Cepeda v. Cumberland Engineering Company, Inc.

The opinion of the court was delivered by

(temporarily assigned).

I

We granted certification, 70 N. J. 274 (1976), to review a decision of the Appellate Division, 138 N. J. Super. 344 (1976), reversing a judgment entered on a jury verdict for plaintiff in the Law Division and directing entry of judgment in favor of defendant. The action, brought by a workman operating a “pelletizing” machine, was for negligence and breach of warranty against the manufacturer of the machine, for damages consequent upon the loss of four fingers of the left hand resulting from an accident in the course of such operation in 1968. Although the machine came from the manufacturer with a bolted guard which *161 would have prevented the accident, the guard had apparently-been removed before plaintiff came to work on the day of the accident.

The theory of plaintiff’s action was that the machine was defectively designed from a safety standpoint, in that the guard was required to be removed frequently in the normal-course of the operation of the machine; that it could have been expected that on some such occasion the guard would not be replaced before resumption of operations, whether inadvertently or otherwise; and that therefore the defendant manufacturer should have equipped it with an electronic “interlock” mechanism, readily available and capable of installation, which would have automatically prevented the operation of the machine when the guard was off. The defense was that the machine was not defectively designed as it met general standards of safety as of the date of its sale to plaintiff’s employer, 1956, and as it was reasonably contemplated that the -machine would not be operated with the guard off. It was further contended that plaintiff was guilty of contributory negligence in operating the machine with the guard off and that such negligence barred recovery, being a substantial factor in bringing about the accident.

At the trial the court denied motions by defendant for dismissal before submission of the case to the jury. It submitted the issue of defendant’s liability on the theory of strict liability in tort, framing the question both in terms of A. L. I. Restatement, Torts, 2d, Section 402A (1965) {“Rest. 2d See. 402A,” hereinafter), i.e., whether the machine as sold was “defective” because “unreasonably dangerous” to the user, and of implied warranty, i.e., whether it was defective because “not reasonably fit for the ordinary purpose for which such products are sold and used.” The issue of contributory negligence was framed to the jury both under the standard formulation appropriate to an ordinary negligence ease (“that degree of care for one’s own safety which a person of ordinary prudence would exercise under similar circumstances”) and that generally following Rest. *162 2d Sec. 402A, Comment n, i.e., whether plaintiff “voluntarily and unreasonably proceeded to encounter a danger which was known to him.”

The court required the jury to respond to four interrogatories: (1) whether the machine was defective in design when sold; (.2) whether, in event of an affirmative response to (1), the defect was the proximate cause of the accident; (3) whether plaintiff was contributorily negligent in operating the machine; (4) whether, in event of an affirmative response to (3), such contributory negligence was a proximate cause of the accident; (5) the amount of damages awarded if (1) and (2) were answered affirmatively and either (3) or (4) were answered in the negative. In its verdict the jury answered questions (1), (2) and (3) in the affirmative and (4) in the negative. It awarded plaintiff $125,000 damages, for which judgment was entered against defendant.

The defendant moved for a judgment n.o.v or for a new trial. One of the grounds for the latter motion was the inconsistency of the answers to questions (3) and (4). The trial court denied the motion. As to the latter ground, the court was of the view that the jury could on the evidence have found plaintiff contributorily negligent but such contributory negligence not a “substantial factor” in bringing about the accident and therefore not a proximate cause thereof.

The Appellate Division found that the evidence compelled the conclusion as a matter of law that the machine as delivered was free of design defect. The manufacturer was “entitled to expect normal use” of its product, and if a safety device provided with the machine was not used, the manufacturer “cannot be held responsible for unforeseeable negligence on the part of third parties in operating or permitting operation of the equipment without the device.” 138 N. J. Super. at 351. The court did not find it necessary to reach other grounds of appeal raised by defendant.

