5.40D-3 Design Defect — Legal Tests of
Product Defect
(Approved 4/99)
Note to Judge
Charge either
(1) Consumer Expectations (in rare
cases only), (2)(a) Reasonable Safer
Design or (b) Risk-Utility Product
Defect Analysis. If the Consumer
Expectations charge is used, do not charge the jury on either Reasonable Safer Design or Risk-Utility Product Defect Analysis. Each theory is compatible with an inadequate
warning theory, which may also be charged.
Since Risk-Utility includes the Reasonable Safer Design element, use the
additional risk-utility factors only if the case is unusual in that it requires
one or more of these additional elements.
1. Consumer
Expectations Test
[Use this
charge for obvious defect claims only.]
[Plaintiff] claims that
the [product] was defectively
designed because it failed to perform in accordance with the consumer’s/user’s
reasonable expectations. To establish
his/her claim of design defect, [plaintiff]
must prove by the preponderance (greater weight) of the credible evidence
that:
a. The product was designed in a defective manner.
A design
defect is established by proof that the [product]
did not safely perform the job or function for which it was made, contrary to
the consumer’s/user’s reasonable expectations.
For example, a bicycle would be defective if it were designed so that
its brakes did not hold in situations where a rider would reasonably expect the
brakes to hold.[1]
In
deciding this question, you should ask yourselves “what were the intended or
foreseeable functions of the [product]? Has the plaintiff shown that the [product] did not safely fulfill its
intended or anticipated functions?”
[Presumption
of Knowledge]
In
proving a defect in the design of a [product],
[plaintiff] need not prove that [defendant manufacturer/seller] knew
that the accident in this case could happen as it did. Knowledge of the possibility of such an event
is legally placed upon the manufacturer/seller.
The question for you to decide is whether, assuming the defendant(s)
knew the accident could happen as it did, it was (they were) nevertheless
reasonably careful in the manner in which it (they) designed (marketed or sold)
the [product].[2]
But, if
the danger of the design was not knowable at the time of manufacture or sale,
or if there was no practical and technically feasible alternative design that
would have prevented the harm, the defendant [defendant’s name] cannot be found to be at fault. However, the burden of proof as to what was
known and feasible falls on defendant.
That is to say, if the defendant contends the danger was unknowable, it
must prove that contention, as I will explain when I discuss the statutory
defenses with you.
[Plaintiff] claims the [product] was designed in a defective manner because [insert a short factual description of
plaintiff’s factual contentions]. [Defendant] denies the product was
designed in a defective manner because [insert
defendant’s contentions].
If the [plaintiff] has shown by a preponderance (greater weight) of the
credible evidence that the [product]
did not fulfill its intended or foreseeable functions safely, then the [product] was designed in a defective
manner. But if the [plaintiff] fails to prove this, then the [product] was not designed in a defective manner.
Note to Judge
The
remaining elements of proof follow in subsection 4 of this charge. Statutory defenses and affirmative defenses can
be found in Charge 5.40D-4.
2. Reasonable Safer Design
Note to Judge
The defendant
manufacturer/seller, in response to the allegation that the product is unsafe
because it did not contain a particular design feature proposed by plaintiff’s
expert, will usually argue that the proposed alternative was either not
“practical” or “technically feasible” at the time of first distribution or sale.
In such a case the proper issue for the jury is whether
the product should have been designed in the alternative manner proposed by the
plaintiff. This focus requires the jury
to balance the increased safety advantages against any disadvantages of altering
the chosen design to conform to the proposed design.[3] The question for the jury is whether the
omission of the alternative design renders the product “not reasonably safe.”[4]
N.J.S.A. 2A:58C-3a(1) establishes as an
absolute defense that “(a)t the time the product left the control of the
manufacturer, there was not a practical and technically feasible alternative
design that would have prevented the harm without substantially impairing the
reasonably anticipated or intended function of the product.”
This defense,
if proven, ends the case, but, even if the state of the art permitted the use
of an alternative design, the issues still remain whether the alternative was
reasonable under the circumstances of the case and whether its absence renders
the product not reasonably safe.[5]
Plaintiff
claims that the [product] was
defectively designed because it did not employ a reasonable safer design. To establish his/her claim of design defect, [plaintiff] must prove by the greater
weight of the credible evidence that:
a. The product was designed in a defective manner.
