Suter v. San Angelo Foundry & MacHine Company

406 A.2d 140, 81 N.J. 150, 1979 N.J. LEXIS 1270

• Court: Supreme Court of New Jersey
• Decided: July 31, 1979
• Status: Published

Opinions

The opinion of the court was delivered by

SCHREIBER, J.

This products liability case projects for our consideration the impact of the Comparative Negligence Act, N.J.S.A. 2A:15-5.1 to 5.3, in strict liability actions.

Plaintiff Frank Suter sought monetary damages for injuries sustained when his hand was caught in the cylinders of an industrial sheet metal rolling machine. At the time, Suter was employed by, as well as part owner of, Accurate Sheet Metal, Inc., a small industrial fabricator of sheet metal products, consisting primarily of ducts for heating and air conditioning. Suter charged defendant San Angelo Foundry & Machine Company, the manufacturer of the machine, with negligence and with breach of an express and an implied warranty that the machine was safe and fit for its intended purposes and was of merchantable quality.

The trial court, however, charged the jury only on the theory of strict liability. The court posed the issue in terms of whether the product as designed by defendant was reasonably fit for the ordinary use for which it was intended, whether the defect arose out of its design and while it was under defendant manufacturer’s control, whether the defect proximately caused the injury, and whether plaintiff was a reasonably foreseeable user of the product. The trial court also charged, over plaintiff’s objection, that plaintiff would be guilty of contributory negligence if he had not exercised that degree of care which a reasonably prudent person would have exercised under the circumstances. Six questions were submitted to the jury. Those questions and the jury’s responses were as follows:

1. Was the machine in question defectively designed by the defendant, San Angelo Foundry & Machine Co.? YES X NO

If the answer to Question #1 is “no”, you need go' no further.

2. JWas the defect a proximate cause of the accident? YES-X NO

3. Was plaintiff, Frank Suter, guilty of negligence? YES X NO

4. Was that negligence, if any, a proximate cause of the accident? YES X NO

5. Taking the combined fault of the defendant and plaintiff that caused the accident as a total of 100%, what percentage of that fault was attributable to:

FRANK SUTEK 50 %

SAN ANGELO FOUNDRY &

MACHINE CO. . 50 %

100 %

6. What sum of money would fairly, reasonably and adequately compensate FRANK SUTER for his injuries and losses; $25,000

The trial court denied plaintiff’s motion to dismiss the defense of contributory negligence, applied comparative negligence as provided in N.J.S.A. 2A:15-5.1 to 5.3 which had become effective in August 1973 (the accident having occurred on November 14, 1974) and entered judgment for plaintiff in the amount of $12,500.

On plaintiff’s appeal, the Appellate Division, relying upon Bexiga v. Havir Manufacturing Corp., 60 N.J. 402 (1972), held in an unreported opinion that the defense of contributory negligence was unavailable. It modified the judgment by awarding plaintiff $25,000, the full amount of damages as fixed by the jury. We granted defendant's petition for certification, 76 N.J. 240 (1978).

The facts are virtually undisputed. Accurate Sheet Metal, Inc. (Accurate), located in Bloomingdale, New Jersey, was engaged in metal fabrication. Accurate had approximately 25 machines of various types, including a Lown 450, which it had purchased new in 1966. This machine, which had been built by defendant San Angelo Foundry & Machine Company, was used to flatten metal sheets and curve them into cylindrical shapes. Plaintiff had operated this piece of equipment on innumerable occasions between 1966 and the date of the accident in 1974.

The Lown 450 is powered by a one and one-half horsepower electric motor. The machine has three 50" long rollers which resemble those of an old-fashioned clothes wringer. Metal sheets up to 48" in width are fed between the two front rollers. The metal is shaped into a cylindrical form when drawn upward and around by the rear roller. The right side of the machine is known as its “low end”. The “low end” is equipped with a latched drop-arm which is used to open that side of the machine. Completed cylinders may then be removed. A cylinder may be reinserted for rerolling by opening up the drop-arm and sliding it back in along the bending rollers.

On the left side of the machine is a gear box cover which houses the motor. Mounted on the front of the cover is a control box which extends out from the face of the gear box cover. On the front of the control box are two buttons. One colored green and marked “start” is surrounded by a narrow collar so that it cannot be brushed accidentally. The other button, colored red, is designated “stop”.

On top of the control box is a gear lever located 35" from the floor. The lever, extending out 4Vi" from the front of the gear box, has three positions. When moved to the right, the rollers turn in a forward direction; when the lever is in the center, the rollers remain stationary; when moved to the left the rollers move counterclockwise.

A treadle, painted yellow, extends along the front base of the machine. If stepped on, it stops the machine by tripping out the relay and deactivating the motor. The machine would thereafter have to be restarted.

Pushing the green button activates the motor. However, the rollers do not turn until the lever is shifted to either the forward or reverse position. If the red stop button were pushed, the power would be cut off and the machine would stop. Touching the foot treadle would have the same effect. When using the machine, the operator leaves the power on until all the work is completed and relies principally on the lever to stop and start the rollers.

