis-a-visother product design improper. improper whether the In some design proofs situations the nature of the will be the same as in other unintended defect cases. This occurs when it is self-evi- reasonably dent that the is not suitable and safe and expectation perform, contrary fails to to the user’s reasonable jobs that it would do the for which it was “safely built.” Products, Inc., 64, supra, Power Greenman Yuba 59 Cal.2d at Thus, Cal.Rptr. purchased 377 P.2d at 901. if one a bicycle improper whose brakes did not hold because of an design, the manufacturer’s responsibility would be clear without more. product satisfy The would not the reasonable expectations of the purchaser. absent,

In design defect case when this factor is other than assuming that the manufacturer knew of the harmful propensi ty product, Cepeda, supra, see 76 N.J. at “the question then negligent becomes whether the defendant was to people might by who be harmed that condition if they came into Wade, contact in the vicinity with it or were of it.” “On the Products,” Nature of Liability Strict Tort 44 Miss.L.J. (1973). article, Wade, In the same referring Professor to wrote,

improper design, “There is little here difference between negligence the action and the action for strict liability.” Id. at analyzed 841. Dean Prosser has proof problem by noting this “[sjince proper design fitness, that is a matter of reasonable the strict liability nothing negligence adds little or on the part of * * Prosser, manufacturer supra, at 659 n.72.8 § Noel, generally Negli See “Recent Trends in Manufacturers’ gence Design, as Warnings,” Instructions or 19 Sw.L.J. 43 respect proofs this relate to the conduct of the manu- reasonably prudent facturer. Did the manufacturer act as a designing by placing the item as he did and it on the person by condition, designed market in that or should he have it to safety certain features or some other modifications? incorporate Depending upon proofs, some factors which be con- unreasonably analysis Cepeda the criterion 8In we said liability of the dangerous appropriate “if understood to render principles.” substantially coordinate with on manufacturer at 171-172. N.J. jury deciding sidered the reasonableness of the manu- facturer’s conduct include technological feasibility of manu- product whose facturing design prevented would have accident, art; avoided the given known state of the and the likelihood will cause injury probable injury. Cepeda, seriousness of the supra, See N.J. at 174. We in passing only observe that the state of the art refers not practice the common in industry and standards the to but also other design practical alternatives within lim- technological and its at of the time distribution.

However, the it is function of the to court decide wheth er the the duty obligation imposed by manufacturer has and the liability strict principle. generally, As in tort law determination of duty depends existence of a of upon balancing the of nature risk, public the relationship the interest and the parties. of the Cepeda, supra, We have previously adverted in 76 N.J. 173-174, some question to of the factors to be The considered.9 ultimately public policy, one of the being dependent answer upon a consideration of all relevant factors to decide what is fair just. and Brody Hospital, See v. (1975); Overlook 66 N.J. 448 Wade, Liability Products,” 9See “On the of Nature Strict 44 Miss.LJ. 825, (1973); Co., Ridge 591, (7th 837-838 Collins v. 520 F.2d 594 Cir. Tool 1975), 949, 1421, (1976); cert. den. 424 U.S. 47 96 S.Ct. L.Ed.2d 355 Dreison AG, Volkswagenwerk, (4th 1974); stok v. Volkswagen 489 F.2d 1066 Cir. of 218-220, Young, 201, 737, (1974); America v. 272 Md. 321 A.2d 746-747 Co., 376, 386, 115, 121, Micallef v. Miehle 39 N.Y.2d 384 N.Y.S.2d 348 N.E.2d 571, foreseeability Dean Green has to referred the role of of harm in determin- ing duty following whether a in exists the manner: Foreseeability may consider; judge be a relevant factor for the to other may usually important factors and are more of the determination the duty; particular actually defendant’s the fact of risk in the case is what place conduct, by took as a result of defendant’s not what was foreseen likely place, brought the actor as to take it is this risk that must be by judgment duty [Green, “Duties, into focus the court’s on the issue. Risks, Causation, Doctrines,” (1962); emphasis 41 TexL.Rev. 58 original] Inc., (1969); Caputzal N.J. 596—597 v. Gimbel’s Newmark (1966). Dean has summa- N.J. 69, 75 Green Lindsay following manner: approach in the duty-risk rized the the issue determination of of and whether it includes the duty particular risk on the victim rests broad which underlie ultimately imposed upon policies generally the law. These be characterized as econom- policies morality, good group, justice ic of the administration of the as between practical law, and other considerations relative to the environment out of which the parties case found in all decisions of arose. are whether based on former decisions They on the court or a fresh consideration of the factors found in current It not be environment. need added extent of case duty scope any learning, good judgment can resolved sense experience, only judge—the molding law in the needs the environment. response [Green, (1962)] “Duties, Risks, Causation, Doctrines,” Tex.L.Rev. actions, Dean liability Applying principle same strict Restatement, Green, has written: referring to 402A § judge, subject to determine review, It is the function of trial appellate for the law on seller whether in the case the particular imposes injured Under of its to the consumer. “Strict .[Green, Liability violation duty Litigation,” A 54 Tex.L.Rev. 402A and 402B: Decade Sections (1976)] compara- jury for the are somewhat the Although considerations court, differ. their functions to trial decisional ble those the jury given be and the protection what should The decides court parties. just as between the reaching a result is concerned with the to minimize attempt is but an liability in sense Strict costs. to who should bear those and consider costs of accidents Hirschoff, & “Toward a Test in Calabresi the discussion See Yale Torts,” L.J. (1972), which Liability Strict to liability issue is decide suggest that strict authors position or who is in best “cheapest cost avoider” party is the and analysis accident costs between to make the cost-benefit is decision once it to act on that avoidance costs and accident it that Id. at approach, this is obvious Using made. 1060. is “in better employee factory than the manufacturer rather avoidance costs would exceed judge whether position both judgment.” that Id. accident costs and to act on foreseeable manufacturing whether the apply should principles same design. Though the mischance or to error or is due defect defec- product was proof to demonstrate nature of the Suitability is the same. differ, jury ultimate test tive product in the is whether the defect implicated safety are and design. improper material or in the imperfection an due to liability appropriate an strict stated that previously haveWe fitness, suitability reasonable in terms of given should be charge terms. concept this in similar expressed have safety. Others in terms of to the test Wade refers example, For Professor Wade, supra, 44 Miss.L.J. at duly safe. product is whether 839-840. Restatement, however, 402A

Section of the provides that a product seller of a “in a defective condition unreasonably dan gerous” subject will be for harm thereby.10 caused (Emphasis supplied). Cepeda adopts this language suggests that a jury charged as follows: dangerous” A is in a “defective condition product if it is so unreasonably likely to be harmful to that a persons reasonable property manufacturer prudent knowledge who had actual of its harmful character would not it on the place market. knowledge It to find that this defendant had necessary

harmful character of the in order to determine that it was in a dangerous.” “defective condition N.J. unreasonably [76 174] Cepeda appears thus to have added another jury dimension to instructions in design defect Incorporation cases. of the “defec- originally 10Section 402 when adopted applied foods, only and the term dangerous” originally “unreasonably intended to apply only context. Later, section was extended to include all products. Wade, See “On the Nature of Strict for Miss.L.J. 825, 830-831 44 Liability Products,” (1973).

175 language jury in the unreasonably dangerous” tive condition plaintiff burden on than is charge impose greater to a appears only that estab- warranted, require plaintiff it for seems in the condition created be a that addition lish defect but been said inclusion of the It has unreasonably dangerous. dangerous” in the Restatement formula is “unreasonably phrase existing currently in responsible for the confusion partially Commerce, Interagency liability Dep’t U. S. products law. 2 Final Liability, Liability: Product Task Force on Product Study Report Legal 18 language, rejected also this Supreme Court has

The California apparent imposition of a dual burden. of the part in because 433, 121, Cal.Rptr. 104 Corp., 8 Cal.3d Cronin v. J. B. E. Olson that the Wade has commented (1972).11Professor 501 P.2d 1153 astray jury may lead a for language Restatement “[i]t ultra-hazardous, dangerous, abnormally or an idea like suggest must impression that give rise to thus extremely dangerous.” unusually product was prove that the Wade, 44 at supra, Miss.L.J. 832.12 Cronin, position has to the stated in in 11California continued adhere Inc., Cal.Rptr. Engineering 573 P.2d Barker v. Lull 20 Cal.3d case, charged jury (1978), design trial court had that a defect design finding product a a is based on strict for defect unreasonably dangerous its use. The intended California Court, defendants, judgment Supreme reversing in favor of the reaffirmed “unreasonably dangerous” its determination in Restatement's Cronin gloss confusing unduly restrictive. The court on defectiveness was stated: Indeed, holding applied expressly in Cronin itself we stated that our * * manufacturing design as to defects *. Cal.3d [20 defects as well Cal.Rptr. at at 573 P.2d 451] adopted thought support of 12TheBarker court also Professor Wade’s its n.8, rejection “unreasonably dangerous” language. 20 Cal.3d at n.8, Cal.Rptr. at 234 P.2d n.8. at 452 Defining liability the in terms principle strict of a defect dangerous unreasonably an does not advance an condition understanding concept compre- a jury’s the and will not assist Accordingly, of the issues which it must resolve. hension the jury charged product should be terms of whether the was fit, reasonably suitable and safe for its intended or foreseeable by when into the purposes inserted defendant stream com- and, not, damage injury merce if whether as a result was contemplated incurred the users or others who reason- might ably expected say be to come in contact with it. This is not to jury that the receive additional should not instructions relative alleged example, to the nature of the defect. For product may or, inadequate case, because of unsafe instructions as in this the features. safety absence of The instruction should be tai- jury lored to factual situation to assist in performing its finding fact responsibility.

