promulgated to guard against and minimize injury to workers, and to provide guidance to owners, employers, supervisors, and employees on the use of such hoists. See ASME/ANSI B30.16-1993, § II(a), (b). Specifically, Toth opined that the failure to equip the chain hoist with a chain container violated § 220.127.116.11(g) of the standard (Tr. 340). Section 18.104.22.168(g) requires a chain container to be used "where the slack load chain hanging from the hoist may create a hazard to operations or personnel." A chain container prevents the slack load chain from becoming entangled with any machinery or from coming in contact with personnel (Tr. 332-33). According to Toth, if Majestic's chain hoist had been equipped with such a container, the slack load chain would not have become entangled on the air filter of machine number 30 and the accident most likely would not have happened (Tr. 340-41).
Further, Del Cid testified that he witnessed chain hoists get stuck on the tops of Majestic's plastic injection molding machines at least six times (Tr. 35). In addition, Del Cid testified that on at least one other occasion, an employee climbed onto an operating injection molding machine to free an entangled chain hoist and was injured (Tr. 35-37, 438). Beloit also claimed that Majestic failed to train Del Cid properly on how operate the chain hoist, and to supervise him properly during his work. At trial, Del Cid testified that he was never instructed not to climb onto the injection molding machines while they were being operated (Tr. 437-38). Majestic failed to introduce any evidence concerning the training and supervision of its employees with respect to the use of chain hoists, or any admonitions not to climb onto injection molding machines while they were being operated (Tr. 273, 445).
To refute Del Cid's testimony, Majestic called on Glenn Davis, a former employee and general manager of Majestic from 1979 through 1993, to give testimony concerning Majestic's operations during the period when Del Cid was injured (Tr. 251). Although Davis testified that it was not Majestic's custom and practice to have employees climb onto injection molding machines while they were being operated (Tr. 260), he also stated that he was unaware of the specific training given to Majestic employees on the use of chain hoists or on how to perform procedures near or at the top of the plastics machines (Tr. 272-73). According to Davis, the training of employees was done on an "apprentice basis" and was the responsibility of the employee's direct supervisor (Tr. 273). However, Del Cid's direct supervisor, Alex Rodriguez, was not available and was not called as a witness for Majestic (Tr. 445). Based on Del Cid's testimony, and the lack of adequate refutation, it can be inferred that Del Cid never received a specific admonition not to climb onto the machines while they were being operated. Accordingly, given all the evidence, it was certainly foreseeable to Majestic's supervisors -- if they did not have actual knowledge -- that Del Cid would climb onto the machine in order to free the entangled chain hoist.
3. Proximate Cause
In order to sustain a claim for damages as a result of a design defect, a plaintiff must also prove that the defect was the proximate cause of his or her injuries. See, e.g., Micallef, supra. New York courts interpret proximate cause in design defect cases to require the defect to be a "substantial factor" in causing the injury. Voss, supra, 59 N.Y.2d at 109, 450 N.E.2d at 208, 463 N.Y.S.2d at 402. Given the characteristics of the plastic injection molding machine involved in this case -- an inherently dangerous and partially unguarded machine -- and Del Cid's unrefuted explanation of how the accident occurred, it is appropriate to conclude that the design defect was a substantial factor in causing the accident (Tr. 495). See Voss, supra, 59 N.Y.2d at 110-11, 450 N.E.2d at 209-10, 463 N.Y.S.2d at 403-04. Simply put, had an appropriate guard been in place over the point of operation of the machine, Del Cid would not have been injured.
At trial, Beloit argued that Del Cid's negligent misuse of the machine was the proximate cause of the accident rather than its failure to properly guard the machine. In addition, Beloit argued that Majestic's failure to train or supervise Del Cid properly on how to free an entangled chain hoist or to equip the hoist with an appropriate chain container were also proximate causes of the accident. Therefore, Beloit argued that it should not be held liable for Del Cid's injuries (Tr. 499).