A design
defect exists if the foreseeable risks of harm posed by the [product] could have been reduced or
avoided by the adoption of a reasonable safer design and the omission of the
alternative design renders the product not reasonably safe.
[Presumption
of Knowledge]
In
proving a defect in the design of a product, [plaintiff] need not prove that [defendant
manufacturer/seller] knew that the accident in this case could happen as it
did. Knowledge of the dangers of the
product is legally placed upon the manufacturer/seller.[6] The question for you to decide is whether,
assuming the defendant(s) knew[7] the
dangers of the product, it (they) were nevertheless reasonably careful in the
manner in which it (they) designed (marketed or sold) the [product].[8]
[Plaintiff] claims that
the [product] should have contained the following: [briefly describe reasonable safer design feature].
[Defendant] on the other
hand claims that the [product] should
not have contained the reasonable safer design because [briefly describe the
reasons for rejecting proposed reasonable safer design feature].
You are
to decide whether the safety benefits from altering the design as proposed by [plaintiff] were greater than the
resulting costs or disadvantages caused by the proposed design, including any
diminished usefulness or diminished safety.
If the failure to incorporate a practical and technically feasible safer
alternative design made the [product]
not reasonably safe, then the [product]
was designed in a defective manner.[9]
If, on
the other hand, [plaintiff] has not
proven there existed a practical and technically feasible safer alternative, or
if you find that the [product] as
designed was reasonably safe, then the [product]
was not designed in a defective manner.[10]
Note to Judge
The remaining
elements of proof, statutory defenses, and affirmative defenses follow. Be
sure to charge the other elements of a products liability claim under sections
4(a) to (d) below.
3. Risk-Utility Analysis
Note to Judge
This test of
proving a design defect has been employed since before the passage of the Product Liability Act, N.J.S.A. 2A:58C-
1, et seq. In Cepeda
v. Cumberland Engineering Co., 76 N.J.
152 (1978), overruled in part by Suter,
supra, 81 N.J. 150, the Court listed the risk-utility
factors developed by Dean John W. Wade, in his article On the Nature of Strict Tort Liability For Products, 44 Miss. L.J. 825, 837‑38 (1973). Those factors have been the core of the product
defect instructions since then. USE ONLY
THOSE FACTORS AS ARE CALLED FOR BY THE FACTS OF THE CASE BEFORE YOU.[11] See,
for example, Roberts v. Rich Foods, 139 N.J. 365, 376-377 (1994).
In Jurado v. Western Gear Works, 131 N.J. 375, 385 (1993) the Court
explained:
The decision
whether a product is defective because it is “not reasonably fit, suitable and
safe” for its intended purposes reflects a policy judgment under a Risk-Utility Analysis. O’Brien
v. Muskin Corp., supra, 94 N.J. at 181. That analysis seeks to
determine whether a particular product creates a risk of harm that outweighs
its usefulness... Risk-Utility Analysis
is especially appropriate when a product may function satisfactorily under one
set of circumstances and yet, because of a possible design defect, present an
unreasonable risk of injury to the user in other situations.
In the opinion of the drafters of
this Model Civil Charge either the Risk-Utility
Analysis charge or the Reasonable
Safer Design charge may properly be employed in a design defect case. The Reasonable
Safer Design Test has been approved in Lewis
v. American Cyanamid Co., 155 N.J.
544 (1998). However, the language of the
Reasonable Safer Design charge has
not been the subject of review by the Supreme Court of New Jersey. The two charges focus on the same principles.
Plaintiff
claims that this [product] was
designed in a defective manner. To
establish this claim plaintiff must prove the following elements by the
preponderance (greater weight) of the credible evidence that:
a. The product was designed in a defective manner.
A design
defect is established by proof that the risks or dangers of this [product] as designed outweigh its
usefulness and, therefore, that a reasonably careful manufacturer or supplier
would not have sold the [product] at
all in the form in which it was sold. A [product] may not be considered
reasonably safe unless the risks have been reduced to the greatest extent
possible consistent with the [product’s]
continued utility.
