AMADOR TORRES-PENA v. SIEGMEISTER SALES & SERVICE INC.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4447-09T3

AMADOR TORRES-PENA,

Plaintiff-Appellant,

v.

SIEGMEISTER SALES & SERVICE,

INC.,

Defendant-Respondent,

and

TROPICAL SUN, INC.

trading as TROPICAL SUN

SUPERMARKET, and STATE FARM

FIRE AND CASUALTY COMPANY,

Defendants.

_____________________________________

June 24, 2011

Argued January 5, 2011 - Decided

Before Judges Fuentes, Gilroy and Ashrafi.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No.

L-652-05.

Richard M. Winograd argued the cause for appellant (Ginarte, O'Dwyer, Gonzalez, Gallardo & Winograd, L.L.P., attorneys; Mr. Winograd, on the brief).

Thomas A. Wester argued the cause for respondent (McDermott & McGee, LLP, attorneys; Mr. Wester, on the brief).

PER CURIAM

Plaintiff Amador Torres-Pena was severely injured at his job in a supermarket when his hand was mangled in a meat grinder from which the employer had removed protective devices. He appeals from an order for summary judgment dated March 20, 2009, in favor of defendant Siegmeister Sales & Service, Inc. ("Siegmeister"), the distributor of the meat grinder and the party responsible for certain maintenance duties on the machine.1 We reverse.

Viewed most favorably to plaintiff, see R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), the evidence established by the summary judgment record established the following relevant facts and procedural history.

At the time of the accident on June 1, 2004, plaintiff was a twenty-two year old employee of the Tropical Sun Supermarket in East Orange. Plaintiff was operating a meat grinder machine while standing on a milk crate. The crate slid, causing plaintiff's hand to enter the opening of the grinder. Because of the injuries, the hand had to be surgically amputated.

Plaintiff filed a products liability complaint against Siegmeister and Biro Manufacturing Co. ("Biro"), the manufacturer of the machine. After some discovery was conducted, plaintiff dismissed his claim against Biro and filed an amended complaint against Siegmeister and his employer, Tropical Sun, Inc. trading as Tropical Sun Supermarket ("Tropical Sun"). The amended complaint maintained strict liability and negligence claims against Siegmeister, and it also alleged that Tropical Sun "willfully and knowingly disengaged and/or removed a safety device, the purpose of which was to protect plaintiff from death or serious bodily injury." See Laidlow v. Hariton Machine Co., Inc., 170 N.J. 602 (2002) (tort claim against employer is not barred by workers' compensation statute, N.J.S.A. 34:15-8, for intentional removal of safety device knowing of substantial certainty of injury).

The manufacturer, Biro, had taken several steps to address the longstanding problem of purchasers removing protective devices from its grinders to increase productivity. The owner of Biro testified in deposition that "bowl guards" are affixed with steel fasteners and then welded permanently to the tray in which meat is placed for grinding. He explained how a magnetically activated interlock system prevents use of the machine when the tray and attached guards are removed for cleaning or otherwise. He testified that the only way to separate the guards from the tray is to saw them off.

Since 1967, Biro has instructed its distributors about the dangers of operating a machine without guards. Biro has provided financial incentives to distributors since 1995 to report removal of guards and to assist owners in correcting the deficiency. It has also instructed distributors not to service machines from which guards have been removed. If the owner of a machine does not cooperate in rectifying the safety risk, Biro files a report with the federal Occupational Safety and Health Administration (OSHA).

Biro provided in its distributor agreements, including the one entered into with Siegmeister, that distributors must assure that all warning labels are in place and that purchase orders must instruct purchasers "not [to] remove, bypass or alter any safety guards, interlocks, devices or warnings." The distributor agreement between Siegmeister and Biro also contained a provision under the heading "SAFETY" stating:

(v) If Distributor is requested to service or maintain any BIRO product, Distributor will insure that: (a) all safety, guards, interlocks, devices and warnings, are on the BIRO Products and functional; (b) that all BIRO instructional materials are available with the BIRO Products; and (c) that the purchaser has been properly instructed with regard to the safe use of the BIRO Product.

The owner of Tropical Sun, Chong Sin, testified in deposition that the meat grinder was purchased new from Siegmeister in 2001. A technician for Siegmeister, Karl Irvin, confirmed that the machine at Tropical Sun had guards in place when he installed it in 2001. He also testified that he has seen "numerous" machines on service calls with the guards having been removed, and that he would not service machines in those circumstances.

A vice-president of Siegmeister, Ira Tasch, testified that Siegmeister is the exclusive dealer of Biro food processing machinery in New York and New Jersey. Employees of Siegmeister were instructed that if a guard was missing from a machine, they were to note that fact on the work order and report it to the office at Siegmeister, at which time Siegmeister would undertake to explain to the owner the danger of operating the machine without protective devices.