The accident occurred in the process of rerolling a metal cylinder that had been formed from a sheet 48" by 48". Four men, including plaintiff, had slipped the rolled metal through the “low end” of the machine. The latched drop-arm was then closed. The motor was on, but the lever was in a neutral position so that the rollers were not moving. Plaintiff, while standing on the left side of the machine, saw a piece of slag lying in the metal cylinder. As he reached over to pull the slag out, his body brushed against the gear lever, pushing it into the forward position and activating the rollers.

The fingers of his right hand were caught and pulled into the rollers. He managed to yank his hand free, but only after it had been severely injured. Plaintiff was thereupon taken to a hospital, operated upon, and hospitalized. He returned to work about three weeks later.

Plaintiff’s expert, an engineer, testified that the machine had been defectively designed. In his opinion a rotary guard should have been inserted around the lever or the lever mechanism should have been placed on top of the gear housing which is 45" above the floor. Either method would have served as protection against accidentally starting up the rollers. Both of these protective methods were in use when defendant made and sold this machine. As early as 1962 the National Safety Council had recommended installation of bar guards to prevent inadvertent striking of such levers.

Defendant’s expert agreed that the rotary guard was an available design at the time the machine was made and that as a safety engineer he would have recommended such a device. In his opinion the accident occurred because plaintiff placed himself in an unsafe position while reaching inside the cylinder without first cutting off the power to the machine.

I

Our analysis of this case will focus first on the question of what types of conduct may constitute contributory negligence in a strict liability suit. Next we shall consider the applicability of the Comparative Negligence Act, N.J.S.A. 2A:15-5.1 to 5.3, to that conduct. We shall then apply the principles so derived to the facts of this case.

Finally, we shall consider how a trial court should charge the jury on strict liability and its constituent elements. This consideration requires a review of the suggested instructions in Cepeda v. Cumberland Engineering Co., Inc., 76 N.J. 152 (1978). The trial court’s charge in this case will then be tested against the conclusions we have reached.

II

We consider first the nature of a plaintiff’s conduct which may bar recovery in a strict liability action. We have previously held that under some circumstances contributory negligence may be a defense. Ettin v. Ava Truck Leasing, Inc., 53 N.J. 463 (1969); Cintrone v. Hertz Truck Leasing & Rental Service, 45 N.J. 434 (1965). However, the nature of that contributory negligence is sharply circumscribed. Thus, plaintiff’s negligence is unavailable as a defense when it consists merely in a failure to discover the defect in the product, or to guard against the possibility of its existence. See Restatement (Second) of Torts § 402A, Comment n (1965) [hereinafter recited as Restatement]. Comment n further explains that the “form of contributory negligence which consists in voluntarily and unreasonably proceeding to encounter a known danger * * * is a defense * * * Thus, generally where a plaintiff with actual knowledge of the danger presented by the defective product knowingly and voluntarily encounters that risk, a trial court should submit the defense of contributory negligence to the jury.¹ See Cintrone v. Hertz Truck Leasing & Rental Service, supra, 45 N.J. at 458-459. As in any contributory negligence context, it is the defendant’s burden to prove that the plaintiff’s conduct was improper and was a substantial factor in causing his injury.

We pointed out in Cepeda v. Cumberland Engineering Co., Inc., 76 N.J. 152, 177-178 (1978), that an unforeseeable misuse of a product may not give rise to strict liability. As noted in that case, the use which the plaintiff makes of a product may be relevant on the plaintiff’s case in the context either of showing that plaintiff’s use of that product was outside or beyond its intended or foreseeable scope (thereby not being probative of whether the product was fit, suitable and safe), or that the abnormal use, rather than the defect, caused the injury. 76 N.J. at 176-177, see Twerski, “The Many Faces of Misuse: An Inquiry Into the Emerging Doctrine of Comparative Causation,” 29 Mercer L.Rev. 403, 417-420 (1978).

It has been pointed out, for example, that the manufacturer of a knife cannot be charged with strict liability when the knife is used as a toothpick and the user complains because the sharp edge cuts. General Motors Corp. v. Hopkins, 548 S.W.2d 344, 349 (Tex.1977). This is the type of case referred to in Comment h to § 402A:

A product is not in a defective condition when it is safe for normal handling and consumption. If the injury results from abnormal handling, as where a bottled beverage is knocked against a radiator to remove the cap, or from abnormal preparation for use, as where too much salt is added to food, or from abnormal consumption, as where a child eats too much candy and is made ill, the seller is not liable.

In other words, plaintiff’s misuse of the product sheds no light on whether the product is reasonably fit and safe for its intended or reasonably anticipated use.

Misuse may also arise in connection with the question of operative causation. For example, where a surgical pin inserted to align a plaintiff’s leg fracture and not for body support broke after the plaintiff, contrary to an express direction of his doctor, had walked upon the leg, it was held that the pin failed because of its misuse. Though the pin’s strength was shown to be less than intended, the evidence indicated that the pin would have broken in the absence of that weakening. Stewart v. Von Sollrig Hosp., Inc., 24 Ill.App.3d 599, 321 N.E.2d 428 (1974).

Both of these situations must be distinguished from that in which the plaintiff’s conduct surfaces as an affirmative defense. As noted above, this occurs when the plaintiff has voluntarily and unreasonably proceeded to encounter the known risk. Thus, contributory negligence in strict liability may exist only in this context.

Ill

We pass next to the question of what effect, if any, the Comparative Negligence Act has on the contributory negligence defense in strict liability.

