Tirrell v. Navistar Intern., Inc.Tirrell v. Navistar Intern., Inc.
Plaintiff‘s theory of liability was that the manufacturer‘s failure to install a back-up signal created a design defect.1 Decedent was an oiler, a trainee in charge of maintaining a backhoe, and was working laying a gas line from Lambertville to Belle Meade. He, an operating engineer, Louis O‘Rourke, and the driver of the tractor-trailer, were directed by their supervisor to go to a site on Highway 31 near Ringoes, where an area of the pavement had settled. The backhoe to be operated by O‘Rourke and maintained by decedent had been placed on a flatbed trailer and was driven to the site. O‘Rourke and decedent drove their own cars and parked in a nearby lot. O‘Rourke and decedent were talking to the foreman in the center of the southbound lane which had been closed to traffic, when the tractor-trailer driver started to back up the rig from where it had been parked at the curb. O‘Rourke, who had not heard the tractor-trailer backing up, saw the movement out of the corner of his eye, but by then it was so close that it brushed his arm and knocked the foreman out of the way. He tried to grab decedent who was also knocked to the ground. The trailer‘s back wheels slowly rolled over decedent‘s chest. O‘Rourke called out to the driver who stopped, leaving decedent between the two sets of tires. Decedent raised his head a little and then slumped down, apparently dead.
The tractor manufacturer‘s2 staff engineer‘s deposition was read to the jury. In that deposition, he noted that there was a blind spot for the driver of the tractor when a backhoe was on the trailer. He personally made the observation and found that in such a situation the driver, despite extended side mirrors, could not see anything behind the trailer. Defendant‘s president‘s deposition was also read to the jury. Defendant understood that a function of the trailer would be to carry backhoes, yet the company did no safety tests to determine whether there would be blind spots when a driver was hauling equipment. Furthermore, defendant did not install back-up alarms without request or give advice to its customers of the existence or advisability of back-up alarms.
Plaintiff‘s expert, George F. Bowden, a registered professional engineer, testified that the only ways one could back up safely with obscured vision to the rear were either to have a flagperson giving signals or to use an audible alarm that was “not only louder than the surrounding noise, but distinctive.” There was no question that both electrical and mechanical back-up alarms had been available since the 1950‘s, would not have affected the utility of the trailer, are quite inexpensive (mechanical alarms costing approximately $35) and are easy to
Decedent, 28 1/2 years old at his death, earned approximately $35,000 per year as an oiler. O‘Rourke, however, was training decedent to be an operating engineer and was about to recommend him for such advancement. As an operator, O‘Rourke earned $24 an hour plus $9.25 per hour for benefits. With overtime he made between $65,000 and $80,000 per year, although other operating engineers made more than that. Plaintiff‘s economic expert testified that decedent had already earned $32,601 in 1986 prior to his demise. Plaintiff had testified in detail concerning the work decedent did at home and the time he spent with her and their four children, ages one, nearly four, six and seven years old at the time of their father‘s death.4 The economist factored into the loss equation the time a spouse normally spends working in the house (ten hours per
During the direct examination of plaintiff‘s expert, the attorney asked for a sidebar conference which actually was held in the empty jury room. Harold Braff, Esq., attorney for the tractor manufacturer, noticed a Newsweek magazine on the jury room table and stated to the judge and assembled attorneys, “[B]efore you go, I just wanted you to see what‘s on the table. `The selling of safety’ its a Newsweek article.” Although this was not put on the record at the time, the event was noted without objection at the new trial motion. Defendant‘s argument for a new trial based upon this event will be discussed infra.
I
The original complaint in this matter had charged defendant with negligence, strict liability, breach of warranty and gross negligence. On the first day of trial, plaintiff successfully sought to dismiss its negligence and warranty claims and proceed only on the strict liability count. Initially, counsel for defendant simply responded, “o.k.” Later, however, while arguing a motion addressed to peremptory challenges, counsel asserted opposition to the dismissal, stating that plaintiff was trying to “emasculate the defense of contributory or comparative or third-party negligence,” and simply wanted to “attempt to impair the defense in this case.” The judge adhered to his earlier ruling. Defendant‘s challenge has been reiterated in this appeal.
any claim or action brought by a claimant for harm caused by a product, irrespective of the theory underlying the claim, except actions for harm caused by breach of an express warranty.
A manufacturer or seller of a product shall be liable in a product liability action only if the claimant proves by a preponderance of the evidence that the product causing the harm was not reasonably fit, suitable or safe for its intended purpose.... (Emphasis added).