After Tropical Sun's purchase of the meat grinder, Siegmeister continued to service the machine by replacing the "knives and plates" approximately every four months, charging a fee to Tropical Sun for its services. Paul Smith, a technician for Siegmeister testified he personally replaced the knives and plates on January 27, 2004, about five months before plaintiff's accident. His service protocol included assuring that guards and safety devices were in place. If he had observed that a guard had been removed, he would have unplugged the grinder and informed the owner. Smith testified he never went to a facility to exchange knives and plates and found the feed guards to have been removed.

Plaintiff testified he had arrived from Mexico about six months before the accident. He had a sixth-grade education and spoke virtually no English. He began working immediately at Tropical Sun, where his father was already employed. He had used the meat grinder about four or five times in the three months before the accident, and it never had a guard in place during that time.

Several Tropical Sun employees testified they had worked at the supermarket for a number of years or months and had never seen guards protecting the feed opening on the grinder until they were installed shortly after plaintiff's accident.

On this factual record, defendant Siegmeister moved for summary judgment, arguing it had no duty under the law of products liability or negligence to warn the owner or employees of Tropical Sun about the danger of operating the machine without protective devices. The trial court heard argument and granted the motion. The entirety of the court's reasons for dismissing plaintiff's complaint against Siegmeister were handwritten on the March 20, 2009 order as follows:

Under all the surrounding circumstances and considering the relationship of the parties, that of customer and client, where Siegmeister rented sets of knives and plates to Tropical Sun, the court finds that Siegmeister had no duty to warn of the absence of a guard if its absence was observed. To impose such a duty would be unfair to Siegmeister, detrimental to his business relationship, and of no benefit to the public interest. The visit to Tropical Sun was on a quarterly basis. The meat grinder was apparently used every day. A report to Biro, who would report to OSHA, who would make an inspection based upon Biro's report, would not resolve or alleviate the problem caused by purchasers who subsequently remove the feed guard.

On appeal, our standard of review from a grant of summary judgment is plenary. Because we review the same record as the trial court, we determine for ourselves, without deference to the trial court's ruling, whether disputed issues of fact exist for determination by a jury. See Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). In this case, however, our focus is not on issues of fact. The trial court granted summary judgment based on its legal conclusion that Siegmeister did not have a duty of care to plaintiff to warn his employer of the absence of guards on the meat grinding machine.

In a negligence case, "a duty is an obligation imposed by law requiring one party to conform to a particular standard of conduct toward another." Acuna v. Turkish, 192 N.J. 399, 413 (2007), cert. denied, ___ U.S. ___, 129 S. Ct. 44, 172 L. Ed. 2d 22 (2008). Whether a duty of care exists with respect to a particular plaintiff "is generally a matter for a court to decide." Ibid. Because it is a question of law, we owe no deference to the trial court. See Manalapan Realty, L.P. v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995).

In Hopkins v. Fox & Lazo Realtors, 132 N.J. 426 (1993), the Court held that the legal determination of whether a defendant had a duty of care to a plaintiff is "fact specific" and requires "principled" examination of factors including "the relationship of the parties, the nature of the attendant risk, the opportunity and ability to exercise care, and the public interest in the proposed solution." Id. at 439; accord Acuna, supra, 192 N.J. at 414; Carvalho v. Toll Bros. & Developers, 143 N.J. 565, 573 (1996).

Our analysis of those factors, and relevant precedents, leads us to a different conclusion from that reached by the trial court. We hold that the summary judgment record supports imposition of a duty of care upon Siegmeister in the performance of its service tasks as they relate to use and operation of an unsafe machine. Whether Siegmeister failed to conform to that duty, and whether its failure was a proximate cause of the accident and plaintiff's injuries, are disputed issues of fact for a jury to decide.

Siegmeister relies primarily on Lally v. Printing Machinery Sales and Service Co., 240 N.J. Super. 181 (App. Div. 1990), to argue that it had no duty to inspect or fix the machine, or to warn Tropical Sun or its employees about the risks of operating the machine without protective devices. In Lally, we distinguished the duties of a manufacturer or rebuilder of a machine from those of an occasional maintenance or service provider. We stated the latter had no duty imposed by law to install safety devices or warn of dangers of operating machinery without such devices. Id. at 186. In that case, the plaintiff was injured while operating a die-cutting press that had been repaired on one occasion by the defendant maintenance company. Id. at 184. The evidence did not establish any other relationship between the employer and the defendant. We held:

[I]f a defendant is merely engaged to maintain or to service a machine, the broad protective duties announced in [prior case law] will not be imposed, even though the servicer by its actions permits the machine again to be functional. In such a case, liability may be imposed only if the service itself is negligently performed, the parts provided are themselves defective, or another basis for liability exists.

[Id. at 186.]