The act, adopted in 1973, provides:

Contributory negligence shall not bar recovery in an action by any person * * to recover damages for negligence resulting in death or injury to person or property, if such negligence was not greater than the negligence of the person against whom recovery is sought, but any damages sustained shall be diminished by the percentage sustained of negligence attributable to the person recovering. [N.J.S.Á. 2A:15-5.1]

The phrase “in an action * * * for negligence” may be read literally to refer only to the traditional negligence tort action. See Kirkland v. General Motors Corp., 521 P.2d 1353, 1367 (Okl.1974). But such a reading is not in keeping with the spirit of the act. We must look to other indicia to illuminate the sense of the statute. We have frequently adverted to the interpretative guideline that statutes are to be read sensibly, the purpose and reason for the legislation controlling, rather than construed literally. See, e. g., Schierstead v. City of Brigantine, 29 N.J. 220, 230-231 (1959); Alexander v. N. J. Power & Light Co., 21 N.J. 373, 378-379 (1956).

It was the legislative belief that the Comparative Negligence Act would ameliorate to some extent the harshness which could result in application of contributory negligence in all tort actions. Thus, when Governor Cahill signed the legislation, he commented that “[n]o longer will a seriously [injured] person be prevented from obtaining compensation for his injuries merely because he was partially responsible, in a minor way, for the accident in which he was injured.” Release from Office of the Governor, May 24,1973. The Governor’s explanation was keyed to the equitable desire to mitigate the unfairness associated with the total bar to recovery posed by common law contributory negligence. When the Governor made this explanation in 1973, contributory negligence had been firmly established as a defense in a strict liability action and there is no reason to believe that the Legislature intended to exclude contributory negligence in a strict liability case! The identical conduct by a plaintiff would bar recovery in a negligence action and it was the softening of the effect of that type of conduct at which the act was aimed.

Some supportive legislative history may be found in the Legislature’s conscious adoption of the Wisconsin comparative negligence statute, Wis.Stat.Ann. § 895.045 (West Supp.1978). The Wisconsin courts had previously applied its comparative negligence act to strict liability, Dippel v. Sciano, 37 Wis.2d 443, 155 N.W.2d 55 (1967); Netzel v. State Sand & Gravel Co., 51 Wis.2d 1, 186 N.W.2d 258 (1971), and our Legislature may well have believed our statute would receive a comparable interpretation. See also Hagenbuch v. Snap-On Tools Corp., 339 F.Supp. 676, 682-683 (D.N.H.1972), wherein the New Hampshire comparative negligence statute was construed to apply to strict liability on the basis of the Wisconsin statute and case law. For the proposition that interpretation of a statute of another state by its courts may serve as an interpretative aid when our Legislature has adopted the same act, see, e. g., Todd Shipyard Corp. v. Tp. of Weehawken, 45 N.J. 336, 343 (1965); Bollinger v. Wagaraw Bldg. Supply Co., 122 N.J.L. 512, 519 (E. & A.1939); Rawson v. Lohsen, 145 N.J.Super. 71, 77, (Law Div.1976).

We read the term “negligence” in our act as being subsumed within the concept of tortious fault.² So, too, contributory negligence has been regarded as a form of contributory fault. See Ettin v. Ava Truck Leasing, Inc., supra, wherein we commented that “though we consider it hardly necessary, the term ‘contributory fault’ could, if so desired, readily be substituted for the term ‘contributory negligence’.” 53 N.J. at 472; see also Prosser, Torts § 65, at 418 (4th ed. 1971). Dean Prosser has elucidated this idea of fault in the following manner:

There is a broader sense in which “fault” means nothing more than a departure from a standard of conduct required of a man by society for the protection of his neighbors; and if the departure is an innocent one, and the defendant cannot help it, it is none the less a departure, and a social wrong. The distinction still remains between the man who has deviated from the standard, and the man who has not. The defendant may not be to blame for being out of line with what society requires of him, but he is none the less out of line. [Prosser, supra, § 75, at 493]

So viewed, the notion of fault is readily seen to be inherent in the concept of strict liability. The manufacturer or supplier of a chattel has been charged with the duty of distributing a product which is fit, suitable and duly safe. Failure to comply with this standard constitutes fault.

Including as we do the act’s use of the word “negligence” within the concept of fault, we construe the Comparative Negligence Act to require that the plaintiff’s negligence must not be “greater than the negligence [or fault due to strict liability] of the person against whom recovery is sought, but any damages sustained shall be diminished by the percentage sustained of negligence attributable to the person recovering.” N.J.S.A. 2A:15-5.1.³ The trier of fact should ascertain the extent to which plaintiff’s negligent conduct was a proximate cause of the accident. Since it is plaintiff’s negligent conduct which may cause diminution or foreclosure of his recovery, ascertainment of the extent to which that conduct was a proximate cause of the accident should be determined by the trier of fact.