In deciding
whether the dangers of the [product]
outweigh its usefulness and, therefore that a reasonably careful [manufacturer, seller or distributor]
would not have [manufactured, sold or
distributed] the [product] at all
in the form in which it was [manufactured,
sold or distributed], you must determine whether the defendant, who is
supposed to know the harms the product would cause, acted in a reasonably
careful manner in manufacturing/selling the [product]. To reach this conclusion you must consider
and weigh the following factors:[12] [Only
those risk-utility factors that are appropriate for the jury to consider in the
particular case should be included in the charge[13].]
1) The usefulness and benefit of the [product], as it was designed, to the
user and the public as a whole. Was
there a need that this product be designed in this specific way?[14]
2) The safety aspects of the [product], that is, the likelihood or
risk that the [product] as designed
would cause injury and the probable seriousness of any injury which could have
or should have been anticipated through the use of the [product].
3) Was a substitute design for this [product] feasible and practical?
Was there available a
substitute [product] at the time of
manufacture, sale or distribution which would meet the same needs or perform
the same functions as this product without containing the alleged defect? In
other words, the existence of a more safely designed [product] diminishes the justification for using a challenged
design in either the manufacture, sale or distribution of a particular
product.
4) The ability of the [defendant(s)] to eliminate the unsafe character of the [product] without impairing its
usefulness or making it too expensive to maintain its utility.
5) The ability of foreseeable users to avoid
danger by the exercise of care in the use of the [product].[15]
6) The foreseeable user’s awareness of the
dangers inherent in the [product] and
their avoidability, because of general public knowledge of the obvious
condition of the [product], or of the
existence of suitable warnings or instructions.
In applying the risk-utility factors,
remember that a product may not be considered reasonably safe unless the risks
have been reduced to the greatest extent possible consistent with the [product’s] continued utility, that is,
without impairing its usefulness and without making it too expensive for it to
be reasonably marketable.
[Presumption
of Knowledge]
In
proving a defect in the design of a [product],
[plaintiff] need not prove that [defendant manufacturer/seller] knew
that the accident in this case could happen as it did. Knowledge of the dangers of the products is
legally placed upon the [manufacturer/seller]. The question for you to decide is whether,
assuming the defendant(s) knew the dangers of the product,[16] it was (they
were) nevertheless reasonably careful in the manner in which it (they) designed
(marketed or sold) the [product].[17]
[This may give rise to a warning defect claim and
require a charge on this point. See
N.J.S.A. 2A:58c-4.]
If the
risks or dangers of the [product]
outweigh its usefulness and therefore a reasonably careful [manufacturer/seller/supplier] would not have sold the product at
all in the form in which it was sold, then the [product] was designed in a defective manner. But, on the other hand, if the plaintiff
fails to prove this, then the [product]
was not designed in a defective manner.
4. To subsections 1, 2, or 3 above, add the following:
[Use b. only
when misuse or substantial alteration is an issue and use only applicable
portion. Note that plaintiff has the
burden of proving absence of misuse].
b. When the accident happened the product
was not being misused; or, that the [product]
had not been substantially altered in a way that was not reasonably foreseeable.[19]
[Plaintiff] must prove
that at the time of the accident the [product]
was being used properly for its intended or reasonably foreseeable purposes and
in an intended or reasonably foreseeable manner. To prove this, plaintiff must show that the [product] was not being misused in a way
that was neither intended nor was reasonably foreseeable. In this case the [defendant] contends that at the time of the accident the [product] was being misused. [Set
forth a brief factual description of this dispute.]
[Plaintiff] must also
show that when he/she used the [product],
it had not been substantially altered since it left defendant’s control. A substantial alteration is a change or
modification made to the [product]
after it was manufactured or sold which both alters the design or function of
the product and has a significant or meaningful effect on the [product’s] safety when used.[20]
In this
case the defendant contends that the [product)
was substantially altered. [Set forth a brief factual description of
this dispute.]
In
considering this issue, you must determine whether there has been a [misuse/abnormal use in purpose or manner]
or a [substantial alteration to the
product]. If you find such to exist,
you must determine whether that [misuse/abnormal
use] or [substantial alteration]
was reasonably foreseeable at the time the [product]
left the control of the [defendant(s).]