*163 We have concluded that the Appellate Division did not, as it was required to do, give the plaintiff the benefit of all the proofs and of all legitimate inferences therefrom favorable to plaintiff, before deciding the fact-issues in the case against him as a matter of law; see Shellhammer v. Lehigh Valley Railroad Co., 14 N. J. 341, 345 (1954). As will appear, the best view of the evidence from the plaintiff’s standpoint would permit an inference that it was indeed foreseeable that in view of the frequent occasion for removal of the guard during operations someone would permit the plaintiff to use the machine without the guard or that he would do so ignorantly or inadvertently. In such circumstances, moreover, authoritative interpretation of Rest. 2d Sec. 402A, to which provisions this Court has broadly committed itself in this area, see cases cited infra, justifies our adopting the rule that knowledge of the dangerous potentiality of a machine design as reflected by the evidence at trial is imputable to the manufacturer, and that the remaining determinative question as to affirmative liability is whether a reasonably prudent manufacturer with such foreknowledge would have put such a product into the stream ■of commerce after considering the hazards as well as the utility of the machine, the ease of incorporating a remedial interlock, the likelihood vel non that the machine would be used only with the guard, and such other factors as would bear upon the prudence of a reasonable manufacturer in so deciding whether to market -the machine. Wade, 1 “Strict Tort Liability of Manufacturers,” 19 S. W. L. J. 5, 15, 17 (1965); Wade, “On The Nature Of Strict Tort Liability For Products,” 44 Miss. L. J. 825, 834-835, 837-838, 840 (1973); P. Keeton, 2 “Manufacturer’s Liability: The Mean *164 ing Of ‘Defect’ In. The Manufacture And Design Of Products,” 20 Syracuse L. Rev. 559, 568 (1969); P. Keeton, “Product Liability And The Meaning Of Defect,” 5 St. Mary’s L. J. 30, 37-38 (1973); Note, 10 U. S. F. L. Rev. 492, 519 (1976). Application of that principle, as we shall demonstrate, required submission of the question of the liability of the manufacturer to the jury on the evidence here adduced.

While we have also concluded that an issue of contributory negligence in the special sense of voluntary unreasonable assumption by plaintiff of a known hazard was also properly for the jury, the inconsistency of the jury’s findings of contributory negligence and absence of proximate cause between such negligence and the accident, on the factual record before us, will require a new trial on the issue of contributory negligence.

II

The evidence in the case, taking the most favorable view of the proofs for the plaintiff which could have been entertained by a jury, is as follows.

Plaintiff was an 18 year old native of Santo Domingo who spoke and read no English, had had little schooling, and had worked for the employer, Rotuba Extruders, for eight months when this accident occurred on April 3, 1968. His foremen were Spanish-speaking, as was he. His duties included working on this machine, among other things. At the time, the plant was on a multi-shift operation, and plaintiff’s shift was from midnight to 8:00 a.m.

The function of the machine was to draw multiple strands of plastic extruded by another machine into position for cutting into very small pellets, so that the product could be conveniently stored and shipped. When the guard was on the machine, the strands were introduced by the workman into the machine through a horizontal opening in the guard adjoining the table, too narrow to admit a man’s hand. However, there was no functional bar to the effectuation of *165 the process in the absence of the guard (plaintiff had worked the machine without the guard several hours on April 3, 1968 before the accident). The strands of plastic were then sucked up by the “nip-point” of two revolving rollers and carried to a rotating drum containing knives which cut the plastic into pellets. Thence the pellets were discharged into a chute.

Although defendant offered testimony to the effect that in addition to its function of protecting the hands of workers the guard was also designed (1) to aid production as a control over the direction in which the strands were fed to the rollers and (2) to contain stray pellets which might bounce out of the machine, the jury could have concluded that the latter purposes were relatively inconsequential and that the only real function of the guard was, as defendant’s vice-president denominated it, as a “finger guard.”

Plaintiff testified through an interpreter, and a reading of the transcript renders it probable that either he misunderstood some of the questions or that the translations of his answers thereto were inaccurate or incomplete. He apparently testified in answer to successive questions that prior to the day of the accident he both had, and had not, worked the machine without the guard. The guard was not on the machine when he came to work the night of the accident. He had not taken it off and did not know who had. The accident happened when the “ribbon” of plastic “caught” his hand and “pulled it inside” [the rollers]. He said it “sucked [him] right in.” When he was instructed in the use of the machine the guard was on, but he was never told of and did not realize its purpose until after the accident. He was never instructed that he was not to operate the machine if the guard was off. Asked whether the guard was ever off the machine before the night of the accident, he responded, “Why, sure.” But he also said he had never operated the machine previously without the guard. He cleaned the machine with an air hose while the guard remained on.

