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September 18, 1995

LEONCIO ANIBAL DEL CID, Plaintiff, against BELOIT CORPORATION, Defendant and Third-Party Plaintiff, -against- MAJESTIC MOLDED PRODUCTS, INC., Third-Party Defendant.

The opinion of the court was delivered by: TRAGER

 TRAGER, District Judge:

 In this strict products liability bench trial, plaintiff, Leoncio Anibal Del Cid ("Del Cid"), seeks to recover damages for the serious injuries he sustained when he attempted to free a chain hoist which had become entangled on an air filter of a plastic injection molding machine designed and manufactured by defendant, Beloit Corporation ("Beloit"). Del Cid claims his injuries were proximately caused by a design defect in the machine -- the failure to equip the machine with an appropriate device to guard a shear point on the top of the machine. Beloit claims that the machine was not defectively designed as it complied with all applicable industry safety standards for the guarding of plastic injection molding machines. Further, Beloit argues that Del Cid's actions were unforeseeable, and, in any event, his injuries were proximately caused by his negligence hoist. Finally, Beloit argues that should it be found liable to Del Cid it is entitled to contribution from Del Cid's employer -- third-party defendant, Majestic Molded Products, Inc. ("Majestic"). Beloit claims Majestic failed to train Del Cid properly on how to reposition an entangled chain hoist, and also failed to equip the chain hoist with a chain container which would have prevented the chain from becoming entangled with the air filter.


 At the time of trial, Del Cid was a 45 years old Guatemalan citizen who had been residing in New York for ten years (Tr. 14). Prior to coming to the United States, Del Cid received a secondary school degree in electrical sciences and studied architecture in college for six months (Tr. 14). Del Cid began working at the age of 14 while still attending school (Tr. 14). At the age of 16 and one-half, Del Cid started a business making metal doors and windows (Tr. 15). In this business, Del Cid employed as many as nine workers whom he personally trained and supervised, and for whose safety he felt responsible (Tr. 444). Del Cid left Guatemala in May of 1985 because his business was suffering and he was no longer able to support his wife and three children (Tr. 16). Del Cid speaks only Spanish, although he has a limited ability to read and write in English (Tr. 67, 398). Prior to his injury, Del Cid was quite athletic (Tr. 6, 16). Del Cid testified that he enjoyed playing soccer and swimming, and even ran marathons (Tr. 16).

 Beloit is a Wisconsin corporation which is engaged in the business of designing and manufacturing various types of industrial machines used to fabricate finished products. Compl. P3; Ans. P3. In 1977, Beloit's Jones Division manufactured a 600-ton plastic injection molding machine for Majestic (Tr. 300-03). This type of machine operates by pumping heated plastic into a mold made of two platens, each of which weighs anywhere from one to three thousand pounds (Tr. 256). One platen is stationary and the other moves horizontally by means of a hydraulic system to open and close the mold (Tr. 97-98). After the mold is closed, liquified plastic is injected into the mold and the product is formed (Tr. 98). Once the plastic product is formed, the moveable platen returns to its original position and the finished product is either automatically ejected from the mold or manually removed by a machine operator (Tr. 97-98). Beloit manufactured 24 machines of this design in the late-1970s (Tr. 302).

 Majestic is a New York Corporation with its principal place of business in Holbrook, New York (Tr. 252). *fn1" Majestic was engaged in the business of manufacturing various finished plastic products using plastic injection molding machines (Tr. 6, 16). At the time of Del Cid's injury, Majestic utilized 37 plastic injection molding machines in its Holbrook facility (Tr. 254).

 Shortly after arriving in the United States on May 26, 1985, Del Cid began working for Majestic (Tr. 16). At first, Del Cid worked as a hopperman -- loading the hopper of each molding machine at least once per hour (Tr. 17, 262-63). In so doing, Del Cid would carry a 50- or 55-pound bag of plastic pellets up a large platform ladder, open the bag with a blade, pour the pellets into the hopper, and then descend the ladder and repeat the process on another machine (Tr. 74, 259, 261). In addition to being a hopperman, Del Cid occasionally would work overtime assisting the machine operators by keeping their tables clean, trimming the finished products, and packing the product into boxes (Tr. 17). Del Cid continued working for Majestic in these capacities for approximately six weeks (Tr. 16-17).