Reasonably
foreseeable does not mean that the particular [misuse/abnormal use or substantial alteration] was actually
foreseen or could have been actually foreseen by [defendant] at the time the [product]
left his/her control.
This is a test of objective
foreseeability. You may consider the
general experience within the industry as to what was known or could have been
known with exercise of reasonable diligence when the [product] was [manufactured,
sold or distributed]. Then decide
whether a reasonably careful [manufacturer,
seller or distributor] could have anticipated the [misuse/abnormal use or substantial alteration] of the [product].
If the [alteration or misuse] reasonably could
have been anticipated, and if the [substantial
alteration or misuse/abnormal use] made the [product] not reasonably safe, the defendant may be
responsible. [Plaintiff] has the burden to show that a typical [manufacturer or seller] of the [product] could foresee that the [product] would be altered or that
despite the alteration the original defect was nonetheless a cause of the
injury.[21]
[Plaintiff] has the
burden to show that a typical [manufacturer
or seller] could foresee that the [product]
would be misused for an improper purpose or in an improper manner — and that a
reasonably careful [manufacturer or
seller] should have taken steps to prevent injury from such misuses of the
product.
c. [Plaintiff] was a direct or
foreseeable user, or the kind of person who might reasonably be expected to
come into contact with the [product].[22]
d. The defect was a proximate cause of the [accident/injury].
Proximate
cause means that the design defect was a substantial factor which singly, or in
combination with another cause or causes brought about the accident. [Plaintiff]
need not prove that this same accident could have been anticipated so long as
it was foreseeable that some significant harm could result from the design
defect. If the defect does not add to the risk of the occurrence of this
accident [or if there was an independent intervening cause of the accident] and
therefore is not a contributing factor to the happening of the accident, then
plaintiff has failed to establish that the design defect was a proximate cause
of the accident.
An intervening cause is the act of an
independent agency which destroys the causal connection between the effect of
the defect in the [product] and the
accident. To be an intervening cause the
independent act must be the immediate and sole cause of the accident. In that event, liability will not be
established because the defect is not a proximate cause of the injury.
However, the [defendant] would not be relieved from liability for its defective [product] by the intervention of acts of
third persons, if those acts were reasonably foreseeable. Where the intervention of third parties is
reasonably foreseeable, then there may still be a substantial causal connection
between the [product] defect and the
accident.[23]
You must determine whether the [insert the alleged intervening cause here]
was an intervening cause that destroyed the substantial causal connection
between the defective [product] and
the accident. If it did, then the [product] defect was not a proximate
cause of the injury.
If
plaintiff has proven each element, then you must find for the plaintiff. If, on the other hand, plaintiff has failed
to prove any of the elements, then you must find for the defendant.
Source: https://njcourts.gov/attorneys/civilcharges.html
[1] See also, Mettinger v. W.W. Lowensten, 292 N.J. Super. 293 (App. Div. 1996), modified o.b., 153 N.J. 371 (1998) (Consumer Expectations Test not met where food slicing machine was
not equipped with a safety device to stop the blade from running when the blade
guard was removed in order to wipe the blade clean).
“negligence and strict liability in
warning cases may be deemed to be functional equivalents. . . . Constructive knowledge embraces knowledge
that should have been known based on information that was reasonably available
or obtainable and should have alerted a reasonably prudent person to act. Put another way, would a person of reasonable
intelligence or of the superior expertise of the defendant charged with such
knowledge conclude that defendant should have alerted the consuming public?. .
.
Further, a manufacturer is held to the standard of an expert in the
field. . . .[emphasis added]. A
manufacturer should keep abreast of scientific advances.”
See also Cepeda
v. Cumberland Engineering,
76 N.J. 152, 163 (1978):
“knowledge
of the dangerous potentiality of a machine design as reflected by the evidence
at trial is imputable to the manufacturer, and that the remaining determinative
question as to affirmative liability is whether a reasonably prudent
manufacturer with such foreknowledge would have put such a product into the
stream of commerce after considering the hazards as well as the utility of the
machine...”
[3] The Reasonable
Safer Design Test is a limited ‘risk
utility’ balancing of costs and benefits.