Since a product liability action encompasses ”any claim or action brought by a claimant for harm caused by a product,”
With regard to strict liability having superceded negligence under a common-law theory, in Masi v. R.A. Jones Co., 163 N.J. Super. 292, 297, 394 A.2d 888 (App.Div. 1978), this court determined that the failure to charge negligence in addition to strict liability for a design defect claim was not error. Since the strict liability claim placed a lesser burden upon a plaintiff, an adverse determination concerning strict liability obviated any possible verdict on a negligence theory.6 In any event, the Product Liability Act has now codified these common-law rules, and only a single product liability action remains.
II
Defendant next contends that decedent, who was neither responsible for nor directly concerned with the operation of the
an employee engaged at his assigned task on a plant machine, as in Bexiga [v. Havir Mfg. Corp., 60 N.J. 402, 290 A.2d 281 (1972)], has no meaningful choice. Irrespective of the rationale that the employee may have unreasonably and voluntarily encountered a known risk, we hold as a matter of policy that such an employee is not guilty of contributory negligence.
The text of the Product Liability Act itself has no direct bearing on the comparative negligence rules, except insofar as
In particular, sections 2 through 4 are not intended to affect the holding in [Suter], with respect to the application of the principle of comparative fault in cases involving workplace injuries.
Defendant finds solace in the original phraseology of Suter, which could be interpreted as limiting the employee exception to “an employee engaged at his assigned task on a plant machine.” 81 N.J. at 167, 406 A.2d 140.7 This language has given rise to at least two issues: First, is there a limitation to industrial machinery in a plant? Compare Rivera v. Westinghouse Elevator Co., 107 N.J. 256, 260-261, 526 A.2d 705
As to the first issue, by the Legislature‘s use of the term “workplace injuries,” any limitation of the Suter principle to a factory setting would now clearly be inappropriate. The Legislature‘s intention also to resolve the second issue is less clear from the text of the Act; but the Committee Statements indicate that the Legislature did not want to change the comparative fault rules of Suter. Furthermore, in Crumb, we interpreted the Suter principle:
The essence of the Suter rule is that the employee had no meaningful choice. He either worked at his assigned task or was subject to discipline or being labelled as a troublemaker.
204 N.J. Super. at 527, 499 A.2d 530. It is true that had decedent known that there was no back-up alarm on the trailer, he could have refused to work on the job. But, as we noted in Crumb, such action could subject him to disciplinary action or other adverse consequences. He had no meaningful choice.8
A positive answer to the second issue would require us to reconsider the Suter rule, an action which the court has shunned since 1979. We cannot disobey Suter‘s clear directive. Furthermore, the back-up alarm was not meant to warn an attentive worker who had already seen the trailer backing up.
Defendant also claims that trade custom showed that trailer manufacturers did not include such back-up alarms, and thus defendant had no duty to do so. This argument was effectively disposed of in Michalko v. Cooke Color & Chem. Co.:
We have repeatedly stated, however, that in this context trade custom is not dispositive of compliance with a legal duty.... A manufacturer may have a duty to install safety devices regardless of whether it was the custom of the trade for the ultimate purchaser to install them.
91 N.J. 386, 397, 451 A.2d 179 (1982) (citation omitted).
III
Defendant asserts that since decedent was neither a user nor consumer of the trailer, but merely a bystander, he may not assert a claim of strict liability. Even if decedent might be considered as other than a “user or consumer,” we reject such an interpretation of this strict liability doctrine. Restatement (Second) of Torts, § 402A (1965), caveat (1), notes that the American Law Institute “expresses no opinion as to whether the rules stated in this Section may not apply ... to harm to persons other than users or consumers....” Comment (o) to caveat (1) explains that as of 1965, courts had
not gone beyond allowing recovery to users and consumers.... Casual bystanders, and others who may come in contact with the product, as in the case
of employees of the retailer, or a passer-by injured by an exploding bottle, or a pedestrian hit by an automobile, have been denied recovery....
In Monsanto Co. v. Alden Leeds, Inc., 130 N.J. Super. 245, 263, 326 A.2d 90 (Law Div. 1974), and in Lamendola v. Mizell, 115 N.J. Super. 514, 524, 280 A.2d 241 (Law Div. 1971), the courts recognized the right of a third party other than a user or consumer to invoke the rules of strict liability. See also dictum in Suter, 81 N.J. at 171, 406 A.2d 140 (where the court, quoting from Wade, On the Nature of Strict Tort Liability for Products, 44 Miss.L.J. 825, 835 (1973), appeared to extend the doctrine to those who “came into contact with [the product] or were in the vicinity of it“).
