The time has come to depart from the patent danger rule enunciated in Campo v Scofield (301 N.Y. 468).
This action was initiated to recover damages for personal injuries, allegedly resulting from negligent design and breach of an implied warranty. Paul Micallef, plaintiff, was employed by Lincoln Graphic Arts at its Farmingdale plant as a printing-press operator. For eight months he had been assigned to operate a photo-offset press, model RU 1, manufactured and sold by defendant Miehle-Goss Dexter, Inc., to his employer. The machine was 150 feet long, 15 feet high and 5 feet wide and was capable of printing at least 20,000 sheets an hour. Then, while working on January 22, 1969, plaintiff discovered that a foreign object had made its way onto the plate of the unit. Such a substance, known to the trade as a "hickie", causes a blemish or imperfection on the printed pages. Plaintiff informed his superior of the problem and told him he was going to "chase the hickie", whereupon the foreman warned him to be careful. "Chasing a hickie" consisted of applying, very lightly, a piece of plastic about eight inches wide to the printing plate, which is wrapped around a circular plate cylinder which spins at high speed. The revolving action of the plate against the plastic removes the "hickie". Unsuccessful in his first removal attempt, plaintiff started anew but this time
Plaintiff was aware of the danger of getting caught in the press in "chasing hickies." However, it was the custom and usage in the industry to "chase hickies on the run", because once the machine was stopped, it required at least three hours to resume printing and, in such event, the financial advantage of the high speed machine would be lessened. Although it was possible to have "chased the hickie" from another side of the machine, such approach would have caused plaintiff to be in a leaning position and would have increased the chances of scratching the plate. Through its representatives and engineers, defendant had observed the machine in operation and was cognizant of the manner in which "hickies were chased" by Lincoln's employees.
Samuel Aidlin, a professional engineer, had inspected the machine subsequent to the mishap. In his opinion, based upon the custom in the printing industry, it would have been good custom and practice to have placed guards near the rollers where plaintiff's hand entered the machine, the danger of human contact being well known. Moreover, he testified that at least three different types of guards were available, two for over 30 years, that they would not have impeded the practice of "chasing hickies," and that these guards would have protected an employee from exposure to the risk. Based upon the foregoing, both causes of action, negligence and breach of warranty, were submitted to the jury.
Although defendant was found negligent, recovery on that ground was barred by a finding that plaintiff had been contributorily negligent. However, on the breach of warranty claim, a verdict was returned for the plaintiff which defendant then moved to set aside. In a decision, rendered on May 25, 1973 and in which a motion, pursuant to CPLR 4404 (subd [a]), to set aside the verdict in favor of plaintiff was granted, the Trial Justice stated that in charging the jury a distinction had been drawn "between negligence and breach of warranty with regard to a plaintiff's contributory negligence," reliance having been placed upon the Appellate Division decision in Codling v Paglia (38 A.D.2d 154) where the court said, at page
Defendant appealed and the Appellate Division, Second Department, in reversing, on the law and relying, inter alia, on Campo v Scofield (301 N.Y. 468, supra), reinstated the jury verdict on the negligence cause of action and directed a judgment for defendant on the cause asserting a breach of warranty. It found that the danger of being caught in the machine was well known in the trade and, more importantly, the plaintiff had actual knowledge of the possible consequences in "chasing a hickie".
