
    Gerald Robinson, Respondent, v Reed-Prentice Division of Package Machinery Company, Appellant and Third-Party Plaintiff. Plastic Jewel Parts Company, Inc., Third-Party Defendant-Appellant.
    Argued January 8, 1980;
    decided February 14, 1980
    
      POINTS OF COUNSEL
    
      William F. McNulty, Walter A. Donnelly and Anthony J. McNulty for appellant and third-party plaintiff.
    I. The complaint herein should have been dismissed at the close of the evidence on the ground that plaintiff failed to establish a prima facie case against Reed-Prentice either on the theory of negligence or on the theory of strict products liability. (Bergen v I.L.G.W.U. Houses, 38 AD2d 933; Micallef v Miehle Co., Div. of Miehle-Goss Dexter, 39 NY2d 376; Gasper v Ford Motor Co., 13 NY2d 104; Borshowsky v Altman & Co., 280 App Div 599, 306 NY 798; Mancino v 1951 5th Ave. Corp., 20 AD2d 771, 16 NY2d 527; Behm v Seaman, 45 AD2d 673; Codling v Paglia, 32 NY2d 330.) II. Even though it be assumed, arguendo, that the proof may have raised issues of fact for the jury respecting the liability of Reed-Prentice in this case, the charge of the Trial Justice finds no support in any reported case decided either in New York or in any other American jurisdiction under facts in any way comparable to the novel facts presented in the case at bar. (Campo v Scofield, 301 NY 468; Codling v Paglia, 32 NY2d 330; Victorson v Bock Laundry Mach. Co., 37 NY2d 395; Fogal v Genesee Hosp., 41 AD2d 468; Halloran v Virginia Chems., 41 NY2d 386; Resenzweig v Aristo Truck Renting Corp., 34 AD2d 542; Cascia v Maze Woodenware Co., 29 AD2d 964; Fernandez v Chios Shipping Co., 542 F2d 145; Hagans v Oliver Mach. Co., 576 F2d 97; Hanlon v Cyril Bath Co., 541 F2d 343.) III. Other errors at least mandating a new trial of this action were committed by the Trial Justice. (Winnick v New York State Elec. & Gas Corp., 38 AD2d 623, 32 NY2d 624; Codling v Paglia, 32 NY2d 330; Ashe v Niagara Mach. & Tool Works, 60 AD2d 616; Kasper v Buffalo Bills of Western N. Y., 42 AD2d 87; Gilliard v Long Is. R. R. Co., 45 NY2d 996.)
    
      Steven B. Prystowsky for third-party defendant-appellant.
    I. The manufacturer of a product is not liable to any person injured under the theory of strict liability in tort if, after the product leaves the manufacturer’s control, there is a subsequent modification which substantially alters the product. Further, assuming, arguendo, there was a design defect in the product, a manufacturer is not liable to anyone injured under general principles of negligence if knowledge of the design defect was brought home to the purchaser and the purchaser was in a better position to correct the design defect but failed to do so. (Micallef v Miehle Co., Div. of Miehle-Goss Dexter, 39 NY2d 376; Biss v Tenneco, 64 AD2d 204, 46 NY2d'711; Ashe v Niagara Mach. & Tool Works, 60 AD2d 616; McLaughlin v Mine Safety Appliances Co., 11 NY2d 62; Bolm v Triumph Corp., 33 NY2d 151; Cousins v Instrument Flyers, 58 AD2d 336, 44 NY2d. 698; Bergen v I.L.G.W.U. Houses, 38 AD2d 933; Hardy v Hull Corp., 446 F2d 34; Young v Aeroil Prods., 248 F2d 185; Speyer, Inc. v Humble Oil & Refining Co., 403 F2d 766.) II. The Trial Judge’s instructions to the jury were confusing and contradictory, requiring a new trial in the interest of justice. (Bolm v Triumph Corp., 58 AD2d 1014; Micallef v Miehle Co., Div. of Miehle-Goss Dexter, 39 NY2d 376; Culver v Gloo, 27 AD2d 698; Boerio v Haiss Motor Trucking Co., 7 AD2d 228; Arroyo v Judena Taxi, 20 AD2d 888; Smith v Gray, 19 App Div 262, 162 NY 643; Meyers v Grand Union Co., 26 AD2d 646; Green v Downs, 27 NY2d 205; France v Shannon, 36 AD2d 651.)
    