 After his initial term of employment with Majestic, Del Cid worked for six years in construction, for another plastics factory, and as a housekeeper (Tr. 18-19). Del Cid began working for Majestic again in January of 1992 as a machine operator (Tr. 21, 66). As a machine operator, Del Cid was responsible for every aspect of operating a plastic injection molding machine -- monitoring the molding process, removing the product, trimming the product, and packing the finished product into boxes (Tr. 72). In addition to being a machine operator, Del Cid performed a number of other tasks for Majestic, including mold setting, assisting other machine operators and general maintenance (Tr. 21, 274).

 On June 16, 1992, Del Cid's right leg was severely injured while he attempted to reposition a chain hoist *fn2" which had become entangled on an air filter atop the oil reservoir of Majestic's machine number 30 (Tr. 21-42). On that day, Del Cid was working as a mold setter/mechanic and was responsible for, among other things, changing the platens on each molding machine (Tr. 274). In addition, Del Cid had been assisting another employee making boxes (Tr. 403). Immediately prior to his injury, Del Cid was asked by his supervisor, Alex Rodriguez, to move a chain hoist from a position over machine number 31 to machine number 29 (Tr. 34, 407).

 After Del Cid ascended the machine, he placed both feet on a two-inch-wide angle bracket over the machine's point of operation (Tr. 24, 430-32) -- "the mold area ... where the work gets done" (Tr. 105). While Del Cid was balancing himself on the angle bracket, he looked up at the air filter and attempted to free the load chain with both hands (Tr. 24, 434). As he attempted to free the hoist, Del Cid's right foot slipped off the angle bracket and came to rest on a tie rod (Tr. 24, 434) -- a metal rod which connects the two halves of the machine (Tr. 33). Almost immediately thereafter, as the machine was cycling, the mechanical stop bar *fn3" crushed Del Cid's right leg and he was severely injured (Tr. 24, 437).

 As a result, Del Cid's right leg was amputated below the knee (Tr. 2, 48). Shortly after his surgery, Del Cid was fitted with a cosmetic prosthesis (Tr. 51). In time, Del Cid was fitted with a functional prosthesis and received physical therapy so he could learn how to walk correctly (Tr. 52). However, approximately four months after he was fitted with the first functional prosthesis problems arose and Del Cid began to experience pain in his right leg and back (Tr. 54, 57). As a result, Del Cid was fitted with a second functional prosthesis (Tr. 291-93). It is expected that Del Cid's prosthesis will need to be replaced every three to five years over his lifetime (Tr. 295). In addition, Del Cid began seeing a chiropractor three times per week to alleviate his leg and back pain, and was still doing so at the time of the trial (Tr. 55). Obviously, Del Cid will no longer able to participate in athletics as he had in the past.


 Under New York strict products liability law, a plaintiff may recover for injuries sustained as a result of a design defect where "the product 'was not reasonably safe and [] the design defect was a substantial factor in causing [the] injury.'" Parsons v. Honeywell, Inc., 929 F.2d 901, 905 (2d Cir. 1991) (quoting Voss v. Black & Decker Manufacturing Co., 59 N.Y.2d 102, 107, 450 N.E.2d 204, 208, 463 N.Y.S.2d 398, 402 (1983)). To recover on such a claim, a plaintiff must demonstrate that the manufacturer failed "to exercise that degree of care in his plan or design so as to avoid any unreasonable risk of harm to anyone who is likely to be exposed to the danger when the product is used in the manner for which [it] was intended ... as well as an unintended yet reasonably foreseeable use," Micallef v. Miehle Co., Division of Miehle-Goss Dexter, Inc., 39 N.Y.2d 376, 385, 348 N.E.2d 571, 577, 384 N.Y.S.2d 115, 121 (1976), and that the design defect was the proximate cause of his or her injuries. Fane v. Zimmer, Inc., 927 F.2d 124, 128 (2d Cir. 1991) (citing Voss, supra, 59 N.Y.2d at 108).