Delivery improperly designed of an machine constitutes delivery product. point, a defective that At whether the cause of the defect in the due design was or other Co., wise is material. Pike v. H. Hough See Frank Cal.3d 465, 475, 629, 636, 229; 85 Cal.Rptr. (1970). 467 P.2d Once shown, the defect is established and the other elements a case for strict has been made out. in the satisfactorily posed instructions instant case little, jury.

issues There was if any; dispute that the machine had not been properly designed and that it could have been jury with minor modification. The was instructed to if and, ascertain defectively designed so, unit had been if proximately whether resulting condition caused injury plaintiff as a reasonably foreseeable user. There was no need to passing dangerous" We note “unreasonably characterization

conflicts with those situations where the has plaintiff permitted been Karagheusian, recovery for economic such as in losses Santor v. A & M 44 N.J. 52 Inc., in a equipment had to show that charge to him. unreasonably dangerous defective condition VI Engi- then, Cepeda overrule Cumberland summary, we In contributory negligence as it held Inc.,supra, insofar neering plaintiff, case when an design a defect is a viable defense in setting, using the machine in an industrial employee in an manner, injured is because of reasonably foreseeable intended defect, would injury of that defect the and in the absence that not have occurred. applicable is Comparative Negligence Act

We hold that the negli- contributory to situations which strict those However, expand- a defense. we are gence would have been comparative contributory negligence, and ing concept the contributory negligence exists when no is immaterial factually or as a matter of law. either duty the of strict trial must determine whether The court so, doing weigh pertinent it all In should liability exists. jury, the to a the submitting When case risk/utility factors. an obli- charge that manufacturer has generally should court fit, reasonably are suitable gation products distribute purposes. foreseeable If that intended or and safe for their who may expected or others be violated and user obligation is result, injured as a then the are to come contact with De- ensuing damages. for responsible the the manufacturer In as well within that context. sign eases are covered defect in which the defect is not self-evi- design defect situations those the dent, charge jury also the on whether the trial court should manufacturer, known of harmful being it deemed to have reasonably prudent one. product, acted as a propensity of explain pertinent proofs, the trial court should Depending on prudence. of reasonable factors related the determination should design defect instruction aspect, Other than this pattern. follow usual judgment

The is affirmed.

CLIFFORD, J., concurring. judgment And,

I in the respectful- concur of the Court. most ly, Particularly in not much else it today. has done do I deplore bluntly grace de coup Cepeda administered v. Cumberland Co., Inc., Engineering (1978), barely N.J. weaned now and judicial victim of infanticide. I had thought that decision admirably analysis a method of exposition embodied and of profession guide which would serve the as a to the determina- cases; tion of future but the Court has chosen Cepeda to treat (to as expression) borrow Justice Stone’s “not better an than * * ticket, excursion good day trip only [that] Stone, quoted Miller, Justice Harlan F. in A. Supreme C. History (1969). Court and the appears Uses It Jose Cepeda just early. arrived at station a little too

In expressing my view amI not unmindful of the salutary principle casting one a minority vote would well to do state one’s position affirmatively it, reasoned done with rather register than any criticism of opinion. other filed But majority’s jurisprudential and delinquencies doctrinal in this case such compel response, are as to presume which I to make in explicate my order to own understanding of the field of law in which we find ourselves—one not without complexities. its my

Would that with majority differences were limited to just overruling precise its holding Cepeda, of but unfortu- they nately are not. To scope demonstrate the of those differ- ences is perhaps it well to pointing exactly start out what it it, is the has Court done. As I understand henceforth contribu- tory negligence in the sense of an unreasonable and voluntary exposure to a known will danger be available as a defense for a design-defect-strict-tort-liability only regard case with an injury incurred outside employee-factory setting. machine To the extent Cepeda contrary—and holds to the is, course, contrary of Cepeda's holding—it is overruled. In the process of making that majority determination the has run roughshod Cepeda’s thoughtful over approach design-defect- rejected suggested jury charge, its and has strict-tort-liability, approval of definition express recent upset has this Court’s 2d, Restatement, Torts, in found ALI Section liability strict of 402A), of “defective (hereafter Rest.2d terms 402A Sec. Cepeda, 76 N.J. unreasonably dangerous” for use. See condition indicated, with all of profound disagreement I am in 179. As at of warran- reject I the Court’s reintroduction this. Likewise do case, analysis type its reliance on of this ty concepts into the mixing of two. terminology, unhealthy and its exegetical linguistic mere is involved here than There more demonstrate, hope our differences are As I disputation. and, submit, I substantial. fundamental

I declares, appropriate that “an strict The Court ante at fitness, reasonable liability charge given should terms of “[fjitness suitability and are suitability safety,” and that safety.” at 169. Let us largely synonymous with Ante terms language right Plainly for a moment. pause there see, warranty, “suitability” comes from the law “fitness” and Mining Manufacturing, & 42 N.J. v. Minnesota g., e. Jakubowski 12A:2-314, 316, 317, whereas (1964); N.J.S.A. is, con “non-dangerousness”—is peculiarly tort “safety”—that true, out, points as that “strict cept. Cepeda it is While warranty con by borrowing began in tort here elsewhere negligence,” 76 establishing cepts in to avoid the need order tort, cases notions of employ the more recent N.J. particular- in Rest.2d Sec. 402A.1 See specifically as enunciated only good but for an view for the soul accurate 1Confession of error being case, my opinion advert to for the Court of the law. I must /That (1974), Corp., I wherein wrote that “[a] Motors 65 N.J. Scanlon General ordinary purposes product for which such if it is fit for the defective quite properly impales upon majority are used.” The me articles sold and 170, precisely my language, from at which suffers citation own ante using. majority today I Given defect that undertake to criticize opinion operative in the references elsewhere and the facts of Scanlon ly development strict tracing liability Justice Hall’s of the of in Inc., Uniroyal, tort in Heavner v. 63 N.J. By formula, suitability fitness and into the introducing the Court suddenly duty. has transformed the manufacturer’s Heretofore products the obligation marketing has been to avoid which defects, contain harmful 76 N.J. at henceforth it is to avoid putting goods in the stream of are commerce unsuitable. This, yet dry rejection before the ink is on our explicit “reasonable standard of fitness”:2 commercially fact that the instant “reasonably machine was fit for its purpose” pelletizing plastic obviously intended of strands is irrelevant to the postulate liability injured of strict tort to workman unsafety reason of the of design the machine due to a defect. at [Id. 176] serving warranty But do we this of terminol- digest no sooner up a ogy majority opinion in the than we are dished proofs proper respect design course. Now we discover that “relate to the conduct of the manufacturer. Did the manufac- a reasonably prudent person by designing turer act as the item as on in that by placing he did and it the market condition * * * design ?” Ante at “In 171. And: those defect situa- * * * condition,” “dangerous “unreasonably dangerous 65 N.J. at defect,” decision, together ground at 65 N.J. with the alternate 65 N.J. 596-98, any the outcome of would that case not have been different had the language unreasonably dangerous” of “in correct a defective condition been employed fit;” place of “not but the articulation what constitutes a out, does, “defect” not have as it would stood as an unfortunate aberration in expression our strict tort law. The in Scanlon cannot be characteriz- wrong. ed as other than dead passing assertion, majority’s by citation, 2One notes unencumbered suitability that fitness and are “not limited to the commercial function of the product” satisfy do “not the need that it be safe for user.” Ante at true, hardly 169 n.7. While this course it advances the discussion supports proposition largely “suitability” synon that “fitness” and are ymous safety. Certainly with can be unfit or unsuitable without unsafe; and, being excerpt demonstrates, Cepeda as the from above it can be fit and but still suitable unsafe. self-evident, trial court is not in which the defect tions * * manufacturer, jury on whether charge the should also Ante at 177. prudent one.” reasonably as a acted of the observations the real vice of the stated appreciate To it abundant- Court, Cepeda, which makes one need but return claim pursuing strict-liability-in-tort ly clear that a negli- the manufacturer’s design prove for defective need not terminology gence under the traditional “conduct-oriented” explains that Cepeda man. reasonably prudent the careful and the one hand negligence on parallel it draws between for 402A formula Sec. the now familiar Wade-Keeton-Rest.2d other, to the 76 N.J. at relates design defect on the cause of design to a defect balancing utility of risk and incident looks not risk-utility analysis inquiry The central in the action. risk of the magnitude whether the to conduct but rather is this: outweighed product is dangerous condition of the created in this fashion. by putting it out utility attained by the social Products,” Wade, Liability Tort the Nature Strict See “On Keeton, “Product P. See also 44 Miss.LJ. 834-35 Defect,” Mary’s L.J. Meaning of 5 St. Liability and the sure, encompass in a approach may, this (1973). While on a behavior prudent of reasonable and way a notion general manufactur- accurately more it views the part, manufacturer’s product, is on the irrelevant. The focus conduct as er’s conduct.