      
      Richard E. Shandell for respondent.
    I. Defendant was properly held legally responsible for plaintiffs injuries. (Codling v Paglia, 32 NY2d 330; Micallef v Miehle Co., Div. of Miehle-Goss Dexter, 39 NY2d 376; Merced v Auto Pak Co., 533 F2d 71; Tucci v Bossert, 53 AD2d 291; Parks v Simpson Timber Co., 388 US 459; Thomas v American Cystoscope Makers, 414 F Supp 255; Mazzi v Greenlee Tool Co., 320 F2d 821; McPherson v Buick Motor Co., 217 NY 382; Palsgraf v Long Is. R. R. Co., 248 NY 339; Grant v Knepper, 245 NY 158.) II. Defendants’ breach of duty was a proximate cause of plaintiff’s injuries. (Bolm v Triumph Corp., 33 NY2d 151.) III. Contributory negligence, if any, of the infant plaintiff was an issue properly left to the jury. (Wartels v County Asphalt, 29 NY2d 372; Rossman v La Grega, 28 NY2d 300; McDonald v Central School Dist. No. 3 of Towns of Romulus, Varick & Fayette, 289 NY 800; Broderick v Cauldwall- Wingate Co., 301 NY 182; Merced v Auto Pak Co., 533 F2d 71; Boerio v Haiss Motor Trucking Co., 7 AD2d 228; Kaplan v 48th Ave. Corp., 267 App Div 272.) IV. The letter of Reed-Prentice expressing its refusal to make any attempt to improve the safety of its machine was admissible into evidence. (Micallef v Miehle Co., Div. of Miehle-Goss Dexter, 39 NY2d 376.) V. The statement of Marone was properly submitted to the jury. (Spampinato v A. B. C. Cons. Corp., 35 NY2d 283; Kasper v Buffalo Bills of Western N. Y., 42 AD2d 87; Letendre v Hartford Acc. & Ind. Co., 21 NY2d 518; McPherson v Buick Motor Co., 217 NY 382.) VI. The trial court properly set forth the issues to the jury in its charge. (Arroyo v Judena Taxi, 20 AD2d 888; Anchor Motor Frgt. v Shapiro, 56 AD2d 573; Green v Downs, 27 NY2d 205.) VII. The trial court’s charge on contributory negligence was wholly proper. (Kalish v Krieger, 35 NY2d 864.)
   OPINION OF THE COURT

Chief Judge Cooke.

We hold that a manufacturer of a product may not be cast in damages, either on a strict products liability or negligence cause of action, where, after the product leaves the possession and control of the manufacturer, there is a subsequent modification which substantially alters the product and is the proximate cause of plaintiffs injuries.

Plaintiff Gerald Robinson, then 17, was employed as a plastic molding machine operator by third-party defendant Plastic Jewel Parts Co. A recent arrival to New York from South Carolina where he had been an itinerant farm worker, Robinson had been employed by Plastic Jewel for approximately three weeks. On October 15, 1971, plaintiff suffered severe injuries when his hand was caught between the molds of a plastic molding machine manufactured by defendant Reed-Prentice and sold to Plastic Jewel in 1965, some six and one-half years prior to the accident.