See also Seeley v. Cincinnati Shaper Co., Ltd., 256 N.J. Super. 1, 11, 17-19 (App. Div.), certif. denied, 130 N.J. 598 (1992) (one courtesy call to purchaser by manufacturer's representative did not create a duty to warn or remedy alteration of the machine by purchaser).

However, in Calderon v. Machinenfabriek Bollegraaf Appingedam BV, 285 N.J. Super. 623 (App. Div. 1995), certif. denied, 144 N.J. 174 (1996), upon which plaintiff primarily relies, we held that a service provider did have a duty of care to a person injured when a safety device was removed. In Calderon, an employee's arm was injured in an accident similar to the accident in this case. Id. at 627-28. The plaintiff's employer had removed a safety device, thus bypassing the interlock safety system of the machine. Id. at 626-27. The service provider, which was also the distributor of the machine and had sold it to the employer, was called upon to service the machine "on an on-call and as-needed basis." Id. at 627. The service provider had a policy of notifying owners of safety problems, and had in fact sent the plaintiff's employer a certified letter about a different "dangerous practice," which had then been corrected. Id. at 629-30.

Based on those facts, we held in Calderon that the service provider had a duty to warn the employer about the dangerous condition of the altered machinery because it had assumed a role in assuring the safety of the machine. Id. at 631-32. Nevertheless, despite our holding on the question of duty, we affirmed dismissal of the plaintiff's claim against the service provider because there was insufficient evidence that the employer would have heeded its warning. Id. at 632.

With respect to imposition of a legal duty, the facts in this case are more closely aligned with Calderon than with Lally. Siegmeister was the distributor of the meat grinding machine and had an ongoing relationship with Tropical Sun in servicing the machine. It had a practice of noting and reporting dangerous alteration of safety devices. In fact, it was under a contractual duty with the manufacturer, Biro, to check for and report removal of safety devices. According to the testimony of Biro's owner, when notified of dangerous alteration of safety devices, Biro notified OSHA, and service technicians were instructed not to service machinery from which guards had been removed. Thus, unlike Calderon, the evidence in this case supports a finding that warning and notification, together with refusal to service the machine, might have been effective in correcting the dangerous condition of the meat grinder at the Tropical Sun Supermarket.

Furthermore, plaintiff's allegations in this case are not only that Siegmeister failed to warn Tropical Sun of the dangerous condition of the machine. Plaintiff relies upon the distributor's contract with the manufacturer to allege that Siegmeister performed its service duties negligently in that its technician must have observed the missing guards and took no action.2

The alleged negligence of Siegmeister does not by itself prove liability. Plaintiff must also prove that Siegmeister's negligence was a proximate cause of the accident and his injuries. Whether the absence of guards would have been rectified before plaintiff's accident is a question of fact for a jury to decide. Imposition of a duty under the law of negligence does not require proof that the accident would have been prevented.

The "fact specific and principled" analysis outlined in Hopkins, supra, 132 N.J. at 439, supports our conclusion that Siegmeister had a duty to plaintiff to warn the employer, to notify the manufacturer if the employer did not correct the defect, and to decline service on the machine if dangerously altered. Siegmeister had an ongoing relationship with Tropical Sun, which, we acknowledge, did not obligate Siegmeister to inspect the machine, but which permitted Siegmeister to observe and report dangerous alteration of the machine. Furthermore, Siegmeister had a relationship with the manufacturer that required it to perform those duties. The nature of the attendant risk was serious, as demonstrated by the injury to plaintiff and the measures the manufacturer has taken to prevent injury.

The opportunity and ability to exercise care were present, and the public interest in avoiding such injuries is strong. The proposed solution warning the owner, reporting continuing deficiency of the machine to the manufacturer, and refusing to service dangerous machinery has prospects of being an effective tool in preventing accidents in the work place and is not unduly burdensome to the service provider. In fact, the manufacturer has itself devised that solution for the problem of irresponsible employers risking the health and safety of employees to enhance productivity.

The duty we impose on Siegmeister fulfills the "abiding sense of basic fairness under all of the circumstances" that the law of negligence requires. Ibid.

Reversed and remanded for trial.

1 Plaintiff's appeal against defendants Tropical Sun, Inc. and State Farm Fire and Casualty Company from an order dated September 21, 2009, and the final judgment dated April 30, 2010, has been resolved by the parties and withdrawn. The appeal from the referenced order and judgment is therefore dismissed.

2 Given the conflicting deposition testimony of Siegmeister's technician Smith and employees of Tropical Sun regarding whether guards were in place on the machine as of January 2004, there is a factual dispute for a jury to resolve as to how long the meat grinder was in operation without guards and whether the technicians were or should have been aware of that condition. Plaintiff's evidence permits a factual finding that guards were not in place for a year or more before the accident.