Although a plaintiff's or third-party's negligent acts are always relevant to the issue of damages, seldom are they sufficient to preclude a finding that a design defect was the proximate cause of an injury. See, e.g., Voss, supra, 59 N.Y.2d at 110 n.; Rivera v. MKB Industries, Inc., 149 A.D.2d 676, 677, 540 N.Y.S.2d 316, 318 (2d Dep't 1989); Craft v. Mid Island Department Stores, Inc., 112 A.D.2d 969, 971, 492 N.Y.S.2d 780, 783 (2d Dep't 1985); Sheppard v. Charles A. Smith Well Drilling and Water Sys., 93 A.D.2d 474, 478, 463 N.Y.S.2d 546, 548-49 (3d Dep't 1983); Foley v. State, 265 A.D. 682, 685-86, 41 N.Y.S.2d 256, 259-60 (4th Dep't 1943) (the fact that an accident would not have occurred but for the intervening act is insufficient to defeat finding the original negligent act the proximate cause of the accident). Under New York law, a manufacturer can escape liability for producing an unreasonably unsafe product only where the intervening negligent act was abnormal, unforeseeable, and the sole cause of the injury. See, e.g., Woodling v. Garrett Corp., 813 F.2d 543, 556 (2d Cir. 1987); Grant, supra, 877 F. Supp. at 817; Derdiarian, supra, 51 N.Y.2d at 315, 414 N.E.2d at 670, 434 N.Y.S.2d at 169.
Here, even though Del Cid's negligent act of balancing himself on a two-inch-wide angle bracket in order to free the entangled chain hoist may have contributed to the accident, it can only be relevant to the issue of damages. As discussed below, see discussion § 5, while Del Cid's specific act of balancing himself on the angle bracket was unintended and might not be foreseeable, the fact that an employee might stand on top of the machine for some normal purpose and get hurt doing so precludes a finding that Del Cid's conduct was the sole cause of his injuries. See Woodling, supra; Vanskike v. ACF Industries, Inc., 665 F.2d 188, 195 (8th Cir. 1981), cert. denied sub nom., St. Louis-San Francisco Railway Co. v. Vanskike, 455 U.S. 1000, 71 L. Ed. 2d 867, 102 S. Ct. 1632 (1982); Grant, supra, 877 F. Supp. at 817; Sheppard, supra, 93 A.D.2d at 477-78 (citing Voss, supra; Micallef, supra). Similarly, although Majestic's failure to equip the chain hoist with an appropriate chain container and to train and supervise Del Cid properly on how to free an entangled chain hoist contributed to the accident, these failures do not belie the foreseeability that a person could be on top of the machine doing a normal and expected activity while it was being operated, even if not the particular activity involved here. See generally In re Brooklyn Navy Yard Asbestos Litigation, 971 F.2d 831, 839 (2d Cir. 1992) (employer's negligent failure to warn or otherwise protect employees against known dangers of asbestos were foreseeable and did not relieve manufacturer of liability); Woodling, supra, 813 F.2d at 556 (same). As stated above, had the pinch point been properly guarded, as it easily and inexpensively might have been, this accident never would have happened.
Moreover, within the context of this proximate cause analysis, even if Del Cid's alleged negligent misuse of the machine and Majestic's failure to provide an appropriate chain container and to properly train and supervise Del Cid all were unforeseeable, that would not defeat the fact that Beloit's failure to properly guard the pinch point was a proximate cause of the accident. See Restatement (Second) of Torts § 435(1) (1977) ("If the actor's conduct is a substantial factor in bringing about harm to another, the fact that the actor [did not foresee] . . . the manner in which it occurred does not prevent him from being liable. ") (emphasis added). See also Keeton, et al., Product Liability & Safety, at 502. As Professor Twerski notes, where a product has been defectively designed and has been unforeseeably misused by the plaintiff:
The defect was a cause of the injury and the misuse was a cause. Cause cannot be apportioned, only fault . . . proximate cause is after all a legal fiction. It is an analytical tool which helps us decide whether the harm is to be placed at the defendant's doorstep. There is no good reason why the issue raised by proximate cause or intervening cause should not be factored into the apportionment [of fault] between the parties. The relative accountability for the end result is something which can be taken into account in a fault apportionment.
Twerski, supra at 432. At most, therefore, Del Cid's and Majestic's actions can be considered additional proximate causes of the accident making the three parties joint tortfeasors. Id. at 431-36; Sheppard, supra, 93 A.D.2d at 477, 463 N.Y.S.2d at 548; General Motors v. Hopkins, 548 S.W.2d 344, 352 (Tex. 1977).
4. Beloit's and Majestic's Comparative Fault
As discussed in the preceding section, it is clear that the conduct of each of the parties contributed to Del Cid's accident. However, the question remains, how much fault is to be attributed to Beloit and Majestic?
Based on the evidence adduced at trial, it is clear that Beloit bears the greatest portion of the fault in causing Del Cid's injuries. Had Majestic attached an appropriate chain container to the chain hoist, the likelihood of a serious injury would have been greatly reduced, but not eliminated. The same cannot be said of Beloit's negligence. Notwithstanding Majestic's allegedly negligent acts, had Beloit properly guarded the shear point, the risk that Del Cid would have been seriously injured would have been almost completely eliminated. Accordingly, based on the evidence at trial, it is fair to conclude that Beloit is liable for two-thirds (66 2/3 percent) of Del Cid's damages while Majestic is liable for one-third (33 1/3 percent).