Plaintiff commenced this action against Reed-Prentice which impleaded third-party defendant Plastic Jewel. At the close of proof, causes of action in strict products liability and negligence in the design and manufacture of the machine were submitted to the jury. A sizeable general verdict was returned in favor of plaintiff, the jury apportioning 40% of the liability against Reed-Prentice, the remainder against Plastic Jewel. On appeal, the Appellate Division reversed and ordered a new trial limited to the issue of damages unless plaintiff stipulated to a reduced verdict. Plaintiff so stipulated and the judgment, as amended and reduced, was affirmed. This court then granted Reed-Prentice and Plastic Jewel leave to appeal (CPLR 5602, subd [a], par 1, cl [ii]). We now reverse.

The plastic injection molding machine is designed to melt pelletized plastic inside a heating chamber. From the heating chamber, the liquefied plastic is forced into the mold area by means of a plunger. The mold area itself is composed of two rectangular platens on which the plastic molds are attached. One of the platens moves horizontally to open and close the mold; the other remains stationary. When the operating cycle is begun, hydraulic pressure causes the movable platen to be brought up against the stationary platen, thus forming a completed mold into which the heated plastic is pumped. After the plastic is cured, the movable platen returns to its original position, thereby permitting the operator to manually remove the finished product from its mold.

To protect the operator from the mold area, Reed-Prentice equipped the machine with a safety gate mounted on rollers and connecting interlocks in conformity with the State Industrial Code (12 NYCRR 19.34). Completely covering the mold area, the metal safety gate contained a Plexiglas window allowing the operator to monitor the molding process. Since the gate shielded the mold area, access to the platens was impossible while the machine was operating. Only when the molding sequence was completed could the operator roll the safety gate to the open position, allowing him to reach into the mold area to remove the finished product. The interlocks were connected to electrical switches which activated the hydraulic pump. When the safety gate was closed, the interlocks complete a circuit that activates the hydraulic pump, thereby causing the movable platen to close upon its stationary counterpart. When the safety gate was opened, however, this essential circuit would not be completed and hence the machine would not be activated.

After the machine was delivered by Reed-Prentice, Plastic Jewel discovered that its design did not comport with its production requirements. Plastic Jewel purchased the machine in order to mold beads directly onto a nylon cord. The cord was stored in spools at the back of the machine and fed through the mold where the beads were molded around it. After each molding cycle, the beads were pulled out of the mold and the nylon cord was reset in the mold for the next cycle. To allow the beads to be molded on a continuous line, Plastic Jewel determined that it was necessary to cut a hole of approximately 6 by 14 inches in the Plexiglas portion of the safety gate. The machine, as designed, contracted for and delivered, made no provision for such an aperture. At the end of each cycle, the now corded beads would be pulled through the opening in the gate, the nylon cord would be restrung, and the next cycle would be started by opening and then closing the safety gate without breaking the continuous line of beads. While modification of the safety gate served Plastic Jewel’s production needs, it also destroyed the practical utility of the safety features incorporated into the design of the machine for it permitted access into the molding area while the interlocking circuits were completed. Although the record is unclear on this point, plaintiff’s hand somehow went through the opening cut into the safety gate and was drawn into the molding area while the interlocks were engaged. The machine went through the molding cycle, causing plaintiff serious injury.

The record contains evidence that Reed-Prentice knew, or should have known, the particular safety gate designed for the machine made it impossible to manufacture beads on strings. During the period immediately prior to the purchase of the machine, Reed-Prentice representatives visited the Plastic Jewel plant and observed two identical machines with holes cut in the Plexiglas portion of their safety gates. At that meeting, Plastic Jewel’s plant manager discussed the problem with a Reed-Prentice salesman and asked whether a safety gate compatible with its product needs could be designed. Moreover, a letter sent by Reed-Prentice to Plastic Jewel establishes that the manufacturer knew precisely what its customer was doing to the safety gate and refused to modify its design. However, the letter pointed out that the purchaser had "completely flaunted the safeties built into this machine by removing part of the safety window”, and that it had not "held up your end of the purchase when you use the machine differently from its design” and the manufacturer stated "[a]s concerns changes, we will make none in our safety setup or design of safety gates”. At trial, plaintiffs expert indicated that there were two modifications to the safety gate which could have been made that would have made it possible to mold beads on a string without rendering the machine unreasonably dangerous. Neither of these modifications were made, or even contemplated, by Reed-Prentice.