*166 One of plaintiff’s supervising foremen testified on depositions de bene esse that he told him never to remove the guard from the machine because “the machine could take his hand and whole arm off.” Plaintiff himself admitted on depositions that he knew “the rollers could take his hand.”

Called as a witness for plaintiff, an officer and plant manager of the employer company testified that there were two types of situations wherein the guard had to- be removed for thorough cleaning of the machine. One was when there was to be a drastic change in the color run of the plastic; the other, when the strands jammed the rollers. In either of these situations, “which happened from time to time,” the guard had to be dismantled and the inside of the machine both blown out with air and cleaned of the clogging plastic with shears and other tools. There was evidence that it required only a few minutes to remove or install the guard. Operators of the machine were classified as unskilled. To the witness’s knowledge, the machine was never operated without the guard.

A plant supervisor corroborated the foregoing testimony as to occasions for removal of the guard. There were times when changes in the color run would occur four times in one shift. Although no one was supposed to run the machine without -the guard, the supervisor himself had once “caught his hand” in the machine. The circumstances of that event were not further developed. Only the foremen had the authority and tools to remove the guard.

Isaac Stewart, a consulting engineer for many years in “accident and material failure evaluation,” testified for plaintiff to an opinion that when sold in 1956 the machine was “unsafely designed.” This was for the reason that the necessity for removal of the guard for cleaning and unclogging the machine was of an “operational” nature rather than for maintenance purposes only. Operational removals mandated an interlock mechanism to prevent operability when the guard was off. An interlock could have been in *167 stalled for $25 or $30. Such devices have been known since the turn of the century and were specified in many safety codes 50 years ago. An in-running nip roller is dangerous. As of 1956, machines of various types with "nip” rollers were guarded with interlocks. The witness mentioned examples of such use on machines in the printing, food, injection mold and plastic industries.

Defendant’s vice-president, who was a design engineer of the company when this machine was manufactured, testified that the company manufactured many kinds of machines equipped with guards to protect workers, but none were equipped with interlock devices. In 1956 there were no industry safety standards for manufacturing pelletizers. It was not felt necessary to provide an interlock in view of the presence of a guard which was bolted and served an operational as well as a safety function. Interlocks were used only with hinged guards, not bolted ones requiring use of a wrench to remove them, such as that here involved. On cross-examination the witness conceded that interlocks had been known for a long time prior to 1956.

■ Seymour Bodner testified as a safety expert for defendant. His opinion that the machine met safety standards was premised on the factual assumption that the guards required removal only on "major cleanups” of the machine and that those were infrequent. He thought that "the operation of the machine without the guard [was] not to be anticipated.” General industry safety codes as of 1956 did not call for interlocks on guards. Interlocks can be rendered inoperative. On cross-examination, he conceded that if the guard had to be removed frequently there should have been an interlock.

Ill

The development in this State of the doctrine of strict liability in tort of suppliers of chattels for personal injuries sustained by users thereof in consequence of defects in such articles was succinctly summarized by Justice Hall for this *168 Court in Heavner v. Uniroyal, Inc., 63 N. J. 130, 146-152 (1973), and needs no retelling here. As there pointed out, the movement from negligence and warranty theories to that of strict liability in tort, and the ultimate dominance of the latter principle for most purposes, was crystallized in Rest. 2d Sec. 402A, which, although not published until 1965, was in process of development by the American Law Institute for some time theretofore. 3 See Wade, op. cit., supra, 44 Miss. L. J. at 829-831. The section reads as follows:

§ 402 A. Special Liability of Seller of Product for Physical Harm to User or Consumer

(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if

(a) the seller is engaged in the business of selling such a product, and

(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

(2) The rule stated in Subsection (1) applies although

(a) The seller has exercised all possible care in the preparation and sale of his product, and

(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.