An is contained excellent statement of this critical distinction in the recent in the case of Supreme decision the Iowa Court Co.,Inc., 268 N.W.2d Rodgers Machinery Manufacturing Aller recent (Iowa 1978), in the even more expressly approved (Iowa N.W.2d Eickelberg case of v. Deere 1979), Cepeda on at 276 approvingly which likewise comments Supreme Court stated: N.W.2d at 444. In Aller the Iowa 269 Or. of liability. similarity proof Prosser, Torts, its ing the product We believe this Against This should be every In strict * * * use] proof of balancing is the same as that which is selling case the negligence ^[485] concerns the this [T]he balancing recognized as probability section 81, at designed utility real basis of process similarity 493-95, the product has been processes, reasonableness of the [weighing [of pp. or manufactured in used in involving as he 525 P.2d harm] injected negligence 145-149, type balancing there is a difference proof did. of conduct in unreasonable into of the manufacturer’s ^[1033] where it is stated: Phillips utility concerns gravity, is not processes proof cases. at 1037. a carelessness, v. Kimwood of the risk, of strict particular way. the condition question. danger had led This article between the [268 process liability. must be balanced to others. but Machine Company, the risk of against conduct in N.W.2d at 835.] (dangerous) behavior In two theories explained Despite negligence to believe * * * design aof this in has Cepeda a trial court is that instructs us that after So it going determined, enumerated factors by application of several jury, 76 N.J. go case should to risk-utility, to that a would by Dean Wade following model instruction fashioned (as modified) charge in a appropriate for inclusion in the design defect case: A is not safe if it is so to be harmful to [product] duly likely persons [or that a reasonable manufacturer had actual who

property] prudent [supplier], knowledge of its harmful character would not it on the market. It is not place knowledge to find that this defendant had of the harmful character of necessary in order to determine that it was not safe. [product] substituting simply The referred calls for modification unreasonably Rest.2d language 402A “defective condition Sec. duly dangerous” charge’s the model “not safe.” instruction, note, with this model It is well to in connection is not would be in a jury being asked—as it conduct this defendant case—to manufacturer’s evaluate upon prudence binding application of the standard of reasonable who, of reasonable hypothetical a in the exercise manufacturer care, knows or should know of his product’s dangerous propensi- ty. jurors told, effect, The being are not to concern them- selves with that “negligence-type” question just but to assume that the defendant in knowledge. court had that question becomes: given presumed knowledge part on the manufacturer, product is, can the be deemed safe—that is its utility such outweigh as to the risks? The Oregon Supreme Court grasped point when it said: degree dangerousness The article can have a which the law of strict liability though designer will not tolerate even the actions of the were reasona- entirely ble in view of what he knew at the time he and sold the manufactured planned determining

article. As Professor Wade whether out, points way degree condition of dangerousness the article is of the to be requisite (unreasonably dangerous; greater degree danger defective than a consumer right safe) has a is to expect; assume that the manufacturer knew of duly injure product’s as it and then to ask with such propensity did, whether, knowledge, something danger should have been done about before the greater was sold. In other burden is on the manufactur- words, placed knowledge er than is the case in because the law he has assumes dangerous the article’s he not be propensity may reasonably expected charged negligence. had have, he been with 269 Or. 525 Konoven, 457, [Roach (1974).] P.2d forth above charge, simple enough, The modified Wade set it when against in this be raised caused not one voice Court to majority casts approved only ago. today fifteen months But design Henceforth, above, in a jury it out pointed aside. as duty charged in of a manufacturer’s defect case will be terms fit, suitable and reasonably products “to distribute which are * * * 177; types of ”, special safe ante at and in certain does in which the design cases—namely, defect those users expectations of consumers rely upon reasonable charge the also regard with trial court should safety—“the * * * as a reason- acted jury on whether the manufacturer I greatest deference With the ably prudent one.” Ante at 177. are of whom majority, all suggest my of the brothers capable precise thinking of some of the most and most lucid judicial writing the bench and bar of this have nation been witness, privileged to hardly simplified jury’s by have task this apples warranty obfuscation—a mixture of the with the oranges negligence. I quite honestly for one do not under- stand how the judges jurors go trial are to about their business; not, and if I do I say venture to there be some of them who my will share comprehension. dullness of

This remarkable point proper about-face on the critical jury charge apparently recently stems from a contracted aver sion to Rest.2d 402A’s Sec. articulation of the strict principle in terms of a which is in a “defective condition unreasonably dangerous to the (Emphasis user or consumer.” supplied.) Remarkable, because after some considerable ambiv question (see alence on the Brody v. Hospital, Overlook 66 N.J. (1975)), we last term deliberately unequivocally adopted formulation, Cepeda, 76 N.J. at with no objection being registered. thought I have would the matter now entirely J., (albeit free Chitty, from doubt. As said in a context) Pursell, (1888), different in Lavery v. Ch.D. “Courts of ought puzzled Justice not to such old scholastic questions as begins to where a horse’s tail it ceases. and where tail,’ You are obliged to say, ‘This is a horse’s at some time.” The reversal of our position question on this is the more remark able only reported because the I jurisdiction case can find in this which strikes down Rest.2d Sec. 402A’s criterion of “unreasona bly dangerous” opinion, is a Law Division Glass v. Ford Motor Co., 123 N.J.Super. overruled, 599 (1973)—expressly again with out so much as protest, Cepeda, a word of N.J. at 180. And perhaps all, most majority’s remarkable of because the springboard for shunning dangerous” is a “unreasonably seven- year-old severely case by criticized most commentators and now even politely disapproved by very the court which decided it in place—Cronin first Corporation, J.B.E. Olson 8 Cal.3d (1972). Cepeda reviewed Cal.Rptr. P.2d in Cronin, n.4, 178-79, noting process rejected 76 N.J. at 171 doc of its Cronin Supreme Court’s modification the California n.4, Phoenix-like, once has arisen trine. Id. at 171 179. Cronin are factors which again to obtrude into the Court’s consideration to—and, in pointedly, anachronistic completely irrelevant more pains so comparison strict-liability-in-tort with—the structure takingly Cepeda. set forth polestar as the of the line cases