The seven factors devised by Dean John W. Wade in his article On the Nature of Strict Liability for
Products, 44 Miss. L.J. 825 (1973), and relied upon
by our Supreme Court, have been criticized in the Third Restatement for failing to precisely focus the jury on the
product and the proposed alternative:
In
design defect litigation, that basic issue involves the following fundamental
micro-balance question: whether the manufacturer’s failure to adopt a
particular design feature proposed by the plaintiff was, on balance, right or
wrong. David G. Owen, Toward a Proper Test for Design
Defectiveness: “Micro-balancing” Costs
and Benefits, 75 Texas
[4] Even if the proposed design is on balance
better than the chosen design, the selected design is not per se defective because, as the Restatement (Third), Section
2, Categories of Product Defect, Comment f. notes “...a number of
variations in the design of a given product may meet the test in Subsection
b.” There can be multiple reasonably
safe designs. See generally David G. Owen, Defectiveness
Restated: Exploding the “Strict” Products Liability Myth, 1996 U. Ill. L. Rev. 743, 770‑72; William A.
Dreier, The Restatement (Third) of
Torts: Products Liability and New Jersey
Law—Not Quite Perfect Together, 50
Rutgers Law Review, 2075-2076 (1998),
quoting substantial portions of comment f.
[5] The Reasonable
Safer Design charge, which takes its inspiration from the Restatement (Third) of Torts: Products Liability, has been encouraged
by the Appellate Division. See for example, Green v. General Motors, 310 N.J.
Super. 507, 517 (App. Div. 1998), certif.
denied, 156 N.J. 381 (1998):
Thus,
in determining whether the (product) was defective, a jury must determine the
risks and alternatives that should have been known to a reasonable
manufacturer, and then assess whether the manufacturer discharged its duty to
provide a “reasonably fit, suitable and safe” vehicle (fn omitted). To do this, the jury employs a risk-utility
analysis. Jurado v. Western Gear Works, supra, 131 N.J. at 385. Although there
are seven listed factors in the classical statement of the risk-utility analysis,
see Cepeda v. Cumberland Eng’g Co., Inc.,
76 N.J. 152, 174 (1978) and its
progeny, the prevalent view is that, unless one or more of the other factors
might be relevant in a particular case, the issue upon which most claims will
turn is the proof by plaintiff of a “reasonable alternative design ... the
omission ... [of which] renders the product not reasonably safe.” Restatement
(Third) of Torts: Products Liability
§ 2(b) (Proposed Final Draft, April 1, 1997).
See Lewis v. American Cyanamid,
155 N.J. 189 (1998); Congiusti v. Ingersoll-Rand Co., Inc.,
306 N.J. Super. 126, 138-39 (App.
Div. 1997); Grzanka v. Pfeifer, 301 N.J. Super. 563, 579 (App. Div.), certif. denied, 152 N.J. 189 (1997);
Smith v. Keller Ladder Co., 275 N.J. Super. 280, 283-84 (App. Div.
1994).
[7] It may be appropriate in failure to warn
cases, where the defendant maintains that it could not have warned because it
did not know of the danger, to advise the jury:
But, if
the danger of the design was not knowable at the time of manufacture or sale,
the defendant cannot be found to be at fault.
However, the burden of proof on this point falls on defendant. That is to say, if the defendant contends the
danger was unknowable, it must prove that contention, as I will explain when I
discuss the statutory defenses with you.
[8] See Feldman
v. Lederle Laboratories, 97
N.J. 429, 452 (1984):
“negligence
and strict liability in warning cases may be deemed to be functional
equivalents. . . . Constructive
knowledge embraces knowledge that should have been known based on information
that was reasonably available or obtainable and should have alerted a
reasonably prudent person to act. Put
another way, would a person of reasonable intelligence or of the superior
expertise of the defendant charged with such knowledge conclude that defendant
should have alerted the consuming public?. . . Further, a manufacturer is held
to the standard of an expert in the field. . . . [Emphasis added.] A manufacturer should keep abreast of
scientific advances.”
See also Cepeda
v. Cumberland Engineering, 76 N.J.
152, 163 (1978)
“knowledge of the dangerous potentiality of a machine
design as reflected by the evidence at trial is imputable to the manufacturer,
and that the remaining determinative question as to affirmative liability is
whether a reasonably prudent manufacturer with such foreknowledge would have
put such a product into the stream of commerce after considering the hazards as
well as the utility of the machine...”