Although total-bar contributory negligence is not without its defenders, particularly among legal economists, see, e. g., R. Posner, Economic Analysis of Law 123-124 (2d ed. 1977); but see G. Schwartz, “Contributory and Comparative Negligence: A Reappraisal,” 87 Yale L.J. 697, 721-727 (1978) (arguing that notions of economic efficiency provide no persuasive justification for the traditional contributory negligence rule), the Legislature has at least partially rejected this point of view in favor of the simple principle that when two parties “share” (in a rough mathematical sense) the blame for an accident they should also share the costs. The liability-dividing principle of comparative negligence has received widespread support among the commentators as the preferred rule in negligence actions. See, e. g., Levine, “Buyer’s Conduct as Affecting the Extent of Manufacturer’s Liability in Warranty,” 52 Minn.L.Rev. 627, 658-659 (1968). It has also been recommended as the sound rule for strict liability claims. See, e. g., id. at 644. Also note the recommendations in U. S. Dep’t of Commerce, Interagency Task Force on Product Liability, Product Liability: 2 Final Report of the Legal Study 116 (1977), that comparative negligence should be applied in all products liability actions to relieve “some of the inequities incurred by both plaintiffs and defendants as a result of an ‘all or nothing’ approach to recovery.” We are satisfied that the Legislature did not intend to exclude plaintiffs injured in strict liability situations from the Comparative Negligence Act and thereby subject them to a risk which might be extremely harsh.

In many situations plaintiffs have alleged both negligence and strict liability and sought recovery on either theory. To bar recovery because of contributory negligence when the plaintiff’s theory was strict liability and to permit recovery in a reduced amount when the theory was negligence would be clearly inequitable and unjust. Daly v. General Motors Corp., 20 Cal.3d 725, 738, 144 Cal.Rptr. 380, 387-388, 575 P.2d 1162, 1169-1170 (1978).

We hold that the Comparative Negligence Act is applicable to strict liability actions in those circumscribed areas in which plaintiff’s conduct may be found to constitute contributory negligence. There remains for our consideration the application of this holding to the facts of this case.

IV

In Cepeda v. Cumberland Engineering Co., Inc., 76 N.J. 152 (1978), a closely divided Court held that a factory employee, whose hand was injured when it became caught in a machine which he was operating, could be barred from recovery because at the time he knew a guard device which would have prevented the accident was missing. This was so even though the manufacturer should have placed an interlock device on the unit, which would have rendered the machine inoperable in the absence of the guard. The case was remanded for a new trial on a theory of contributory negligence to consider whether plaintiff had unreasonably and voluntarily subjected himself to a known danger by operating the machine without the guard on it.

The incongruous results reached under the principles of Cepeda are dramatically exposed when this case is compared with Cepeda. In Cepeda the plaintiff, an 18-year-old from the Dominican Republic, who had completed only the second grade and come to this country when he was 16, was working in a large factory under the supervision of a foreman. He was operating a machine that cut plastic into pellets. It was reasonably foreseeable that the machine might be used without the guard in place—that being the reason why the manufacturer should have made it inoperable if the guard were removed. There was no evidence that he was operating the machine carelessly at the time of the accident.

On the other hand, in this case Suter purchased the machine for his company, had operated it “probably a thousand times” over an eight-year period and was completely conversant with every aspect of the equipment. He knew that he could deactivate the machine either by stepping on the treadle at his feet or pushing the stop button. He knew that pushing or moving the lever would activate the rollers. Suter was in charge of the operation at the time of the accident. Although he was careless in reaching into the machine and pushing the lever, under the Cepeda doctrine, as a matter of law, he would not be guilty of contributory negligence.⁴

Cepeda, who was operating the machine carefully, may be barred from recovery. Suter, though careless, cannot be. It should not matter whether the manufacturer’s duty is to prevent an employee from coming into contact with dangerous machine parts or to prevent an employee from accidentally setting a dangerous machine in motion. In the one instance, the risk is that the employee who knows the machine is on will accidentally get his hands caught in the machine and in the other that the employee will accidentally activate the machine, with the same consequences.

This peculiar result of applying contributory negligence to Cepeda and not to Suter is attributable to Cepeda’s unjustifiable limitation of the principle we enunciated in Bexiga v. Havir Manufacturing Corp., 60 N.J. 402 (1972). In Bexiga and its companion case of Finnegan v. Havir Manufacturing Corp., 60 N.J. 413 (1972), a factory employee was using a punch press. Stepping on a foot pedal caused a ram to descend and punch a hole in a metal disc. Strict liability was imposed on the manufacturer for having failed to provide a safety device to prevent the operator’s hands from being in the zone of danger when the ram was activated. The Bexiga Court noted that the plaintiff’s negligence—placing his hand under the ram while at the same time depressing the foot pedal—was the “very eventuality the safety devices were designed to guard against.” 60 N.J. at 412. It reasoned that “[i]t would be anomalous to hold that defendant has a duty to install safety devices but a breach of that duty results in no liability for the very injury the duty was meant to protect against.” Id. Under the special circumstances present in Bexiga of a factory worker injured while using an unsafe machine for its intended purposes, the “interests of justice dictate that contributory negligence be unavailable as a defense to either the negligence or strict liability claims.” Id.

Before Bexiga was decided we had held that voluntarily encountering a known danger might constitute contributory negligence. Cepeda’s classification of Bexiga within that same general category effectively eliminated the “special situation” to which Bexiga referred. In our view an employee engaged at his assigned task on a plant machine, as in Bexiga, has no meaningful choice.⁵ Irrespective of the rationale that the employee may have unreasonably and voluntarily encountered a known risk, we hold as a matter of policy that such an employee is not guilty of contributory negligence. See 1 R. Hursh & H. Bailey, American Law of Products Liability 741 (2d ed. 1974). Accordingly, we reject Cepeda’s limitation of Bexiga to those cases where there was no “indication that the unsafety of the machine was known” to the employee. 76 N.J. at 188.

