*1 Ac- rehabilitation. towards on defendant’s progress formation to the affirm, right without prejudice we bnt cordingly, a re- trial to move court within days defendant R. 3:21-10 (a). change duction or sentence. Affirmed. Jacobs, Hughes, For Justices Justice affirmance —Chief Judge P ashman and Clifford
Mountain, Sullivan, COLLESTER-7.
For reversal —-None. MORACA, PLAINTIFF-RESPONDENT, AND EVE THOMAS COMPANY, MORACA, PLAINTIFF, v. FORD MOTOR LYN DELAWARE, A FENDANT-APPELLANT, STATE OF DE OF CORPORATION THE AND MERLIN MOTOR COM PANY, OF THE OF A CORPORATION STATE NEW JER SEY, DEFENDANT. February Argued 6, November 1974 Decided 1975. *2 Mr. Arthur Montano cause appellant argued Kisselman, Summers, & attor Montano (Messrs. Deighan, neys).
Mr. William J. cause for respondent Cook argued Brown, Faulk, brief; W. Warren on the (Mr. Messrs. Wille, Greene, Purnell Kulp, attorneys). Connery, was delivered Court opinion involving Sullivan, months old at six Lincoln Continental *3 de- accident, a in favor of time one car judgment verdict no cause was reversed a upon jury fendants based Division, dissenting, one on the by judge the Appellate was jury errone- charge that the trial court’s to the ground was ordered. See Moraca ous. A new trial on Co., Super. (1974). Ford Motor Because as of R. 2:2~l(a) defendants appeal right. the dissent, in the expressed We the reasons substantially affirm Division. Appellate majority opinion serious while injuries Plaintiff Thomas Moraca sustained when skidded off road his Lincoln Continental driving and sued Ford Motor Company ran into tree. Plaintiff and whom had the car purchased the Ford from he dealer system.1 a manufacturer’s defect the car’s claiming steering show a trial plaintiff only specific At attempted vehicle, mechanism also defect but steering the trial that requested charge jury court per Evelyn joined 1Plain wife Moraca also on a tiff’s suit quod during and basis. claim dismissed trial is not Her was subject appeal. of this was entitled to he verdict if evidence produced from which a jury infer might reasonably accident was caused some ear, not, whether identifiable which prior vein, existed to sale. the same plaintiff requested the further be charge liability may where established effect of the shown from to ac- total circumstances purchase cident is to raise an was adequate inference that the product defective and that such condition related to causally that occurred. mishap The trial denied both on requests court ground they included in the charge given. were The matter was submitted to the jury special interroga- tories, the asked first whether the found jury "any defect” automobile Thomas operated by plaintiff Moraca making it unfit for its intended use which was Question cause proximate of the accident. three asked whether the jury found that plaintiff Thomas Moraca was eontribu- torily negligent.
After about two hours the deliberating jury returned with the following inquiry: question question If the first is answered “no” hut we also answer “no,” circumstantially responsible
number 3 can Ford be held damages? Mr. Moraca awarded Plaintiff’s counsel renewed immediately that the his request be told that manufacturer’s can be established circumstantial evidence and that defect need be specific no identified. The court denied again charge requested *4 told instead the jury: Now, your question if is “no” Ford [the first] answer that then responsible against
is not for the accident and there can be no award you Ford; you question so if a answer 1 that have situation where automobile, “no,” is, is that was no that there your question 3, asnwer number is also “no” that * * guilty negligence *, you have Mr. Moraca was not still would responsibility part they Ford and no or no fault on the cannot be responsible. held further deliberation the returned a verdict jury
Following answer- by of no cause for action in favor of both defendents and three. “no” to numbered one ing special interrogatories Division held Appellate of the majority opinion The circum- a charge warranted the evidence case verdict a defect sufficient to support is stantial proof in- had not as given favor and that charge of plaintiff cluded We concept. agree. liability ain products in this State that is settled a specific to prove is not required injured plaintiff
case an inference that If permit defect. the proofs manufacturer’s defect, identifiable whether was caused some the accident v. Sablo is not, liability presented. issue as ff Ltd., Co., N. J. 365 In Scanlon Yamaha Motor recently Motors N. J. 582 we (1974), v. Corp., General a motor rule applied restated the circumstantial following proof vehicle and said the about defect, 592-593: pp. at the manufacturer’s existed and effective usage turing, evidence which considerations the defective condition existed addition to prior supra, operability 42 N. J. would sale,” determining responsibility direct evidence in relation to its permit Jakubowski without maintenance [177] at 184. whether inference for a prior device a Minnesota expected Basically, an inference to sale. that a are plaintiff may life Mining dangerous the most means of “other span, is age permissible important durability Manufac condition establish prior whether The real in this question plaintiff’s proofs are sufficient to invoice application circumstantial evi- dence rule. a factual essentially This is determination. Plain- tiff Thomas Moraca a 1968 purchased automobile, had model, new, on November 1967. In 1968 the February car 6,006 was returned to the dealer mile checkup. 28, 1968, happened May car at time the had 11,000 been driven about Moraca miles. had to take a business to Ocean trip City, Maryland, and decided to drive. Prior to out on starting trip he stopped his neighbor- *5 and a front station gasoline checkup hood service The him of his car. attendant told his power steering end fluid low added was and fluid to the reservoir. he uneventful until his trip that
