Summary
In DePaolo v. Spaulding Fibre Company, Inc., 119 N.H. 89, 89-90, 397 A.2d 1048, 1049 (1979), the plaintiff employee, after receiving workmen's compensation, brought an action against his employer for an injury allegedly caused by the employer's negligent design and manufacture of a heating fabrication machine.
Summary of this case from Robbins v. SeekampOpinion
No. 78-217
Decided February 14, 1979
1. Workmen's Compensation — Action Against Employer — Negligence Employee who received workmen's compensation from employer's insurance carrier after receiving electric shock from the heating fabrication machine he was operating could not bring action against employer alleging that injuries were caused by employer's negligent design and manufacture of the machine where it was not sold to the public.
2. Workmen's Compensation — Action Against Employer — Loss of Consortium Wife of injured employee could maintain direct action against employer for loss of consortium due to work related injury that occurred prior to amendment to workmen's compensation statute barring "direct" actions against an employer by a wife for such loss. RSA 281:12.
Mullaney Richardson, of Rochester (Stanley J. Mullaney orally), for the plaintiffs.
Wiggin Nourie, of Manchester (James W. Donchess orally), for the defendant.
MEMORANDUM
This is an appeal from the granting of the defendant's motions to dismiss actions brought by the plaintiffs, an employee and his wife, for injuries caused by a machine manufactured by the defendant. The defendant's exceptions were reserved and transferred by Mullavey, J.
On December 21, 1972, the plaintiff employee of the defendant, Spaulding Fibre Company, Inc., suffered an electric shock at the defendant's production plant while operating an allegedly defective heating fabrication machine. For purposes of this motion this machine is assumed to have been designed and manufactured by the defendant and was used solely in its plant as an instrument for its raw material manufacturing process.
As a result of the injury, the plaintiff employee received workmen's compensation benefits from his employer's insurance carrier. The present action is brought by the plaintiff employee against his employer to recover for injuries allegedly caused by the employer's negligent design and manufacture of the heating fabrication machine. Although the husband employee relies on a California case that would permit this products liability action against the employer manufacturer, Douglas v. E. J. Gallo Winery, 69 Cal.App.3d 103, 137 Cal.Rptr. 797 (1977), even that case recognized that there could be no recovery where, as here, the product was not sold to the public. See Shook v. Jacuzzi, 59 Cal.App.3d 978, 129 Cal.Rptr. 496 (1976). The motion to dismiss was properly granted as to the husband employee.
The plaintiff wife's action, however, is maintainable because the injury occurred on December 21, 1972, which was prior to the 1973 amendment to RSA 281:12 barring "direct" actions against an employer by a wife for loss of consortium. See Ahern v. Laconia Country Club, Inc., 118 N.H. 623, 392 A.2d 587 (1978).
Exceptions overruled in part, sustained in part; remanded.