The imposition of a duty on the manufacturer to make the machine safe to operate whether by installing a guard or, as in Cepeda, by making it inoperable without a guard, means that the law does not accept the employee’s ability to take care of himself as an adequate safeguard of interests which society seeks to protect. The policy justification for Bexiga is sound. We see no reason to depart from Bexiga’s elimination of contributory negligence where an employee is injured due to a defect (whether design or otherwise) in an industrial accident while using a machine for its intended or foreseeable purposes.⁶ The defendant manufacturer should not be permitted to escape from the breach of its duty to an employee while carrying out his assigned task under these circumstances when observance of that duty would have prevented the very accident which occurred.

Comparative negligence generally being applicable to measure the plaintiff’s recovery in a strict liability context, what effect, if any, does that have upon the principle enunciated in Bexiga and Finnegan ? The answer is none. Contributory negligence being unavailable as a defense, we fully agree with the Appellate Division that in this case comparative negligence does not come into play.

V

The trial judge charged the jury that to hold defendant liable, four elements had to be proved: (1) that the product had not been reasonably fit for the ordinary use for which it was intended; (2) that the defect arose out of defendant’s design of the machine; (3) that the defect proximately caused plaintiff’s injury or damage; and (4) that plaintiff was a reasonably foreseeable consumer or user of the product. Although this charge did not conform with the language of the instructions set forth in Cepeda, we are of the opinion that the charge under the facts of this case was substantially correct and in accord with the principles set forth in Cepeda with respect to the strict liability of a manufacturer for a design defect. The trial court’s charge here generally conformed with the approach developed in our case law.

We have heretofore described the development of the strict liability doctrine commencing with Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358 (1960), and there is no need to retrace those steps. See Heavner v. Uniroyal, Inc., 63 N.J. 130, 146-152 (1973). Historically the doctrine’s underlying premise is that one engaged in the business of selling a product impliedly represents that goods which it places in the stream of commerce are free of defects, that is, they are reasonably suitable, safe and fit for the purposes for which those goods have been sold. Herbstman v. Eastman Kodak Co., 68 N.J. 1, 7 (1975). Implicit in the product’s presence on the market is the representation that it will safely perform the functions for which it was constructed. Santor v. A & M Karagheusian, Inc., 44 N.J. 52, 64-65 (1965); Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897 (1962). Fitness and suitability are terms largely synonymous with safety. Cepeda extended strict liability to include not only intended but also reasonably foreseeable uses of the product.

The principle of strict liability, shifting the focus from conduct, as in negligence law generally, to the product, may be summarized as follows. If at the time the seller distributes a product, it is not reasonably fit, suitable and safe for its intended or reasonably foreseeable purposes so that users or others who may be expected to come in contact with the product are injured as a result thereof, then the seller shall be responsible for the ensuing damages.⁷ See Newmark v. Gimbel’s, Inc., 54 N.J. 585, 600 (1969). We have previously described strict liability in these terms. Justice Proctor in Jakubowski v. Minnesota Mining & Manufacturing, 42 N.J. 177, 184 (1964), referred to the necessity of showing that the product “was unfit for its intended purpose when purchased from the manufacturer.” Justice Francis, in adopting the doctrinal theory of strict liability in tort in Santor v. A & M Karagheusian, Inc., supra, explained:

Such doctrine stems from the reality of the relationship between manufacturers of products and the consuming public to whom the products are offered for sale. As we indicated in Henningsen, the great mass of the purchasing public has neither adequate knowledge nor sufficient opportunity to determine if articles bought or used are defective. Obviously they must rely upon the skill, care and reputation of the maker. 32 N.J., at p. 384, 161 A.2d 412. It must be said, therefore, that when the manufacturer presents his goods to the public for sale he accompanies them with a representation that they are suitable and safe for the intended use. [44 N.J. at 64-65].

More recently, Justice Clifford in Scanlon v. General Motors Corp., 65 N.J. 582, 591 (1974), explained, “A product is defective if it is not fit for the ordinary purposes for which such articles are sold and used.”

It is incumbent upon plaintiff in proving strict liability to demonstrate that the product was defective when placed by defendant into the commercial stream. See, e. g., Moraca v. Ford Motor Co., 66 N.J. 454, 460 (1975); Scanlon v. General Motors Corp., supra, 65 N.J. at 590; Jakubowski v. Minnesota Mining & Manufacturing, supra, 42 N.J. at 182. It is not necessary to show that defendant created the defect. What is important is that the defect did in fact exist when the product was distributed by and was under the control of defendant.

In many situations the nature of the alleged defect is clear. Imperfect material, a defective weld, or some physical damage in the product exemplify the usual claim. Proof of such defects may be demonstrated by direct evidence, by reasonable inferences which may be drawn from the circumstances or by exclusion of other causes. Moraca v. Ford Motor Co., supra, 66 N.J. at 458; Scanlon v. General Motors Corp., supra, 65 N.J. at 592-594.