Plaintiff testified headed south on Route Bridge Memorial crossed each direc- two lanes in with Delaware, highway a dual the scene meridian. At a 47-foot grass tion separated curved to the roadway right gradually. of the accident lane hand had rain. While driving right started to a hour, heard 45-50 miles a of about speed in the front of ear and the mechanism “gink” steering his efforts to suddenly locked and would respond plaintiff’s not road, off steer vehicle which right, skidded a a it struck across the shoulder and into field where right tree.
There was the manner of to indicate that nothing plain- vehicle, of the condition of operation roadway tiff’s or the was a factor in of the accident. Indeed happening jury found that the by any accident was not caused negli- gence evidence part plaintiff. physical the state officer was police testified vehicle left the in a and travelled in roadway side skid line without straight any whatsoever until struck turning the tree.
The totality circumstances, if plain- evidence tiff’s are proofs credited, causes tend to other negate possible of the accident and than a criti- more likely indicate that cal malfunction in the occurred. steering system
In Scanlon older a we cautioned that the product more difficult it is to a defect existed while in the prove that control of the manufacturer and that the must be evidence, such type jury, after all of the weighing would be permitted that, infer in normal experience, malfunction would not have occurred at the particular point in the product’s life had span there not been a defect at- tributable manufacturer.
4-60 situation falls within the
We conclude plaintiff’s *6 A new Lincoln Con evidence criteria. Scanlon circumstantial not in nor tinental and maintained should operated properly steering mal a critical malfunction experience develop 11,000 driven about mechanism in six months and after being infer reasonably miles. When a jury could happens defect. manufacturing that malfunction the was due to some were sufficient We plaintiff’s proofs also that conclude malfunction other of negate likely steering causes the thereby was the result of the inference that permitting at the time unreasonably which existed dangerous condition the Jakubowski vehicle left the hands. manufacturer’s 177, Minnesota N. J. 186 42 Mining Manufacturing, that We in we held that Sccmlon recognize in- had failed a matter law to establish the essential where the station wagon of strict in case gredients liability involved in old and the one car was nine months 4,000 However, had case befen driven about miles. that at odds with plaintiff’s circumstances of the accident were fault as claim of a and indicated driver jammed carburetor real cause. Indeed had told the investigat- the plaintiff of his had lost control ear police simply officer that he ing Nor while vehicle. did pass slow-moving attempting with he make mention the station anything being wrong when, later, months he visited the dealer some six wagon who sold him the car. naked claim
In these circumstances we held that plaintiff’s in- jammed asserted at trial that carburetor had uniden- sufficient to make out a case some circumstantial the proofs tified also that manufacturer’s defect. We held were likely possible insufficient the other most negate ease of the malfunction. Our instant causes holding with consistent Scanlon. quite Di- Plaintiff this Court in affirming Appellate . asks to limit retrial to issues of defendants’ vision ruling damages. Specifically, plaintiff argues him be con- found not at the first trial the jury since the is- should stand since finding negligent, tributorily and distinct. are sues separable framework of this We satisfied are full liability, separable issues and that issue are should be retried. contributory negligence, including Affirmed. man, I
Pash in result While concur only). (concurring li- reached in this majority result com- two further case, seem to me ability points require ment. Co., Ltd., v. Yamaha Motors Eirst, in Sabloff we stated: (1971), permit *7 [W]henever the facts an inference that the harmful event (whether not) product,
ensued from some defect identifiable jury, plaintiff necessarily the issue of is for the and the is explanation expert may confined to the his advance. in This rule Justice Hen implicit Erancis’s in opinion Motors, ningsen v. 32 N. 358, J. 409 (1960), Bloomfield and we continued to adhere to it. General have Scanlon v. Motors 65 582, 591 Jakubowski v. Corp., (1974); Minnesota Mining 42 N. Manufacturing, 177, J. 183-184 below would judge limit the rule dissenting Sablof to cases in which the defective “new” allegedly product of the time To this mishap. position majority below responded: perceive concept [W]e do not noticed in the to be ten- dissent contrary, opinion prolonged To able. it is our uneventful use injurious
