Legal Memorandum: Products Liability Actions in a Workplace

Issue: Under New Jersey law, are the defenses of contributory and comparative negligence available in a products liability action occurring in the workplace if the employee has a choice in using the product?

It is well recognized that the defense of contributory or comparative negligence is inapplicable in products liability actions arising in a workplace setting in which the employee has no meaningful choice regarding the use of an allegedly defective product.  E.g. Johansen v. Makita U.S.A., Inc., 128 N.J. 86, 95, 607 A.2d 637 (1992); Mettinger v. W.W. Lowensten, Inc., 292 N.J. Super. 293, 312, 678 A.2d 1115 (1996), modified o.b., 153 N.J. 371 (1998); Tirrell v. Navistar Int’l, Inc., 248 N.J. Super. 390, 401, 591 A.2d 643 (1991); Suter v. San Angelo Foundry & Mach. Co., 81 N.J. 150, 406 A.2d 140 (1979).

The development of this exception to application of the doctrine of contributory negligence is rooted in two 1972 products liability actions in which the doctrine was rejected for public policy reasons.  Bexiga v. Havir Mfg. Corp., 60 N.J. 402, 412, 290 A.2d 281 (1972); Finnegan v. Havir Mfg. Corp., 60 N.J. 413, 424, 290 A.2d 286 (1972).  In both cases, workers sustained hand injuries while operating punch presses that lacked safety devices.  The Bexiga court explained that, because the plaintiff’s alleged negligence—placing his hand under the ram while the machine was in operation—was precisely what the missing safety devices were intended to prevent, "it would be anomalous to hold that defendant has a duty to install safety devices but a breach […]