We perceive that the only additional question to be put to the jury in a case involving a design defect, vis-a-vis other defects, is whether the product design was improper. In some improper design situations the nature of the proofs will be the same as in other unintended defect cases. This occurs when it is self-evident that the product is not reasonably suitable and safe and fails to perform, contrary to the user’s reasonable expectation that it would “safely do the jobs for which it was built.” Greenman v. Yuba Power Products, Inc., supra, 59 Cal.2d at 64, 27 Cal.Rptr. at 701, 377 P.2d at 901. Thus, if one purchased a bicycle whose brakes did not hold because of an improper design, the manufacturer’s responsibility would be clear without more. The product would not satisfy the reasonable expectations of the purchaser.

In a design defect case when this factor is absent, other than assuming that the manufacturer knew of the harmful propensity of the product, see Cepeda, supra, 76 N.J. at 172, “the question then becomes whether the defendant was negligent to people who might be harmed by that condition if they came into contact with it or were in the vicinity of it.” Wade, “On the Nature of Strict Tort Liability for Products,” 44 Miss.L.J. 825, 835 (1973). In the same article, Professor Wade, referring to improper design, wrote, “There is little difference here between the negligence action and the action for strict liability.” Id. at 841. Dean Prosser has analyzed this proof problem by noting that “[sjince proper design is a matter of reasonable fitness, the strict liability adds little or nothing to negligence on the part of the manufacturer * * Prosser, supra, § 99, at 659 n.72.⁸ See generally Noel, “Recent Trends in Manufacturers’ Negligence as to Design, Instructions or Warnings,” 19 Sw.L.J. 43 (1965).

The proofs in this respect relate to the conduct of the manufacturer. Did the manufacturer act as a reasonably prudent person by designing the item as he did and by placing it on the market in that condition, or should he have designed it to incorporate certain safety features or some other modifications? Depending upon the proofs, some factors which may be considered by the jury in deciding the reasonableness of the manufacturer’s conduct include the technological feasibility of manufacturing a product whose design would have prevented or avoided the accident, given the known state of the art; and the likelihood that the product will cause injury and the probable seriousness of the injury. See Cepeda, supra, 76 N.J. at 174. We observe in passing that the state of the art refers not only to the common practice and standards in the industry but also to other design alternatives within practical and technological limits at the time of distribution.

However, it is the function of the court to decide whether the manufacturer has the duty and obligation imposed by the strict liability principle. As in tort law generally, determination of existence of a duty depends upon a balancing of the nature of the risk, the public interest and the relationship of the parties. We have previously adverted in Cepeda, supra, 76 N.J. at 173-174, to some of the factors to be considered.⁹ The question is ultimately one of public policy, the answer being dependent upon a consideration of all relevant factors to decide what is fair and just. See Brody v. Overlook Hospital, 66 N.J. 448 (1975); Newmark v. Gimbel’s Inc., 54 N.J. 585, 596—597 (1969); Caputzal v. Lindsay Co., 48 N.J. 69, 75 (1966). Dean Green has summarized the duty-risk approach in the following manner:

The determination of the issue of duty and whether it includes the particular risk imposed on the victim ultimately rests upon broad policies which underlie the law. These policies may be characterized generally as morality, the economic good of the group, practical administration of the law, justice as between the parties and other considerations relative to the environment out of which the case arose. They are found in all decisions whether based on former decisions of the court or on a fresh consideration of the factors found in the current environment. It need not be added that the scope or extent of duty in any case can only be resolved by the learning, experience, good sense and judgment of the judge—the molding of law in response to the needs of the environment. [Green, “Duties, Risks, Causation, Doctrines,” 41 Tex.L.Rev. 42, 45 (1962)]

Applying the same principle to strict liability actions, Dean Green, referring to § 402A of the Restatement, has written:

It is the function of the trial judge, subject to appellate review, to determine whether in the particular case the law imposes liability on the seller for the violation of its duty to the injured consumer. .[Green, “Strict Liability Under Sections 402A and 402B: A Decade of Litigation,” 54 Tex.L.Rev. 1185, 1200 (1976)]

Although the considerations for the jury are somewhat comparable to those of the trial court, their decisional functions differ. The court decides what protection should be given and the jury is concerned with reaching a just result as between the parties.

Strict liability in a sense is but an attempt to minimize the costs of accidents and to consider who should bear those costs. See the discussion in Calabresi & Hirschoff, “Toward a Test for Strict Liability in Torts,” 81 Yale L.J. 1055 (1972), in which the authors suggest that the strict liability issue is to decide which party is the “cheapest cost avoider” or who is in the best position to make the cost-benefit analysis between accident costs and accident avoidance costs and to act on that decision once it is made. Id. at 1060. Using this approach, it is obvious that the manufacturer rather than the factory employee is “in the better position both to judge whether avoidance costs would exceed foreseeable accident costs and to act on that judgment.” Id.

The same principles should apply whether the manufacturing defect is due to error or mischance or design. Though the nature of the proof to demonstrate that the product was defective may differ, the ultimate jury test is the same. Suitability and safety are implicated whether the defect in the product is due to an imperfection in the material or improper design.

We have previously stated that an appropriate strict liability charge should be given in terms of reasonable fitness, suitability and safety. Others have expressed this concept in similar terms. For example, Professor Wade refers to the test in terms of whether the product is duly safe. Wade, supra, 44 Miss.L.J. at 839-840.