prior legally raising to the occurrence does not bar the of totality existing an inference from the of the circumstances that the casually vehicle was defective and that such defect was related to the mishap, plaintiff identify specific nor does it mandate that a must jury question liability. in defect establish a Rather, order of strict age we feel of that the and the number of miles traversed jury, together vehicle are relevant factors to be considered existing circumstances, determining with all other whether a manu- did, proximate and facturer’s defect existed if it whether it was the 462 & Shovel Tucker v. Unit Crane cause of the vehicle’s malfunction. See 1970) ; Hawkeye- Corp., Sup. 318], (Ore. P. 2d 862 [256 Or. Ct. 473
Security Co., 672, N. W. 2d Insurance Motor Co. Ford 679- 1970). (Iowa Sup. Ct. Super. Co., (1974)]. [Moraca v. Ford Motor N. is common and experience manufacturing design immediatley defects often not reveal to the themselves do lie, A latent and of the purchaser product. may hidden, for combination of months or until years right circumstances mal- product causes it to manifest itself Sablojf function and limit the mishap. To rule “new” at the time of would mishap cripple significantly law which have motivated the policies development of products liability in this State. and
Age prior usage pi’oduct to its relationship are, course, life expected span durability important for jury considerations its evaluation the circum- stantial evidence presented by plaintiff. practice, age prior increase, usage product may in- become difficult for creasingly plaintiff persuade the jury the defect existed while the was in product the control of the manufacturer. They are, however, no more than facts to be considered by jury; are not they for grounds depriving opportunity to have the draw in- what ferences it can from all circumstantial evidence.
aOn motion proper B. 4:40-1, judgment, the trial must judge determine whether the existence of while the was under the control of the manufacturer and whether the existence of a causal relationship between the defect and the are mishap something more than mere *8 Motors, “guess speculation.” Henningsen v. Bloomfield 411; supra Jakubowski v. at Minnesota Mining Manu facturing, 182. supra at That is full the extent role his in such cases. Having made that threshold determination, he has no discretion as to whether or not to the charge jury it infer all may the elements of plaintiff’s case from circumstantial proofs. Further evaluation of plaintiff’s case is within exclusively the realm of the jury.
Second, its decision in majority the recognizes face, would, on to be appear matter its inconsistent present with its decision in the recent case of Scanlon General Motors Corp., 65 somewhat It attempts, lamely, cases. distinguish Undoubtedly Moraca has a more presented thorough carefully ease than prepared affirmative did his counterpart in Scanlon. Nevertheless, my like Brother Clif- dissenting I ford, find the cases In each indistinguishable principle. case, the suddenly, occurred under con- mishap driving good ditions, and any without driver. apparent negligence by the case, In each while plaintiff, seeking to implicate specific, defect, identified also sought rely ability jury apply its collective common sense and experience all the circumstances to determine surrounding mishap, defect, whether some some defect other than the perhaps one identified while existed was in plaintiff, product the control of the manufacturer and was the cause proximate In each and, case trial mishap. intervened judge effect, his substituted judgment judgment jury. now majority emphasizes as of decisive being impor-
tance the fact that the Scanlon initially charac- terized “loss of control” rather mishap than specifically defect. Review attributing opinion of the in Scanlon does Court not reveal that majority case any such on this rather placed importance innocuous fact. Scanlon, adhere to
I dissent in 65 N. my 601-605: passes experience on what “human tells us” why occurred, given as to ambigui- such as whatever gaps plaintiff’s ties and in a exist case. That defendant’s case is stronger plaintiff’s or, best, or that weak, case is inconclusive does justify taking jury. 604], from [65 N. J. at Insofar as decision today’s marks retreat from the ap- by this Court in proval Scanlon of intrusion by the trial *9 464 liability in of the jury into the realm
judge proper in it. insofar as it reaffirms cases, wholeheartedly join I But intrusions, disagree. such I am obliged of approval its aWith nod in the direction (dissenting). Clifford, Motors 582 Corp., (1974), of v. General Scanlon as appraises today’s holding “quite the majority generously restate our formulation effort to with that recent consistent” in doctrine. While the implication of the strict tort in fourth month of alive and robust is that Scanlon is from the reeling that decision is left life, reality its I inflicted it the Courts’ cannot upon opinion. wounds reconcile the two cases. defect.
