In a diversity action for personal injuries sustained by apartment house porter from trash compactor, the United States District Court for the Southern District of New York, Harold R. Tyler, Jr., Judge, set aside special jury verdict for plaintiff-appellant on issue of liability. Held, evidence sufficient to sustain liability of manufacturer under New York law of negligence and breach of implied warranty of fitness and appellant not contributorily negligent as matter of law. Reversed and remanded.
Oakes, Van Graafeiland and Meskill, Circuit Judges.
This appeal is in a diversity suit for personal injuries and loss of consortium*fn1 resulting from an accident which occurred on July 13, 1972, to Felix Merced, an apartment house porter, while working at a trash compactor manufactured by the appellee, Auto Pak Co., Inc. (Auto Pak). The United States District Court for the Southern District of New York, Harold R. Tyler, Jr., Judge, set aside a verdict for the appellant Felix Merced on the issue of liability only. A special jury verdict*fn2 had found that appellant was not contributorily negligent, that the machine was negligently designed or manufactured as well as defective and unfit to be used for its intended purpose, and that the defect proximately caused the accident which resulted in the loss of appellant's hand and part of his forearm. The court held, however, that as a matter of law there was no liability.*fn3 We reverse and reinstate the jury verdict.
In 1970, appellant's employer, Southbridge Towers, Inc., third-party defendant here, purchased and installed a number of trash compactors from appellee Auto Pak, including the one which injured appellant. That compactor, or "Gobbler," as it is somewhat ironically called, was located in the basement of a Southbridge apartment building, directly beneath a vertical trash chute. When trash is thrown down the chute it falls by gravity onto an angled deflection plate inside a hopper. The hopper is completely enclosed and opposite the deflection plate has a door which is hinged on the bottom at approximately three feet off the floor and which swings out and down. The trash theoretically falls down the chute, slides down the angled deflection plate and comes to rest temporarily on top of a horizontal ram located in a cylinder at the bottom of the hopper. When a sufficient amount of trash is collected in the hopper above the ram, an electric eye triggers a 30-second compaction cycle; the ram retracts allowing the trash to fall into the cylinder in front of it, and then slowly moves forward pushing the trash through a "snout" into a long, sausage-type plastic bag. The ram has sharklike teeth, about two and one-half inches long, and is capable of exerting 2,400 lbs. of pressure. This process, which is more accurately described as extrusion than compaction, is repeated by further triggerings of the electric eye until the bag is filled, at which time the machine stops, a porter ties off and removes the bag, replaces it, and reactivates the machine.
The Gobbler was advertised by Auto Pak as being "completely automatic" and "specifically designed for use where large volumes of refuse must be compactly and automatically stored, for later removal from the premises." In fact it needed constant manual assistance. The Southbridge superintendent, Mr. Herman, like certain other Gobbler users, found that it was desirable to have an attendant with the machine whenever it was turned on. Otherwise either trash would stick above the ram, block the electric eye and trigger the compaction cycle continuously, or trash would stick or "bridge" up above in the chute or hopper, thereby preventing any other trash from falling down to the ram. The bridging problem was not disclosed in the Gobbler manual, because, according to a representative of the company that made the installation for Southbridge, the manufacturer "wouldn't print the faults." However, the bridging difficulty had been communicated to the vice president of Auto Pak who had designed the compactor, but no instructions on what to do about it were given. The Southbridge supervisors, like other Gobbler users, devised their own procedure for handling the bridging problem. They supplied their porters with sticks and told them to open the hopper door and poke the bridged trash with the stick until the trash fell down. There was conflicting testimony as to whether or how emphatically the porters were told to turn off the machine with one of the two available switches before opening the hopper door. Appellant, in whose favor we are obliged to interpret the evidence, testified that he was never instructed to turn off the machine while poking at bridges; another porter testified that the hopper door was always open when porters were working at compactors. One problem with having the door open was that refuse could fall down the chute, bounce off the deflection plate and ricochet out the hopper door. In order to prevent this, a porter would have had to close the fire door, thereby separating the compactor from the chute. Apparently this was quite difficult at the time of the accident -- one porter said, "You had to put a lot of strength in it" -- and was rarely, if ever, done. Another problem with the stick-poking that manual assistance required was that, unless the switch was turned off, the Gobbler would continue to operate while the poking went on; in other words, it was not equipped with an interlocking device whereby the opening of the hopper door would automatically turn off the machine. A third problem with the machine -- as Merced was told by Mr. Nelson, "the big boss" -- was that rugs, carpets, boards and the like could "break" the machine, and glass and other sharp objects could tear the plastic bags. As a consequence, Merced was instructed to pick these items out of the hopper before they went through the ram cycle. The internal problems of the machine were accentuated by the fact that Merced was responsible to Southbridge for a number of other jobs so that he had only an hour and a half to prepare the rubbish for the morning pickup.
