Opinion
March 22, 1971
In a negligence and breach of warranty action to recover damages (1) for personal injuries of the infant plaintiff, allegedly sustained when his arm caught in a washing machine installed in a laundromat, and (2) medical expenses, etc., sustained by his mother, defendant Marquette Corporation, the manufacturer, appeals from a judgment of the Supreme Court, Queens County, entered April 24, 1970, in favor of plaintiffs upon a jury verdict. Judgment reversed, on the law, and new trial granted, with costs to abide the event. The court has considered the questions of fact and has determined that it would not grant a new trial upon those questions. In our opinion the trial court erred in charging the jury that certain provisions of the Industrial Code of the State of New York (rules and regulations promulgated by the Board of Standards and Appeals of the State of New York) with respect to washing machines installed in laundry establishments apply to manufacturers of such machines, such as defendant Marquette. The provisions erroneously read to the jury are as follows (italics added): "Motor driven washing machines hereafter installed shall be equipped with a device that will automatically apply the brake and stop the rotation of the inner cylinder when the shell door is raised" (12 NYCRR 27.4 [b] [2]). "Each washing machine hereafter installed shall be equipped with an interlocking or other approved device that will prevent the inside cylinder from moving, when the outer door on the case or shell is open more than six inches" (12 NYCRR 19.21 [j] [1]). "The owner of a machine shall not suffer or permit it to be used when it or its place of operation is defective or unsafe" ( 12 NYCRR 43.5 [b]). The thrust of the above language clearly indicates that the subject regulations are directed, inter alia, toward owners of washing machines installed in a laundry establishment and not toward manufacturers, such as defendant Marquette. We are also of the opinion that the board's regulations in this field do not apply to individuals such as the infant plaintiff, but rather to employees of laundry establishments, since subdivision (a) of section 27.1 of the Industrial Code states (italics added): "(a) This Part [Part 27 of Chapter 1 of the Code] applies throughout the State of New York to every shop, room and building where any person is employed in doing public laundry work by way of trade or for the purpose of gain, and to every factory in which laundry work is done by an employee, and to the trade, occupation and process of doing laundry work, and to persons employed therein and their employers" (12 NYCRR 27.1 [a]). Since the jury specifically requested that the first regulations quoted supra be reread, it is apparent that those regulations figured in the jury's deliberations. We cannot say that the error was harmless, for conceivably the jury may have found the defendant manufacturer negligent or liable in warranty solely on the ground that the machine did not contain the safety device required by the inapplicable regulations. Rabin, P.J., Hopkins, Munder and Latham, JJ., concur; Benjamin, J., dissents and votes to affirm the judgment, with the following memorandum: The infant plaintiff, a 10-year-old boy, was washing clothes in a public laundromat owned by defendant Felle. The washing machine he was using had been manufactured and distributed by defendant Marquette Corporation. During the washing operation, he noticed that the machine was slowing down, so he opened the lid and the machine then stopped. Thinking that the washing was finished, he reached in for the clothes. As he did so, the cylinder in the machine started to spin again, catching his arm and causing severe injuries. He sued Felle (the laundromat owner) and Marquette (the manufacturer of the machine) in negligence and breach of warranty; and before trial he settled with Felle, leaving Marquette as the sole remaining defendant. At the trial, plaintiffs adduced proof that the Underwriter's Laboratory and the American Standards Association (both of them recognized advisory services to the washing machine industry) recommended that such washing machines be equipped with a safety device called an interlock in order to prevent the inside cylinder from moving when the lid of the machine was open or unlocked. They also adduced expert testimony that at the time of this accident (1966) 9 out of 10 manufacturers equipped their machines with such interlocks, that they were standard equipment on washing machines of all kinds and that the device is a simple push-rod switch attached to a spring. In addition, the proof established that the machine did not have on it any adequate warning that the machine could operate with the lid open. On this proof the jury unanimously found for plaintiffs; and I think the verdict was clearly justified, both on the theory of negligence and on the theory of breach of warranty of fitness for use, since the machine was patently unsafe. Nevertheless, the majority in this court is reversing on the ground that the trial court erred by charging certain provisions of the State Industrial Code which require every washing machine to be equipped with an interlock to prevent the inside cylinder from moving when the outer door is open. In my opinion this holding by the majority is incorrect for several reasons, even if we were to assume (as the majority is holding) that these code provisions do not apply to the manufacturer of a washing machine but only to the machine's owner and installer. First: The trial court did not tell the jury that violation of these code provisions would be negligence; he merely said that the Board of Standards and Appeals was empowered to make regulations with reference to manufacturers of washing machines; and he then simply read the subject code provisions to the jury, with no other comment upon them or their effect. Hence, we may fairly assume that this part of the charge was intended to, and did, instruct the jury that these code provisions could be considered by the jury as some evidence of the standard of care that should be exercised by a reasonably careful manufacturer of washing machines. So viewed, I believe the charge was correct, since a relevant safety standard in a statute, ordinance or regulation of a governmental body (being an official public pronouncement of a standard of reasonable care) certainly merits consideration by a jury on the question whether the defendant in the case before it has met the common-law standard of prudent conduct. Second: If we were to assume that this part of the charge was error, I think it was error that should be disregarded as immaterial. There was overwhelming proof of negligence in this case; and the proof of breach of warranty of fitness for use was even stronger. I cannot conceive that the jury could or would have reached a different verdict even if that supposedly erroneous instruction had not been given. That being so, we can and should disregard the supposed error as immaterial. To reverse and grant a new trial, as the majority is doing, is in my opinion pointless, since it will merely put the parties to the trouble of retrying this case with the same result.