Cronin can be viewed demonstrate) “un (mistakenly, hope I to that the concluded as re reasonably requirement of Rest.2d Sec. 402A dangerous” quired a burden which liability in a case meet strict against. See discussion developed protect strict Bottling Co., P.2d 436 of Escola v. Cola 24 Cal.2d Coca J., (1944) (Traynor, concurring), in at 8 Cal.3d Cronin review of Cal.Rptr. 442, 1162. extensive 501 P.2d A somewhat be if there is to premise unavoidable underlying Cronin is impor exceedingly complete understanding of narrow but The California question tant which now has our attention. 402A terminolo Supreme Court was concerned that Rest.2d Sec. injured plain on the gy placed an unwarranted “dual burden” above, language As seemed tiff. indicated effect that existed and require plaintiff prove that a defect unreasonably dangerous. posed the defect a condition which was to the requirements Both of are with in comments these dealt requirement explains Restatement. g Comment those 402A to application “defective condition” limits Section is, leaves the seller’s situations “the time it product where at the hands, consum in a ultimate contemplated condition not er, An “unrea unreasonably dangerous which will to him.” defined, sonably in circuitous fashion dangerous” i, beyond that Comment one to an extent “dangerous as which is who ordinary consumer contemplated by which would be 186 it, ordinary knowledge with the common to com-

purchases the its characteristics.” munity as to The of critical concern the court was with these Cronin years definitions. As noted the Supreme California Court six Co., Inc., 413, later in v. Lull Barker 20 143 Engineering Cal.3d (1978): Cal.Rptr. P.2d in As we the Restatement draftsmen the Cronin, noted “unreasonably adopted dangerous” language confining as a of strict means the of application primarily “dangerous tort to an which article which is to an extent that liability beyond would be the with the it, consumer who contemplated by ordinary purchases knowledge common to the as its characteristics.” ordinary community rejected § com. In we the [Rest.2d Torts, 402A, Cronin, however, i.] flatly suggestion that in action if a should recovery products liability only permitted dangerous average a more is than the product consumer, contemplated by refusing might dangerous the low esteem in the hold a permit public injuries to diminish the that product manufacturer’s caused by responsibility we product. As noted in even if the consumer” pointedly Cronin, “ordinary loosening grip have that a risk lathes of their contemplated Shopsmith posed letting a of wood strike the “another not be Greenman” should piece operator, (8 1153). denied Cal.3d at 501 P.2d Indeed recovery. p. 133, Cal.Rptr. (1972) our decision in v. McLean P.2d 8 Cal.3d Luque Cal.Rptr. disagreement 1163—decidedthe same as Cronin reflects with the our day —aptly restrictive held the Restatement for in we implications formulation, Luque that unguarded a with an mower hole could be found power rotary properly in defective, of the the in spite fact defect the product patent hence in all within reasonable probability the ordinary contemplation consumer. rejection terminology our dangerous” Thus, the use “unreasonably Cronin jury might rested aon concern that a an part such interpret shielding as the instruction, Restatement had draftsman indeed as a intended, long defendant from so as the did not below fall product ordinary consumer’s expectations as to demonstrates, As product’s safety.7 Luque 7 This is not to say consumer are expectations ordinary irrelevant to the determination of defective, whether for as we out point below we believe that ordinary consumer are expectations significance of direct frequently to in the defectiveness issue. flaw Restatement’s our analysis, view, is that it treats such consumer expec- “ceiling” tations as a on manufacturer’s under strict responsibility liability principles, rather than as a “floor.” As shall we explain, past jury dangers involving such a extend to cases posed by misconception by design involving manufacturing defects as well as to actions defects: indeed, danger design of confusion is more cases which the perhaps pronounced argue manufacturer could that its satisfied consum frequently product ordinary er it was since identical to other items of the same line expectations, product with which the consumer well have been familiar. at [143 Cal.Rptr. 573 P.2d at 451.] indicates, the fears excerpt lengthy rather As the above Cepeda’s wholly irrelevant court are concerns of the Cronin reading cursory liability. The most design view of defect strict expectations’"' use “consumer Cepeda that it does not discloses treat- its definitional liability nor does “ceiling” as a of strict rest in dangerous” unreasonably ment of “defective condition 402A. i of Rest.2d Sec. g and any measure on Comments made must be clear, As a careful distinction Cepeda makes design defects. manufacturing defects and ordinary between not liability is design-defect-strict-tort N.J. at 169. The issue in plaintiff what the but rather by what was the expected the fore- on Liability is not based actually received and used. under for design, the harm occasioned seeability of the risk of foreseeability by requisite of Cepeda formula “the is chattel” dangerous propensity manufacturer of the brief, the 174. In 76 N.J. at imputed to the manufacturer. is traced injury actual harm which occasioned as product backward, marketing of through hindsight, to the envi- weighing process stage that the designed. It is at this recognizes process weighing by Cepeda sioned commences. That designed, but flawlessly as product that the was manufactured of harm risk an unreasonable design may pose that the selected costs, and their their comparable designs, against when viewed sim- process, balancing from this efficiencies. The test evolved meet must minimum a product that at a Califomia decisions establish being defec- found to avoid to safety consumer as ordinary expectations tive. put, jury degree asks of a ply whether contains which, balance, dangerousness on have would caused putting (See manufacturer to refrain from it on the market. charge supra model at 143.3

It in Barker quite clear Supreme Court of Califor- nia, returning while language Restatement as used in Cepeda, nevertheless has Cronin ever so fash- corrected clear as bring ion California into agreement substantial with New Jersey precise design-defect-strict-tort on the liability. nature of little, I can any, find if risk/utility difference between the analysis 172-76, proposed in Cepeda, 76 N.J. follow- and the ing approach presented in Barker: As Wade Professor has out, however, pointed ordinary expectations evaluating design

consumer cannot be as viewed the exclusive yardstick * * * defectiveness because situations consumer would not “[i]n many know what to because he would no idea safe the could expect, have how product (Wade, made.” On the Nature of Tort 44 Products, Strict supra, Liability 829.) recognized Miss.L.J. Numerous California decisions have 825, implicitly passing recognized 3 I note in recent that several decisions have dangerous” language “unreasonably Rest.2d Sec. 402A does not involve an additional burden on the but proof instead operates to define defective condition. See v. Vineyard Machinery Inc., Co. 119 Ariz. Empire (App.1978); 502, 581 Engineering 1152, P.2d 1155 Barker v. Lull Co., Inc., 572 P.2d at supra, 450-51; Auburn Machinery Works v. Jones, Co. 366 So.2d (Fla. 1979); 1167, (7th 1169-71 v. Huff White Motor Co., 565 F.2d 104, 109-10 1977) (Indiana law); Cir. Hunt v. 74 Blasius, 203, Ill.2d 23 574, 384 Ill.Dec. (1978); Eickelberg N.E.2d 368, 372 v. Deere Co., 276 at 444 supra, N.W.2d (Iowa 1979); v. Phipps General Motors Corp., 337, 955, 278 Md. 363 959 A.2d (Ct.App. 1976); Trading (S.D. Lovelace v. Astra 439 Corp., 753, 758 F.Supp. Miss.1977); v. (Or.1974); Kovonen, Roach supra, 525 P.2d at 128 v. Kennedy Ice (S.C.1978); Custom Equipment Co., Inc., 246 S.E.2d 176, 178 Community Television Services (S.D.S.D.1977); Dresser, v. 435 214, 216 F.Supp. Ford Co. Stead, Motor v. 574 S.W.2d (Ct.Civ.App.Tex.1978); 226, 229 Lamon v. Douglas McDonnell (Ct.App. 19 Corp., 515, 426, 576 Wash.App. P.2d 429-30 1978), Wash. aff'd 91 (Wash.1978). 345, Wash.2d 588 P.2d 1346, 1350 Cf. v. Brady Melody Homes Manufacturer, 121 Ariz. 253, 896, 589 P.2d (Ct.App. 1978).

189 this fact through varying linguistic and have made clear, formulations, that a design, be found product defective even if may it satisfies consumer ordinary through hindsight jury if design expectations, determines that the product’s danger,” embodies “excessive jury preventable or, other if the words, finds danger that the challenged design risk of outweighs inherent in the the benefits design. (E. g., of such v. Self General Motors 42 at Corp., supra, Cal.App.3d [1] 116 6,p. 575; Cal.Rptr. Hyman Gordon, at supra, Cal.App.3d [769] p. 262; Cal.Rptr. v. General Motors Buccery Corp., supra, Cal.App.3d [533] 605.) at p. 547, Cal.Rptr. evaluating A review of cases indicates that in of a past adequacy product’s design jury among to this latter pursuant standard, consider, other gravity danger challenged design, relevant factors, posed danger likelihood that such would the mechanical of a safer occur, feasibility design, design, alternative the financial cost of an and the adverse improved to the and to the consumer that would result from an consequences design. alternative 454-55; 573 P.2d at citations and [143 Cal.Rptr. footnote omitted.] This view of design-defect-strict-tort liability is so much more Cronin, refined than approach taken in and indeed so much more in keeping with concept that a manufacturer’s for defective design upon the harmfulness predicated is best the product, I am at a loss to understand the Court’s assertion that “California has continued to position adhere to the stated in Cronin.” Ante at 175. It seems clear that more recent California Barker, Cronin, decisions have embraced as the expression best of strict liability principles in California. See Titus v. Bethlehem Corp., Steel 91 Cal.App.3d Cal.Rptr. 372, 154 122, 126-28 (Ct.App.1979); Co., Cal.App. Korli v. Ford Motor 3d 149 Cal.Rptr. Joseph Garcia v. (Ct.App.1978); Co., Vince Cal.Rptr.3d 868, 843, 84 Cal.Rptr. (Ct.App. 148 847-48 1978); McGee v. Cessna Cal.App.2d Aircraft 1005, 82 147 Cal.Rptr. 694, 702 (Ct.App.1978). Barker fielded the effect, In criticism leveled at Cronin and risk-utility concluded that formula adds substance to the definition of design-defect-strict- liability. tort See especially Titus v. Corp., Bethlehem Steel supra, Cal.Rptr. 127, at in Brady of Barker and discussion Manufacturer, 896,