Section 402A of the Restatement, however, provides that a seller of a product “in a defective condition unreasonably dangerous” will be subject to liability for harm caused thereby.¹⁰ (Emphasis supplied). Cepeda adopts this language and suggests that a jury be charged as follows:

A product is in a “defective condition unreasonably dangerous” if it is so likely to be harmful to persons or property that a reasonable prudent manufacturer who had actual knowledge of its harmful character would not place it on the market. It is not necessary to find that this defendant had knowledge of the harmful character of the product in order to determine that it was in a “defective condition unreasonably dangerous.” [76 N.J. at 174]

Cepeda thus appears to have added another dimension to jury instructions in design defect cases. Incorporation of the “defective condition unreasonably dangerous” language in the jury charge appears to impose a greater burden on plaintiff than is warranted, for it seems to require that plaintiff not only establish a defect but that in addition the condition created be unreasonably dangerous. It has been said inclusion of the phrase “unreasonably dangerous” in the Restatement formula is partially responsible for the confusion currently existing in products liability law. U. S. Dep’t of Commerce, Interagency Task Force on Product Liability, Product Liability: 2 Final Report of the Legal Study 18 (1977).

The California Supreme Court has also rejected this language, in part because of the apparent imposition of a dual burden. Cronin v. J. B. E. Olson Corp., 8 Cal.3d 121, 104 Cal.Rptr. 433, 501 P.2d 1153 (1972).¹¹ Professor Wade has commented that the Restatement language may lead a jury astray for “[i]t may suggest an idea like ultra-hazardous, or abnormally dangerous, and thus give rise to the impression that the plaintiff must prove that the product was unusually or extremely dangerous.” Wade, supra, 44 Miss.L.J. at 832.¹²

Defining the strict liability principle in terms of a defect and an unreasonably dangerous condition does not advance an understanding of the concept and will not assist a jury’s comprehension of the issues which it must resolve. Accordingly, the jury should be charged in terms of whether the product was reasonably fit, suitable and safe for its intended or foreseeable purposes when inserted by defendant into the stream of commerce and, if not, whether as a result damage or injury was incurred by the contemplated users or others who might reasonably be expected to come in contact with it. This is not to say that the jury should not receive additional instructions relative to the nature of the alleged defect. For example, a product may be unsafe because of inadequate instructions or, as in this case, the absence of safety features. The instruction should be tailored to the factual situation to assist the jury in performing its fact finding responsibility.

Delivery of an improperly designed machine constitutes delivery of a defective product. At that point, whether the cause of the defect in the product was due to design or otherwise is not material. See Pike v. Frank H. Hough Co., 2 Cal.3d 465, 475, 85 Cal.Rptr. 629, 636, 467 P.2d 229; 236 (1970). Once the defect is established and the other elements shown, a case for strict liability has been made out.

The instructions in the instant case satisfactorily posed the issues to the jury. There was little, if any; dispute that the machine had not been properly designed and that it could have been with minor modification. The jury was instructed to ascertain if the unit had been defectively designed and, if so, whether the resulting condition proximately caused the injury to plaintiff as a reasonably foreseeable user. There was no need to charge that plaintiff had to show that the equipment was in a defective condition unreasonably dangerous to him.

VI

In summary, then, we overrule Cepeda v. Cumberland Engineering Co., Inc.,supra, insofar as it held contributory negligence is a viable defense in a design defect case when plaintiff, an employee in an industrial setting, using the machine in an intended or reasonably foreseeable manner, is injured because of that defect, and in the absence of that defect the injury would not have occurred.

We hold that the Comparative Negligence Act is applicable in strict liability to those situations in which contributory negligence would have been a defense. However, we are not expanding the concept of contributory negligence, and comparative negligence is immaterial when no contributory negligence exists either factually or as a matter of law.

The trial court must determine whether the duty of strict liability exists. In doing so, it should weigh all pertinent risk/utility factors. When submitting the case to a jury, the court should charge generally that a manufacturer has an obligation to distribute products which are reasonably fit, suitable and safe for their intended or foreseeable purposes. If that obligation is violated and a user or others who may be expected to come in contact with the product are injured as a result, then the manufacturer is responsible for the ensuing damages. Design defect eases are covered as well within that context. In those design defect situations in which the defect is not self-evident, the trial court should also charge the jury on whether the manufacturer, it being deemed to have known of the harmful propensity of the product, acted as a reasonably prudent one. Depending on the proofs, the trial court should explain pertinent factors related to the determination of reasonable prudence. Other than this aspect, the design defect instruction should follow the usual pattern.

The judgment is affirmed.

1 This bar to recovery attributable to plaintiffs conduct is to be differentiated from those circumstances in which no duty ascribable to “assumption of risk” applies. See Meistrich v. Casino Arena Attractions, Inc., 31 N.J. 44 (1959); McGrath v. American Cyanamid Co., 41 N.J. 272 (1963); James, “Assumption of Risk: Unhappy Reincarnation,” 78 Yale L.J. 185 (1968).

2 We recognize that Wisconsin’s strict liability doctrine has been interpreted in terms of negligence per se, but the more persuasive legislative signposts indicate that the act was intended to cover fault in a broader sense rather than in the technical narrow negligence concept.