Defendants maintain that a manufacturer may not be held to answer in damages where the purchaser of its product deliberately destroys the functional utility of that product’s safety features and, as a result of that intentional act, a third party is injured. Once a product which is not defective is injected into the stream of commerce, they argue, the responsibility of the manufacturer is at an end. Thus, having delivered to Plastic Jewel a plastic injection molding machine which was free from defect and in conformity with State promulgated safety regulations, Reed-Prentice fully discharged any legal duty it may have owed to Plastic Jewel and its employees. Plaintiff asserts that a manufacturer’s duty is tempered by principles of foreseeability. Thus, if a manufacturer knows or has reason to know that its product would be used in an unreasonably dangerous manner, for example by cutting a hole in a legally required safety guard, it may not evade responsibility by simply maintaining that the product was safe at the time of sale.

A cause of action in strict products liability lies where a manufacturer places on the market a product which has a defect that causes injury (Codling v Paglia, 32 NY2d 330, 342). As the law has developed thus far, a defect in a product may consist of one of three elements: mistake in manufacturing (Victorson v Bock Laundry Mach. Co., 37 NY2d 395; Codling v Paglia, supra), improper design (Micallef v Miehle Co., Div. of Miehle-Goss Dexter, 39 NY2d 376; Bolm v Triumph Corp., 33 NY2d 151), or by the inadequacy or absence of warnings for the use of the product (Torrogrossa v Towmotor Co., 44 NY2d 709). Plaintiff maintains that the safety gate of the molding machine was improperly designed for its intended purpose.

Where a product presents an unreasonable risk of harm, notwithstanding that it was meticulously made according to detailed plans and specifications, it is said to be defectively designed. This rule, however, is tempered by the realization that some products, for example knives, must by their very nature be dangerous in order to be functional. Thus, a defectively designed product is one which, at the time it leaves the seller’s hands, is in a condition not reasonably contemplated by the ultimate consumer and is unreasonably dangerous for its intended use; that is one whose utility does not outweigh the danger inherent in its introduction into the stream of commerce (Restatement, Torts 2d, § 402A). Design defects, then, unlike manufacturing defects, involve products made in the precise manner intended by the manufacturer (2 Frumer & Friedman, Products Liability, § 16A [4] [f] [iv]). Since no product may be completely accident proof, the ultimate question in determining whether an article is defectively designed involves a balancing of the likelihood of harm against the burden of taking precaution against that harm (Micallef v Miehle Co., supra, p 386; 2 Harper and James, Torts, § 28.4).

But no manufacturer may be automatically held liable for all accidents caused or occasioned by the use of its product (see Wade, A Conspectus of Manufacturers’ Liability for Products, 10 Ind L Rev 755, 768). While the manufacturer is under a nondelegable duty to design and produce a product that is not defective, that responsibility is gauged as of the time the product leaves the manufacturer’s hands (Restatement, Torts 2d, § 402A, Comments g, p; Hanlon v Cyril Bath Co., 541 F2d 343, 345; Santiago v Package Mach. Co., 123 111 App 2d 305, 312; Temple v Wean United, 50 Ohio St 2d 317, 322-323). Substantial modifications of a product from its original condition by a third party which render a safe product defective are not the responsibility of the manufacturer (Keet v Service Mach. Co., 472 F2d 138, 140; Hardy v Hull Corp., 446 F2d 34, 35-36; Coleman v Verson Allsteel Press Co., 64 111 App 3d 974; Ariz Rev Stat Ann, § 12-683, subd 2; RI Gen Laws, § 9-1-32; Proposed Uniform Product Liability Act, § 112, subd [D], 44 Fed Reg 62737).