 The determination of whether a product presents an unreasonable risk of harm involves the balancing of the foreseeability and gravity of the harm with the burden of preventing it. Micallef, supra, 39 N.Y.2d at 385, 348 N.E.2d at 577, 384 N.Y.S.2d at 121. Although the foreseeability of the misuse of a product is relevant to the issue of whether the manufacturer adequately designed the product to guard against the risk, the precise chain of events preceding the misuse need not have been foreseen to require the manufacturer to guard against the consequences of that misuse. Parsons, supra, 929 F.2d at 905-06. Rather, "foreseeability includes the probability of the occurrence of a general type of risk involving the loss, rather than the probability of the occurrence of the precise chain of events preceding the loss ..." Tucci v. Bossert, 53 A.D.2d 291, 293, 385 N.Y.S.2d 328, 331 (2d Dep't 1976).

 Based on the applicable New York law, this case presents a number of issues for resolution: (1) was the injection molding machine defectively designed, i.e., whether it presented an unreasonable risk of harm to Del Cid?; (2) what role, if any, did Majestic play in causing the injury?; (3) (a) was the design defect a proximate cause of Del Cid's injury, and (b) if Majestic did play a role in causing the injury, was it also a proximate cause of the injury?; (4) if both Beloit and Majestic were at fault and the proximate cause of Del Cid's injury, what are the degrees of fault properly attributable to each?; (5) what, if any, are the damages to which Del Cid is entitled?; and (6) (a) did Del Cid play a role in causing the injury, and (b) if so, to what extent should his recovery be reduced by his comparative fault?

 1. Design Defect - Unreasonable Risk of Harm

 As stated above, whether a manufacturer designed an unreasonably unsafe product involves a balancing of the foreseeability and gravity of the harm created by the product with the feasibility of a more safe design. See, e.g., Micallef, supra. Only where the foreseeability and gravity of the harm is so slight, or where the "the product would be unworkable [were] the alleged missing feature added, or would be so expensive as to be priced out of the market," will the manufacturer be able to escape liability for a defectively designed product. Id. at 386, 348 N.E.2d at 578, 384 N.Y.S.2d at 121.

 a. Design Defect - Applicable Industry Safety Standards

 To determine whether the plastic injection molding machine presented an unreasonable risk of harm to Del Cid, it is helpful to examine the industry safety standards applicable to the design and manufacture of such machines. Such standards were promulgated "to eliminate injuries to personnel associated with machine activity." ANSI B151.1-1976, Foreword. Compliance or lack of compliance with industry safety standards, however, is not dispositive of the issue of a design defect, see Parsons, supra, 929 F.2d at 906; DeRosa v. Remington Arms Co., Inc., 509 F. Supp. 762, 768 (E.D.N.Y. 1981) (Weinstein, J.), and other evidence concerning the design and safety of the machine may be considered. Parsons, supra, 929 F.2d at 906.

 At trial there was much discussion on the standards applicable to the guarding of plastic injection molding machines. Although both Del Cid's and Beloit's experts disagreed as to which standard applied to the case, both agreed that the most appropriate standards were promulgated by the American National Standards Institute, Inc. ("ANSI"). *fn4" ANSI standards are relied upon by the manufacturers of machinery and by experts in various fields to conduct evaluations of the safety of machinery and processes (Tr. 95). Here, two standards were discussed -- the Safety Standard for Mechanical Power Transmission Apparatus ("General Standard"), and the Safety Requirements for the Construction, Care and Use of Horizontal Injection Molding Machines ("Specific Standard").

 Section 9 of the General standard is entitled "Requirements for Guarding by Location." ANSI B15.1-1972. That section provides that "equipment guarded by location shall by remoteness from the working areas remove the foreseeable risk of contact by persons." Id. at § 9.1. More specifically, § 9.1.1 of the General Standard provides that, "to be guarded by location or position any moving part shall be at least 96 inches above the walkway, platform or work-space. Where the equipment has in-running nips, shear points ...

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