To the section are appended seventeen “comments,” not all of which are followed by all of the many courts which *169 have adopted the section in principle. In this State, Rest. 2d Sec. 402A has had frequent express approval. Besides Heavner v. Uniroyal, Inc., supra, 63 N. J. at 151, see Brody v. Overlook Hospital, 66 N. J. 448, 451 (1975); Realmuto v. Straub Motors, 65 N. J. 336, 343 (1974); Bexiga v. Havir Manufacturing Corp., 60 N. J. 402, 407-408 (1972); Newmark v. Gimbel’s Incorporated, 54 N. J. 585, 595 (1969); Rosenau v. City of New Brunswick & Gamon Meter Co., 51 N. J. 130, 136 (1968); Devaney v. Sarno, 125 N. J. Super. 414, 418 (App. Div. 1973), aff’d o.b. 65 N. J. 235 (1974); and Turner v. International Harvester Company, 133 N. J. Super. 277, 286 (Law Div. 1975); cf. Glass v. Ford Motor Co., 123 N. J. Super. 599 (Law Div. 1973). And other recent decisions of this Court in the strict liability area, not mentioning the Bestatement, are generally consistent with the principles enunciated therein. Moraca v. Ford Motor Co., 66 N. J. 454 (1975); Scanlon v. General Motors Corp., 65 N. J. 582 (1974).

The heart' of the approach we take toward resolution of the matter of defendant’s affirmative liability in this case calls for a careful distinction between ordinary manufacturing defects and defects of design. Scanlon and Moraca, both supra, involved assertions of defects of the former type where the product contains a variance, latent or patent, from the manufacturer’s intent; see also Jakubowski v. Minnesota Mining and Manufacturing, 42 N. J. 177 (1964). The present case is an example of the latter, where the product is made as intended, but is asserted to be dangerous in some way, as is also Bexiga v. Havir Manufacturing Corp., supra, 60 N. J. 402. The distinction has been frequently drawn in the literature. Phillips, “The Standard Eor Determining Defectiveness in Products Liability,” 46 U. Cin. L. Rev. 101, 103-105 (1977); 2 Frumer & Friedman, Products Liability (1975) Sec. 16A [4], at 3-320; Wade, op. cit, supra, 44 Miss. L. J. at 836-837; Note, 55 Geo. L. J. 286, 297 (1966); Cohen, “Product Design and Bestatement (Second) of Torts, Section 402A,” 61 Mass. L. Q. 103, *170 104 (1976); and see Volkswagen of America Inc. v. Young, 272 Md. 201, 321 A. 2d 737 (Ct. App. 1974). However, there has not been uniformity in the views as to what, if anything, should be the difference in the criteria for strict liability in tort in the respective typies of “defects” mentioned.

The black letter of Rest. 2d Sec. 402A does not draw the stated distinction, the requirement that thie product be “in a defective condition unreasonably dangerous to the user or consumer” being facially applicable to both kinds of defects. However, Comment i of the section explains that the qualification “unreasonably dangerous” was meant to negate the notion-that products normally useful, such as sugar, whiskey, tobacco, or butter, could be regarded as defective because, if usied improperly, excessively or in an adulterated condition, they could also be harmful (Id. at p. 352). The requisite of “unreasonably dangerous,” however, also extends to other manufactured objects whose utility in ordinary use outweighs the potentiality of their harmfulness. As stated in Prosser, Torts (1971), p. 659: “An ordinary pair of shoes does not become unreasonably unsafe merely because the soles become somewhat slippery when wet; nor is there unreasonable danger in a hammer merely because it can mash a thumb. Knives and axes would be quite useless if they did not cut.”

In the case of a defect of a product in the sense of an abnormality unintended by the manufacturer, there would appear to be prima facie liability for physical harm proximately resulting from the defect to a user or consumer without any need for showing of unreasonable danger in any other sense. “[T]he product [would be] unreasonably dangerous as a matter of law and this would be true of virtually any fabrication or construction defect.” P. Keeton, op. cit., supra, 5 St. Mary’s L. J. at 39; Note, op. cit., supra, 10 U. S. F. L. Rev. at 498. See also P. Keeton, op. cit., supra, 20 Syracuse L. J. at 562-563. Cf. Wade, op. cit., *171 supra, 44 Miss. L. J. at 837. 4 In apparent accord: Scanlon v. General Motors, Inc., supra, 65 N. J. 582 (an alleged manufacturing process defect case) which stated the manufacturer would be liable “if the product left their hands in a defective condition proximately causing the mishap.” (Id. at 590).