At the time Reed-Prentice sold the molding machine, it was not defective. Had the machine been left intact, the safety gate and connecting interlocks would have rendered this tragic industrial accident an impossibility. On closer analysis, then, plaintiff does not seek to premise liability on any defect in the design or manufacture of the machine but on the independent, and presumably foreseeable, act of Plastic Jewel in destroying the functional utility of the safety gate. Principles of foreseeability, however, are inapposite where a third party affirmatively abuses a product by consciously bypassing built-in safety features. While it may be foreseeable that an employer will abuse a product to meet its own self-imposed production needs, responsibility for that willful choice may not fall on the manufacturer. Absent any showing that there was some defect in the design of the safety gate at the time the machine left the practical control of Reed-Prentice (and there has been none here), Reed-Prentice may not be cast in damages for strict products liability.

Nor does the record disclose any basis for a finding of negligence on the part of Reed-Prentice in the design of the machine. Well settled it is that a manufacturer is under a duty to use reasonable care in designing his product when "used in the manner for which the product was intended * * * as well as an unintended yet reasonably foreseeable use” (Micallef v Miehle, supra, pp 385-386). Many products may safely and reasonably be used for purposes other than the one for which they were specifically designed. For example, the manufacturer of a screwdriver must foresee that a consumer will use his product to pry open the lid of a can and is thus under a corresponding duty to design the shank of the product with sufficient strength to accomplish that task. In such a situation, the manufacturer is in a superior position to anticipate the reasonable use to which his product may be put and is obliged to assure that no harm will befall those who use the product in such a manner. It is the manufacturer who must bear the responsibility if its purposeful design choice presents an unreasonable danger to users. A cause of action in negligence will lie where it can be shown that a manufacturer was responsible for a defect that caused injury, and that the manufacturer could have foreseen the injury. Control of the instrumentality at the time of the accident in such a case is irrelevant since the defect arose while the product was in the possession of the manufacturer.

The manufacturer’s duty, however, does not extend to designing a product that is impossible to abuse or one whose safety features may not be circumvented. A manufacturer need not incorporate safety features into its product so as to guarantee that no harm will come to every user no matter how careless or even reckless (cf. Aetna Ins. Co. v Loveland Gas & Elec. Co., 369 F2d 648; Drazen v Otis Elevator Co., 96 RI 114). Nor must he trace his product through every link in the chain of distribution to insure that users will not adapt the product to suit their own unique purposes. The duty of a manufacturer, therefore, is not an open-ended one. It extends to the design and manufacture of a finished product which is safe at the time of sale. Material alterations at the hands of a third party which work a substantial change in the condition in which the product was sold by destroying the functional utility of a key safety feature, however foreseeable that modification may have been, are not within the ambit of a manufacturer’s responsibility. Acceptance of plaintiff’s concept of duty would expand the scope of a manufacturer’s duty beyond all reasonable bounds and would be tantamount to imposing absolute liability on manufacturers for all product-related injuries (see Henderson, Judicial Review of Manufacturers’ Conscious Design Choices: The Limits of Adjudication, 73 Col L Rev 1531).

Unfortunately, as this case bears out, it may often be that an injured party, because of the exclusivity of workers’ compensation, is barred from commencing an action against the one who exposes him to unreasonable peril by affirmatively rendering a safe product dangerous. However, that an employee may have no remedy in tort against his employer gives the courts no license to thrust upon a third-party manufacturer a duty to insure that its product will not be abused or that its safety features will be callously altered by a purchaser (cf. McLaughlin v Mine Safety Appliances Co., 11 NY2d 62, 71-72). Where the product is marketed in a condition safe for the purposes for which it is intended or could reasonably be intended, the manufacturer has satisfied its duty.

Accordingly, the judgment appealed from and the order of the Appellate Division brought up for review should be reversed, with costs, and the complaint and third-party complaint dismissed.

Fuchsberg, J.