3 We are not unmindful that comparative negligence could be judicially adopted in strict liability cases. See Ettin v. Ava Truck Leasing, Inc., 53 N.J. 463, 474 (1969) (indicating in dictum that judicial adoption of comparative negligence principles in strict liability cases might be welcome); O’Brien v. Bethlehem Steel Corp., 59 N.J. 114, 126 (1971) (Francis, J., concurring) (suggesting that since bar of contributory negligence is judicially created, judicial authority to adopt comparative negligence is not open to reasonable question). Courts in other jurisdictions have declared that comparative negligence principles will govern ordinary negligence actions without prior legislative activity, e. g., Li v. Yellow Cab of California, 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226 (1975); Hoffman v. Jones, 280 So.2d 431 (Fla.1973). Even in instances in which the Legislature has enacted comparative negligence statutes that have been construed to be limited to negligence actions, it has been suggested that judicial action extending liability-dividing rules to products liability actions would be permissible since the defenses available to those actions are still subject to common law modification. V. Schwartz, “Strict Liability and Comparative Negligence,” 42 Tenn.L.Rev. 171, 180 (1974).

Of the 32 states with comparative negligence as of late 1976, in 29 the change was effected legislatively. See Sherman, “An Analysis of Pennsylvania’s Comparative Negligence Statute,” 38 U.Pitt.L.Rev. 51, 55 (1976).

4 We have accepted our concurring colleague’s interpretation and application of Cepeda’s contributory negligence doctrine to the facts in this case. However, Cepeda’s reasoning could arguably justify sending the issue of Suter’s contributory negligence to the jury. Plaintiff Suter was completely familiar with the operation.of the machine. He knew he could easily deactivate it by stepping on the foot treadle or he could avoid the lever by walking a few steps to the other side to extract the slag. There was some evidence that Suter had on prior occasions used the treadle to turn off the power to prevent the machine from being accidentally activated. It could be contended that, knowing these facts, he voluntarily and unreasonably exposed himself to the hazard.

5 We are not herein passing upon other situations wherein an employee may similarly be held to have had no meaningful choice.

6 Of course, this is not to say that an employee who deliberately injures himself will be able to recover.

7 Fitness and suitability are not limited to the commercial function of the product. Thus, the fact that the machine in Cepeda could make pellets did not satisfy the need that it be safe for the user.

8 In the analysis in Cepeda we said that the criterion of unreasonably dangerous was appropriate “if understood to render the liability of the manufacturer substantially coordinate with liability on negligence principles.” 76 N.J. at 171-172.

9 See Wade, “On the Nature of Strict Liability for Products,” 44 Miss.LJ. 825, 837-838 (1973); Collins v. Ridge Tool Co., 520 F.2d 591, 594 (7th Cir. 1975), cert. den. 424 U.S. 949, 96 S.Ct. 1421, 47 L.Ed.2d 355 (1976); Dreisonstok v. Volkswagenwerk, AG, 489 F.2d 1066 (4th Cir. 1974); Volkswagen of America v. Young, 272 Md. 201, 218-220, 321 A.2d 737, 746-747 (1974); Micallef v. Miehle Co., 39 N.Y.2d 376, 386, 384 N.Y.S.2d 115, 121, 348 N.E.2d 571, 577-578 (1976).

Dean Green has referred to the role of foreseeability of harm in determining whether a duty exists in the following manner:

Foreseeability may be a relevant factor for the judge to consider; other factors may and are usually more important in the determination of the defendant’s duty; the fact of risk in the particular case is what actually took place as a result of defendant’s conduct, not what was foreseen by the actor as likely to take place, and it is this risk that must be brought into focus by the court’s judgment on the duty issue. [Green, “Duties, Risks, Causation, Doctrines,” 41 TexL.Rev. 42, 58 (1962); emphasis in original]

10 Section 402 when originally adopted applied only to foods, and the term “unreasonably dangerous” was originally intended to apply only in that context. Later, the section was extended to include all products. See Wade, “On the Nature of Strict Liability for Products,” 44 Miss.L.J. 825, 830-831 (1973).

11 California has continued to adhere to the position stated in Cronin, in Barker v. Lull Engineering Co., Inc., 20 Cal.3d 413, 143 Cal.Rptr. 225, 573 P.2d 443 (1978), a design defect case, the trial court had charged the jury that strict liability for a defect in design of a product is based on a finding that the product was unreasonably dangerous for its intended use. The California Supreme Court, in reversing a judgment in favor of the defendants, reaffirmed its determination in Cronin that the Restatement's “unreasonably dangerous” gloss on defectiveness was confusing and unduly restrictive. The court stated:

Indeed, in Cronin itself we expressly stated that our holding applied to design defects as well as to manufacturing defects * * *. [20 Cal.3d at 426, 143 Cal.Rptr. at 233, 573 P.2d at 451]

12 The Barker court also adopted Professor Wade’s thought in support of its rejection of the “unreasonably dangerous” language. 20 Cal.3d at 426 n.8, 143 Cal.Rptr. at 234 n.8, 573 P.2d at 452 n.8.

We note in passing that the “unreasonably dangerous" characterization conflicts with those situations where the plaintiff has been permitted recovery for economic losses such as in Santor v. A & M Karagheusian, Inc., 44 N.J. 52 (1965).