The Product Liability Act contains an implicit recognition that one other than a user or consumer is protected by the doctrine. In the exception to the state-of-the-art defense for egregiously unsafe or ultra-hazardous products which have little or no usefulness, the Legislature stated that the defense could be avoided, inter alia, where “[t]he ordinary user or consumer of the product cannot reasonably be expected to have knowledge of the product‘s risks, or the product poses a risk of serious injury to persons other than the user or consumer.”
IV
Defendant urges that the exclusion of the OSHA regulations from evidence should have precluded an opinion by plaintiff‘s expert that the trailer should properly have been equipped
V
Defendant argues that the Newsweek article found in the jury room had the capacity to influence the verdict, and its presence should have required the trial judge to have granted a new trial.9 We have no doubt that the Newsweek article found on the jury room table, the substance of which was that manufacturers were failing to provide available safety devices,
Ordinarily, there should have been an immediate voir dire of the jurors to resolve these issues. Yet we are also moved by the fact that defense counsel during the trial requested no such voir dire, voiced no objection to the magazine remaining in the jury room, and only raised this issue once a substantial jury verdict was returned against defendant. The lack of objection by experienced counsel calls not for an analysis by us to determine whether there was plain error,
Given the potential adverse effect of the article, we have reviewed the jury verdict to see if we could discern any substantial effect from the article, if it actually had been read by jurors. First, we see no effect on the liability judgment. The risk/utility factors strongly predominated in favor of plaintiff. In fact, the defect asserted by plaintiff came close to justifying the court‘s taking the liability issue from the jury. See Johnson v. Salem Corp., 97 N.J. 78, 89, 477 A.2d 1246 (1984). The lack of a back-up alarm on a truck or trailer where rear vision is or could be expected to be obscured has certainly been recognized by the courts as a defect. See e.g., Verge v. Ford Motor Co., 581 F.2d 384 (3rd Cir.1978) (Virgin Island case, citing to New Jersey law); and cf. discussion in Mott v. Callahan Ams Mach. Co., 174 N.J. Super. 202, 207-208, 416
As noted infra, the quantum of damage awards also showed no inordinate punishment of defendant. Considering the expert proof of the present value of decedent‘s earnings, home duties, and the loss of companionship, counsel and guidance suffered by the decedent‘s family (reimbursable under Green v. Bittner, supra, 85 N.J. at 11-12, 424 A.2d 210), the damages awarded to the children and widow likewise appear to have no punitive aspect.
Under the special situation of this case and the manner in which the issue came before the court, we reject defendant‘s claim of jury taint based upon the presence of the Newsweek article.
VI
Defendant‘s final four sub-points relate to the quantum of the verdict. It claims that decedent‘s coworker, O‘Rourke, had been mistakenly permitted to testify concerning decedent‘s future earnings. Also, defendant objects to the court‘s charge concerning conscious pain and suffering; asserts that the family photographs admitted into evidence improperly influenced the jury to return an excessive verdict; and lastly, claims that the jury failed to follow the court‘s charge, and thus returned an excessive award.
A.
It is clear that O‘Rourke testified as a lay witness relating the facts surrounding the accident itself, decedent‘s job history, and his own knowledge of the pay scales relating to
B.
The issue of the award for conscious pain and suffering requires little discussion. While it is true that decedent died practically instantaneously after the truck had crushed his chest, there was testimony that he at least raised his head before he died. Defense counsel suggests that this motion was a spasmatic reaction after death, and this might be so. Yet, for some finite period the slowly-moving truck dragged decedent under its wheels and the jury was free to infer that decedent had some brief but distinct anticipation of his impending death as well as physical pain and suffering.
C.
Defendant next posits that the introduction of three family photographs showing decedent with his wife and children
D.
Lastly, defendant asserts that the $2,550,000 verdict was so against the weight of the evidence as to constitute a miscarriage of justice. Defendant notes that plaintiff‘s expert had estimated the family‘s net pecuniary loss as of the time of trial at $104,000, and the most the jury therefore could have awarded for the remainder of decedent‘s working life was $1,600,000. However, considering the work decedent did around the house and the damages for advice and companionship permitted by Green v. Bittner, supra, the $900,000 additional award, even if split equally among the widow and four children, would yield but $180,000 each for a lifetime‘s loss of a husband or father. If the jury accepted the fact that decedent would be promoted and potentially would be earning between $65,000 and $80,000 per year, the additional damages become insignificant.
We realize that the net effect of this award is that a family whose chief bread winner was earning approximately $35,000 a
Affirmed.