At trial, Del Cid's economic expert, Dr. Morton I. Jaffe, testified as to Del Cid's economic damages. Dr. Jaffe provided two projections which took into account Del Cid's future economic losses, medical expenses, and an offset for his prospective ability to perform alternative types of work in the future.
The only difference in the two projections is that one ("Table 2") assumes that Del Cid would continue working in a minimum wage until the end of his work-life expectancy, while the other ("Table 3") assumes Del Cid would find alternative work as an inspector or assembler doing sedentary bench work in a small electronics factory (Tr. 363).
At this point in time it is difficult to determine Del Cid's ability to perform alternative types of work in the future with any degree of certainty. However, given Del Cid's current limited physical capabilities and his limited ability to speak English, it seems unlikely that he will be able to do anything but a minimum wage job. Accordingly, Dr. Jaffe's projections in Table 2, which include an offset for Del Cid's future earnings from minimum wage jobs is the most appropriate measure of Del Cid's economic damages. Based on these projections, it is reasonable to find that Del Cid's total economic damages are $ 250,000, of which $ 130,000 represents future medical expenses and $ 120,000 represents lost wages.
In addition to his economic damages, Del Cid is entitled to recovery for the considerable pain and suffering he endured, and continues to endure, as a result of his injuries. Based on Del Cid's testimony at trial, and the testimony of Mr. Alfred Lehneis, the board certified prosthetist who has been treating Del Cid since his injury (Tr. 289-98), it is fair and reasonable to award Del Cid $ 150,000 for past and future pain and suffering.
5. Del Cid's Comparative Fault
The final issue is whether Del Cid's recovery should be reduced by his alleged negligent acts of climbing onto the plastic injection molding machine to free the entangled chain hoist. Based on the testimony at trial, it is clear that Del Cid did not act negligently when climbed onto the molding machine to free the entangled chain hoist. Specifically, Del Cid's unrefuted testimony established that for a number of reasons it was expedient and efficient for him to climb onto the machine to free the entangled chain hoist rather than use a ladder to do so. First, as the ladder closest to machine number 30 was cumbersome, it would have been very difficult and time consuming for him move it himself (Tr. 399-401). Second, Del Cid did not have the authority or opportunity to ask another employee to help him move the ladder (Tr. 402-03). Third, according to Del Cid, the ladder closest to machine number 30 was only appropriate for use in loading the hopper and was not appropriate to free the entangled chain hoist (Tr. 401, 417-19). Fourth, even if the ladder closest to machine number 30 would have been appropriate for such a use, in order for Del Cid to position the ladder in such a way as to reach the entangled chains, he would have had to remove the tables and other equipment situated on top of the operator's platform of machine number 30, and move the platform itself (Tr. 401, 419). This procedure would have taken about thirty minutes (Tr. 401, 419), and would have stopped production on machine number 30, something Majestic would not have appreciated. Fifth, Del Cid had no authority to tell the machine operator to turn off the molding machine so he could move her equipment, reposition the ladder and free the entangled chain hoist. In sum, climbing on top of the machine was the most efficient and expedient way for Del Cid to free the entangled chain hoist and quickly accomplish the task requested of him. Factory employees such as Del Cid should be free to accomplish their assigned tasks in an efficient and expedient manner, even when this entails the use -- in retrospect -- of an arguably dangerous procedure (Tr. 415).
Del Cid's negligence, if any, occurred once he was on top of the molding machine and attempted to balance himself on the slick two-inch-wide angle bracket while he shook the hand chain. As agile as he was, Del Cid should have realized that at the very least he was at risk of falling to the factory floor, if not into the machine. However, this negligent act is insignificant when compared to Beloit's failure to properly guard the shear point on top of the machine, or Majestic's failure to provide an appropriate chain container or to train Del Cid properly on how to free the entangled chain hoist. Accordingly, Del Cid's recovery should be reduced by ten (10) percent.
Based on the foregoing, Del Cid's damages amount to $ 400,000, with represents past and future wages of $ 120,000, future medical expenses of $ 130,000, and pain and suffering in the amount of $ 150,000. However, Del Cid's damages are reduced by ten (10) percent because of his comparative fault, which leaves a total of $ 360,000 in damages. Beloit is, therefore, liable for two-thirds of this sum, or $ 240,000, while Majestic is liable for one-third, or $ 120,000.
Dated: Brooklyn, New York
September 18, 1995
David G. Trager
United States District Judge