CPLR 4404 (subd [a]) authorizes the court, either by motion of any party, or on its own initiative, to order a new trial "in the interest of justice". It is predicated on the assumption that the Judge who presides at trial is in the best position to evaluate errors therein (4 Weinstein-Korn-Miller, NY Civ Prac, par 4404.01). The Trial Judge must decide whether substantial justice has been done, whether it is likely that the verdict has been affected (Matter of De Lano, 34 A.D.2d 1031, 1032, affd 28 N.Y.2d 587) and "must look to his own common sense, experience and sense of fairness rather than to precedents in arriving at a decision" (4 Weinstein-Korn-Miller, NY Civ Prac, par 4404.11). This power conferred upon a court to order a new trial is discretionary in nature (Mercado v City of New York, 25 A.D.2d 75, 77; see McCarthy v Port of N. Y. Auth., 21 A.D.2d 125). Although matters of discretion are reviewable by the Appellate Division (O'Connor v Papertsian, 309 N.Y. 465, 471;
There were errors. At the outset of the charge, the court stated: "I charge you that the plaintiff knew of the risk and assumed it" and, without explaining the matter further, digressed into another subject. Plaintiff took an exception. Such an instruction was erroneous in that assumption of risk is an affirmative defense (see CPLR 1412; Siegel, Supplementary Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 3018, 1975-1976 Supp, p 8; see, also, McInnis v Fireman's Fund Ins. Co., 322 So.2d 155 [La]; Smith v Dhy-Dyamic Co., 31 Cal.App.3d 852) which, as here, is waived if not specifically pleaded (CPLR 3018). The court also stated that, if the contributory negligence of plaintiff was a "factor" to the happening of the event, there could be no recovery — as opposed to a "substantial factor" as required under Codling v Paglia (32 N.Y.2d 330, 342, supra). It is noted, however, that no exception was taken as to this item. The jury was also charged that contributory negligence would not provide a defense to the warranty cause, a statement thereafter cast in doubt by this court in Codling. Under these circumstances, there should be a reversal of the Appellate Division order and a new trial on all issues.
We are confronted here with the question as to the continued validity of the patent-danger doctrine of Campo v Scofield (301 N.Y. 468, supra). Plaintiff sought damages by alleging two causes of action, one couched in negligence in the design of the machinery and the other premised upon the breach of an implied warranty. Since the time of trial, a third independent cause of action, one in strict products liability, has been recognized by this court (Velez v Craine & Clark Lbr. Corp., 33 N.Y.2d 117; Codling v Paglia, supra). The claims constitute separate theories of recovery and the decisions both in this State (e.g., Velez v Craine & Clark Lbr. Corp., supra; Rainbow v Elia Bldg. Co., 49 A.D.2d 250; Jerry v Borden Co., 45 A.D.2d 344) and beyond (e.g., Pike v Hough Co., 2 Cal.3d 465; Palmer v Massey-Ferguson, 3 Wn.App. 508; Ann., 52 ALR3d 101) have adhered to the distinction (Victorson v Bock Laundry Mach. Co., 37 N.Y.2d 395).
Directing our attention to the cause of action for negligence in design, defendant asserts, citing Campo v Scofield (supra),
The requirement that a latent defect be proved, before there could be a recovery against a manufacturer in a negligence action, has retained its vitality (Sarnoff v Charles Schad, Inc., 22 N.Y.2d 180; Inman v Binghamton Housing Auth., 3 N.Y.2d 137). The underlying rationale of the court's decision in Campo apparently is founded on the notion that it should be the task of the Legislature, not the judiciary, to compel manufacturers to install possible safety devices (Campo v Scofield, supra, p 472; see Marschall, An Obvious Wrong Does Not Make a Right: Manufacturers' Liability For Patently Dangerous Products, 48 NYU L Rev 1065, 1081). Campo has been the subject of sustained attack (see Marschall, p 1079; see, also, Pike v Hough Co., 2 Cal.3d 465, supra; Messina v Clark Equip. Co., 263 F.2d 291 [dissent]; 2 Harper & James, Torts, § 28.5). The major thrust of criticism stems from the belief that, in our highly complex and technological society, we fall victim to the manufacturer who holds himself out as an expert in his field. It is argued that the Campo doctrine is
More specifically, it is contended that the application of Campo amounts to an assumption of risk defense as a matter of law "with the added disadvantage that the defendant was relieved of the burden of proving that plaintiff had subjectively appreciated a known risk" (Rheingold, Expanding Liability of the Product Supplier: A Primer, 2 Hofstra L Rev 521, 541). Campo is viewed as inconsistent because, on the one hand, it places a duty on the manufacturer to develop a reasonably safe product yet eliminates this duty, thereby granting him immunity from answering in damages, if the dangerous character of the product can be readily seen, irrespective of whether the injured user or consumer actually perceived the danger. As Professors Harper and James succinctly assert: "The bottom does not logically drop out of a negligence case against the maker when it is shown that the purchaser knew of the dangerous condition. Thus if the product is a carrot-topping machine with exposed moving parts, or an electric clothes wringer dangerous to the limbs of the operator, and if it would be feasible for the maker of the product to install a guard or safety release, it should be a question for the jury whether reasonable care demanded such a precaution, though its absence is obvious. Surely reasonable men might find here a great danger, even to one who knew the condition; and since it was so readily avoidable they might find the maker negligent". (2 Harper & James, Torts, § 28.5.)