Melody Homes 121 Ariz. 589 P.2d (Ct.App.1978). is reliance on Cronin

Perhaps unfortunate than the even more liability two features of strict majority’s re-introduction of us, P.2d Barker tells at Cronin analysis in tort which discarded, con namely, a expectations” itself “consumer for liability. at 170-172. As duct-oriented test of strict Ante design former, suggests improper that “some the Court through proof shown design situations” failure can be product perform up expecta “to the reasonable failed to user’s jobs do which it built.’” ‘safely that it would for tion Products, 171, quoting Ante at from Greenman v. Yuba Power Inc., Cal.Rptr. P.2d 897 Given Cal.2d much-maligned expecta this resurrection of the “consumer’s test, inquire how might reasonably tion” this standard one safely would do the expectation product] “reasonable that [the jobs the modern for it be with squared which was built” can an not designed safely eye must with view but for each jobs which it was built simply toward use in the at 176-177. every reasonably Ante use is foreseeable. strict-liability-in-tort long way law come a since Green- Our has man, by expectations” relied test. on the Court for its “consumer backward, step complicat Today Jersey major New takes a one attempt design-defect-strict-tort ed Court’s bifurcate the “factor” of “consumer between situations where expectations” present, it is In the and those which absent. plaintiff’s proofs latter the “relate to the conduct of manu My objections to the “conduct” orien facturer.” Ante 171. already detailed herein. To approach tation of this have been that this bifurcation only thought those remarks I would add hardly profit to an of the law which could simplicity lends area from some clarification. although perhaps ex- diligent,

Finally, I must record haustive, majority’s support use anything effort to find

191 warranty language risk-utility in combination with factors—the “apples” and referred to above. It has been an “oranges” unproductive surfaced, however, search. What has is the clear preference of Rest.2d Sec. 402A language large majority jurisdictions. I my many would cast lot with the states which within recent times have adopted language reaffirmed the “defective unreasonably dangerous” following condition in the Co., Inc., cases: Vineyard Empire v. 502, Machinery 119 Ariz. 1152, 581 Bendix-Westinghouse Automo (App.1978); P.2d 1155 Co., tive Air Brake v. Casting F.Supp. Co. Latrobe Die 34, 427 40 Inc., Slepski Ford, v. Williams (D.Col.1976); 170 Conn. 364 A. 18, Jones, Co., 175, Auburn Machine Works Inc. v. (1975); 2d 178 1167, Corp., Huff v. White Motor (Fla.1979); 366 So.2d 1169-71 Blasius, 104, Hunt v. 74 Ill.2d (7th 1977); 203, 565 F.2d 106 Cir. Ill.Dec. 384 N.E.2d 574, 368, 23 Rodgers Aller v. (Ill.1978); 372 Co., Inc., Machinery Manufacturing supra, 268 N.W.2d at 833- Co., 35; Eickelberg v. Deere 444; supra, N.W.2d Bohnert 276 Co., Equip Co. v. 161, Eng. Cleveland Crane & 569 W.2d S. 164 Sears, Co., 926, Chappuis Roebuck & (Ky.1978); v. 358 So.2d 929 Corp., (La.1978) (Code equivalent); Phipps v. General Motors 278 Md. 337, 955, (Ct.App.1976) (Statutory 363 A.2d 958-60 Trading Corp., F.Supp. Lovelace v. Astra equivalent); 752, 439 Co., O’Laughlin v. Minnesota Natural Gas (S.D.Miss.1977); 757 826, N.W.2d Win 253 (Minn.1977) 829 (Statutory equivalent); Co., ters v. Sears Roebuck 554 W.2d 565, S. (Ct.App.Mo. 569 1977); Co., Brown v. North Manufacturing American 576 P.2d Co., 711, Tenney (Mont.1978); 158, Seven-Up v. 92 N.M. Inc., 205, 206 (Ct.App.1978); Rudisaile v. Hawk Aviation P.2d Inc., 578, 175, 177 (1979); Temple N.M. v. Wean United 592 P.2d 50 Ohio 317, Stuckey St.2d 364 N.E.2d v. 267, (1977); 270-71 Young Exploration Co., Wilson (Okl.1978); 586 P.2d Piper Aircraft Corp., 282 Or. (1978) 579 P.2d Barker in favor of 402A (rejects language approved Oregon Konoven, supra); Kennedy Equip. in Roach v. v. Custom Ice (S.C.1978); Community 246 S.E.2d Television Serv- (S.D.S.D. ices, Inc., 214, F.Supp. Inc. v. 435 216 Dresser Ind. 276, (Ct.App.Tenn. 1977); Wyatt Winnebago, v. 279 566 S. W.2d Inc., 1977); v. 574 Hamilton Motor Coach Ind. 569 S.W.2d Co., Tire Rubber v. & (Ct.Civ.App.Tex.1978); Kinney Goodyear (Vt.1976); Douglas Corp., A.2d 679 Lamon v. McDonnell aff’d, at 91 Wash.2d supra, (Ct.App.Wash.1978), 576 P.2d Inc., (1979); Machine 588 P.2d Schuldies Service (E.D.Wis.1978). F.Supp. II question in that the machine jury The in this case concluded by marketed designed was in a as defective condition proximately result computed damages defendant.4 It the total $25,000 fault at ing design from that and allocated defective plaintiff’s as plaintiff 50% each and defendant. Inasmuch for was than that of defend greater” fault to be “not determined ant, entered, judgment keeping in with that for $12,500. allocation, damages, of fault for one-half the amount conduct, or Division, concluding plaintiff’s Appellate The comparative of permit application fault, as was not such entry judgment of for the cause remanded principles, negligence by the as determined damages $25,000, amount of the full inasmuch as held that Division Appellate Specifically, the jury. intend- of a device by the absence “caused injury was plaintiff’s occurred,” decision this Court’s injury to avoid the ed (1972), Corp., N.J. 402 fore- Manufacturing Bexiga v. Havir question propriety charge 4No has been raised as to the of the trial court’s respect plaintiffs than with on other instruction conduct and the strict-liability-in-tort comparative negligence applicability to a claim based terminology respect design duty defect. trial court’s on to defendant’s put not been has issue. the availability plaintiff’s closed conduct as a defense. The rejected court below Bexiga longer defendant’s claim that is “no comparative viable because of the enactment of law in 1973.” in a question plaintiff’s

The threshold is the issue of conduct is, strict-liability-in-tort design case based on defect—that I any aspect plaintiff’s would first determine whether there claim, conduct which tested the law would serve to defeat his Comparative Negligence as it prior existed to enactment of Act, Cepeda Engineering N.J.S.A. 2A:15-5.1. In v. Cumberland Co., Inc., supra, length type this examined at Court interposed against which can be defendant’s conduct tort, strict liability in see at 76 N.J. 183-88 Cin trone discussion Service, (1965); v. Hertz Leasing Truck & Rental N.J. (1965); Maiorino v. v. Ava Weco Products N.J. 570 Ettin Inc., Leasing, (1969); Truck v. Havir Bexiga 53 N.J. 463 and Manufacturing Corp., conduct of the supra, and concluded that n., 402A—namely, sort in vol described Comment Rest.2d Sec. untary danger— and of a known encountering unreasonable plaintiff’s today would serve to bar has claims. Court completely holding, preserving undone that the defense of con tributory only fault in those strict-tort-liability-design-defect cases which employee-facto arise in some context other than the ry setting. machine preserve