(dissenting). The majority opinion appears to proceed on the assumption that the plaintiffs suit was based essentially on a strict products liability theory alone and, unwilling to carry the promise of Codling and Micaleff to its logical fruition, would deny plaintiff a recovery on that theory. Doing so, however, it ignores the fact that the "first cause of action” — the one pleaded first and charged first— rested on traditional common-law negligence theories, two of which at least were firmly supported by the proof and could well serve as solid foundations for the jury’s verdict.

Indeed, the proof was overwhelming that, to the knowledge of Reed-Prentice, the safety device on the machine it was selling to Plastic Jewel would be rendered completely ineffective before the machine was ever put to use. For, as sold, there was no way in which it could turn out Plastic Jewel’s product unless the hazardous hole was cut into the safety gate.

This was not the first such machine Plastic Jewel had purchased from Reed-Prentice. It was the fourth. Each of the first three had been altered in the identical fashion. Before the purchase of the fateful one, Reed-Prentice’s representative had visited the Plastic Jewel plant, where he observed the machines operating, each with the gaping hole in plain sight. In fact, the contract of sale was negotiated in Plastic Jewel’s factory in full view of the altered, earlier-purchased machines. Conclusively on this point, in a letter to Plastic Jewel, Reed-Prentice had made admissions that the majority recognizes "establishes that the manufacturer knew precisely what its customer was doing to the safety gate”. But that did not inhibit it from making the sale, at its price of $28,000 per machine.

Moreover, pathos was added by proof that Plastic Jewel had made frequent but unavailing entreaties of the manufacturer and its sales and service personnel seeking some modification of the machine that would eliminate the need for piercing the safety gate. As expert testimony revealed, the machine could easily have been made safe for the anticipated use by either of at least two simple modifications. One, at a cost of only $200, would be the installation of "dual hand controls”, which would cause the machine to stop unless both of the operator’s hands were safely occupied pressing buttons spaced widely apart. The second, at a cost of $400 to $500, would, by conversion of the horizontal gate to a vertical one, allow for the extrusion of the product without a dangerously wide aperture.

This array of facts proved the allegations that Reed-Prentice had been negligent "in selling and distributing a machine which [it] knew or should have known to be dangerous, defective and unsafe” as well as "in failing to affix proper and adequate warnings of the dangers”. The law of negligence therefore required no extension to permit a finding of liability: "[t]he risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation” is right on target (Palsgraf v Long Is. R. R. Co., 248 NY 338, 344). Put another way, "[t]he parameters of the manufacturer’s duties may be said to be whatever is foreseeable by application of due care” (Rheingold, Expanding Liability of the Product Supplier: A Primer, 2 Hofstra L Rev 521, 538).

Under these standards, it cannot be gainsaid that the risk of injury in this case was substantial and even omnipresent as long as the safety gates were known to have been rendered useless. The injury that occurred was then surely foreseeable, and, indeed, was precisely that which the safety gate itself was to have anticipated. That the accident would result in part from the purchaser’s misuse was but a factor to be weighed in ascertaining whether the harm was foreseeable and, hence, whether, given its resources and expertise, the manufacturer acted in a reasonably prudent fashion (see Finnegan v Havir Mfg. Corp., 60 NJ 413, 423; Thompson v Package Mach. Co., 22 Cal App 3d 188, 196; Byrnes v Economic Mach. Co., 41 Mich App 192; Noel, Manufacturer’s Negligence of Design or Directions for Use of a Product, 42 Tenn L Rev 11, 50, 64).