Appellant Merced observed the Gobbler in operation about three months before he actually started operating the machine in April or May of 1972. On July 13, 1972, appellant began work at 8:00 a.m. on the compactor as usual. At about ten o'clock, he was still working at it. With the hopper door open and the ram in operation, he was breaking up a bridge in the chute with his stick. He spotted a piece of wood which he thought would jam the machine lying or stuck on the deflection plate above and beyond the ram. As he reached, with his head in the hopper door, to take out the piece of wood, a bottle fell down the chute, bounced off the deflection plate and hit him in the head. As a result he was momentarily dazed and could not react when more refuse came down and pushed his hand in front of the ram. His hand was severed from his arm. He testified that he had not turned off the switch before reaching for the piece of wood because if he had taken the time to stop the machine the piece of wood would have fallen in front of the ram and would have created "a kind of problem that could break the machine."
Appellant's expert testimony indicated that the design of the machine was improper and that there should have been a direct feed or other device, such as a revolving screw, so that the refuse would be less likely to bridge. The expert also indicated that since the machine required manual assistance, good and accepted engineering practice required the installation of an interlock on the hopper door so that each time the door was opened the machine would automatically be turned off. The Auto Pak expert admitted that if the machine required the assistance of a porter to make sure that the trash fell down to the ram, as a purchaser you "should get your money back on the machine."
In setting aside the jury verdict for appellant, note 2 supra, Judge Tyler made four points: (1) that plaintiff was guilty of contributory negligence*fn4 and "not one for whom the dangers of usage amounted to a latent or concealed defect"; (2) that it is still the law of New York under Campo v. Scofield, 301 N.Y. 468, 95 N.E.2d 802 (1950), that a manufacturer owes to remote users only a duty to make a device "free from latent defects and concealed dangers" and that no reasonable factfinder could conclude that the occurrence of garbage blockages was a latent or concealed danger; (3) that the absence of any printed warning was a superfluity as far as Merced was concerned;*fn5 and (4) that, in respect to breach of warranty, there was no evidence to support the jury's determination that the machine was defective and unfit for use for its ordinary purpose and, even if the garbage blockages could be considered a latent design defect, the injury sustained here could not be considered proximately caused by the defect, referring to Bolm v. Triumph Corp., 33 N.Y.2d 151, 156-59, 305 N.E. 2d 769, 771-74, 350 N.Y.S.2d 644, 647-51 (1973), and again to Campo v. Scofield, supra.
Under the law of New York, a manufacturer may be liable for injuries resulting from the use of his product if the manufacture or design of the article was negligent, Campo v. Scofield, supra,*fn6 or if the defect causing the injury was in breach of an implied warranty of merchantability or fitness of the product, under a theory of "strict products liability," Codling v. Paglia, 32 N.Y.2d 330, 343, 298 N.E.2d 622, 629, 345 N.Y.S.2d 461, 470 (1973).*fn7 In Bolm v. Triumph Corp., supra, 33 N.Y.2d at 158, 305 N.E.2d at 773, 350 N.Y.S.2d at 650, the court extended the liability of manufacturers for "unreasonably dangerous (latent) design defects" under the implied warranty or strict liability standards articulated in Codling.*fn8 Although these two theories of liability, negligence and breach of warranty had somewhat different origins, it will be seen that they are closely related in theory, 2 F. Harper & F. James, The Law of Torts § 28.32 (1956), and have certain of the same features under New York law. The one which most concerns us is that it is a necessary, though not sufficient, condition of the manufacturer's liability to the user of a product that the injured plaintiff show that he could not, by the exercise of reasonable care, discover the defect and perceive its danger prior to his injury. See Bolm v. Triumph Corp., supra, 33 N.Y.2d at 159, 305 N.E.2d at 773, 350 N.Y.S.2d at 650; Codling v. Paglia, supra, 32 N.Y.2d at 342, 298 N.E.2d at 628-29, 345 N.Y.S.2d at 469-70.