I would analysis both the precise holding and the of Cepeda. We there concluded in type plain- that this of case a distinct, tiff’s conduct must separate be viewed from two and although unrelated, entirely perspectives. not aspect The first plaintiff’s conduct bears on the defendant manufacturer’s to duty protect against objectively prod- foreseeable use of his careless, uct—including negligent or abnormal use where that objectively kind of use is Accordingly, plaintiff foreseeable. a may, particular injury, under the circumstances of a be required main that the use part

to demonstrate as of his case foreseeable injury product question occasioned h, Rest.2d objective in an sense. This is the thrust of Comment 402A5, 176-77. How adopted Cepeda, supra, 76 N.J. Sec. at. ever we characterize conduct which fails to meet use, misuse, prod Comment h test—as abnormal alteration demon significant plaintiff uct—the is whether can inquiry 2 L. objectively strate the actual use was foreseeable. Friedman, at 3B- Liability Frumer & M. Products § 16A[4][d] (1976); Schwartz, Comparative Liability V. and “Strict Negligence,” nothing This has Tenn.L.Rev. to do contributory negligence. with illustrations, concededly primi- somewhat

Perhaps couple I to make here. tive, demonstrating point seek will assist in as a power saw If, instance, to use his undertakes he will not be heard digits, his clipper thereby snips nail because he is barred guard—not of a complain of the absence manufac- because the any contributory negligence notion of but use of his type duty protect against has turer no to the man who decides respect, say, Likewise with product. with designed hedge clippers trim his beard with motorized part h, pertinent as follows: Rest.2d Sec. 402A reads 5Comment normal h. A is not in a defective condition when it is safe for injury handling, handling consumption. If the results from abnormal beverage against a radiator to remove the as where a bottled is knocked use, cap, preparation much from as where too salt abnormal food, consumption, as where a child eats too added to or from abnormal however, ill, Where, candy he much and is made the seller is not liable. use, danger may particular anticipate a as has reason to that result from doses, only drug in limited he be where a is sold which is safe j), adequate warning danger (see required give and a to Comment warning product without is in a defective condition. sold such is, terms, drug prod- by food and the Comment its directed to Whereas originally, ucts, extends to all all of Section 402A was it now as indeed b, products. Rest.2d Sec. 402A. See Comment of his abbreviation the unintended device to avoid protective sure, they serve to to be but examples, Outrageous nose. principle. illustrate design-de- conduct critical to a plaintiff’s aspect of

The other an affirm- availability of goes case fect-strict-tort-liability us, “only range a limited of Cepeda instructs As ative defense. in the sense of contributory negligence conduct—not to an action be a defense or inadvertence—can carelessness mere at 185. Within that “limited in tort.” 76 N.J. liability for strict voluntarily and unreasona- by which conduct range” is him. This is the danger known to to encounter proceeds bly 402A, n, specifically Rest.2d Sec. found in Comment formulation 184-86, reading and in full supra, 76 N.J. at Cepeda, in adopted follows: as negligence when such negligence is not a defense of the plaintiff Contributory guard or to the defect in the to discover product, in a failure

consists merely contribu- hand the form of On the other against of its existence. the possibility proceeding to unreasonably consists voluntarily which tory danger, the name of under assumption and commonly passes a known encounter If the cases of strict this as other liability. under Section is a defense risk, danger, and neverthe- is aware of the the defect and discovers user or consumer injured he is it, and is to make use of the product unreasonably less proceeds barred from recovery. principle—ap- n the Comment and underscore reaffirm I would cases—for the strict-tort-liability-design-defect it to all plying negligence as a contributory ordinary “acceptance reason incompati- liability in tort would for strict in actions defense adoption which led to the considerations policy with the ble 185, A. 76 N.J. at first instance.” strict tort 2d at 832. im- duty nature of stems from the incompatibility

This free goods market produce manufacturers upon posed demonstrates, Bexiga As dangerous defects. unreasonably from salutary recognition represents a frank in turn duty design its responsibility to has a a manufacturer policy: may arise in injuries those only guard against so as 196 against injuries of intended use but also

the course Bexiga negligence. See result from foreseeable carelessness v. 412; Cepeda 69 N.J. at Manufacturing Corp., supra, v. Havir Inc., 186; Co., N.J. at Engineering supra, 76 Twer- Cumberland ski, Flask—Restructuring Assumption of Wine in a New “Old 1, Iowa L.Rev. Era,” 20-22 Liability in the Products 60 Risk Twerski, Negli- Comparative “The and Abuse of (1974); Use Ind.L.Rev. 797, 804-05 gence Liability,” in Products 10 n, 402A, Rest.2d Sec. acknowledging In that Comment accu conduct—unreasonable, rately sets forth that kind of exposure support an voluntary to a known risk—which will claim, I strict-tort-liability affirmative defense to a note in jurisdictions accepted the numerous which likewise have passing Industries, Inc., g., e. Dulin v. F See, Circle 558 F. principle: this Co., v. A. V. 456, (8th 1977) (Ark.Law); Good Chance 2d 468 Cir. Harley-Davidson, Hunt v. 217, (Colo.App.1977); 222 147 565 P.2d Ga.App. Valley Air- 44, 15, Sun 248 16 (Ct.App.1978); S.E.2d lines, Inc. Avco-Lycoming Corp., 598, F.Supp. v. (D.C.Id. 411 602 Co., Ill.App.3d Clark v. 1976) (Idaho Law); 514, Crane Carrier 69 (Ill.App.1979); Coty 26 Ill.Dec. 387 N.E.2d v. 41, 871, U. S. 873 Co., Inc., Slicing Ill.App.3d Mach. 15 Ill.Dec. 237, 687, 58 373 Tri-State, 1371, v. Etc. Fid. & (Ill.App.1978); N.E.2d 1377-78 Co., Ins. Cas. Tulkku v. 657, (La.App.1977); 364 661 So.2d Rees, Etc., Macksworth 128, Mich.App. 472, 76 257 N.W.2d Sears, Company, Means v. 131-32 (Ct.App.1977); Roebuck & 550 Mfg. S. Brown v. North American 780, (Mo.1977); W.2d 787 fn.6 Co., Tools, (Mont.1978); Hagenbuch Snap-on v. 711, 576 P.2d 719 Inc., F.Supp. 676, (New (D.C.N.H.1972) Hampshire 680-81 Aviation, Inc., 177; Rudisaile Law); supra, v. Hawk 592 P.2d Olson v. A.W. Chesterton (N.D.1977); N.W.2d Ind., Inc., Wyatt Winnebago 566 S. W.2d (Ct.App. v. Corp., Mitchell v. Freuhauf Tenn.1977); (5th 568 F.2d 1978) (Texas Law); Rigtup Strawberry Water Users Cir. Assn., Morningstar v. Black (Utah 1977); 563 P.2d (W.Va. Co., 683-84 Manufacturing Decker S.E.2d 1979). of this important feature emphasize to an

It is desirable defense, subjective namely, requirement its of a affirmative actually aware plaintiff conduct. Was analysis plaintiff’s of the see, in fact product? plaintiff Did danger posed by know, danger, and nevertheless appreciate understand and it? Did proceed in the face of make a conscious decision plaintiff’s common inadvertence color occupational duress or Brown danger? avoid that risk of See capacity appreciate 719; Dulin v. supra, 576 P.2d at Mfg. v. North American 468; Twerski, op.cit., supra, Inc., 558 F.2d at supra, F Ind. Circle 22-25; Twerski, op.cit., supra, 10 Ind.L.Rev. 60 Iowa L.Rev. at 811-14; Fischer, of Com- Liability—Applicability “Products Risk,” Assumption of the to Misuse and parative Negligence per- questions These and other Mo.L.Rev. unreasonable, volun- on taining to an affirmative defense based should not be product known hazard self-exposure to a tary They speculation by jury. for a to become matters permitted trial court is in those cases where the charged only should plaintiff’s which would indicate a that evidence exists satisfied and, further, his product’s danger knowledge actual harm. voluntary encountering of this unreasonable and Coty v. U. S. is well-illustrated appropriate analysis Co., Inc., recovery personal There for supra. Slicing Machine in a fast-food restaurant by a worker injuries sustained sheer, upon based of a meat the manufacturer sought against appeal- manufacturer design defect. The liability for strict tort verdict, upon jury a judgment entered plaintiff’s ed from voluntary self- unreasonable plaintiff’s the issue of raising 402A, set forth in Rest.2d Sec. a known risk as exposure presented no breach thereof duty and n. Defendant’s Comment of an available as the absence appeal, inasmuch problem on getting her prevented plaintiff’s easily have guard, which could sheer blade, conclusively established cutting near the hand the avail To determine dangerous product. unreasonably as an conduct, on affirmative defense based ability of the These the accident. to the facts of Illinois court looked girl,6 had worked fifteen-year-old plaintiff, revealed On the prior to the accident. year for over a the restaurant slicing meat on defendant’s injury she was occasion of her and a movable stationary rotary blade means of a product by compo The latter slicing. tray which held the food rotating blade back and forth over nent was maneuvered injury to her Immediately prior reciprocal gears. juicing, and prevent towels to paper the meat in wrapped

had being which was paper excess attempted she to remove when cutting operation, the her hand during sliced with the meat tray into the blade. mechanized meat moved the meat and her hand. The blade severed as follows: defense issue the affirmative