So stated, the manufacturer’s conduct may be considered culpable on either of the two negligence theories proposed by plaintiff:

The first theory sounds in "negligent entrustment”. Liability on this basis is cast upon one who places in another’s hands an instrumentality capable of doing serious harm if misused while knowing or having strong reason to believe that it will be misused to the detriment of others (Restatement, Torts 2d, § 302B, Comment e [E]; see § 390, Comment b; cf. Hogan v Comae Sales, 245 App Div 216, 218-219, affd 271 NY 562; Faller v A. Drive Auto Leasing System, 47 AD2d 530). The principle is hardly new. The situation that typically furnishes its classic illustration is that in which the defendant gives a loaded gun to a young boy who negligently points it at the plaintiff and discharges it (Dixon v Bell, 5 M & S 198 [1816]). Closer to the case today and relying on this same theory is Fredericks v General Motors Corp. (48 Mich App 580), which held that a manufacturer could be liable for injuries suffered by an employee of a small tool and die shop when the manufacturer had reason to know in advance of its entrustment of a die set to the plaintiff’s employer that the latter would use it in an unsafe manner.

In each of these instances the duty of reasonable care is breached when one passively permits a danger to be created by supplying the product to a probably negligent user; the negligence or misuse by the user is considered to be but a foreseeable intervening cause of the injury (see 2 Harper and James, Torts, § 28.2, p 1539; Prosser, Torts [4th ed], § 44, pp 272-275). By the same reasoning, then, Reed-Prentice may properly be held liable in negligence for conveying the molding machine to Plastic Jewel; the rationale applies more forcefully, in fact, because Reed-Prentice had the strongest reason to know of its customer’s intended misuse of the machine (see Smith v Hobart Mfg. Co., 302 F2d 570, 573-575; Anderson v Bushong Pontiac Co., 404 Pa 382).

The second theory propounded by plaintiff is that Reed-Prentice was negligent in failing to warn foreseeable users of the machine such as the plaintiff of the danger posed by the aperture in the safety gate. The underlying premise for liability has been stated as follows: "[0]ne who supplies a chattel for another to use for any purpose is subject to liability for physical harm caused by his failure to exercise reasonable care to give those whom he may expect to use the chattel any information as to the character and condition of the chattel which he possesses, and which he should recognize as necessary to enable them to realize the danger of using it” (Restatement, Torts 2d, § 388, Comment b; see 37 ATLA LJ 107, esp pp 113-116).

Certainly, Plastic Jewel’s misuse of the safety gate does nothing to diminish Reed-Prentice’s responsibility. Because the misuse was an open and notorious one, the manufacturer knew when it sold the machine that it could not be used for the purchaser’s purpose unless it was modified. Furthermore, it knew exactly how the machine had to be used by employees of Plastic Jewel. For this reason, it does not matter that Plastic Jewel’s misuse may have been in violation of State law (see Suchomajcz v Hummel Chem. Co., 524 F2d 19 [liability imposed on manufacturer of a component part for injuries sustained by remote users under the theory of negligent failure to warn where it supplied chemicals to fabricator of firecracker assembly kits which it knew were being sold in violation of Federal injunction]).

Nor, under the circumstances, could Reed-Prentice rest on the assumption that Plastic Jewel would convey adequate warnings to the users of the machine (see Shell Oil Co. v Gutierrez, 119 Ariz 426; First Nat. Bank v Nor-Am Agrie. Prods., 88 NM 74; Dougherty v Hooker Chem Corp., 540 F2d 174). The employer’s consistent choice of expediency over safety having already been made crystal clear, it would have been pure pollyanna to presume that the necessary safety information would filter down to those who had to work on the machine (see Restatement, Torts 2d, § 388, Comment n; 2 Harper and James, Torts, § 28.7, pp 1548-1549; cf. Bexiga v Havir Mfg. Corp., 60 NJ 402, 410-411).