Here, there, sought specific as prove effort, relies, he now as did plaintiff failed in that Having Scanlon, automobile on the malfunction alleged his This accident. in order to defect at the time show that the unidentified leaves him with the burden of proving con while vehicle was in the defective condition existed there, no Here, of the defendant. he introduced trol the benefit of the to that effect but seeks direct evidence or from his inference, negat from “other evidence” arising accident, condi dangerous of other causes of the ing while the defendant had control product. tion existed v. Minnesota Manufacturing, Jakubowski Mining See N. J. 177 (1964). from Scanlon instructive: following regard simple instrumentality. uncomplicated A motor vehicle is not a adjustments require periodic parts maintenance, minor and oc- Its major repairs replacements. A nine-month old station
casional or product' wagon kind miles on is not as to which with 4000 question experience tells us an such as the one in human generally existing occur the absence of a does not Relating expected span, durabil- of the manufacturer. its life hands operability age ity and maintenance effective without vehicle, prior usage hold of the Scanlon we as matter substantive circumstances of this the “other evidence” of- law that drawing any justify of an inference that fered does not existed in the hands of the manufacturer retailer. *10 equally prove It is clear that failed to defendant’s re- the negation sponsibility likely for the defect of the other most possible attempted causes of accident. He to do so means of expert product testimony of not an who had examined and response hypothetical question. properly, in to a who testified Quite hypothetical question negation contained within it asserted of possible several alternative of causes the accident which would be layman, e., properly obvious to a i. the ear not maintained and operated. assuredly possible existed, given But other causes complex product, plaintiff required nature of should been have likely focusing further to outline discount most of these in upon specific [65 defect which 599-600]. he embraced. N. J. at The vehicle here was old question six months with wear. matter If, law, miles of as a the critical 11.000 cannot inference be drawn when the automobile is nine 4,000 months old with it (the on distance travelled miles is more than a a clearly significant vehicle’s age), fortiori cannot arise plaintiff’s 11,000-mile as to Lincoln.
And if plaintiff’s effort in Scanlon to other causes negate defect fell what alleged short of is for the required reason, others, among that his failed expert to “outline and discount the most likely of these focusing [other causes] upon the specific embraced,” which he then fortiori as where, here, the experts not even any did refer to other possible causes, much them, less undertake to discount there for the nothing jury to consider. This car had travelled miles since its last checkup. dealer Whatever support 5.000 the need to power add fluid may lend to steering plain tiff’s of a theory specific mech power steering anism, suffices, it hardly either alone or taken with all the other circumstances, to take this to on the basis of plaintiff’s “other having causes of failure negated for which the defendant would not be respon * * Jakubowski, sible 42 N. J. supra, at 184. Scanlon clearly implies requirement expert success testimony ful of this presentation in the case of a in theory complex as a strumentality such motor vehicle. 65 N. 593-594. on There was none this issue in the case sub judice. ap nor sterile is not devotion to precedent inflexible I view this case. my thereof dictates plication and modification of established reappraisal recognize healthy to the end that development doctrine is required society’s ever-changing our law reflect to may response to our so reason abandon needs. Were there persuasive law, area of I would reaffirmed recently principles — nor neces rely, in that venture if to join hesitate chestnut, matter does not appear old sary, “[t]he Bram .now to me then.” appeared as it have appears me R. B., 26 L. well, s.) Andrews T. Styrap, (n. of Scanlon appear But do 1872). principles (Ex. valid four ago. Ap me now be as were months they *11 would me to reverse Appellate them here lead plying reinstate the favor of defendant- judgment Division and appellant. J.,
Mountain, joins dissenting opinion. J., P result. ashman, concurring Hughes, Jacobs, For Justice Justices affirmance(cid:127) —-Chief Sullivan, and Judge Coneord —5. Pashman
For reversal—Justices Mountain and Clieeokd — 2. JERSEY, PLAINTIFF-APPELLANT, STATE OF NEW WRIGHT, SARAH DEFENDANT-RESPONDENT. Argued January 21, January 28, 1975 Decided 1975.