[9] See Restatement
(Third), § 2, Reporter’s Note, comment f, Design Defect: Factors
relevant in determining whether the omission of reasonable alternative design
renders the product not reasonably safe.
2. The proposition that, in order to
determine that a design is not reasonably safe, the alternative must contribute
to greater overall safety needs no citation; it is axiomatic. If the alternative design proffered by the
plaintiff does not make the product safer, let alone if it makes it more
dangerous, such an alternative is not reasonable. In such a case, the fact that the alternative
design would have avoided injury in a specific case is of no moment.
[10] This charge’s reference to cost and benefits
may be elaborated upon by the use of additional factors specific to the product
such as productivity, aesthetics and other relevant considerations.
[11] The seventh risk-utility factor cited by our
Supreme Court, taken from Wade (see Cepeda and Roberts, both supra), may
be relevant to the court’s duty analysis, but is not part of the charge given
to the jury:
[7] The
feasibility on the part of the defendant(s) of spreading the loss by setting
the price of the product or carrying liability insurance.
See Fiorino v. Sears Roebuck &
Co., 309 N.J. Super. 556 (App.
Div. 1998).
[12] See O’Brien v.
Muskin Corp., supra, 94 N.J. at 182; Suter, supra, 81 N.J. at 172. Only those risk-utility factors that are
appropriate for the jury to consider in the particular case should be
included. Consideration should be given
whether Factors No. 5 and 6 should be charged where comparative negligence is
not a defense. There may also be some,
such as Factor No. 7, that are more appropriate for the court to consider in
its initial Risk-utility analysis. Note
that the court should not resolve issues of fact in its initial analysis. Brown, supra, 98 N.J. at
170-171. Initially, the Risk-utility
analysis is for the court, not the jury.
It is the trial court which decides whether a product is so clearly more
useful than dangerous that a decision in favor of the defendant is to be made
as a matter of law.
[13] The seventh risk-utility factor cited by our
Supreme Court, taken from Wade, (see Cepeda and Roberts, both supra) may
be relevant to the court’s duty analysis, but is not part of the charge given
to the jury:
[7] The
feasibility on the part of the defendant(s) of spreading the loss by setting
the price of the product or carrying liability insurance.
[14] Mettinger v.
W.W. Lowensten, 292 N.J. Super.
293, 307 (App. Div. 1993), modified o.b.,
153 N.J. 371 (1998) (“Risk-utility
analysis is appropriate when the product may function satisfactorily under one
set of circumstances, yet because of its design present undue risk of injury to
the user in another situation”, citing O’Brien
v. Muskin Corp., 94 N.J. 169
(1983)).
[15] This is an objective test of foreseeability
by the product designer with respect to
the class of users — not a subjective test of what the particular plaintiff
knew. See Johansen v. Makita USA, supra, 128 N.J. at 100-101:
The Risk-Utility Analysis is an objective
test that focuses on the product... Our endorsement of the risk-utility
analysis in Cepeda, supra, 76 N.J. at 172‑73, quotes with approval the
objective product-oriented explanation of that test by Dean Wade:
The
simplest and easiest way, it would seem, is to assume that the defendant knew
of the dangerous condition of the product and ask whether he was then negligent
in putting it on the market or supplying it to someone else. * * * Another way
of saying this is to ask whether the magnitude of the risk created by the
dangerous condition of the product was outweighed by the social utility
attained by putting it out in this fashion.” [Id.
at 172 (quoting Wade, supra,
44 Miss.
The
fifth factor of the Risk-Utility Analysis
requires the jury to consider the extent to which the hypothetical “average
user” of the product — not the plaintiff — could avoid injury through the use
of due care. Because the Risk-Utility Analysis is based on the
premise that a product is defective if it is dangerous when marketed, the
post-marketing conduct of one plaintiff cannot inform that determination.
Evidence of this plaintiff’s use of care in the operation of the saw was
irrelevant to the risk-utility analysis.
See also Jurado v. Western Gear Works, 131 N.J. 375, 386 (1993):
[T]he
plaintiff in a design-defect products-liability suit may succeed even if the
product was misused, as long as the misuse or alteration was objectively
foreseeable...The absence of misuse is part of the plaintiff’s case. Misuse is not an affirmative defense...Thus,
the plaintiff has the burden of showing that there was no misuse or that the
misuse was objectively foreseeable.