Other jurisdictions have taken a more liberal position. For example, in Palmer v Massey-Ferguson (3 Wn.App. 508, supra), the plaintiff brought an action against the manufacturer of a hay baler for injuries sustained while adjusting a drawbar. In response to the defendant's allegations that the patent peril precluded liability, the court said (p 517): "The manufacturer of the obviously defective product ought not to escape because the product was obviously a bad one. The law, we think, ought to discourage misdesign rather than encouraging it in its obvious form." (See, also, Pike v Hough Co., 2 Cal.3d 465, supra; Byrnes v Economic Mach. Co., 41 Mich.App. 192.) Another case, Bexiga v Havir Mfg. Co. (60 N.J. 402, 412), forcefully stated: "The asserted negligence of plaintiff — placing
What constitutes "reasonable care" will, of course, vary with the surrounding circumstances and will involve "a balancing of the likelihood of harm, and the gravity of harm if it happens, against the burden of the precaution which would be effective to avoid the harm" (2 Harper & James, Torts, § 28.4; see Pike v Hough Co., 2 Cal.3d 465, supra). Under this approach, "the plaintiff endeavors to show the jury such facts as that competitors used the safety device which was missing here, or that a `cotter pin costing a penny' could have prevented the accident. The defendant points to such matters as cost, function, and competition as narrowing the design choices. He stresses `trade-offs'. If the product would be unworkable when the alleged missing feature was added, or would be so expensive as to be priced out of the market, that would be relevant defensive matter" (Rheingold, Expanding Liability of the Product Supplier: A Primer, 2 Hofstra L Rev, 521, 537; see Wirth v Clark Equip. Co., 457 F.2d 1262; Sutkowski v Universal Marion Corp., 5 Ill.App.3d 313). In this case, there was no evidence submitted at trial to show the cost of guards that could have been attached in relation to the entire cost of the machine.
Also relevant, but by no means exclusive, in determining whether a manufacturer exercised reasonable skill and knowledge concerning the design of the product is whether he kept abreast of recent scientific developments (Schenebeck v Sterling Drug, 423 F.2d 919; La Plant v DuPont de Nemours & Co., 346 S.W.2d 231 [Mo]) and the extent to which any tests were conducted to ascertain the dangers of the product (see Ann., 6 ALR3d 91; 2 Harper & James, Torts, § 28.4). This does not compel a manufacturer to clothe himself in the garb of an insurer in his dealings (Bernstein v Remington Arms Co., 16 A.D.2d 694; see, also, Case Co. v Sandefur, 245 Ind. 213; Stevens v Durbin Durco, 377 S.W.2d 343 [Mo]; 1 Hursch & Bailey, American Law of Products Liability 2d, § 2:4) nor to supply merchandise which is accident proof (see Neusus v Sponholtz, 369 F.2d 259; Varas v Barco Mfg. Co., 205 Cal.App.2d 246; Royal v Black & Decker Mfg. Co., 205 So.2d 307 [Fla]). It does
We next examine the duty owing from a plaintiff or, in other words, the conduct on a plaintiff's part which will bar recovery from a manufacturer.
The second cause of action, for breach of an implied warranty, fails to mention section 2-314 of the Uniform Commercial Code. Since service of the complaint, it has been recognized, in fact patterns similar to that here, that such a claim, based on tortious behavior, is more correctly treated under the theory of strict products liability (see Victorson v Bock Laundry Mach. Co., 37 N.Y.2d 395, supra; Velez v Craine & Clark Lbr. Corp., 33 N.Y.2d 117, supra; Bolm v Triumph Corp., supra; Codling v Paglia, 32 N.Y.2d 330, supra). The majority of this court does not favor a reconsideration of Codling v Paglia (supra) in which it was stated (p 342):" We accordingly hold that, under a doctrine of strict products liability, the manufacturer of a defective product is liable to any person injured or damaged if the defect was a substantial factor in bringing about his injury or damages; provided: (1) that at the time of the occurrence the product is being used (whether by the person injured or damaged or by a third person) for the purpose and in the manner normally intended, (2) that if the person injured or damaged is himself the user of the product he would not by the exercise of reasonable care have both
The order of the Appellate Division should be reversed and a new trial granted, with costs to abide the event.
Order reversed, etc.