Our present decisional concern, however, is with the design defect aspect of a manufacturer’s strict liability in tort. The cases in this area of the law frequently confound considerations relating to contributory negligence, assumption of risk and misuse of the product by the plaintiff with other factors relevant to liability for design defect. See Schwartz, “Strict Liability and Comparative Negligence,” 42 Tenn. L. Rev. 171 (1974); Noel, “Defective Products: Abnormal Use, Contributory Negligence and Assumption of Risk,” 25 Vand. L. Rev. 93 (1972). We shall deal with the former aspects of the instant case hereinafter. At this point of the discussion, the point to be made is that in design defect liability analysis the Section 402A criterion of “unrea *172 sonably dangerous” is an appropriate one if understood to render the liability of the manufacturer substantially coordinate with liability on negligence principles. The only qualification is as to the requisite of foreseeability by the manufacturer of the dangerous propensity of the chattel manifested at the trial — this being imputed to the manufacturer. “Since proper design is a matter of reasonable fitness, the strict liability adds little or nothing to negligence on the part of the manufacturer * * *.” Prosser, Torts, supra, p. 659, n. 72. See Volkswagen of America, Inc. v. Young, supra, 321 A. 2d at 747-748; Jones v. Hutchinson Manufacturing, Inc., 502 S. W. 2d 66, 69-70 (Ky. Ct. App. 1973).

A most useful formulation of the foregoing principles, for purposes of practical judicial implementation in design defect cases, is contained in the four articles by Deans Wade and P. Keeton cited above. This approach has recently b,een described as “the risk/utility analysis as developed by Deans Wade and Keeton.” Note, op. cit., supra, 10 U. S. F. L. Rev. at 505. In his most recent article Dean Wade has described the approach as follows:

The time has now come to be forthright in using a tort way of thinking and tort terminology [in cases of strict liability in tort]. There are several ways of doing it, and it is not difficult. The simplest and easiest way, it would seem, is to assume that the defendant knew of the dangerous condition of the product and ask whether he was then negligent in putting it on the market or supplying it to someone else. In other words, the scienter is supplied as a matter of law, and there is no need for the plaintiff to prove its existence as a matter of fact. Once given this notice of the dangerous condition of the chattel, 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. Another way of saying this is to ask whether the magnitude of the risk created by the dangerous condition of the product was outweighed by the social utility attained by putting it out in this fashion.

Wade, op. cit., supra, 44 Miss. L. J. at 834-835.

Dean Keeton put the matter thiswise:

*173 A product is defective if it is unreasonably dangerous as marketed. It is unreasonably dangerous if a reasonable person would conclude that the magnitude of the scientifically perceivable danger as it is proved to be at the time of trial outweighed the benefits of the. way the product was so designed and marketed. Under the heading of benefits one would include anything that gives utility of some kind to the product; one would also include the infeasibility and additional cost of making a safer product. As the Court of Appeals for the Fifth Circuit has said, “[Demanding that the defect render the product unreasonably dangerous reflects a realization that many products have both utility and danger.” Ross v. Up-Right, Inc., 402 F. 2d 943 (5th Cir. 1968). (emphasis in original)

P. Keeton, op. cit., supra, 5 St. Mary’s L. J. at 37-38.

See also Phillips, op. cit., supra, 46 U. Cin. L. Rev. at 103.

Out study of the decisions satisfies us that this risk/utility analysis rationalizes what the great majority of the courts actually do in deciding design defect cases where physical injury has proximately resulted from the defect. Several recent cases have expressly referred to and applied the stated analysis. See Barker v. Lull Engineering Company, Inc., supra, 143 Cal. Rptr. 225, 573 P. 2d at 454-455; Schell v. AMF, Incorporated, 567 F. 2d 1259 (3 Cir. 1977); Johnson v. Clark Equipment Co., 274 Or. 403, 547 P. 2d 132, 140 n. 12 (Sup. Ct. 1976); Phillips v. Kimwood Machine Co., 269 Or. 485, 525 P. 2d 1033, 1036-1038 (Sup. Ct. 1974); Roach v. Kononen, 269 Or. 457, 525 P. 2d 125, 128-130 (Sup. Ct. 1974); Dorsey v. Yoder Co., 331 F. Supp. 753, 759-760 (E. D. Pa. 1971) (a particularly thorough discussion), aff'd 474 F. 2d 1339 (3 Cir. 1973). See also Balido v. Improved Machinery, Inc., 29 Cal. App. 3d 633, 105 Cal. Rptr. 890, 895-896 (Ct. App. 1973).