See also Sharpe v. Bestop, Inc. and Sears
Roebuck and Company, 314 N.J. Super.
54, 62-65 (App. Div. 1998), explaining the operation of this presumption and the
methods by which a defendant may rebut this heeding presumption.
[16] It may be appropriate in failure to warn
cases, where the defendant maintains that it could not have warned because it
did not know of the danger to advise the jury:
But, if
the danger of the design was not knowable at the time of manufacture or sale,
the defendant cannot be found to be at fault.
However, the burden of proof on this point falls on defendant. That is to say, if the defendant contends the
danger was unknowable, it must prove that contention, as I will explain when I
discuss the statutory defenses with you.
“negligence
and strict liability in warning cases may be deemed to be functional
equivalents. . . Constructive knowledge embraces knowledge that should have
been known based on information that was reasonably available or obtainable and
should have alerted a reasonably prudent person to act. Put another way, would a person of reasonable
intelligence or of the superior expertise of the defendant charged with such
knowledge conclude that defendant should have alerted the consuming public?. .
. . Further,
a manufacturer is held to the standard of an expert in the field. . . . [Emphasis
added.] A manufacturer should keep
abreast of scientific advances.”
See also Cepeda v. Cumberland Engineering,
76 N.J. 152, 163 (1978):
“knowledge
of the dangerous potentiality of a machine design as reflected by the evidence
at trial is imputable to the manufacturer, and that the remaining determinative
question as to affirmative liability is whether a reasonably prudent
manufacturer with such foreknowledge would have put such a product into the
stream of commerce after considering the hazards as well as the utility of the
machine...”
[18] This may be a threshold question. Where the issue of whether the alleged defect
existed at the time the product left the defendant’s control is genuinely in
issue, a separate jury interrogatory may be posed first, such as ‘Did the condition
which plaintiff alleges to have been defective exist at the time the product
left defendant’s control?’ ___Yes ___No.
If your answer is ‘No’, cease your deliberations and return your
verdict.
Under a
Risk-Utility Analysis, a defendant
may still be liable when a plaintiff misused the product, if the misuse was
objectively foreseeable...the absence of misuse is part of the plaintiff’s
case. Misuse is not an affirmative
defense...plaintiff has the burden of showing that there was no misuse or that
the misuse was objectively foreseeable.
The
distinction between misuse as to purpose and misuse as to manner of use must be
carefully explained to the jury:
For a
plaintiff to recover, the purpose for which the product is used at the time of
the accident must be objectively foreseeable.
When a plaintiff is injured while using the product for a purpose that
is not objectively foreseeable, the injury does not establish that the product
is defective.
The
other kind of misuse concerns the manner in which the plaintiff used the
product. When, for example, the operator
of a high-lift forklift is injured while using the forklift on steep, instead
of level, terrain, the emphasis should be on the manner, not the purpose, of
the misuse... As comment h of Restatement
(Second) of Torts at 402A states: “A product is not in a defective
condition when it is safe for normal handling or consumption.”
[20] See Soler v.
Castmaster, Div. of the H.P.M. Corp., 98 N.J. 137 (l984); Brown v. United States Stove Co., 98 N.J. 155
(l984). Note that an issue of alteration
arises only if the particular facts indicate a substantial change relating to
the safety of the product. Soler, 98 N.J. at 148. Note further that the issue of
misuse/abnormal use or substantial alteration, if present in a case, presents
considerations bearing upon proximate cause.
Id.
[22] This may be omitted if not in dispute.
[23] Navarro v.
George Koch & Sons, Inc., 211 N.J. Super. 588, 573 (App. Div. l986),
and Butler v. PPG Industries, Inc., 201 N.J. Super. 558, 564 (App. Div. l985), may be understood as
discussions of a burden of production rather than persuasion. So construed they clearly conform to Brown v. U.S. Stove, 98 N.J. 155 (l984), and prior law.
See Fabian v. Minster Mach. Co., Inc., 258 N.J. Super. 261
(at 277, footnote 5) and Johansen v.
Makita USA Inc., 128 N.J. 86 (1992).
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