The court treated switching removing the towels without conduct in paper In this case plaintiff’s filling a seconds in the midst of over a of a few off the took period place power made a establishes that split-second order. The evidence plaintiff customer's from was farthest while the roast towels, away to reach for the decision paper turning standing it off and the machine without in front of the while blade, her thought of the would thrust that the equipment without conscious operation revolving with the blade. The defendant into contact hand almost immediately proving of of risk. There was neither the defense has the burden of assumption and decision to made an informed voluntary direct evidence that plaintiff dangerous machine; nor the encounter the obvious risk posed by unreasonably age although would, that 6The decision did not turn on the of the employee, determining the nature and effect of course, plaintiffs of be a factor in The Illinois court out Allen, pointed conduct. See Goss v. 70 N.J. that jury draw the reasonable inference that is not sufficient that a could [i]t girl danger aware of and would the a 15 old would be year appreciate seeking to remove the these circumstances. Plaintiffs action paper stopping a act in “voluntary” without the machine must deemed towel of the risk. Ill.Dec. [15 order for it to constitute an assumption N.E.2d 1378.] age, considering was there sufficient circumstantial evidence, plaintiff’s experi- understanding, resulting knowledge, the obviousness defect and the ence, danger, jury to a to draw a reasonable inference that made a plaintiff permit judge danger. trial to encounter the Therefore, considered choice properly risk motion that had assumed the as a matter of denied defendant’s plaintiff granted favor the issue motion to find her on as law, plaintiff’s properly Ill.Dec. of 373 N.E.2d at matter law. [15 1378.] us, to principles stated above the case before it Applying the Suter’s conduct did not apparent at once becomes objec- his give Viewing rise affirmative defense. actions to an machine—work- conclude that use tively one must Suter’s proximity close mechanisms in ing operating This, objectively an foreseeable use. engagement gear—was bearing on the unrea- along with other factors in our case law product, support serves to dangerousness sonable designed. defective as jury’s conclusion that machine was However, subjec- under the examination conduct 402A, n, by Rest.2d Comment guidelines suggested tive Sec. no there was evidence before the leads to the conclusion injury. choice chance Such a trial court of considered made necessarily have to have been in Suter’s choice would knowledge appreciation full of the risk associ- instance with exposed potential with lever’s sudden activation ated object, with as due to contact an such an the roller mechanism Rather, operator’s body, during the course of work. Suter's so, careless, entirely any of simply clearly and free conduct was Hence, case, my view of the of deliberation. under element may attributable to does not whatever defeating that contributory purposes to fault of amount law, upon policy a matter of and imposed, which as dangerous product. unreasonably manufacturer of an the elected, policy, a matter of to rule out the majority has as employee-factory n the ma- application of Comment conduct in support policy decision, suggest, It without setting. chine is a I research, in any anywhere by diligent case discoverable However, I support Bexiga, supra. no in specifically I find such undertaking rehashing profitless will embark on the not here argument, object recently so sides of that respective 201-03, Cepeda, 76 N.J. at 183-88 and energies our in see on statement improve Judge as I cannot Conford’s inasmuch my position then and now. that case of I only would add I the bedrock policy this. understand adopted by majority substantially to be as stated in Justice Cepeda, Schreiber’s dissent in as follows: ** * take care of user’s to ability law does not [machine] accept [T]he safeguard seeks of the interests society protect. himself as an adequate generally limited who have so with This is respect employees, particularly * ** justice an a matter of choices [A]s public policy occupational remaining on not be from because should recovery employee precluded looking job. Accordingly for the user is on some of burden of out placed should this burden more Furthermore, probably manufacturer. imposition N.J. lead avoidance. 199-201.] to accident [76 true, why But if all this be then should the defense of contribu- in the machine tory only employee-factory fault be abolished setting? today question, it reserves I take Court (as as well it should. While I the reader perhaps would detected) any this under circum- now have abolish defense imag- stances—employment presently or otherwise—that I can ine, policy distinguish I no reason rooted in perceive from, factory say, machine worker the sandblaster electrocuted Industries, Inc., supra. in a F. water tank Dulin v. Circle Or from a boom device in Good v. A. V. operating the electrician Co., supra. operator Chance from the crane in Clark Or from supra. employee Crane Or the restaurant Carrier Inc., Coty Slicing supra. Machine Co. from the v. U. S. Or Tri-State, employee fixing a Etc. v. Fidelity tire in & Cas. Co.,supra. thought occupa- Insurance it the that the Is limited employee-facto- tional choicesare more “institutionalized” in the

201 are, they why I it. But even if ry setting? machine doubt take that into account be jury cannot entrusted has success- determining the defendant manufacturer whether employee-plaintiff’s of that fully proving borne burden its voluntary and a known risk was truth both encountering, of they suspect I would ? In those rare cases—and unreasonable proof burden of only found on rare occasion—where that sustained, I notion that the would not be at all affronted employee would be better accident-avoider cost-avoider -type n fault. guilty Comment

Ill issue, my in- comparative negligence In the absence of question the central of this no further. But quiry go would addressed, the princi- and that is whether appeal remains to be Act, Negligence N.J.S.A. Comparative set forth in the ples 2A:15-5.1, upon based strict-liability-in-tort case apply to applies. that statute design defect. I would conclude being stated in Part II hereof line bottom is this: conclusion type not constitute conduct did Suter’s any recov- completely foreclose fault which would contributory standard of Negligence Act ery pre-Comparative under the as a basis for fault, that conduct serve neither can contributory or the liability of defendant manufacturer reducing the comparative recovery under amount principles those side that coin is that other principles. The to the level of plaintiff’s conduct rises pertain where should known risk. self-exposure to a See voluntary unreasonable 39-51; Twerski, 60 Iowa L.Rev. op.cit., supra, generally, Twerski, Fault—Reth- Comparative “From Defect Cause 297, Marq.L.Rev. Concepts”, Liability inking Some Product 149, 80 Wash.2d (1977); v. Fischer & Porter Teagle Corp., Cal.3d (1977); Motors Daly P.2d General (dissenting opinion, 575 P.2d Cal.Rptr. 202