Dean Wade suggests that before determining whether the case for liability should be given to the jury the trial court should give consideration to whether a balanced consideration of the following factors did not preclude liability as a matter of law:

*174 (1) The usefulness and desirability of the product — its utility to the user and to the public as a whole.

(2) The safety aspects of the product — the likelihood that it will cause injury, and the probable seriousness of the injury.

(3) The availability of a substitute product which would meet the same need and not be as unsafe.

(4) The manufacturer’s ability to eliminate the unsafe character of the product without impairing its usefulness or making it too expensive to maintain its utility.

(5) The user’s ability to avoid danger by the exercise of care in the use of the product.

(6) The user’s anticipated awareness of the dangers inherent in the product and their avoidability, because of general public knowledge of the obvious condition of the product, or of the existence of suitable warning^ or instructions.

(7) The feasibility, on the part of the manufacturer, of spreading the loss by setting the price of the product or carrying liability insurance.

Wade, op. cit., supra, 44 Miss. L. J. at 837-838.

If the ease is sent to the jury, since it would not always be appropriate for the court to include in the instructions to the jury all seven of the factors mentioned above, Dean Wade suggests the following model instruction:

“A [product] is not duly safe if it is so likely to be harmful to persons [or property] that a reasonable prudent manufacturer [supplier], 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 not duly safe.”

Id., at 839-840.

Subject to substituting the Section 402A language, “defective condition unreasonably dangerous,” for the Wade-preferred “not duly safe,” we approve and adopt this instruction for incorporation into a charge in an action against a manufacturer for strict liability in tort based upon the design defect of a product. 5 Such a charge would be usefully *175 amplified by the judge calling to the attention of the jury for their consideration any of the Wade factors mentioned above going into the risk/utility analysis for which there is specific proof in the ease and .especial significance (e. g., here, the manufacturer’s ability to eliminate the unsafe character of the product without impairing its utility or incurring too much expense; the manufacturer’s asserted expectation that the machine would be operated only with the guard). It should also here be noted, although the point will b,e repeated in another connection, infra, that while foreseeability by the defendant of the harmful character (dangerous proclivity) of the product is not a requisite to liability, foreseeability (objective) of the kind of use (or misuse) of the product which occurred is a relevant factor. See Newman v. Utility Trailer & Equip. Co. Inc., 278 Or. 395, 564 P. 2d 674, 676-677 (Sup. Ct. 1977); Galvan v. Prosser Packers, Inc., 83 Wash. 2d 690, 521 P. 2d 929, 931 (Sup. Ct. 1974); cf. Eshbach v. W. T. Grant's and Company, 481 F. 2d 940, 942-943 (3 Cir. 1973); Rest. 2d Sec. 402A, Comment h.

As noted above, examination of many design defect cases decided in recent years reflects the actual deployment by the courts of the risk/utility analysis, although it is generally not denominated as such, and not all of the Wade balancing factors are necessarily adverted to. Bexiga v. Havir Manufacturing Corp., supra, 60 N. J. at 409-410; Turner v. International Harvester Company, supra, 133 N. J. Super, at 292-293; Barker v. Lull Engineering Company, Inc., supra; Schell v. AMF, Incorporated, supra; Korli v. Ford Motor Co., 69 Cal. App. 3d 115, 137 Cal. Rptr. 828, 832-833 (Ct. *176 App. 1977); Raney v. Honeywell, Inc., 540 F. 2d 932, 934-935 (8 Cir. 1976); Davis v. Fox River Tractor Company, 518 F. 2d 481, 484 (10 Cir. 1975); Pike v. Frank G. Hough Co., supra, 85 Cal. Rptr. 629, 467 P. 2d at 236-237; Carpenter v. Koehring Company, 391 F. Supp. 206, 210 (E. D. Pa. 1975), aff’d 527 F. 2d 644 (3 Cir. 1976); Ford v. Harnischfeger Corporation, 365 F. Supp. 602, 606-607 (E. D. Pa. 1973); Thomas v. General Motors Corp., 13 Cal. App. 3d 81, 91 Cal. Rptr. 301, 305 (Ct. App. 1971).

