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JIMINEZ v. DREIS & KRUMP MFG. CO.

November 18, 1982

HECTOR JIMINEZ and DALMY JIMINEZ, Plaintiffs,
v.
DREIS & KRUMP MANUFACTURING CO., INC., FEDERAL MACHINERY CORPORATION, and BELLOWS INTERNATIONAL, INC., Defendants. DREIS & KRUMP MANUFACTURING CO., Third-Party Plaintiff, v. AURORA ELECTRIC COMPANY, INC., Third-Party Defendant



The opinion of the court was delivered by: WERKER

MEMORANDUM DECISION

 HENRY F. WERKER, D.J.

 This is a diversity action in which Hector Jiminez ("Jiminez") seeks to recover damages for personal injuries he sustained while operating a press brake machine. Jiminez's wife has asserted a derivative claim for damages. The matter presently is before the court on the motions of defendants Dreis & Krump Manufacturing Co. ("Dreis & Krump") and Federal Machinery Corporation ("Federal") for summary judgment pursuant to Fed. R. Civ. P. 56. For the reasons that follow, the motions are granted.

 FACTS

 The machine on which Jiminez was injured was a press brake machine that is used to bend metal. The machine contained a general purpose press brake part that had been manufactured and sold to an unknown entity by Dreis & Krump 1962. The part apparently passed through several hands until, on January 2, 1973, third-party defendant Aurora Electric Company, Inc. ("Aurora"), Jiminez's employer at the time he was injured, purchased the part from Federal and thereafter incorporated the part into the machine.

 The general purpose press brake part manufactured by Dreis & Krump consists of a six-foot long vertically movable ram, an activating device that connects the ram to an electric motor and a bed toward which the ram descends. The ram never comes into direct contact with the bed because a space is left between the ram and the bed for a set of top and lower dies, which together constitute a mold for shaping the metal. The top die is attached to the ram and the lower die is placed on the bed. To bend the metal, the operator positions a piece of metal on the lower die and then activates the ram, which moves downward until the upper die comes into contact with the lower die. The metal is bent by the pressure and force exerted by the ram.

 It is the set of dies that gives the general purpose press brake part the capacity to perform a variety of functions. The dies are manufactured in a number of sizes and shapes and may be inserted anywhere along the length of the ram. They also may be changed by the user to perform different tasks at different times. The place where the two dies meet when the ram is activated and the metal is formed is known as the "point of operation." The size, shape and positioning of the dies determines the site of the point of operation. Dreis & Krump manufactured the general purpose brake part without dies and the dies that were being used when Jiminez was injured were neither designed, manufactured nor sold by either Dreis & Krump or Federal.

 As originally manufactured by Dreis & Krump, the activating device on the general purpose press brake part was a mechanical foot pedal located under the bed of the machine, eight to ten inches above the floor. To set the ram into action, the operator would have to place his foot on the pedal and exert approximately thirty-five to forty pounds of continuous pressure. This pressure engaged a clutch that caused the motor to be connected to the ram. The ram would continue to cycle up and down for as long as the operator kept the foot pedal depressed. As soon as the operator released the pedal, however, the ram would stop wherever it was in its cycle.

 Sometime in 1973, Aurora altered the part by removing the mechanical foot pedal and replacing it with an electric pneumatic activating device. With this device, the operator could activate the ram by pressing two hand switches. These switches were connected to air valves that allowed compressed air to enter the activating device, connect the motor to the ram and cause the ram to cycle. Aurora installed the electric pneumatic activating device without the assistance, knowledge or consent of Dreis & Krump or Federal.

 Jiminez was injured on June 16, 1978 while he was operating the press brake machine at the Aurora plant in Richmond Hill, New York. Apparently, the machine unintentionally recycled when Jiminez had his hands in the die area to remove a finished piece of metal. As a result, Jiminez lost three fingers on his right hand. The complaint alleges causes of action in negligence and strict products liability.

 DISCUSSION

 The courts of New York, whose law is applicable to the instant litigation, have recognized causes of action in negligence and strict products liability against the manufacturer of a defective product that causes injury. E.g., Robinson v. Reed-Prentice Div. of Package Mach. Co., 49 N.Y.2d 471, 403 N.E.2d 440, 426 N.Y.S.2d 717 (1980); Codling v. Paglia, 32 N.Y.2d 330, 298 N.E.2d 622, 345 N.Y.S.2d 461 (1973). As the law has developed in that jurisdiction, a defect may consist of the following: (1) a mistake in manufacturing, Victorson v. Bock Laundry Mach. Co., 37 N.Y.2d 395, 335 N.E.2d 275, 373 N.Y.S.2d 39 (1975); Codling v. Paglia, 32 N.Y.2d 330, 298 N.E.2d 622, 345 N.Y.S.2d 461 (1973); (2) improper design, Robinson v. Reed-Prentice Div. of Package Mach. Co., 49 N.Y.2d 471, 403 N.E.2d 440, 426 N.Y.S.2d 717 (1980); Micallef v. Miehle Co., Div. of Miehle-Goss Dexter, Inc., 39 N.Y.2d 376, 348 N.E.2d 571, 384 N.Y.S.2d 115 (1976); Bolm v. Triumph Corp., 33 N.Y.2d 151, 305 N.E.2d 769, 350 N.Y.S.2d 644 (1973); or (3) inadequate or no warnings concerning the use of the product. Torrogrossa v. Towmotor Co., 44 N.Y.2d 709, 376 N.E.2d 920, 405 N.Y.S.2d 448 (1978) (per curiam). Plaintiffs' claims are based on the last two categories.

 The initial question to be decided is whether, under the facts of this case, the law should impose a duty on the manufacturer of a general purpose press brake part, which later is incorporated into a press brake machine, to equip the part with safety guards to prevent the operator's hands from coming into contact with the point of operation. That question involves an issue of law and must be decided by the court. Donohue v. Copiague Union Free School Dist., 64 App. Div. 2d 29, 33, 407 N.Y.S.2d 874, 877 (2d Dep't 1978) (citation omitted), aff'd, 47 N.Y.2d 440, 391 N.E.2d 1352, 418 N.Y.S.2d 375 (1979); W. Prosser, The Law of Torts § 37 at 206 (4th ed. 1971). The determination whether one party owes a duty of care to another involves a consideration of several factors, including the ability of the defendant to develop an effective means of preventing the injury. Donohue v. Copiague Union Free School Dist., 64 App. Div. 2d 29, 33, 407 N.Y.S.2d 874, 877 (2d Dep't 1978) (citations omitted), aff'd, 47 N.Y.2d 440, 391 N.E.2d 1352, 418 N.Y.S.2d 375 (1979).

 In designing a product, a manufacturer must use the degree of care that is necessary to avoid an unreasonable risk of harm to those likely to be subjected to danger when the product is used in a normal or reasonably foreseeable manner. Micallef v. Miehle Co., Div. of Miehle-Goss Dexter, Inc., 39 N.Y.2d 376, 348 N.E.2d 571, 384 N.Y.S.2d 115 (1976). The degree of care that is required of the manufacturer is determined by balancing "the likelihood of harm against the burden of taking precaution against that harm." Robinson v. Reed-Prentice Div. of Package Mach. Co., 49 N.Y.2d 471, 479, 403 N.E.2d 440, 443, 426 N.Y.S.2d 717, 720 (1980) (citations omitted). For example, if the addition of a safety device would interfere with or destroy the functional utility of the product, the ...


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