Mosk, J.); Inc., Busch v. Busch Const. 262 N.W.2d 394-95 (Minn.1977). preface

The above serves as both a and a conclusion to issue, recently discussion this which has received considerable community attention from both the academic and the courts. See, Schwartz, g., e. V. Comparative Negligence, (1974); 195-96 Twerski, “The Many Inquiry Faces of Misuse: An Into the Emerging Comparative Causation,” Doctrine of 29 Merc.L.Rev. Twerski, passim (1978); 402 op.cit, supra, Marq.L.Rev. 60 297 ; Fischer, passim ; Wade, op.cit., supra, passim 43 Mo.L.Rev. 643 ; op.cit., supra, Schwartz, 29 passim Merc.L.Rev. 373 V. op.cit., ; supra, Schwartz, 42 passim Tenn.L.Rev. 171 V. “Contributory Comparative Negligence, A Reappraisal,” 87 Yale L.J. 697 passim (1978); Comparative Note “Products Liability Negli- gence Damages and the Allocation of Among Multiple Defend- ants,” (1976); Note, 50 “Comparative S.Cal.L.Rev. Fault and Liability: Strict Products They Compatible?”, Are 5 Pepperdine L.Rev. passim; 501 Butaud v. Suburban Marine Goods, Inc., Sporting (Alaska 1976); 555 P.2d 42 Daly v. General 1167-73; Corp., supra, Coats, Motors 575 P.2d at Kinard v. 553 Dorto, P.2d 835 (Colo.App.1976); Blackburn v. 348 So.2d 287 (Fla.1977); Sears, Edwards v. Roebuck Company, & 512 F.2d 276 (5 1975); Inc., Cir. Construction, Busch v. Busch supra, 262 N.W. ; 377 passim Co., 2d Melia v. (8th Ford Motor F.2d 795 Cir. 1975) (Neb.Law): Kirkland v. Corp., General Motors 521 P.2d (Okl.1974); Kennedy Inc., Hockey Club, Providence (R.I.1977); Teagle Co., A.2d 329 v. Fischer & supra, Porter 444-45; P.2d at Pan-Alaska Fisheries v. Marine Design Const. & (9th 1977) 565 F.2d 1129 (Wash.Law); Sciano, Cir. Dippel v. 37 Wis.2d 155 N.W.2d 55 It is well pertinent part to start with the of the text of the Act, Comparative Negligence adopted in 1973: negligence shall not bar in an action or Contributory recovery by any person legal damages negligence resulting his to recover in death or representative greater negligence property, was not’ than injury person if such sought, any damages recovery person against but negligence whom percentage attribut sustained of shall be diminished sustained person recovering. 2A:15-5.1.] [N.J.S.A. able to observes, to read the enactment if one were majority As the cropper, since it would come a easy literally, it would to actions only scheme extends comparative appear Indeed, reading has led literal such a negligence.” upon “based comparative of reject the introduction one court to at least Kirkland v. liability. See to strict tort principles negligence (where Oklahoma Corp., supra, 521 P.2d at 1367 Motors General to nearly identical of statute interpretation Supreme Court’s and semantic essential doctrinal upon focused Jersey’s New ruling negligence; the liability and strict distinctions between applied not be could negligence scheme comparative was that represents by Legislature one greater the than” formula chosen 7The “not systems. comparative negligence types These formu- of of the four common Schwartz, Negligence, supra Comparative length at in V. at lae are reviewed legislatively comparative and introduced both has been The structure 43-82. 1976, comparative in 29 judicially. as of late 32 states with Of the Sherman, Analysis by “An of change method. the former was effected 51, Statute,” Negligence Pennsylvania’s Comparative U.Pitt.L.Rev. 55 38 Cal.Rptr. California, 119 522 13 Cal.3d Li Yellow Cab v. Jones, (Fla.1973); Florida, (1975); So.2d 431 v. 280 P.2d 1126 Hoffman 1975), judicially adopted State, (Alaska P.2d 1037 Kaatz v. Alaska “pure” negligence. to reduce comparative The scheme works “pure” form percentage recovery proportion plaintiffs to the allocation of the in direct by type Miss. plaintiffs Mississippi statute. has enacted this fault. system. “slight-gross” allocation Nebraska uses Ann. 11-7-17. § Code operates Jersey’s greater than” formula New “not 25-1151. § Neb.Rev.Stat. equal plaintiffs recovery fault is plaintiffs the allocation of where to reduce plaintiffs is allocation Where than that of defendant. to or less defendant, majority recovery A greater barred. all than that of the e., equal, change; system i. where fault is with one minor use this statutes Merc.L.Rev, Wade, supra, op.cit., recovery may at 50%/50%, be had. no 373-74. Corp. Motors action.)8 also General See liability causes strict (Tex.1977). I think at this Simmons, But v. 558 S.W.2d Frank’s Judge Jerome profitably resurrect might one point reliable) warning that universally (although not oft-repeated * way any is no surer literally [t]here misread document than to read it *. nearly can, put place As as we we must ourselves of those who uttered the words, try they situation; to divine how would have dealt with the unforseen and, although by their words are far the most they decisive evidence of what done, they would have [Guiseppi are no Walling, means final. 144 F.2d (2d 1944).] Cir. word, join majority rejecting In a I would the literal approach upon reasoning policy and concentrate rather fault, adoption comparative and law behind the allocation leading apply result this scheme must to strict tort indicated, liability. I already apply As would it “across the board.” principal comparative aim of negligence formulae was to

ameliorate the harsh result of contributory negligence bar. observes, As the Court recognized Governor Cahill design this when he commented the time of the law’s enactment longer will a seriously injured person prevented be from “[n]o obtaining compensation injuries for his merely because he was comparative negligence laws of the several 8The literal variations the Jersey majority jurisdictions states also are numerous. New and the use may comparative “negligence” to which to describe those forms of actions York, hand, “negligence” referred. on the other uses and “strict liabili- New ty” in Rules Art. 14-A Practice § its laws. N.Y.Civ.Prac.Law and Commentaries, (McKinney’s 1975). Comparative The Uniform Fault C1411:l fault”, Act the “in actions based on and defines “fault” in this utilizes words subject person which to strict tort sense to include acts or omissions Wade, 1(a), (b), reproduced liability. Comparative Fault Act § Uniform op.cit., supra, (Appendix). 29 Merc.L.Rev. 392-401 in which he way in a minor for the accident responsible partially Governor, May from of the injured.” Release Office reasoning behind common if not universal 1973. This is the g., e. Butaud v. comparative fault enactments. See Suburban 46; Goods, Inc., supra, Daly 555 P.2d at Sporting Marine & 1166; Teagle 575 P.2d at v. Fischer Corp., supra, General Motors 443; Wade, Co., op.cit., supra, 570 P.2d at supra, & Porter 373; Schwartz, Comparative Negligence, su- Merc.L.Rev. at V. pra, at 77-78. compel balancing the comparative

The fault scheme seeks to Fault, respective faults of and defendant. course, culpability. negli- In generic connoting legal is a term gence, corresponds the defendant’s fault to the failure to exer- ordinary prudent man under the cise caution of injury, proximate- failure circumstances of the occasion fault relates to his failure to act ly causes harm. well-being, reasonably prudent person regard as a to his own describes proximately resulting injury. in his avoidable “Fault” with the respective parties’ relationships the law’s view of the injury. occurrence of support policy of “fault” likewise serve to consid-

Notions liability. Perhaps strict underlying erations the doctrine of Tray- is found in Justice best statement of those considerations Bottling concurring opinion nor’s famous in Escola v. Coca Cola (1944): 150 P.2d Cal.2d overwhelming injury time or health be an The cost of an and the loss of may injured, injury can be a needless for the risk of one, misfortune to the person among the as a cost of and distributed manufacturer, insured people marketing discourage the doing interest business. It is to public If having a menace to the such defects that are public. products products interest to into the market it is to the public place nevertheless find their way injury manufacturer, cause for whatever they may upon the responsibility negligent even if he is not in the manufacture of the responsible who product, injuries reaching such occur market. However for its intermittently and a is a constant risk the risk of their occurrence strike, and hazardly they general constant Against be a and general a risk there should one. such to afford such is best suited protection. the manufacturer and protection original.] in [Emphasis heretofore, my view the defendant-manufac- in spelled As out marketing of an upon the legal culpability premised turer’s Further, although the doc- dangerous product. unreasonably has evolved product in tort for failure liability trine of strict eliminating the difficulties salutary purpose of express from the case, Cola Escola v. Coca proving in a inherent J.,; concurring), (Traynor, at 441 Bottling supra, 150 P.2d requirement that a nevertheless remains the there The:strict liabili- fault. demonstrate defendant-manufacturer’s without equivalent liability by doctrine is no means ty guarantor fault, that a manufacturer is nor does it mean supra has endeavored As the discussion product. insurer of its strict-liability- clear, duty has a to make the manufacturer guard as to design its so design-defect case. It is to use, including arising in the course of intended against injuries negli- carelessness or may result from foreseeable those which consti- causing injury gence. duty proximately Breach of that manufacturer, it exposing in turn part tutes fault on the plaintiff’s successfully it establishes legal liability unless contributory fault. demonstrates, we have II hereof in Part discussion

And as the per- plaintiff’s fault kind of particular that a recognized long we said that supra, Cepeda, In cases. tains in strict jury’s from a would result recovery bar to complete voluntary expo- unreasonable plaintiff’s determination could be causing injury his proximately risk to a known sure 190. N.J. at policy.” justice “a fair balance viewed as remedy provided fashioning the Legislature, balance fairer Act, an even has struck Negligence Comparative e., (/. where those situations limiting severely contributory defendant’s) in which than greater complete bar. remains as fault found “negligence” the term conclude that therefore

I would fault which embraces that Act Negligence Comparative in the doc- strict-liability-in-tort operative in our has been heretofore plaintiff’s kind of only from this trine. It follows damages is reduce permitted to which can be conduct heretofore, principle of under the limited form complete- his claim would have barred contributory negligence, to a known voluntary exposure and namely, unreasonable ly, ” risk, n conduct. or “Comment fault which not constitute conduct did Inasmuch as Suter’s contributory negligence his claim under would serve to bar recovery reducing his basis for doctrine, can it form the neither join in the I therefore principles. comparative fault under judgment the. below. affirming of the Court judgment JJ., SULLIVAN, opinion. join this MOUNTAIN and Justices Justice HUGHES affirmance—Chief For CLIFFORD, PASHMAN, SULLIVAN, MOUNTAIN, HANDLER—7. SCHREIBER reversal —None.

For

Case Details

Case Name: Suter v. San Angelo Foundry & MacHine Company

Court Name: Supreme Court of New Jersey

Date Published: Jul 31, 1979

Citation: 406 A.2d 140

Court Abbreviation: N.J.