Under either theory of liability, a plaintiff cannot recover in New York for injuries resulting from his willful exposure to a known or "patent" danger in the use of a product. It was established in Campo v. Scofield, supra, and reaffirmed in Inman v. Binghamton Housing Authority, 3 N.Y.2d 137, 143 N.E.2d 895, 164 N.Y.S.2d 699 (1957), that a manufacturer is not negligent if the defect or danger in a product is "patent" -- a buzz saw, an axe, an airplane propeller were examples used by the Court of Appeals in Campo to typify a product with patent danger. The Campo doctrine has been much criticized.*fn9 Some commentators and judges have, more charitably perhaps, looked at it as merely another way of stating an underlying theory of non-liability where the injured user is contributorily negligent or voluntarily assumes a known risk, see Restatement (Second) of Torts § 402A, comment n (1965), and to the extent that it involves a consideration of a plaintiff's behavior in relation to the defect it obviously overlaps those time-worn doctrines of tort law.*fn10 One such commentator put it this way: "the Campo decision indicates simply that obviousness of the defect, or even of the danger itself, should be one significant factor in the determination of whether or not the manufacturer has created an unreasonable risk." Noel, Manufacturer's Negligence of Design or Directions for Use of a Product, 71 Yale L.J. 816, 837 (1962). See also Clark, J., dissenting in Messina v. Clark Equipment Co., 263 F.2d 291, 293 (2d Cir.) (interpreting Campo as not shifting "the basic inquiry as to the reasonable foreseeability of the danger to a sterile definitional quibble over whether the injury was caused by a 'latent' or a 'patent' defect"), cert. denied, 359 U.S. 1013, 3 L. Ed. 2d 1037, 79 S. Ct. 1150 (1959).
We need not, however, take a position on whether the more charitable view of the Campo decision is correct, since Campo itself has been modified and the focus of our inquiry has been redirected by Bolm v. Triumph Corp., supra, even while that decision spoke in some of the same latent/patent language of Campo. In Bolm the Court of Appeals held that Campo is not a bar to all "second collision" recovery, permitting the plaintiff to go to the jury on the issue whether the dangers from a design defect are latent or patent. The Court of Appeals went on to say:
As mentioned above, we qualify our affirmance with a notation that the issue as to the latency or patency of the dangers from the design defect -- if the jury determines there was a design defect -- presents a question of fact which should not have been resolved by the Appellate Division on appeal from the motion for summary judgment. As Chief Judge Cardozo stated in Palsgraf v. Long Is. R. R. Co., 248 N.Y. 339, 345 162 N.E. 99, 101, "The range of reasonable apprehension is at times a question for the court, and at times, if varying inferences are possible, a question for the jury." Here the duty and, thus, the liability of the manufacturer turn upon the perception of the reasonable user of the motorcycle as to the dangers which inhere in the placement of the parcel grid on top of the gas tank. That is a question of fact which should be submitted, with the other issues, for jury consideration.
33 N.Y.2d at 159-60, 305 N.E.2d at 774, 350 N.Y.S.2d at 651. The language of the opinion is susceptible to an interpretation that a generally patent danger is sufficient to result in non-liability. See Twerski, From Codling, to Bolm to Velez, Triptych of Confusion, 2 Hofstra L. Rev. 489, 511-12 (1974). However, the decision to permit the jury to determine on the facts of the Bolm case the latent/patent question necessarily leads to the conclusion that it is the precise danger which must be patent. Cf. W. Prosser, Law of Torts § 447 (4th ed. 1971); Restatement (Second) of Torts, supra, § 496D, comment b. In Bolm a metal luggage rack or parcel grid was affixed in front of the driver's seat above the motorcycle gas tank. By insisting that the case go to the jury over Judge Jones' dissent, therefore, the Court of Appeals must have been reading into the test an element of foreseeability ...