Strict tort liability under Rest. 2d Sec. 402A for design defects is not appropriately circumscribed by the warranty test of whether the article is reasonably fit for its intended purpose or use, notwithstanding strict liability in tort began here and elsewhere by borrowing warranty concepts in order to avoid the need of establishing negligence. See Henningsen v. Bloomfield Motors, Inc., 32 N. J. 358 (1960); Santor v. A & M Karagheusian, Inc., 44 N. J. 52 (1965); and the discussion in Heavner v. Uniroyal, Inc., supra, 63 N. J. at 146-148; Rapson, “Products Liability Under Parallel Doctrines; Contrasts Between The Uniform Commercial Code and Strict Liability In Tort,” 19 Rutgers L. Rev. 692, 698-703 (1965). As pointed out by Dean Wade, in situations “involving design matters, the consumer would not know what to expect, because he would have no idea how safe the product could be made.” Wade, op. cit., supra, 44 Miss. L. J. at 829; see also P. Keeton, op. cit., supra, 5 St. Mary’s L. J. at 36-37. The fact that the instant machine was commercially “reasonably fit for its intended purpose” of pelletizing plastic strands is obviously irrelevant to the postulate of strict tort liability to a workman injured by reason of the unsafety of the machine due to a design defect. Cf. Barker v. Lull Engineering Company Inc., supra.

The general outline of a rationale for the affirmative case of strict liability for design defects in a manufactured product includes the condition that the product is not being misused or abnormally used except where such latter kinds of use are foreseeable. Rest. 2d Sec. 402A, Comment h; *177 Prosser, Torts, supra, at 668-669. Abnormal use or misuse has also been conceptualized as negating proximate cause — a view taken by the Appellate Division here. 138 N. J. Super. 353, n. 4. If it is the plaintiff who has misused the product, negation of liability is sometimes posited on contributory negligence. Maiorino v. Weco Products Co., 45 N. J. 570, 574 (1965). However, abnormal use is not an affirmative defense; it is rather for the plaintiff, in undertaking to prove that the unreasonable dangerousness of the article caused the injury, to show there was no abnormal use. See Noel, op. cit., supra (25 Vand. L. Rev. at 96); Wade, op. cit., supra, 44 Miss. L. J. at 846-847; Comment, 80 Dick. L. Rev. 245 (1976).

It is, however, clear that many, if not most jurisdictions now acknowledge that in applying strict liability in tort for design defects manufacturers cannot escape liability on grounds of misuse or abnormal use if the actual use proximate to the injury was objectively foreseeable. See, e. g., Schell v. AMF, Incorporated, supra, 567 F. 2d at 1262; Raney v. Honeywell, supra, 540 F. 2d at 934 (Iowa law); Suchomajcz v. Hummel Chemical Co., 524 F. 2d 19, 28 (3 Cir. 1975) (Pa. law); Larsen v. General Motors Corp., 391 F. 2d 495, 502 (8 Cir. 1968) (Mich. law); Smith v. Hobart Manufacturing Co., 302 F. 2d 570, 575 (3 Cir. 1962) (Pa. law); Holmgren v. Massey-Ferguson, Inc., 394 F. Supp. 910, 917 (D. N. D. 1974), rev’d on other grounds, 516 F. 2d 856 (8 Cir. 1975) (N. D. law); Grant v. National Acme Co., 351 F. Supp. 972, 977-78 (W. D. Mich. 1972) (Mich. law); Buccery v. General Motors Corp., 60 Cal. App. 3d 533, 132 Cal. Rptr. 605, 614 (Ct. App. 1976); Johnson v. American Motors Corp., 225 N. W. 2d 57, 65 (N. D. 1974); Micallef v. Miehle Co., 39 N. Y. 2d 376, 384 N. Y. S. 2d 115, 121, 348 N. E. 2d 571, 577 (Ct. App. 1976); Ethic