Cognizant of both the danger and the continued necessity for Plastic Jewel to cut through the safety gate, and given the long-standing and on-going service relationship between manufacturer and purchaser, it turns logic and common sense upside down to say that Reed-Prentice was absolved of any duty to warn employees of the danger to which they were exposed. Nor was Reed-Prentice to be relieved of its duty to use reasonable care in bringing home the danger to users simply because the danger might appear to be an obvious one. Users of such a machine may well be unappreciative of the risk, thinking perhaps, as plaintiff’s expert attested, that the mere presence of a safety gate, even one altered to create a hole, was adequate protection, or that there were other safety devices to prevent hands from getting caught in the machine. Surely the exact nature of the risk and its more subtle aspects, including the possibility of the user’s being drawn into the machine, could well remain unperceived to the inexperienced 17-year-old plaintiff. Precisely because of such considerations, the perception of the danger by the user has generally been thought to be a jury question (Micallef v Miehle Co., Div. of Miehle-Goss Dexter, 39 NY2d 376; Bolm v Triumph Corp., 33 NY2d 151; Codling v Paglia, 32 NY2d 330; Meyer v Gehl Co., 36 NY2d 760, 763 [dissenting opn]; Merced v Auto Pak Co., 533 F2d 71; Noel, Manufacturer’s Negligence of Design or Directions for Use of a Product, 42 Tenn L Rev 11, 58, 64). The issue was therefore properly submitted at trial.

In sum, to premise liability on either a theory of negligent entrustment or negligent failure to warn is not to depart from recognized principles. And, contrary to the alarums sounded by the defendant and third-party defendant, the application of these precepts to the case here certainly cannot be said to forebode a limitless expansion of a manufacturer’s liability for product-related injuries. While, admittedly, a manufacturer is under no obligation to design "a product that is impossible to abuse or one whose safety features may not be circumvented” (pp 480-481), to uphold a jury finding that the manufacturer was negligent in the case before us would herald no such absurdly burdensome standard. Rather, liability may be reasonably circumscribed within the ambit of foreseeability, and the attachment of liability is even clearer in this instance because the manufacturer not only could have foreseen the misuse of its product but actually knew of its occurrence.

Under these circumstances, the majority’s dismissal of the complaint simply cannot be justified by that calculus for legal responsibility long professed by this court. For, "’a balancing of the likelihood of the harm, and the gravity of the harm if it happens, against the burden of the precaution which would be effective to avoid the harm’” would lead, inexorably in my opinion, to a finding of negligence (Micallef v Miehle Co., supra, p 386, quoting 2 Harper and James, Torts, § 28.4; United States v Carroll Towing Co., 159 F2d 169, 173 [Hand, J.]).

Because I conclude that the jury’s verdict was supportable on at least the negligence grounds that were submitted to it, at the very least, upon the court’s reversal of the order of the Appellate Division, a new trial should be ordered (see Clark v Board of Educ., 304 NY 488, 490; Phillipson v Ninno, 233 NY 223, 226).

Judges Jasen, Gabeielli, Jones, Wachtler and Meyer concur with Chief Judge Cooke; Judge Fuchsberg dissents and votes to affirm in a separate opinion.

Judgment appealed from and order of the Appellate Division brought up for review reversed, etc. 
      
      . The test of the manufacturer’s liability is whether the use to which the product was put was the intended one or one which by the exercise of due care was reasonably foreseeable. The anticipatable uses, therefore, will dictate the standards of safety to which the product must conform. This suggests that when the manufacturer has actual notice that the product is to be used for a specific purpose somewhat different from its general use, the manufacturer may be held responsible for taking particular safety precautions appropriate for the product’s known use, a matter the further exploration of which, in light of the determination reached by the majority, I leave for another day.
     
      
      . Epitomizing the court’s instruction in this regard was the exception taken by the defendant’s counsel to the charge that the defendant might be found negligent, if the jury were to find that "the defendant sold the machine, reasonably certain to be dangerous if put to its intended use or could be modified so as to become dangerous, and the defendant knew it”.
     
      
      . The court’s charge accurately reflected these principles: "even if the defendant complied with the [State] regulations [concerning the safety gate] completely, you may still find the defendant negligent if you find that one, it knew or had reason to anticipate that the plaintiff’s employer would modify or alter the machine to increase one of the risks of harm which the safety device was designed to prevent, and did not give adequate warning of the dangers of such alteration or did not otherwise prevent, if it could reasonably have done so, such alterations from being made after the machine left its factory and its hand.”
     